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Exhibit 10(xliii)
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FIFTH AMENDMENT OF LEASE
THIS FIFTH AMENDMENT OF LEASE (this "Fifth Amendment"), dated as of
December 26, 1995, between RREEF USA FUND-III, a California group trust
("Landlord"), having an office x/x Xxx XXXXX Xxxxx, Xxxx Xxxxxx 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 a portion of the basement level, first
floor, second floor, third floor, fourth floor and fifth floor (referred to in
the Original Lease collectively as the "Short-Term Space"), and a portion of
the basement level (the "Basement Premises"), second floor (the "Second Floor
Premises"), fifth floor (the "Fifth Floor Premises"), sixth floor (the "Sixth
Floor Premises"), seventh floor (the "Seventh Floor Premises"), eighth floor
(the "Eighth Floor Premises") and ninth floor (the "Ninth Floor Premises") (the
Basement Premises, the Second Floor Premises, the Fifth Floor Premises, the
Sixth Floor Premises, the Seventh Floor Premises, the Eighth Floor Premises and
the Ninth Floor Premises are referred to in the Original Lease collectively as
the "Long-Term Space"), 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, pursuant to that certain Amendment, dated August 31, 1988 (the
"First Amendment"), Landlord and Tenant modified the Original Lease to, among
other things, extend the term of the leasing of the Short-Term Space, all as
more particularly described in the First Amendment; and
WHEREAS, pursuant to that certain Second Amendment to Lease, dated
November 10, 1988 (the "Second Amendment"), Landlord and Tenant further
modified the Original Lease to, among other things, provide for the leasing of
additional space on the fifth floor of the Building (the "Additional Fifth
Floor Premises"), all as more particularly described in the Second Amendment;
and
WHEREAS, pursuant to that certain Third Amendment to Lease, dated May 10,
1989 (the "Third Amendment"), Landlord and Tenant further modified the Original
Lease to, among other things, provide for the leasing of certain space on the
basement level (the "Additional Basement Premises") and the third floor (the
"Third Floor Premises") on a month-to-month basis, all as more particularly
described in the Third Amendment; and
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WHEREAS, pursuant to that certain Fourth Amendment to Lease, dated as of
April 14, 1995, (the "Fourth Amendment"), Landlord and Tenant further modified
the Lease to, among other things, provide for (i) the surrender by Tenant to
Landlord of the Basement Premises, the Fifth Floor Premises, the Additional
Fifth Floor Premises and a portion of the Sixth Floor Premises and (ii) a
reduction in the term of the Lease, all as more particularly described in the
Fourth Amendment; and
WHEREAS, the Original Lease, as modified by the First Amendment, the
Second Amendment, the Third Amendment and the Fourth Amendment, is hereinafter
referred to as the "Lease"; and
WHEREAS, (i) Landlord and Tenant desire to extend the term of the Lease,
and (ii) Landlord and Tenant desire to make further modifications to the Lease,
in each case, all as more particularly set forth in this Fifth 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. The term "Effective Date" shall mean the date that is the
earlier of (i) December 31, 1995 and (ii) the Plan Date; provided,
however, that upon the occurrence of a default under the Lease which
continues beyond the expiration of any applicable notice and cure
period, the "Effective Date", at Landlord's election, shall be deemed
to be the date upon which such default occurred.
2. Lease Term. Effective as of the Effective Date, the term of the
Lease shall be extended until December 31, 2006 (or such earlier date
on which the term may end pursuant to any of the terms, conditions or
covenants of the Lease, as modified by this Fifth Amendment, or
pursuant to law, but subject to Tenant's right to extend the term
pursuant to Article 40 of the Lease, as modified by this Fifth
Amendment). Effective as of the Effective Date, (a) the term
"Expiration Date" shall be deemed to mean December 31, 2006 and
(b) all references to the word "term" in the Lease shall be deemed to
refer to the term of the Lease as hereby extended. Effective from
and after the Effective Date, Tenant shall continue to lease the
Premises upon all of the terms and conditions of the Lease, as
modified by this Fifth Amendment (including all of the rights and
privileges provided for Tenant under the Lease).
3. Fixed Base Rent. (a) Effective as of the Effective Date, Exhibit D
of the Lease shall be deleted in its entirety and Exhibit D annexed
hereto shall be substituted in its place.
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(b) Notwithstanding anything to the contrary contained in the Lease
or this Fifth Amendment, provided Tenant shall not be in
Material Default under any of the terms and provisions of the
Lease, as modified by this Fifth Amendment, the Fixed Base Rent
(excluding the portion of Fixed Base Rent allocable to
electricity) payable under the Lease, as modified by this Fifth
Amendment, shall be abated for the period, if any, commencing on
the Effective Date and ending on December 31, 1995; provided,
however, that upon the occurrence of (but only during the
continuance of) a Material Default by Tenant under any of the
terms and provisions of the Lease, as modified by this Fifth
Amendment, such abatement shall end.
4. Taxes. (a) Effective as of the Effective Date, (i) the section
entitled "BASE TAX YEAR" on the Reference Page of the Original Lease
shall be deleted in its entirety and the following substituted in its
place: "BASE TAX YEAR: July 1, 1995 - June 30, 1996"; (ii) clause
(c) of Section 4.01 of the Original Lease shall be amended by
deleting the clause ", which Base Tax equals $1,335,752.00"; (iii)
Section 4.05 of the Original Lease shall be deleted in its entirety
and the following substituted in its place: "4.05. If the term of
this lease with respect to the Premises shall end on a date which is
not the last day of a Tax Year, the Tax Payment for such Tax Year
allocable to the Premises shall be equitably pro-rated"; and (iv)
Section 4.07 of the Original Lease shall be deleted in its entirety.
(b) Effective as of the Effective Date, Section 4.03 of the Lease
shall be amended as follows:
(i) The first sentence of Section 4.03 shall be deleted in its
entirety and the following substituted in its place:
"(a) If the Taxes for any Tax Year during the term of this lease
shall exceed the Base Tax, Tenant shall pay for such Tax
Year an amount (herein called "Tax Payment") equal to (A)
for each Tax Year during the Tax Cap Period (as hereinafter
defined), the lesser of (x) the sum of (i) Tenant's
Proportionate Share of the excess of such Taxes over the
Base Tax plus (ii) Cumulative Deferred Taxes (as hereinafter
defined), if any, and (y) Tenant's Proportionate Share of
the excess of the Maximum Amount over the Base Tax, and (B)
for each Tax Year following the Tax Cap Period, Tenant's
Proportionate Share of the excess of such Taxes over the
Base Tax."
(ii) The following provisions shall be added to the end of
Section 4.03:
"For the purposes of this Section 4.03:
(A) The term "Deferred Taxes" shall mean (x) with respect to the
first and second Tax Years following the Base Tax Year, $0, and
(y) with respect to the third and fourth Tax Years following the
Base Tax Year, the amount by which (1) Tenant's Proportionate
Share of the excess of Taxes for such Tax Year over the Base Tax
exceeds (2) Tenant's Proportionate Share of the excess of the
Maximum Amount for such Tax Year over the Base Tax.
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(B) The term "Cumulative Deferred Taxes" shall mean, with respect to
a given Tax Year, the sum of the Deferred Taxes for all prior
Tax Years, less the amount of Cumulative Deferred Taxes
theretofore paid by Tenant as part of Tenant's Tax Payment.
(C) The term "Maximum Amount" shall mean (x) for the first Tax Year
following the Base Tax Year, the amount obtained by multiplying
the Base Tax by 104%, (y) for the second Tax Year following the
Base Tax Year, the amount obtained by multiplying 104% by the
lesser of (1) Taxes for the immediately preceding Tax Year and
(2) the Maximum Amount for the immediately preceding Tax Year,
and (z) for the third and fourth Tax Years following the Base
Tax Year, the amount obtained by multiplying 104% by the Maximum
Amount for the immediately preceding Tax Year.
(D) The term "Tax Cap Period" shall mean the period beginning on the
Effective Date and ending on June 30, 2000."
(c) Landlord and Tenant acknowledge that the Mayor's Plan for the
Revitalization of Lower Manhattan, dated December 15, 1994 (the
"Plan"), contemplates, among other matters, a real property tax
abatement applicable to certain lease renewals. Landlord and
Tenant desire to obtain such abatement in respect of the Lease,
as modified by this Fifth Amendment, to the extent practicable,
and shall reasonably cooperate with each other in (i) making
required filings with the governmental authority having
jurisdiction and (ii) modifying the Lease, as modified by this
Fifth Amendment, if necessary to qualify the Lease, as modified
by this Fifth Amendment, for such abatement, provided that in no
event shall (x) the economic terms of the Lease, as modified by
this Fifth Amendment, be modified in any respect, (y) Landlord's
rights be decreased or Landlord's obligations be increased
(except as provided in clause (i) above) or (z) the
implementation of such abatement result in a reduction in the
payments required to be made by other tenants at the Building in
respect of Taxes. In the event an abatement or reduction of
Taxes is obtained pursuant to the Plan (as enacted and
thereafter in effect from time to time) and such abatement or
reduction is thereafter terminated or reduced (unless due solely
to Landlord's acts, failure to perform any acts required under
the Plan (as enacted and thereafter in effect from time to time)
(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 10
days after demand the resulting increase in Taxes payable by
Landlord (including any retroactive increase), and all interest
and penalties relating thereto. In the event an abatement or
reduction of Taxes is obtained pursuant to the Plan (as enacted
and thereafter in effect from time to time) and such abatement
or reduction is thereafter terminated or reduced due solely to
Landlord's acts, failure to perform any acts required under the
Plan (as enacted and thereafter in effect from time to time) or
misrepresentations, Tenant's Tax Payment shall be determined as
if such abatement or reduction were not terminated or reduced as
aforesaid.
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5. Operating Expense Escalation. Effective as of the Effective Date,
Article 5 of the Lease shall be deleted in its entirety and the
following substituted in its place:
"Operating Expense Escalation.
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5.01 For purposes of this lease the following terms shall have the
following meanings:
(1) (a) The term "Expenses" shall mean the total of all the costs and
expenses (and taxes thereon, if any) incurred by Landlord with
respect to the operation and maintenance of the Building and the
property on which the Building is located (the "Property") and the
services provided to the tenants of the Building (including Tenant)
computed on an accrual basis including, without limitation, the costs
and expenses with respect to: steam, gas and any other fuel or
utilities; water rates and sewer rents; the cost of operating the
Building's cooling system, as is necessary to provide air
conditioning to the Building at all times; ventilation and heating;
electricity for areas other than those leased to individual tenants
(including electricity for air conditioning such areas) as indicated
by meter, or if there be no meter, as determined by Landlord's
electrical consultant; metal, elevator cab, lobby, plaza, sidewalk,
curb and other public area maintenance and cleaning; interior and
exterior landscaping and decoration; painting of nontenant areas;
window cleaning and cleaning of stainless steel signbands in front of
retail premises; the purchase price or rental cost, as applicable, of
all building and cleaning supplies, tools, materials, machinery and
equipment; depreciation of movable equipment used in the operation or
maintenance of the Property; fire, extended coverage, boiler and
machinery, sprinkler apparatus, public liability and property damage,
loss of rental, fidelity and plate glass insurance and any other
insurance required by the holder of any mortgage or ground lease
covering the Property or customarily carried with respect to
buildings similar to the Building; wages, salaries, bonuses,
disability benefits, hospitalization, medical, surgical, dental,
optical, psychiatric, legal, union and general welfare benefits
(including group life insurance), any pension, retirement or life
insurance plan and other benefit or similar expenses respecting
employees of the Landlord up to and including the building manager;
uniforms and working clothes for such employees and the cleaning and
replacement thereof; expenses imposed on the Landlord pursuant to law
or to any collective bargaining agreement with respect to such
employees; workmen's compensation insurance, payroll, social
security, unemployment and other similar taxes with respect to such
employees; salaries of bookkeepers and accountants; professional and
consulting fees, including legal and accounting fees incurred in the
usual
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operation of the Building; charges for independent contractors
performing work included within the definition of Expenses;
association fees or dues; telephone and stationery; building
telephone; repairs, replacements and improvements which are necessary
or appropriate for the continued operation or maintenance of the
Building as a first-class office building (provided that such
improvements shall not include improvements expanding the size of the
Building or materially changing the character of the Building) except
that where any such cost is a capital expenditure (as determined in
accordance with generally accepted accounting principles) such cost
shall be amortized, if required, in accordance with subparagraph
(b)(vi) of this Section 5.01; any assessments, dues, levies or
charges paid to any business improvement district or similar
organization or any other person on behalf of such an organization;
and management fees for the management of the Building, or if no
managing agent is employed by Landlord, a sum in lieu thereof which
is not in excess of the then prevailing rates for management fees in
lower Manhattan for first-class office buildings similar to the
Building. To the extent that Landlord manages, maintains or operates
any other buildings using employees, services or supplies from the
Building, Landlord shall make appropriate allocations of the costs
and expenses thereof between such other buildings and the Building.
(b) The following costs and expenses shall be excluded or deducted,
as the case may be, from the foregoing costs and expenses:
(i) the cost of electricity furnished to the Premises and other
space leased to tenants as measured by meters, or if there
be no meters, as determined by Landlord's electrical
consultant;
(ii) leasing commissions, brokerage fees and any other costs
incurred in connection with procuring tenants for the
Building;
(iii) salaries for Landlord's executives above the grade of
building manager;
(iv) cost of repairs or replacements incurred by reason of fire
or other casualty or condemnation to the extent to which
(A) Landlord is compensated therefor through proceeds of
insurance or condemnation awards, (B) Landlord failed to
obtain insurance against such fire or casualty, if
insurance was available against a risk of such nature at
the time of such, and such insurance was then generally
carried by owners of similar buildings in Manhattan, or (C)
Landlord is not reimbursed therefor due to the coinsurance
provisions of its insurance policies on account of
Landlord's failure to obtain a sufficient amount of
coverage against such risk (other than amounts covered by a
standard deductible);
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(v) costs which would be considered capital expenditures in
accordance with generally accepted accounting principles
for equipment or improvements other than those (A) that are
undertaken to comply with the requirements of any federal,
state or local law or governmental regulations whether
presently existing or hereafter enacted into law or
hereafter promulgated as a regulation, whether or not such
law or regulation is valid or mandatory, (B) that reduce
the expenses that otherwise would be included in Expenses
or (C) which would otherwise constitute repairs,
replacements and improvements which are necessary or
appropriate for the continued operation and maintenance of
the Building as a first-class office building, subject to
the limitations set forth in Paragraph (a) above, provided,
however, if the costs described in clauses (A) to (C) would
be amortized in accordance with generally accepted
accounting principles, then such cost shall be amortized
using straight-line amortization over the useful life of
the item, determined in accordance with generally accepted
accounting principles, together with interest at a rate per
annum equal to the prime commercial lending rate from time
to time announced by Chemical Bank (or any successor
thereto) to be in effect at its principal office in New
York, New York plus 1%, from the due date thereof until
paid, applied to the then unamortized cost of such item,
and as so amortized (including such interest factor),
included in Expenses for the Operating Year in which such
cost is incurred and subsequent Operating Years;
(vi) advertising and promotional expenditures;
(vii) Taxes;
(viii) costs for performing work or performing services for
individual tenants (including Tenant) at such tenants'
expense;
(ix) legal and other professional fees and disbursements
incurred in connection with the negotiation of the leases
or the sale or financing of the Building or the collection
of rent or eviction of other tenants in the Building for
the nonpayment of rent;
(x) the cost of any judgment, settlement or arbitration award
resulting from any tort liability;
(xi) "takeover expenses" (i.e., expenses incurred by Landlord
with respect to space located in another building of any
kind or nature in connection with the leasing of space in
the Building);
(xii) the cost of tenant installations and decorations incurred
in connection with preparing space for any tenant;
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(xiii) franchise, estate, succession, inheritance, profit, gross
receipts, capital gains, capital stock, transfer and income
taxes imposed upon Landlord or the Building or the land
upon which the Building is located (other than in respect
of electrical service);
(xiv) debt service under any Superior Mortgage on the Building
and financing and refinancing costs in respect of any
mortgage placed upon the Building and any and all other
costs incurred in obtaining or endeavoring to obtain any
such financing or refinancing;
(xv) rent payable under any Superior Lease;
(xvi) depreciation of the Building, amortization and other non-
cash charges;
(xvii) interest or penalties for late payment by Landlord
(provided Tenant shall have made all payments due Landlord
under this lease within the time period specified for
payment in this lease);
(xviii) the cost of installing, operating and maintaining any
specialty service such as an observatory, broadcasting
facilities, luncheon club, athletic and recreational club
which is not generally provided by landlords of first class
office buildings in lower Manhattan;
(xix) the cost of any special or extra heating, ventilating, air-
conditioning, janitorial or other special or extra services
provided to tenants during other than Business Hours and
which is not provided to Tenant (other than at Tenant's
direct expense);
(xx) any fee for the management of the Building to the extent
materially in excess of management fees that would be
payable to a reputable first-class management company which
is unrelated to Landlord;
(xxi) arbitration expenses incurred in connection with the
leasing of space in the Building or with prosecuting
default or eviction proceedings against tenants for
nonpayment of rent; or
(xxii) any rent, additional rent or other charge under any lease
or sublease to or assumed, directly or indirectly, by
Landlord;
(xxiii) costs incurred in performing work or furnishing services
for any tenant (including Tenant), whether at such tenant's
or Landlord's expense, to the extent that such work or
service is materially in excess of any work or service that
Landlord is obligated to furnish to Tenant at Landlord's
expense;
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(xxiv) there shall be deducted from Expenses an amount equal to
all amounts received by Landlord through proceeds of
insurance to the extent the proceeds are compensation for
Expenses which (i) previously were included in Expenses
hereunder, (ii) are included in Expenses for the Operating
Year in which the insurance proceeds are received, or (iii)
will be included as Expenses in a subsequent Operating
Year;
(xxv) costs and expenses related to or incurred in connection
with the initial construction on the land of the Building
and other improvements, whether above or below ground; and
(xxvi) any expenses related to any retail, parking or garage
facilities or space in, on or about the Building or the
land upon which the Building is located or appurtenant or
adjacent thereto which are not also related to the office
portion of the Building.
(c) In determining the amount of Expenses for the Base Operating
Year or any Operating Year thereafter, Expenses shall be
determined for such Base Operating Year or Operating Year to be
an amount equal to the like expenses which would normally be
expected to be incurred had such occupancy been ninety-five
percent (95%) throughout such Base Operating Year or Operating
Year.
(d) If Landlord is not furnishing any particular work or service
(the cost of which if performed by Landlord would constitute an
Expense) to a tenant because such tenant has undertaken to
perform such work or service itself in lieu of the performance
thereof by Landlord or because such item of work or service is
not required by such tenant or for other reasons, Expenses shall
be determined to be increased by an amount equal to the
additional Expense which reasonably would have been incurred
during such period by Landlord if it had at its own expense
furnished such work or services to such tenant.
(2) The term "Base Operating Year" shall mean the calendar year
commencing on January 1, 1995.
(3) The term "Operating Year" shall mean each calendar year which
includes any part of the term.
(4) The term "Tenant's Proportionate Share" shall mean a fraction with
the numerator equaling the number of rentable square feet in the
Premises (excluding basement storage space) and the denominator
equaling the number of rentable square feet in the Building
(excluding basement storage space and the lobby newsstand). As of
the date hereof, Tenant's Proportionate Share for each portion of the
Premises are the percentages set forth in Exhibit D hereto.
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(5) The term "Escalation Statement" shall mean a statement setting forth
the amount payable by Tenant for a specified Operating Year or Tax
Year (as defined in Article 4 hereof).
5.02 For each Operating Year commencing during the term of this Lease,
Tenant shall pay ("Tenant's Operating Payment") a sum equal to the
product obtained by multiplying (i) Tenant's Proportionate Share by
(ii) the excess of Expenses for any given Operating Year over
Expenses incurred in the Base Operating Year.
5.03 Landlord shall furnish to Tenant for each Operating Year an
escalation statement (the "Escalation Statement") (subject to
revision as hereinafter provided) setting forth Landlord's estimate
of Tenant's Operating Payment for such Operating Year. Tenant shall
pay to Landlord on the first day of each month during such Operating
Year an amount equal to one-twelfth (1/12) of Landlord's estimate of
Tenant's Operating Payment for such Operating Year. If Landlord
shall furnish such estimate for an Operating Year after the
commencement thereof, then (a) until the first day of the month
following the month in which such estimate is furnished to Tenant,
Tenant shall pay to Landlord on the first day of each month an amount
equal to the monthly sum payable by Tenant to Landlord under this
Section 5.03 for the last month of the preceding Operating Year; (b)
Landlord shall notify Tenant in the Escalation Statement containing
such estimate whether the installments of Tenant's Operating Payment
previously paid for such Operating Year were more or less than the
installments which should have been paid for such Operating Year
pursuant to such estimate and (i) if there shall be an underpayment,
Tenant shall pay the amount thereof within thirty (30) days after
being furnished with such Escalation Statement or (ii) if there shall
be an overpayment, Tenant shall be entitled to a credit in the amount
thereof against subsequent payments of Fixed Base Rent; and (c) on
the first day of the month following the month in which such estimate
is furnished to Tenant and every month thereafter for the balance of
such Operating Year, Tenant shall pay to Landlord an amount equal to
one-twelfth (1/12) of Tenant's Operating Payment as shown on such
estimate. Landlord may at any time and from time to time (but not
more often than two (2) times in any Operating Year) furnish to
Tenant an Escalation Statement setting forth Landlord's revised
estimate of Tenant's Operating Payment for a particular Operating
Year and in such case, Tenant's Operating Payment for such Operating
Year shall be adjusted and paid or credited, as applicable, in the
same manner as provided in the preceding sentence.
5.04 After the end of each Operating Year, Landlord shall submit to Tenant
an annual Escalation Statement setting forth the Expenses for the
preceding Operating Year and the balance of Tenant's Operating
Payment, if any, due to Landlord from Tenant for such Operating Year.
If such annual Escalation Statement shall show that the sums paid by
Tenant under Section 5.03 during such Operating Year exceeded
Tenant's Operating Payment for such Operating Year, Tenant shall be
entitled to a credit in the amount of such excess against subsequent
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payments under this Article 5. If such annual Escalation Statement
shall show that the sums so paid by Tenant were less than Tenant's
Operating Payment for such Operating Year, Tenant shall pay the
amount of such deficiency to Landlord within thirty (30) days after
being furnished with such annual Escalation Statement. The annual
Escalation Statements with respect to expenses shall be in reasonable
detail and shall either be (i) certified by an officer or partner of
Landlord (or of Landlord's managing agent if the Landlord is the
landlord named herein or any affiliate of the landlord named herein)
or (ii) audited or certified by accountants. Any Escalation
Statement sent to Tenant shall be conclusively binding upon Tenant
unless, within ninety (90) days after such Escalation Statement is
delivered, Tenant shall deliver notice to Landlord stating that
Tenant objects to such Escalation Statement and specifying in
reasonable detail the respects in which such Escalation Statement is
being disputed. Provided Tenant timely objects to an Escalation
Statement as aforesaid, during the 30-day period following Tenant's
delivery of the objection notice, Tenant shall have the right, upon
at least 5 days prior notice, to audit (at a location in the City of
New York designated by Landlord) Landlord's books and records
relating to the Expenses for the Operating Year to which such
Escalation Statement relates. Such audit shall be performed within
the ninety (90) day period and shall be conducted at such time or
times during normal business hours as Landlord shall reasonably
designate and shall be performed by an independent certified public
accounting firm selected by Tenant and approved by Landlord in its
reasonable judgment. Tenant shall deliver a copy of the audit report
prepared by such independent accounting firm to Landlord, and if
Landlord disputes such report, either party may submit such dispute
for expedited arbitration in accordance with the provisions of
Section 5.05. Notwithstanding the making of any objections by
Tenant, and as a condition to Tenant's right to dispute any such
Escalation Statement and to conduct such audit, Tenant shall pay to
Landlord when due the amount shown on any such Escalation Statement
as provided in this Article 5.
5.05 (a) An expedited arbitration for any dispute pursuant to Section
5.04 shall be commenced by either party by the delivery of a notice
(an "Arbitration Notice") which shall set forth the dispute to be
determined. The expedited arbitration shall be determined by a
single arbitrator who shall be a partner or member of one of the so-
called "Big Six" certified public accounting firms (or any successor
firms thereto) and who shall be jointly selected by Landlord and
Tenant within five (5) Business Days after the giving of the
Arbitration Notice. If the parties are unable to agree on an
arbitrator within such five (5) Business Day period, either party,
upon notice to the other party, may request such appointment by the
American Arbitration Association, or any successor thereto (the
"AAA"). If the AAA is unable or refuses to act within five (5)
Business Days after request for an appointment of an arbitrator is
made, then either party may apply to the Supreme Court of the State
of New York, New York County for appointment of the arbitrator.
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(b) The arbitrator designated or appointed shall be directed to
reach a decision regarding the dispute that is the subject of
the expedited arbitration within ten (10) Business Days
following the arbitrator's designation or appointment. The
expedited arbitration shall be conducted in accordance with the
then prevailing Commercial Arbitration Rules of the AAA (or any
successor rules thereto). The arbitrator's award in connection
with, or determination of, an expedited arbitration shall be
conclusive and binding on the parties, and such award or
determination may be enforced on the application of either party
by the order or judgment of a court of competent jurisdiction.
The arbitrator shall be bound by the provisions of the Lease and
shall not add to, subtract from or otherwise modify such
provisions. The fees and expenses of the arbitrator and all
other costs and expenses of the expedited arbitration shall be
borne by the parties equally, and all costs and expenses
incurred by each party in connection with such expedited
arbitration (including the reasonable fees and disbursements of
attorneys or witnesses) shall be borne by each party
respectively."
6. Termination Option. Provided Tenant shall not be in Material Default
under the terms and provisions of the Lease, as modified by this
Fifth Amendment, both at the time Tenant delivers the Termination
Notice and on the Termination Date, Tenant shall have the right (the
"Termination Right") to terminate the Lease, as modified by this
Fifth Amendment, as of June 30, 2005 (the "Termination Date").
Tenant may exercise the Termination Right only by (i) delivering
irrevocable notice thereof (the "Termination Notice") to Landlord on
or before December 31, 2003 and (ii) paying $462,837 (the
"Termination Payment") to Landlord on or prior to December 31, 2004.
Time shall be of the essence with respect to the giving of the
Termination Notice and the making of the Termination Payment. If
Tenant properly exercises the Termination Right and delivers the
Termination Payment to Landlord as aforesaid, then on the Termination
Date this Lease shall terminate and end as if such Termination Date
was the Expiration Date of the Lease, as modified by this Fifth
Amendment. Tenant shall be responsible for the payment of all taxes
and other payments (including, without limitation, transfer taxes)
required to be paid in connection with or relating to Tenant's
exercise of the Termination Right, regardless of whether such taxes
or other payments are the obligation of Landlord or Tenant. Tenant
shall indemnify and hold harmless Landlord and its partners,
directors, officers, principals, agents, shareholders, trustees,
trust beneficiaries, investment managers and employees from and
against any and all liability, damages, claims, costs or expenses
relating to the payment of any taxes or other payments required to be
paid in connection with or relating to Tenant's exercise of the
Termination Right, together with all costs, expenses and liabilities
incurred in or in connection with each such claim or action or
proceeding brought thereon, including, without limitation, all
reasonable attorneys' fees and expenses.
13
7. Option to Renew. Effective as of the Effective Date, Article 40 of
the Lease shall be deleted in its entirety and the following
substituted in its place:
"40.01. (a) Provided that Tenant is not in Material Default under this
lease, Tenant shall have the option to extend the term of this lease for
two additional periods of 5 years (each, an "Extended Term" and together,
the "Extended Terms"). Such option to extend the terms of this lease may
be exercised only as follows. With respect to the first Extended Term,
(i) in the event that Landlord delivers notice to Tenant no earlier than
December 31, 2004 and no later than June 30, 2005 that Tenant may exercise
its option pursuant to this Section 40.01, Tenant shall notify Landlord on
or before September 30, 2005 as to whether it wishes to so exercise such
option; and (ii) in the event that Landlord delivers notice to Tenant
subsequent to June 30, 2005, or fails to so deliver such notice, Tenant
shall notify Landlord on or before December 31, 2005 but no earlier than
July 1, 2005 as to whether it wishes to so exercise its option pursuant to
this Section 40.01. With respect to the second Extended Term, (i) in the
event that Landlord delivers such notice to Tenant no earlier than
December 31, 2009 and no later than June 30, 2010 that Tenant may exercise
its option pursuant to this Section 40.01, Tenant shall notify Landlord on
or before September 30, 2010 as to whether it wishes to so exercise such
option, and (ii) in the event that Landlord delivers notice to Tenant
subsequent to June 30, 2010, or fails to so deliver such notice, Tenant
shall notify Landlord on or before December 31, 2010 but no earlier than
July 1, 2010 as to whether it wishes to so exercise its option pursuant to
this Section 40.01. If Tenant fails to timely give any notice required by
this Section 40.01, Tenant's option to extend the term of this lease shall
be terminated and be deemed waived by Tenant, and of no further force and
effect and Landlord shall have the right to lease the Premises or any
portion thereof to any entity for any period commencing after the
expiration of this lease. It is expressly agreed that Tenant shall not
have an option to extend the term of this lease beyond the expiration of
the second Extended Term. If this lease shall be terminated before the
commencement of an Extended Term, Tenant's option to extend the term of
this lease, or its exercise thereof, or an Extended Term or lease created
by any such exercise, shall be abrogated and rendered null and void. In
no event shall Tenant be permitted to exercise its option for the second
Extended Term pursuant to this Section 40.01 unless it previously
exercised its option for the first Extended Term pursuant to this
Section 40.01.
(b) Upon Tenant's giving notice of its election to extend the term of
this lease for an Extended Term, pursuant to Section 40.01(a),
this lease shall be deemed automatically amended as of the date
following the Expiration Date with respect to the first Extended
Term, and as of the date following the expiration date of the
first Extended Term with respect to the Second Extended Term, as
follows: (i) the Fixed Base Rent shall be equal to 95% of the
fair market rent (excluding amounts allocable to electricity) for
the Premises for the applicable Extended Term as determined
pursuant to Section 40.02; (ii) the Expiration Date of the first
Extended Term shall be December 31, 2011 and the Expiration Date
of the second Extended Term shall be December 31, 2016; (iii) for
purposes of Article 4, the Base Tax Year shall be the Tax
14
Year commencing on July 1, 2006 and ending June 30, 2007 for the
first Extended Term and the Tax Year commencing on July 1, 2011
and ending on June 30, 2012 for the Second Extended Term; (iv)
for purposes of Article 5, the Base Operating Year shall be the
Operating Year commencing on January 1, 2007 and ending on
December 31, 2007 for the first Extended Term and the Operating
Year commencing on January 1, 2012 and ending on December 31,
2012 for the second Extended Term; (v) with respect to the first
Extended Term only, this Article 40 shall be modified to provide
for the option to extend the term of this lease for only one
additional period of 5 years and (vi) with respect to the second
Extended Term only, this Article 40 shall be deleted in its
entirety. Tenant and Landlord shall promptly execute and deliver
an appropriate modification of this lease to evidence said
Extended Terms.
40.02 (a) For purposes of this Article 40, in such instances that it is
provided that Tenant shall pay a "fair market rent" as Fixed Base
Rent, such fair market rent shall be proposed by Landlord giving
notice therefor (a "FMR Notice") not later than July 1, 2006 with
respect to the first Extended Term and not later than July 1, 2011
with respect to the second Extended Term, and shall exclude amounts
allocable to electricity.
(b) Within 15 Business Days after Landlord gives a FMR Notice, Tenant
shall notify Landlord as to whether Tenant agrees with Landlord's
proposed fair market rent, and if it does not so agree, Tenant shall
in such notice submit to Landlord its proposed fair market rent. If
Tenant fails to respond as aforesaid within said 15-Business Day
period, Tenant shall be deemed to have agreed to the fair market rent
proposed by Landlord.
(c) If Landlord and Tenant do not agree upon the fair market rent within
15 Business Days (the "Negotiation Period") after Tenant delivers its
notification to Landlord in accordance with clause (b) above, the
matter shall be submitted to arbitration in the Borough of Manhattan,
City of New York, in accordance with the Commercial Arbitration Rules
of the American Arbitration Association (or any successor
organization), subject, however, to the following modifications:
(i) Landlord and Tenant shall each within 15 Business Days after the
expiration of the Negotiation Period select an arbitrator, each
of whom shall be a licensed real estate broker with at least ten
years experience in the leasing or management of office space in
the "Downtown" office market in the Borough of Manhattan.
Landlord and Tenant shall each bear the fees and expenses of
their respective arbitrators.
15
(ii) The arbitrators shall be instructed to complete the appraisal
procedure and to submit their written determinations to Landlord
and Tenant within 30 days after their meeting. If said
arbitrators are unable to agree on the fair market rent within
such 30-day period, then (A) if the determination by the
arbitrator appointed by Landlord is less than 110% of the
determination by the arbitrator appointed by Tenant, the fair
market rent shall be the average of the two determinations or
(B) if otherwise, the arbitrators shall within 10 days after
they report their determinations appoint a third arbitrator with
similar qualifications to determine the fair market rent. In
the event the two arbitrators cannot agree as to the selection
of the third arbitrator within 15 Business Days after Landlord
and Tenant are notified of the determination of the arbitrators,
either party may request that the President of the Real Estate
Board of New York Inc. (or any successor organization) appoint
the third arbitrator. The fees of the third arbitrator shall be
borne equally by Landlord and Tenant.
(iii) The third arbitrator shall be instructed to complete
the appraisal procedure and submit a written
determination of the fair market rent to Landlord and
Tenant within 30 days after such arbitrator's
appointment;
(iv) If the difference between the two closest of the three
determinations is less than 10% of the determination
which is neither the highest nor the lowest
determination (the "Middle Determination"), the fair
market rent shall be the average of said two
determinations. Otherwise, the determination of the
third arbitrator shall be the fair market rent.
(v) In rendering such determinations, the arbitrators
shall determine the fair market rent that would be
agreed upon by Landlord and a new unrelated third
party tenant, and in connection therewith shall assume
or take into consideration as appropriate all of the
following: (A) the Landlord and prospective tenant are
typically motivated; (B) the Landlord and prospective
tenant are well informed and well advised and each is
acting in what it considers its own best interest; (C)
a reasonable time under then-existing market
conditions has been allowed for exposure of the
Premises on the open market; (D) the rent is
unaffected by concessions, special financing amounts
and/or terms, or unusual services, fees, leasing
commissions, costs or credits in connection with the
leasing transaction; (E) the Premises are fit for
immediate occupancy and use "as-is" and require no
additional work by Landlord and that no work has been
carried out thereon by the Tenant, its subtenant, or
their predecessors in interest during the term which
has diminished the rental value of the Premises; (F)
in the event the Premises have been destroyed or
damaged by fire or other casualty, they have been
fully restored; (G) the Premises are to be let with
vacant possession and subject to the provisions of
16
this lease for a 5-year term, except that the
arbitrators shall take into consideration that for
purposes of Article 4 the Base Tax Year shall be
governed by the provisions of Section 40.01(b) and
that for purposes of Article 5 the Base Operating Year
shall be governed by the provisions of
Section 40.01(b); and (H) market rents then being
charged for comparable space in other similar office
buildings in the same area. In rendering such
decision and award, the arbitrator shall not modify
the provisions of this lease.
(vi) The decision and award of the arbitrators shall be in
writing and be final and conclusive on all parties and
counterpart copies thereof shall be delivered to each
of said parties. Judgment may be had on the decision
and award of the arbitrators so rendered in any court
of competent jurisdiction.
(d) In the event that, prior to the determination of the fair market
rent for an Extended Term, any payment of Fixed Base Rent is due
hereunder, Tenant shall pay (in addition to any Additional Rent
then required to be paid by Tenant hereunder) as the Fixed Base
Rent hereunder the Fixed Base Rent specified in Landlord's FMR
Notice with respect to such Extended Term plus the amount
allocable to electricity on a "rent inclusion" basis as
determined in accordance with the provisions of this lease,
subject however to such further increases or decreases as are
provided in Article 16 hereof. If the arbitrator determines
that the Fixed Base Rent payable pursuant to this Article 40 is
less than that set forth in the FMR Notice, then Tenant shall be
entitled to a credit in the amount of its overpayment for such
period against subsequent payments of Fixed Base Rent due.
(e) After the determination of the fair market rent (excluding
amounts allocable to electricity) by the agreement of Landlord
and Tenant, as provided in Sections 40.02(a) and 40.02(b), or by
arbitration, as provided in Section 40.02(c), Fixed Base Rent
for the applicable Extended Term shall be the sum of (x) the
fair market rent as so determined, plus (y) the amount allocable
to electricity on a "rent inclusion" basis as determined in
accordance with the provisions of this lease, subject however to
such further increases or decreases as are provided in Article
16 hereof."
8. Contraction Space. (a) Provided Tenant shall not be in Material
Default under any of the terms and provisions of the Lease, as
modified by this Fifth Amendment, both (i) on the date of delivery of
the Surrender Notice (as hereinafter defined) and (ii) on the
Surrender Date (as hereinafter defined), Tenant shall have the right
(the "Surrender Right") at one time during the Term of the Lease to
surrender to Landlord up to 12,842 rentable square feet of the
Premises, in accordance with the provisions of this Section 8.
17
(b) Tenant may exercise the Surrender Right only by delivering
irrevocable notice thereof to Landlord (the "Surrender Notice")
at least 18 months prior to the date upon which Tenant shall
surrender the Surrender Premises (as hereinafter defined) to
Landlord (the "Surrender Date"), which Surrender Notice shall
specify the portion of the Premises to be surrendered (the
"Surrender Premises"). On or before the date that is 6 months
prior to the Surrender Date, Tenant shall pay to Landlord (the
"Surrender Payment") the unamortized portion allocable to the
Surrender Premises (which allocation shall be made on a rentable
square foot basis in respect of the Premises other than the
Additional Basement Space) of (i) the Tenant Allowance, (ii) the
brokerage commission paid by Landlord, (iii) the free rent
granted to Tenant and (iv) the rent differential from the
original lease term attributable to the Surrender Premises in an
amount equal to $2.00 per rentable square foot, which amounts
shall be amortized on a straight-line basis over the period
commencing on July 1, 1995 and ending on the Expiration Date
(the Surrender Payment to be deemed to be Additional Rent). If
Tenant shall fail to deliver the Surrender Notice and the
Surrender Payment in accordance with the provisions of this
Section 8, Tenant's exercise of the Surrender Right shall be
null and void and Tenant shall have no further rights under this
Section 8. Tenant shall, in the Surrender Notice (A) represent
on behalf of itself, its successors and assigns that as of the
date thereof, it shall not have not assigned, pledged or
encumbered the Lease, as modified by this Fifth Amendment, or
sublet the Surrender Premises or done or suffered any other
action as a result of which the Lease or the Surrender Premises
might be subject to any lien or encumbrance, and (B) covenant
that such representation shall also be true, correct and
accurate on the Surrender Date. If Tenant exercises the
Surrender Right as aforesaid, then on or before the Surrender
Date Tenant shall vacate the Surrender Premises and surrender
the Surrender Premises to Landlord in the condition required
pursuant to the Lease, as modified by this Fifth Amendment, as
if such date was initially set forth as the Expiration Date
applicable thereto. If Tenant fails to vacate and deliver
possession of the Surrender Premises to Landlord in the
condition required pursuant to this Section 8(b), on or before
the Surrender Date, then (X) such failure shall be a default by
Tenant under the Lease, as modified by this Fifth Amendment, and
(Y) Tenant shall be deemed to be a holdover in the Surrender
Premises and, in addition to all of Landlord's rights and
remedies set forth in the Lease, Landlord shall have the right
to exercise any of its rights and remedies at law and in equity.
Notwithstanding anything to the contrary contained herein,
Tenant shall not be permitted to exercise the Surrender Right if
the Surrender Premises shall not, in Landlord's reasonable
judgment, be marketable for lease to other tenant(s), taking
into account the size and configuration of the Surrender
Premises and its suitability for normal renting purposes. If
Landlord objects to the Surrender Premises designated by Tenant
in its Surrender Notice, Landlord shall notify Tenant within 15
18
days of its receipt of the Surrender Notice and Tenant shall
thereafter be required to designate a new portion of the
Premises as the Surrender Premises within 10 days after Landlord
gives Tenant notice of its objection, and this process shall be
repeated until Landlord no longer objects to the Surrender
Premises. The Surrender Date shall be extended to be the date
occurring 12 months after Tenant notifies Landlord of the
Surrender Premises that is ultimately acceptable as aforesaid.
(c) If Tenant properly exercises the Surrender Right as aforesaid,
then effective as of the Surrender Date, the term of the Lease
with respect to the Surrender Premises shall end and expire and
Tenant's estate in and possession of the Surrender Premises
shall terminate and be wholly extinguished with the same force
and effect as if such date was initially set forth as the
Expiration Date applicable thereto.
(d) If Tenant properly exercises the Surrender Right as aforesaid,
then effective from and after the day immediately following the
Surrender Date, (i) Tenant shall continue to lease the Premises
(other than the Surrender Premises) upon all of the terms and
conditions of the Lease, as modified by this Fourth Amendment,
(ii) the Fixed Base Rent shall be reduced by the Fixed Base Rent
attributable to the Surrender Premises as set forth on Exhibit
D, (iii) the Lease shall be deemed amended to provide that the
"Premises" and the "premises" shall no longer include the
Surrender Premises, (iv) Tenant shall be deemed to have given,
granted, assigned and surrendered unto Landlord, its successors
and assigns, all right to possession of the Surrender Premises,
(v) Tenant's Proportionate Share shall be appropriately adjusted
to reflect the surrender of the Surrender Premises, and
(vi) Landlord shall be entitled to lease the Surrender Premises
to any person or entity, or take any other action with respect
thereto, free from any claim of Tenant or any person or entity
claiming through Tenant.
(e) Tenant shall be responsible for the payment of all taxes and
other payments (including, without limitation, all transfer
taxes) required to be paid in connection with or relating to
Tenant's surrender of the Surrender Premises, regardless of
whether such taxes or other payments are the obligation of
Landlord or Tenant. Tenant shall indemnify and hold harmless
Landlord and its partners, directors, officers, principals,
agents, shareholders, trustees, trust beneficiaries, investment
managers and employees from and against any and all liability,
damages, claims, costs or expenses relating to the payment of
any taxes or other payments required to be paid in connection
with or relating to Tenant's surrender of the Surrender
Premises, together with all costs, expenses and liabilities
incurred in or in connection with each such claim or action or
proceeding brought thereon, including, without limitation, all
reasonable attorneys' fees and expenses.
19
(f) Landlord and Tenant shall, at the request of the other party,
execute an instrument confirming the terms of the surrender of
the Surrender Premises, but no such instrument shall be
necessary to make the terms hereof effective.
9. Expansion Space. Effective as of the Effective Date, Article 39 of
the Lease shall be deleted in its entirety and the following
substituted in its place:
"39.01. (a) Provided this lease is in full force and effect and no default
has occurred hereunder which is then continuing beyond applicable
notice and grace periods, Landlord shall notify Tenant if Landlord
intends to offer for lease to bona fide third parties (i) all or any
portion of the fifth floor of the Building or (ii) all or any portion
of the tenth floor of the Building (such portions of the fifth floor
and the tenth floor shall herein together be called the "Option
Space"), and Tenant shall have the irrevocable right (during the
period and in the manner specified in Section 39.01(b)) to lease the
Option Space; provided, however, such expansion option shall be
subordinated to any and all expansion options or renewal options held
by other tenants of the Building in effect on the date hereof and
affecting the Option Space. Landlord's notice to Tenant pursuant to
this Section 39.01(a) (the "Option Notice") shall specify that
portion of the Option Space that Landlord intends to lease, including
the number of rentable square feet included therein and the date such
Option Space will be available for lease (the "Option Space
Anticipated Delivery Date").
(b) If Tenant shall wish to exercise its right under this Section
39.01 to lease the Option Space, notice of such election (the
"Answer") shall be given to Landlord within a period of twenty
(20) days after the giving of the Option Notice (the "Acceptance
Period").
(c) (i) Provided (A) Tenant shall have properly delivered an Answer
in accordance with Section 39.01(b), and (B) Tenant shall on the
Option Space Effective Date (as hereinafter defined) not then be
in default under this lease beyond any applicable notice and
cure period, then on the Option Space Effective Date, the
applicable Option Space shall become and be deemed to comprise
part of the Premises as if originally included in the demise
under this lease, upon all of the terms and conditions of this
lease, except that: (I) the Fixed Base Rent shall be increased
by an amount determined pursuant to Section 39.02, (II) Tenant's
Proportionate Share shall be increased by the percentage
obtained by dividing (X) the rentable square footage of the
Option Space by (Y) 294,563, (III) if such Answer is delivered
prior to July 1, 1997, (x) Tenant shall receive an abatement of
Fixed Base Rent payable on account of such Option
20
Space for the number of days calculated by multiplying 180 by a
fraction, the numerator of which shall be the number of days in
the period commencing on the Option Space Effective Date and
ending on December 31, 2006, and the denominator of which shall
be the number of days in the period commencing on July 1, 1995
and ending on December 31, 2006, and (y) Tenant shall receive an
allowance (each, the "Supplemental Tenant Allowance") in an
amount equal to the product obtained by multiplying (A) $25.00
by (B) the rentable square footage of such Option Space by (C) a
fraction, the numerator of which shall be the number of days in
the period commencing on the Option Space Effective Date and
ending on December 31, 2006, and the denominator of which shall
be the number of days in the period commencing on the July 1,
1995 and ending on December 31, 2006 (which Supplemental Tenant
Allowance shall be paid by Landlord to Tenant following (1) the
completion of the work performed by Tenant to prepare the Option
Space for Tenant's occupancy thereof and (2) the delivery to
Landlord of evidence reasonably satisfactory to Landlord
establishing that all sums due and owing to contractors,
subcontractors and materialmen have been paid, including final
lien waivers).
(ii) The term "Option Space Effective Date" shall mean the date
upon which Landlord delivers vacant possession of the
Option Space to Tenant. Landlord shall use reasonable
efforts to deliver possession of the Option Space to Tenant
on or prior to the Option Space Anticipated Delivery Date,
including, to the extent advisable in Landlord's reasonable
business judgment so to do, the institution and prosecution
of holdover or other appropriate proceedings against any
occupant of the Option Space. If Landlord is unable to
deliver possession of the Option Space to Tenant for any
reason on or prior to the Option Space Anticipated Delivery
Date, the Option Space Effective Date with respect thereto
shall be the date on which Landlord is able to so deliver
possession, and Landlord shall not be subject to any
liability and this lease shall not be impaired under such
circumstances. Tenant hereby waives any right to rescind
this lease under the provisions of Section 223-a of the
Real Property Law of the State of New York, and agrees that
the provisions of this Article are intended to constitute
"an express provision to the contrary" within the meaning
of said Section 223-a.
(d) If an Answer shall not be timely given or if Tenant shall
notify Landlord within the Acceptance Period that Tenant
has waived its right to lease the Option Space, all rights
of Tenant under this Section 39.01 with respect to the
Option Space specified in the Option Notice shall be void
and of no further force or effect, but Tenant's rights
under this Section 39.01 with respect to any Option Space
not specified in such Option Notice shall remain in full
force and effect.
21
(e) Landlord and Tenant, at either party's request, shall
promptly execute and exchange an appropriate agreement
evidencing the leasing of any Option Space reasonably
satisfactory to both parties, but no such agreement shall
be necessary in order to make the provisions hereof
effective.
39.02. For purposes of this Article 39 the Fixed Base Rent for the Option
Space shall be determined as follows:
(a) If Tenant's Answer with respect to any Option Space is delivered
to Landlord on or prior to June 30, 1997, Fixed Base Rent
payable by Tenant for such Option Space (excluding any amounts
payable on account of electricity) shall equal (x) for the
period commencing on the commencement date of the leasing of
such Option Space and ending on March 31, 2001, the product
obtained by multiplying (A) $18.75 by (B) the rentable square
footage of such Option Space, and (y) for the period commencing
on April 1, 2001 and ending on the Expiration Date, the product
obtained by multiplying (A) $19.25 by (B) the rentable square
footage of such Option Space.
(b) If Tenant's Answer with respect to any Option Space is delivered
to Landlord after June 30, 1997, Fixed Base Rent for such Option
Space (excluding any amounts payable per account of electricity)
shall be the fair market rent determined in accordance with the
procedures set forth in Section 40.02 of this lease, for
determining fair market rent for the Extended Terms; except that
(x) Landlord shall deliver a FMR Notice to Tenant together with
the Option Notice and (y) pending the determination of the fair
market rent, Tenant shall pay as Fixed Base Rent for such Option
Space the Fixed Base Rent set forth in the FMR Notice. After
the determination of the fair market rent (excluding amounts
allocable to electricity) as herein provided, Fixed Base Rent
for such Option Space shall be the sum of (A) the fair market
rent as so determined, plus (B) the amount allocable to
electricity on a "rent inclusion" basis as determined in
accordance with the provisions of this lease, subject however to
further increases or decreases as are provided in Article 16 of
this lease."
22
10. Brokers. Tenant covenants, represents and warrants that Tenant has
had no dealings or negotiations with any broker or agent other than
Equis of New York (the "Broker") in connection with the consummation
of this Fifth 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, other than the Broker, with respect to this
Fourth 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 shall be responsible for such
compensation, commissions or charges to which Broker may be entitled
pursuant to a separate agreement between Broker and Landlord.
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
Fourth Amendment or the negotiation thereof, claimed under any
circumstances by the Broker, or claimed by any other broker or agent
if the claims by such other brokers or agents are based in whole or
part on dealing with Landlord or its representatives and not with
Tenant or its representatives.
11. No Modification. Except as specifically provided herein, nothing
contained in this Fifth 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.
12. Construction. In the event that there is any inconsistency between
the terms of this Fifth Amendment and the terms of the Lease, the
terms of this Fifth Amendment shall prevail.
13. Entire Agreement. This Fifth 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.
14. Counterparts. This Fifth 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.
23
15. This Fifth 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 Fourth
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
24
TENANT:
THE UNITED STATES LIFE INSURANCE
COMPANY IN THE CITY OF NEW YORK
ATTEST:
By: /s/ Xxxxx X. XxXxxxx By: /s/ Xxxxxxx X. Xxxx
____________________ ___________________
Name: Xxxxx X. XxXxxxx Name: Xxxxxxx X. Xxxx
Title: Assistant Secretary Title: Senior Vice President
25
EXHIBIT A
[INTENTIONALLY OMITTED]
26
EXHIBIT B
[INTENTIONALLY OMITTED]
27
EXHIBIT C
[INTENTIONALLY OMITTED]
28
EXHIBIT D
_________
Portion of Annual
Fixed Base Rent
Tenant's Fixed Base Rent Allocable to Electricity
Rentable Area Proportionate (with electricity As of the Effective Monthly Installment
Floor (Square Feet) Share included) Date of Fixed Based Rent Expiration Date
__________________________________________________________________________________________________________________________________
Basement 2,455 s.f. -- From the Effective Date $1,227.50 From the Effective Date December 31, 2006
until the Expiration until the Expiration
Date: $13,502.50 Date: $1,125.21
Six 18,540 s.f. 6.29% From the Effective Date $37,080 From the Effective Date December 31, 2006
until 3/31/01: until 3/31/01:
$384,705 $32,058.75
From 4/1/01 until the From 4/1/01 until the
Expiration Date: Expiration Date:
$393,975 $32,831.25
Seven 21,540 s.f. 7.313% From the Effective Date $43,080 From the Effective Date December 31, 2006
until 3/31/01: until 3/31/01:
$446,955 $37,246.25
From 4/1/01 until the From 4/1/01 until the
Expiration Date: Expiration Date:
$457,725 $38,143.75
29
Eight 21,540 s.f. 7.313% From the Effective Date $43,080 From the Effective Date December 31, 2006
until 3/31/01: until 3/31/01:
$446,955 $37,246.25
From 4/1/01 until the From 4/1/01 until the
Expiration Date: Expiration Date:
$457,725 $38,143.75
Nine 21,540 s.f. 7.313% From the Effective Date $43,080 From the Effective Date December 31, 2006
until 3/31/01: until 3/31/01:
$446,955 $37,246.25
From 4/1/01 until the From 4/1/01 until the
Expiration Date: Expiration Date:
$457,725 $38,143.75
Totals: 85,615 s.f. 28.233% From the Effective Date $167,547.50 From the Effective Date
until 3/31/01: until 3/31/01:
$1,739,072.50 $144,922.71
From 4/1/01 until the From 4/1/01 until the
Expiration Date: Expiration Date:
$1,780,652.50 $148,387.71
