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EXHIBIT 10.74
FIFTH AMENDMENT TO LEASE
This FIFTH AMENDMENT TO LEASE ("FIFTH AMENDMENT") is made as of
December 31, 1997 by and between the TRUSTEES OF 00 XXXXX XXXXXX TRUST under
Declaration of Trust dated September 10, 1970, recorded with Suffolk Deeds, Book
8389, Page 286, as amended, with an address of c/x Xxxx Management Services, 00
Xxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000 ("LANDLORD"), and THE PIONEER GROUP,
INC., having a mailing address of 00 Xxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000
("TENANT").
RECITALS
WHEREAS, Landlord and Tenant entered into a lease dated as of July 3,
1991, as amended by a certain First Amendment to Lease dated as of January 31,
1994, as further amended by a certain Second Amendment to Lease dated September
30, 1996, as further amended by a certain Third Amendment to Lease dated
November 15, 1996, and as further amended by a certain Fourth Amendment to Lease
dated September __, 1997 (collectively, the "LEASE"), for certain space
("PREMISES") on the 3rd, 4th, 5th, 6th, 14th, 17th, 18th and 19th floors of the
building commonly known as 00 Xxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx (the
"BUILDING");
WHEREAS, under the Lease, Tenant has the right to occupy approximately
7,120 rentable square feet of space on the sixth floor of the Building, as more
shown as the "Current Pioneer Space" on FIFTH AMENDMENT EXHIBIT A attached
hereto and made a part hereof ("FLOOR 6 PREMISES") until December 31, 1997;
WHEREAS, pursuant to a lease by and between Landlord and Xxxxxxxx Early
and Xxxxxx ("XXXXXXXX") dated as of April __, 1994 ("XXXXXXXX LEASE"), Xxxxxxxx
has the right to occupy the balance of the space on the sixth floor consisting
of approximately 15,287 rentable square feet of space, as more particularly
shown as the "Former Xxxxxxxx Early and Xxxxxx Space" on FIFTH AMENDMENT EXHIBIT
A attached hereto and made a part hereof ("REMAINING FLOOR 6 PREMISES") until
October 31, 1998;
WHEREAS, Landlord and Tenant desire to amend the Lease (i) to extend
the term of the Lease with respect to the Floor 6 Premises until March 31, 2002,
(ii) to include the Remaining 6th Floor Premises within the Premises effective
as of the day after the effective date of the termination of the Xxxxxxxx Lease
and continuing until March 31, 2002, and (iii) to amend certain terms and
conditions of the Lease as described below.
AGREEMENT
NOW, THEREFORE, in consideration of Ten Dollars ($10.00) and other good
and valuable consideration, the receipt and sufficiency of which hereby are
acknowledged and agreed, Landlord and Tenant hereby agree as follows:
1. SUBSTITUTE OPTION SPACE. Notwithstanding anything to the
contrary set forth in the Lease, Landlord and Tenant agree
that Tenant shall be deemed to have (A) exercised the
expansion option entitled "remaining two-thirds of 5" set
forth in Section 2.1.3(a) of the Lease as of January 1, 1999,
(B) exercised the expansion option entitled "remaining
one-half of 16" set forth in Section 2.1.3(a) of the Lease as
of January 1, 2000, (C) designated a total of 11,204 square
feet on the sixth floor (consisting of the entire Floor 6
Premises and 4,084 square feet of the Remaining
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Floor 6 Premises, said 4,084 square foot portion of the
Remaining Floor 6 Premises is hereinafter referred to as
"SPACE A") as "Substitute Option Space" as of January 1, 1999
pursuant to Section 2.1.3(b) of the Lease, and (D) designated
a total of 11,203 square feet of the sixth floor (consisting
of the balance of the Remaining Floor 6 Premises and
hereinafter referred to as "SPACE B") as "Substitute Option
Space" as of January 1, 2000 pursuant to Section 2.1.3(b) of
the Lease. Tenant hereby acknowledges that as of January 1,
2000 Tenant will have taken possession of, designated and
commenced receiving the benefit of two full floors of
"Substitute Option Space" in accordance with the provisions of
Sections 2.1.3(a) and Section 2.1.3(b) of the Lease (44,814
rentable square feet of space on floors five and six).
Accordingly, as of the date hereof, Tenant shall have no
further right to designate "Substitute Option Space" pursuant
to Section 2.1.3(b) of the Lease, or relocate any such space
to another floor of the Building (provided that Tenant shall
be entitled to exercise relocation rights applicable to
"Substitute Option Space" for the 6th Floor Premises in the
event all or portions of the 16th floor become available for
leasing), it being understood and agreed that any future space
offered to Tenant by Landlord pursuant to Section 2.1.4. of
the Lease shall be offered at an Annual Fixed Rent of 90% of
Fair Rental Value.
2. FLOOR 6 PREMISES. The term for the Floor 6 Premises shall be
extended until March 31, 2002, unless earlier terminated as
set forth in the Lease. Annual Fixed Rent for the Floor 6
Premises shall be as follows:
(i) For the period from January 1, 1998 through
December 31, 1998, the Annual Fixed Rent for the Floor 6
Premises shall be $19.90 per rentable square foot;
(ii) For the period from January 1, 1999 through
March 31, 1999, the Annual Fixed Rent for the Floor 6 Premises
shall be $15.50 per rentable square foot;
(iii) For the period from April 1, 1999 through March
31, 2000, the Annual Fixed Rent for the Floor 6 Premises shall
be $16.25 per rentable square foot;
(iv) For the period from April 1, 2000 through March
31, 2001, the Annual Fixed Rent for the Floor 6 Premises shall
be $17.00 per rentable square foot; and
(v) For the period from April 1, 2001 through March
31, 2002, the Annual Fixed Rent for the Floor 6 Premises shall
be $17.75 per rentable square foot.
Tenant shall continue to pay additional rent for the Floor 6
Premises on the same terms and conditions as provided in the
Lease for the initial Premises.
All of the Floor 6 Premises shall constitute Additional Space
under the Lease.
3. LEASE OF REMAINING FLOOR 6 PREMISES. Landlord shall lease to
Tenant, and Tenant shall lease from Landlord, the Remaining
Floor 6 Premises (which consists of Space A and Space B) for a
term commencing on November 1, 1998 or the Delivery Date
(defined below), if applicable, and ending on March 31, 2002.
Annual Fixed Rent for the Remaining Floor 6 Premises shall be
as follows:
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(i) For the period from November 1, 1998 or the
Delivery Date (defined below), if applicable, through December
31, 1998, the Annual Fixed Rent for the entire Remaining Floor 6
Premises shall be $19.90 per rentable square foot;
(ii) For the period from January 1, 1999 through March
31, 1999, the Annual Fixed Rent for the Remaining Floor 6
Premises shall be $15.50 per rentable square foot with respect
to Space A and $19.90 per rentable square foot with respect to
Space B;
(iii) For the period from April 1, 1999 through
December 31, 1999, the Annual Fixed Rent for the Remaining Floor
6 Premises shall be $16.25 per rentable square foot with respect
to Space A and $19.90 per rentable square foot with respect to
Space B;
(iv) For the period from January 1, 2000 through March
31, 2000, the Annual Fixed Rent for the entire Remaining Floor 6
Premises shall be $16.25 per rentable square foot;
(v) For the period from April 1, 2000 through March
31, 2001, the Annual Fixed Rent for the entire Remaining Floor 6
Premises shall be $17.00 per rentable square foot; and
(vi) For the period from April 1, 2001 through March
31, 2002, the Annual Fixed Rent for the entire Remaining Floor 6
Premises shall be $17.75 per rentable square foot.
Tenant shall pay additional rent for the entire Remaining Floor
6 Premises on the same terms and conditions as provided in the
Lease for the initial Premises.
4. EARLY TERMINATION OF XXXXXXXX LEASE. If Xxxxxxxx contacts
Landlord to request an early termination of the Xxxxxxxx Lease,
Landlord shall notify Tenant in writing of such request and the
proposed termination date of the Xxxxxxxx Lease ("PROPOSED
TERMINATION DATE"). Landlord's notice shall specify any negative
financial impact to Landlord in connection with the proposed
termination of the Xxxxxxxx Lease. Tenant shall have ten (10)
days from the date of Landlord's notice to notify Landlord in
writing as to whether Tenant wishes to accept possession of the
Remaining Floor 6 Premises on the day after the Proposed
Termination Date ("DELIVERY DATE"). If Tenant timely notifies
Landlord of its intent to accept the Remaining Floor 6 Premises
on the Delivery Date and compensates Landlord for the specified
negative financial impact, if any, stated in Landlord's notice,
Landlord shall enter into a lease termination agreement with
Xxxxxxxx to terminate the Xxxxxxxx Lease on the Proposed
Termination Date.
5. LANDLORD'S WORK ON THE REMAINING FLOOR 6 PREMISES.
Notwithstanding any provisions of the Lease to the contrary
including, without limitation, Sections 3.1 and 3.6, the
Remaining Floor 6 Premises shall be delivered to Tenant
broom-clean and in their then "AS IS" condition.
6. TENANT'S WORK ON THE REMAINING FLOOR 6 PREMISES. Commencing on
November 1, 1998, or the Delivery Date, if applicable, Tenant
shall have the right to construct improvements to the Remaining
Floor 6 Premises, subject to Landlord's approval of Tenant's
plans and specifications, which approval shall not be
unreasonably with-
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held or delayed, and subject to the other terms and conditions
of the Lease including Section 3.5. All Tenant improvements to
the Remaining Floor 6 Premises shall be performed at Tenant's
sole cost and expense, and Landlord shall not be obligated to
reimburse or otherwise compensate Tenant for such improvements.
7. ADDITIONAL PARKING SPACES. Pursuant to the Second Amendment to
Lease, Tenant currently occupies one (1) non-reserved parking
space in the Building garage. Commencing on November 1, 1998, or
the Delivery Date, if applicable, Tenant shall be entitled to
occupy six (6) additional non-reserved parking spaces in the
Building garage at the then current market rates charged by the
garage operator, bringing the total to seven (7) parking spaces
for Floor 6, of which four (4) shall be reserved spaces. Tenant
shall enter into a separate parking agreement with the garage
operator with respect to the foregoing six additional parking
spaces for the periods prior to January 1, 1999 (for four (4) of
the Parking Spaces) and January 1, 2000 (for the remaining three
(3) parking spaces); after such dates parking rent shall be
governed by Section 2.5 of the Lease.
8. CAPITALIZED TERMS. Capitalized terms used herein but not defined
shall have the meanings ascribed to them in the Lease.
9. RATIFICATION. Except as amended hereby, the terms and conditions
of the Lease shall remain unaffected and the Lease shall remain
in full force and effect.
10. CONTINGENCIES. This Fifth Amendment to Lease is specifically
contingent upon (i) the receipt by Landlord of a written waiver
by Xxxx and Xxxx of its superior rights to the Floor 6 Premises
and the Remaining Floor 6 Premises, and (ii) the delivery of the
Remaining Floor 6 Premises from Xxxxxxxx to Landlord on or
before November 1, 1998 or the Delivery Date.
EXECUTED under seal as of the date first set forth above.
LANDLORD: TRUSTEES OF 00 XXXXX XXXXXX TRUST
By: /s/ Xxxx X. Xxxxxxxx
Xxxx X. Xxxxxxxx, as Trustee of 00 Xxxxx
Xxxxxx Trust, for self and co-Trustees
but not individually
TENANT: THE PIONEER GROUP, INC.
By: /s/ Xxxxx Xxxxxx
Its Vice President
hereunto duly authorized
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FIFTH AMENDMENT EXHIBIT A
PLAN OF SIXTH FLOOR IDENTIFYING THE REMAINING FLOOR 6 PREMISES ("FORMER XXXXXXXX
EARLY AND XXXXXX SPACE"), INCLUDING SPACE A AND SPACE B THEREOF AND THE FLOOR
6 PREMISES ("CURRENT PIONEER SPACE")
[Floor Plan Intentionally Omitted]
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CONSENT OF LENDERS
The undersigned hereby acknowledge notice of the Fifth Amendment to
Lease between the Trustees of 00 Xxxxx Xxxxxx Trust and The Pioneer Group, Inc.
dated as of December 31, 1997 and consent thereto.
CORNERSTONE PROPERTIES, INC.
By: /s/ Xxxxx X. Dalrimple
its Vice President
Hereunto duly authorized
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CONSENT OF LENDERS
The undersigned hereby acknowledges notice of the Fifth Amendment to
Lease between the Trustees of 00 Xxxxx Xxxxxx Trust and The Pioneer Group, Inc.
dated as of December 31, 1997 and consent thereto.
TEACHERS INSURANCE ANNUITY
ASSOCIATION OF AMERICA
By: /s/ Xxxx Xxxxxx
its
hereunto duly authorized
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