FOURTH LEASE MODIFICATION AGREEMENT
THIS FOURTH LEASE MODIFICATION AGREEMENT, made this 18th day of June, 1996
by and between XXXXX MOUNTAIN DEVELOPMENT CORP., a New Jersey corporation,
having an office at 000 Xxxxx Xxxxx, Xxxxxxxx, Xxx Xxxxxx 00000 (hereinafter
referred to as "Landlord") and ALLIANCE CAPITAL MANAGEMENT L.P., having an
office at 000 Xxxxx Xxxxx, Xxxxxxxx, Xxx Xxxxxx 00000 (hereinafter referred to
as "Tenant").
WITNESSETH:
WHEREAS, by Agreement of Lease dated September 16, 1986, as amended
December 9, 1986, May 23, 1994 and June 9,1994 (herein referred to collectively
as the "Lease") , Landlord leased to Alliance Capital Management Corporation and
Alliance Capital Management Corporation hired from Landlord approximately 67,392
square feet of Floor Space (the 'Original Demised Premises") located on the
third (3rd) floor of the Building known as 000 Xxxxx Xxxxx, Xxxxxxxx, Xxx Xxxxxx
and an additional 11,992 square feet of Floor Space (the "Additional Premises")
in other areas of the Building (the Original Demised Premises and the Additional
Demised Premises, together with any other space leased pursuant to the terms
hereof, shall collectively be referred to as the "Demised Premises"); and
WHEREAS, by Assignment of Lease dated April 29, 1988, Alliance Capital
Management Corporation assigned the Lease to Tenant; and
WHEREAS, the Lease is currently scheduled to expire on October 31, 2002
(the "Old Expiration Date"); and
WHEREAS, Landlord and Tenant wish to extend the Term of the Lease, reduce
the Floor Space of the Demised Premises and amend the Lease accordingly;
NOW, THEREFORE, for and in consideration of the Lease, the mutual covenants
herein contained and the consideration set forth herein, the parties agree as
follows:
1. A. EXTENDED PERIOD:. The Term of the Lease is hereby extended for a
period of approximately fourteen years, from November 1, 2002 until December 31,
2016 (the "Expiration Date"), which period is hereinafter defined as the
"Extended Period").
B. ADA COMPLIANCE: To the extent required by any governmental authority
having jurisdiction over the Demised Premises, Landlord agrees to correct any
violations of the American with Disabilities Act 42 USCA 12101-12213, to the
extent any such violations arise out of conditions existing on the date hereof,
provided that Landlord shall not be responsible for any violations having arisen
as a result of changes to the Demised Premises performed by Tenant, nor shall
Landlord be responsible hereunder with respect to the Additional Premises unless
Tenant exercises its right to remain in occupancy thereof pursuant to Section
7.A. (6) and (7) hereof.
2. FIXED RENT: Fixed Rent during the period from and after June 16, 1997
shall be as follows: From June 16, 1997 until June 15, 2002, at an annual rate
of Nineteen and 00/100 Dollars ($19.00) per square foot multiplied by the Floor
Space of the Demised Premises; from June 16, 2002 until June 15, 2007, at an
annual rate of Twenty-one and 00/100 Dollars ($21.00) per square foot multiplied
by the Floor Space of the Demised Premises; from June 16, 2007 until June 15,
2012, at an annual rate of Twenty-four and 00/100 ($24.00) per square foot
multiplied by the Floor Space of the Demised Premises; and from June 16, 2012
until the Expiration Date, at an annual rate of Twenty-eight and 00/100 ($28.00)
per square foot multiplied by the Floor Space of the Demised Premises.
3. BASE YEAR: For purposes of calculating Real Estate Taxes and Operating
Expenses on the Demised Premises during the period from and after June 16, 1997,
the Base Year shall be the twelve
month period of June 16, 1997 through June 15, 1998.
4. SURRENDER: Tenant's leasing of the Additional Premises, which is referred
to as Unit A and Unit B in the prior lease modifications, shall terminate on
June 15, 1997, subject to Tenant's rights in Section 7 below. Tenant agrees to
vacate and surrender the Additional Premises on or before June 15, 1997 in
accordance with the surrender provisions of Article 26 of the Lease.
5. TENANTS FRACTION: Effective the later to occur of June 16, 1997 or the
date Tenant surrenders the Additional Premises in accordance with the surrender
provisions contained in Article 26 of the Lease, the Tenant's Fraction shall be
reduced to 15.12% and Tenant shall cease paying Rent on the Additional Premises.
6. TENANT'S RIGHT TO CANCEL: Tenant shall have the right, upon written notice
to Landlord (the "Termination Notice"), to terminate the leasing of all or any
part of the Demised Premises without penalty, effective as of June 15, 2007
and/or June 15, 2012. Any such Termination Notice shall be given to Landlord
not less than nine months prior to the date upon which such termination is to be
effective and shall, notwithstanding the foregoing, be for not less than all of
the space leased by Tenant on the floor(s) on which Tenant desires to exercise
such right to cancel, provided that in the event Tenant desires to terminate its
leasing of space which is separate from and not contiguous with other space on
the same floor, Tenant may do so, provided it terminates all contiguous space.
7. EXPANSION OPTIONS:
A. Landlord agrees, subject to existing and future renewals or extensions
of existing leases and the rights, if any, of the other, tenants in
the Building, that Tenant shall have the right to lease any one or
more of the following five locations in the Building upon and subject
to the conditions contained below:
1. Approximately 22,700 square feet occupied by Xxxx Travel Group,
located
on the second floor, with a termination date of March 31, 1997.
2. Approximately 7,000 square feet occupied by Xxxx Xxxxxx Xxxxxxxx
on the second floor, with a termination date of April 30, 1998.
3. Approximately 10,000 square feet occupied by Xxxxxxxx Xxxxxxxxxx
located on the second floor, with a termination date of April 30,
1999.
4. Approximately 9,400 square feet occupied by Rockwell
International located on the second floor, with a termination
date of July 31, 1999.
5. Approximately 38,000 square feet located on the seventh floor,
now occupied by National Electric Information Corp. with a
termination date of June 30, 1997.
6. Approximately 7,300 square feet occupied by Tenant located on the
second floor, with a termination date of June 15, 1997.
7. Approximately 4,600 square feet occupied by Tenant located on the
second floor, with a termination date of June 15, 1997.
For purposes hereof, including calculating Fixed Rent and Tenant's
Fraction, all square footage shall be measured and determined in
accordance with the terms of the Lease. Any failure on the part of
Tenant to exercise any one of the options set forth above shall not
prevent Tenant from exercising any of the subsequent options provided
for above.
B. The leasing of such additional space shall be for a term co-terminus
with the leasing of the Demised Premises. The Fixed Rent shall be at
the same rate as the Fixed Rent on the Demised Premises. The
Additional Charges and the Base Year utilized for calculating the Real
Estate Taxes and Operating Expenses shall be the same as
provided herein with respect to the Demised Premises. If Tenant shall
notify Landlord in writing at least nine (9) months prior to the
expiration date of the respective additional space referred to in
subparagraph A hereof, of its election to lease the additional space,
which election shall be irrevocable, then at the request of either
Landlord or Tenant, both Landlord and Tenant shall promptly execute
and deliver a modification of this Lease incorporating, the terms and
conditions with respect to the leasing of the additional space.
C. Upon written request by Tenant, Landlord shall notify Tenant with
respect to any changes in the availability dates of the above listed
additional space. If Tenant shall fail to notify Landlord in writing
of its election to lease such additional space, at least nine (9)
months prior to the expiration date referred to in subparagraph A
hereof, time being of the essence, then the rights granted to the
Tenant as set forth in subparagraph A of this Section with respect to
the additional space referred to shall automatically terminate and
come to an end. If Tenant shall not elect to lease such additional
premises within such time, Landlord may thereafter enter into a lease
for such additional space free of the restrictions herein stated.
D. The rights so granted to Tenant shall (i) not be effective at any time
Tenant is in default of the Lease beyond any applicable notice and
cure periods; and (ii) terminate and become null and void upon the
expiration or sooner termination of the Lease.
E. Notwithstanding anything to the contrary contained in the Lease
(except as hereinafter provided in this subparagraph E), the
additional space will be delivered in "as is" condition.
Notwithstanding the foregoing or anything else to the contrary
contained in the Lease, it shall be Landlord's obligation to assure
compliance, to the
extent necessary, with the provisions of the Americans with
Disabilities Act as of the date of delivery to Tenant of such
additional space.
8. SIGNAGE AND CARPETING: Notwithstanding anything contained herein to the
contrary, Tenant shall be permitted, subject to Landlord's approval of a
sign plan, which approval shall not be unreasonably withheld or delayed, to
install a ground mounted sign at ground level in front of the Building,
provided (i) it is consistent with the existing ground mounted signs; and
(ii) it complies with all requirements of the Hackensack Meadowlands
Development Commission and all Legal Requirements. Tenant shall also be
permitted to install its logo and lettering on the wall in the common area
on the second floor of the Building in the area adjacent to the Building
directory, provided such logo and lettering is no greater in size than the
Xxxxxxxx & Xxxxxxxxxx lettering on the first floor of the Building and
otherwise conforms to the sign plan set forth in Exhibit A attached hereto.
Tenant shall also be permitted to install new carpeting in the common area
stairway between the second and third floors of the Building, subject to
Landlord's prior approval of such carpeting, which approval shall not be
unreasonably withheld or delayed. Landlord hereby approves of Bentley
Grosvener, 54 oz., Sample C-3, 38.
9. RIGHT OF FIRST REFUSAL:
A. Landlord agrees that, at any time and from time to time during the
term of the Lease prior to entering into any new lease for premises in
the Building (other than extensions or renewals or expansions of
existing leases) to an entity whose use of such space directly
competes with Tenant, Landlord shall, provided Tenant is not then in
default of this Lease beyond any applicable notice and cure periods,
first notify Tenant in writing of its intention so to do, which notice
shall set forth the rent,
terms and other conditions upon which such lease is intended to be
consummated ("Landlord's Notice"). Tenant shall have a period of five
(5) business days following the giving of Landlord' s Notice to notify
Landlord of its election to enter into a lease for such additional
premises as tenant upon the rent, terms and conditions set forth in
Landlord's Notice. If Tenant shall notify Landlord in writing of its
election to enter into such lease as tenant for the additional
premises within the said five (5) business day period, Landlord shall
deliver and Tenant shall execute a modification of this lease
incorporating the rent, terms and conditions as set forth in
Landlord's Notice to Tenant with respect to the additional premises.
Time is of the essence with respect to Tenant's exercise of its right
of first refusal.
B. Subject to C. below, if Tenant shall fail to notify Landlord in
writing of its election to enter into a modification to its lease
incorporating the additional premises, within the five (5) business
day period referred to in subsection (A) hereof, then the right of
first refusal granted to the tenant as set forth in subsection (A) of
this section with respect to the additional premises referred to in
Landlord's notice, shall automatically terminate and come to and end.
C. If Tenant shall not elect to lease the additional premises referred to
in Landlord's Notice within the five (5) business day period following
Landlord's Notice then, Landlord may thereafter deliver the lease for
such additional premises to the proposed tenant free of the
restrictions herein stated, provided the rent in the lease to be
executed is not less than ninety five (95%) percent of the rent set
forth in the Landlord's Notice. If said rent is less than 95% of the
rent set forth in the Landlord's Notice, then Landlord shall not lease
such premises without first complying with the
provisions of this Section 9.
D. This right of first refusal so granted to Tenant shall terminate and
become null and void upon the expiration or sooner termination of this
Lease.
10. FIRST FLOOR RIGHT OF FIRST REFUSAL:
A. Landlord agrees that, prior to entering into a lease for a replacement
to the first floor office premises currently leased by Xxxxxxxx &
Xxxxxxxxxx (other than extensions or renewals of the existing lease)
Landlord shall, provided Tenant is not then in default of this Lease
beyond any applicable notice and cure periods, first notify Tenant in
writing of its intention so to do, which notice shall set forth the
rent, terms and other conditions upon which such lease is intended to
be consummated ("Landlord's Notice"). Tenant shall have a period of
five (5) business days following the giving of Landlord's Notice to
notify Landlord of its election to enter into a lease for such first
floor premises as tenant upon the rent, terms and conditions set forth
in Landlord's Notice. If Tenant shall notify Landlord in writing of
its election to enter into such lease as tenant for the first floor
premises within the said five (5) business day period, Landlord shall
deliver and Tenant shall execute a modification of this lease
incorporating the rent, terms and conditions as set forth in
Landlord's Notice to Tenant with respect to the first floor premises.
Time is of the essence with respect to Tenant's exercise of its right
of first refusal.
B. Subject to C. below, if Tenant shall fail to notify Landlord in
writing of its election to enter into a modification to its lease
incorporating the first floor premises, within the five (5) business
day period referred to in subsection (A) hereof, then the right of
first refusal granted to the tenant as set forth in section (A) of
this section with respect to the first floor premises referred to in
Landlord's notice, shall automatically terminate and come to and end.
C. If Tenant shall not elect to lease the first floor premises referred
to in Landlord's Notice within the five (5) business day period
following Landlord's Notice then, Landlord may thereafter deliver the
lease for such first floor premises to the proposed tenant free of the
restrictions herein stated, provided the rent in the lease to be
executed is not less than ninety five (95%) percent of the rent, set
forth in the Landlord's Notice. If said rent is less than 95% of the
rent set forth in the Landlord's Notice, then Landlord shall not lease
such premises without first complying with the provisions of this
Section 10.
D. This right of first refusal so granted to Tenant shall terminate and
become null and void upon the expiration or sooner termination of this
Lease.
11. SUBORDINATION, NONDISTURBANCE AND ATTORNMENT: Landlord covenants to use
reasonable efforts to obtain of a Subordination, Nondisturbance and Attornment
Agreement in a form reasonably acceptable to Tenant ("SNDA") from The Bank of
Tokyo-Mitsubishi, Ltd., the holder of the current first mortgage affecting the
Building and the land on which the Building is located, provided that Tenant
shall pay such reasonable lenders fees in connection with same. With respect to
any future mortgages on the Building or future ground leases on the Building or
the Land, the subordination of the Lease shall be conditional upon receipt of an
SNDA, provided that Tenant shall pay such reasonable lenders fees in connection
with same. Landlord represents to Tenant that there is no other Superior
Mortgage (as defined in the Lease) and no Superior Leases (as defined in the
Lease). If Tenant does not receive the Subordination, Nondisturbance and
Attornment Agreement
referred to in the first sentence of this Section 11 within thirty (30) days of
the date hereof, then Tenant may terminate this Fourth Lease Modification
Agreement by sending written notice to Landlord at any time prior to the earlier
of ninety days from the date hereof or receipt by Tenant of such Subordination,
Nondisturbance and Attornment Agreement.
12. COMPETITORS: Landlord shall not lease any space on the ground floor of the
Building for any use which is in direct competition to Tenant.
13. BROKER: Landlord and Tenant each represent and warrant that each of them
has dealt only with Xxxx X. Xxxxxxx Co., Inc. as broker (the "Broker') in
connection with this Fourth Lease Modification Agreement; and each of them does
hereby agree that such party shall indemnify, defend and hold the other harmless
of and from any and all loss, costs, damage or expense (including, without
limitation, attorneys fees and disbursements) incurred by the other by reason of
any claim of or liability for commissions or other compensation in connection
with this Lease to any other broker who shall claim to have dealt with the
indemnifying party. Landlord will pay any brokerage commission which may be due
to the Broker pursuant to a separate agreement.
14. MISCELLANEOUS: Except as modified by this Fourth Lease Modification
Agreement, the Lease and all covenants, agreements, terms and conditions thereof
shall remain in full force and effect and are hereby in all respects ratified
and confirmed.
IN WITNESS WHEREOF, the parties hereto have caused this Fourth Lease
Modification Agreement to be duly executed as of the day and year first above
written.
ATTEST: XXXXX MOUNTAIN DEVELOPMENT CORP.
("Landlord")
BY: /s/ Xxxxx X. Xxxxxxxx
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Xxxxx X. Xxxxxxxx
Executive Vice President
ATTEST: ALLIANCE CAPITAL MANAGEMENT L.P.
("Tenant")
BY: ALLIANCE CAPITAL MANAGEMENT CORPORATION,
Its General Partner
("General Partner")
BY: /s/ Xxxx X. Xxxxxx
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Name: Xxxx X. Xxxxxx
Title:
