EXHIBIT 10.61
Third Amendment of Lease
dated December 30, 1999,
between
Empire State Building Company
And
New York Skyline, Inc.
THIRD AMENDMENT OF LEASE
AGREEMENT, made as of the 30th day of December, 1999, by and between
Empire State Building Company (hereinafter referred to as "Landlord"), having an
office at 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 and New York Skyline, Inc.
(hereinafter referred to as "Tenant"), having an office at 000 Xxxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000 (this "Third Amendment").
STATEMENT OF FACTS
WHEREAS, Landlord and Tenant entered into that certain agreement of
lease made as of February 26, 1993 ("Original Lease"), which Original Lease was
subsequently modified by that certain Lease Modification Agreement dated March,
1996 covering certain premises described therein, and that certain Lease
Modification Agreement made as of February 8, 1994, true and complete copies of
which are annexed hereto collectively as Exhibit A (said lease, as modified,
hereinafter referred o as the "Lease"); and
WHEREAS, the Landlord and Tenant desire to modify the Lease as set
forth herein upon all of the terms, covenants and conditions set forth in this
Third Amendment;
NOW, THEREFORE, for ten ($10.00) dollars and other good and valuable
consideration, the receipt and adequacy of which is hereby mutually
acknowledged, Landlord and Tenant hereby agree to the following:
TERMS AND CONDITIONS
1. DEFINITIONS
For the purposes of this Third Amendment, the following
definitions shall apply:
(a) All capitalized terms not otherwise defined herein shall have the
meanings ascribed to them in the Lease.
(b) "Effective Date" shall mean February 26, 1993.
(c) The term "Base Year" shall mean the full calendar year during which the
term of this lease commences.
(d) The term "Price Index" shall mean the "Consumer Price Index" published
by the Bureau of Labor Statistics of the U.S. Department of Labor, All Items,
New York, N.Y. Northeastern, N.J. , all urban consumers (presently denominated
"CPI-U"), or a successor or substitute index appropriately adjusted.
(e) The term "Price Index for the Base Year" shall mean the average of the
monthly All Items Price Indexes for each of the 12 months of the Base Year.
2. ESCALATIONS
From and after the Effective Date, Article 46 of the Original
Lease is hereby deleted in its entirety and the following provisions are
substituted in its place:
"CONSUMER PRICE INDEX ESCALATION"
46. The fixed annual rent reserved in this lease and payable hereunder
shall be adjusted, as of the time and in the manner set forth in this Article:
(a) Effective as of each January and July subsequent to Base
Year, there shall be made a cost of living adjustment of the fixed annual rental
rate payable hereunder. The July adjustment shall be based on the percentage
difference between the Price Index for the preceding month of June and the Price
Index for the Base Year. The January adjustment shall be based on such
percentage difference between the Price Index for the preceding month of
December and the Price Index for the Base Year.
(i) In the event that Price Index for June in any calendar
year during the term of this lease reflects an increase over the price Index for
the Base year, then the fixed annual rent herein provided to be paid as of July
1st following such month of June (unchanged by any adjustments under this
Article) shall be multiplied by the percentage difference between the Price
Index for June and the Price Index for the Base Year, and the resulting sum
shall be added to such fixed annual rent, effective as of such July 1st. Said
adjusted fixed annual rent shall thereafter be payable hereunder, in equal
monthly installments, until it is readjusted pursuant to the terms of this
lease.
(ii) In the event the Price Index for December in any calendar
year during the term of this lease reflects an increase over the Price Index for
the Base Year, then the fixed annual rent herein provided to be paid as of the
January 1st following such month of December (unchanged by any adjustments under
this Article) shall be multiplied by the percentage difference between the Price
Index for December and the Price Index for the Base Year, and the resulting sum
shall be added to such fixed annual rent effective as of such January 1st. Said
adjusted fixed annual rent shall thereafter be payable hereunder, in equal
monthly installments, until it is readjusted pursuant to the terms of this
lease.
The following illustrates the intentions of the parties hereto as to
the computation of the aforementioned cost of living adjustments in the annual
rent payable hereunder:
Assuming that said fixed annual rent is $10,000, that the
Price Index for the Base Year was 102.0 and that Price Index
for the month of June in a calendar year following the Base
Year was 105.0 , then the percentage increase thus reflected,
i.e., 2.941% (3.0/102.0) would be multiplied by $10,000, and
said fixed annual rent would be increased by $294.10 effective
as of July 1st of said calendar year.
In the event that the Price Index ceases to use 1982-84=100 as the
basis of calculation, or if a substantial change is made in the terms or number
of items contained in the Price Index, then the Price Index shall be adjusted to
the figure that would have been arrived at had the manner of computing the Price
Index in effect at the date of this lease not been altered. In the event such
Price Index (or a successor or substitute index) is not available, a reliable
governmental or other non-partisan publication evaluating the information
theretofore use in determining the Price Index shall be used.
(b) Landlord will cause statements of the cost of living
adjustments provided for in subdivision (a) to be prepared in reasonable detail
and delivered to Tenant.
(c) In no event shall the fixed annual rent originally
provided to be paid under this lease (exclusive of the adjustments under this
Article) be reduced by virtue of this Article.
(d) Any delay or failure of Landlord, beyond July or January
of any year, in computing or billing for the rent adjustments herein above
provided, shall not constitute a waiver of or in any way impair the continuing
obligation of Tenant to pay such rent adjustments hereunder.
(e) Notwithstanding any expiration or termination of this
lease prior to the lease expiration date (except in the case of a cancellation
by mutual agreement) Tenant's obligation to pay rent as adjusted under this
Article shall continue and shall cover all periods up to the lease expiration
date, and shall survive any expiration or termination of this lease.
3. NO BROKERS/INDEMNIFICATION
Landlord and Tenant represent and warrant that neither
consulted or negotiated with any broker or consultant with regard to this Third
Amendment. Landlord and Tenant agree to indemnify, defend and hold one another
harmless from and against any and all claims for fees and commission from anyone
claiming to have dealt with the respective party in connection with this Third
Amendment.
4. MISCELLANEOUS
(a) Except as otherwise provided herein, all of the terms,
covenants, conditions and provisions of the Lease shall remain and continue
unmodified, in full force and effect.
(b) This Third Amendment sets forth the entire agreement
between the parties, superseding all prior agreements and understandings,
written and oral, and may not be altered or modified except by a writing signed
by both parties.
(c) The covenants and agreements herein contained shall bind
and inure to the benefit of Landlord, it successors and assigns, and Tenant, its
successors and assigns. If any of the provisions of this Third Amendment, or its
application to any situation, shall be invalid or unenforceable to any extent,
the remainder of this Third Amendment, or the application thereof to situations
other than that as to which it is invalid or unenforceable, shall not be
affected thereby, and every provision of this Third Amendment shall be valid and
enforceable to the fullest extent permitted by law.
(d) The captions of this Third Amendment are for convenience
and reference only and no way define, limit or describe the scope or intent of
this Third Amendment.
IN WITNESS WHEREOF, Landlord and Tenant have duly executed this Third
Amendment as of the day and year first above written.
EMPIRE STATE BUILDING COMPANY
By: /s/ Xxxx X. Xxxxxxx, Xx.
------------------------
Xxxx X. Xxxxxxx, Xx.
Senior Vice President
NEW YORK SKYLINE, INC.
By: /s/ Xxxxxx Xxxxxxx
Xxxxxx Xxxxxxx
President
EXHIBIT A
CONTAINS:
ORIGINAL LEASE
DATED FEBRUARY 26, 0000,
XXXXXXX
XXXXXX XXXXX XXXXXXXX XXXXXXX
XXX
XXX XXXX SKYLINE, INC.
CONCERNING OFFICES AT
000 XXXXX XXXXXX, XXX XXXX, XXX XXXX 00000,
LEASE MODIFICATION AGREEMENT
DATED MARCH, 1996,
LEASE MODIFICATION AGREEMENT
DATED FEBRUARY 8, 1998,
AND
THIRD AMENDMENT OF LEASE
DATED DECEMBER 30, 1999
