Exhibit 10(b)(2)
FIRST AMENDMENT TO LEASE
FIRST AMENDMENT TO LEASE ("FIRST AMENDMENT") dated this 20th day of
December, 1999 between THE BEAR XXXXXXX COMPANIES, INC., a Delaware corporation
having an office at Xxx Xxxxxxxxx Xxxxxx Xxxxx, Xxxxxxxx, Xxx Xxxx 00000
("TENANT") and FOREST CITY XXX STREET ASSOCIATES, L.P., a New York limited
partnership having an office at One Metrotech Center North, 11th Floor,
Brooklyn, New York 11201 ("LANDLORD").
W I T N E S S E T H:
WHEREAS, Landlord and Tenant entered into a lease dated as of
November 1, 1991 (the "LEASE"), demising the premises ("PREMISES") described in
Section 1.1 of the Lease (the "ORIGINAL PREMISES"), in the building ("BUILDING")
known as Xxx Xxxxxxxxx Xxxxxx Xxxxx, Xxxxxxxx, Xxx Xxxx;
WHEREAS, the Lease was amended by letter agreement dated as of
September 30, 1999 (the "LETTER AGREEMENT");
WHEREAS, except for the Letter Agreement, the Lease has not
previously been amended;
WHEREAS, the Expiration Date of the Lease is June 30, 2004; and
WHEREAS, Tenant desires to expand the premises to include portions
of the 3rd floor of the Building, and Landlord is willing to lease said portions
of the 3rd floor to Tenant in accordance with the terms and conditions
hereinafter set forth.
NOW, THEREFORE, in consideration of Ten Dollars ($10.00) and other
good and valuable consideration, the legal sufficiency and receipt of which is
hereby acknowledged, Landlord and Tenant agree as follows:
1. General. The "LEASE" shall hereinafter mean the Lease as
modified by the Letter Agreement and this First Amendment. All capitalized
terms not defined in this First Amendment shall have the meanings ascribed to
them in the Lease.
2. Additional Premises. Commencing on the fifth (5th) Business Day after
the date hereof (the "ADDITIONAL PREMISES COMMENCEMENT DATE"), the premises
shall be deemed expanded to include 22,956 rentable square feet of Office Space
on the 3rd floor of the Building (the "ADDITIONAL PREMISES"), which Additional
Premises is comprised of Unit A (consisting of 11,892 rentable square feet of
Office Space) and Unit C (consisting of 11,064 rentable square feet of Office
Space) as shown on EXHIBIT A-5 annexed hereto. From and after the Additional
Premises Commencement Date, the Office Space demised under the Lease shall
include the Additional Premises and shall be deemed to consist of 275,244
rentable square feet. From and after the Additional Premises Commencement Date,
all of the terms and conditions of the Lease
(other than those applicable exclusively to the Below Grade Space and/or the
Messenger Center), as such terms and conditions have been modified by this First
Amendment, shall apply to the Additional Premises.
3. Term and Fixed Rent.
(a) The Term of this Lease for the Additional Premises shall expire on
the Expiration Date.
(b) From March 1, 2000 (the "ADDITIONAL PREMISES RENT COMMENCEMENT
DATE") through the Expiration Date, Fixed Rent with respect to the Office Space
shall be increased to SIX MILLION FIFTY-FIVE THOUSAND THREE HUNDRED SIXTY-EIGHT
and 00/100 Dollars ($6,055,368.00) per annum or FIVE HUNDRED FOUR THOUSAND SIX
HUNDRED FOURTEEN and 00/100 Dollars ($504,614.00) per month (prorated for any
portion of a month).
4. Use. The Additional Premises shall be used and occupied in a manner
consistent with Article 2 of the Lease, and for no other purpose.
5. Proportionate Shares. Commencing on the Additional Premises
Commencement Date:
(a) "Tenant's Proportionate Tax Share" shall mean 29.9777 percent; and
(b) "Tenant's Proportionate Operating Expense Share" shall mean 33.3702
percent.
6. Electricity.
(a) Tenant shall make all arrangements to obtain electrical service
required by Tenant in connection with its use of the Additional Premises
directly from the public utility company servicing the Building. Tenant's
electrical service for the Additional Premises shall be subject to Sections
4.1(a), 4.2 (as modified below), 4.3 and 4.4 of the Lease.
(b) Supplementing Section 4.2 of the Lease, Tenant shall not install a
connected load (including all of Tenant's supplemental air conditioning, if any,
and all of Tenant's other equipment in the Additional Premises but excluding
Building system air conditioning, Building system heating and domestic hot
water) or otherwise draw in excess of 6.5 xxxxx per rentable square foot in the
Additional Premises.
7. Assignment and Subletting
(a) Notwithstanding anything to the contrary in Section 7.6(c) of the
Lease, there shall not be more than two (2) occupants (including Tenant, any
Affiliates of Tenant and any Service Entities) in Unit A or Unit C, provided,
that any space to be used by a second occupant in either Unit A or Unit C shall
not have a separate entrance to a common corridor on the 3rd floor and shall not
be separately demised.
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(b) For purposes of the Additional Space, the words "the cost of
Tenant's leasehold improvements in the Office Space in excess of Nine Million
Eighty Thousand ($9,080,000) Dollars," in Section 7.8(a)(iii) of the Lease shall
be deemed replaced by the words "the cost of Tenant's leasehold improvements in
Unit A and/or Unit C, as the case may be,".
(c) For purposes of the Additional Space, the words "the cost (on a per
rentable square foot basis) of Tenant's leasehold improvements in the Office
Space in excess of thirty-six dollars ($36.00) per rentable square foot," in
Section 7.8(b)(iii) of the Lease shall be deemed replaced by the words "the cost
(on a per rentable square foot basis) of Tenant's leasehold improvements in Unit
A and/or Unit C, as the case may be,".
8. Brokerage. Landlord and Tenant each represents and warrants to the
other that it has not dealt with any real estate broker, finder or like agent
other than Ascot Brokerage, Ltd. (the "BROKER") in connection with this First
Amendment and the transactions contemplated hereby, and each agrees to
indemnify, defend and hold the other harmless from and against any and all loss,
costs, damage and expense, including, without limitation, reasonable attorneys'
fees and disbursements, incurred by the other by reason of any claims of, or
liability to, any broker other than the Broker who shall claim to have dealt
with it in connection with this First Amendment or the transactions contemplated
hereby. Landlord shall pay the Broker pursuant to separate agreement. This
Paragraph 8 shall survive the expiration or earlier termination of the Lease.
9. Signage. Supplementing the provisions of Section 10.8 of the Lease:
Tenant may install signs above the entrance(s) to the Additional Premises in
accordance with the terms and provisions of Sections 10.8(a) and (b).
10. Tenant Changes.
(a) Supplementing the provisions of Section 15.2(c) of the Lease:
Simultaneously with the submission of any "as-built" plans, Tenant shall deliver
such "as built" drawing to Landlord in the form of computer assisted design
("CAD") drawings on diskette.
(b) Effective on the Additional Premises Commencement Date, EXHIBIT N
annexed hereto shall be deemed to replace Exhibit N originally annexed to the
Lease.
(c) Supplementing the provisions of Section 15.4(b) of the Lease:
Without limiting Tenant's obligations or Landlord's rights pursuant to Section
15.4(b), if Tenant fails to obtain all final governmental approvals, licenses,
"sign-offs" and certificates which are necessary to "close out" any Permit
and/or fails to close out such Permit within sixty (60) days after completion of
any Tenant Change, Landlord may, but shall not be obligated to, take all
commercially reasonable steps necessary in order to close out such Permit. The
costs of such actions taken by Landlord to close out such Permit shall be paid
by Tenant to Landlord within ten (10) days after Tenant's receipt of Landlord's
invoice(s) therefor.
11. "As Is"; Additional Premises Initial Work; Landlord's Additional
Premises Work.
(a) Tenant has inspected the Additional Premises and agrees to accept
them (including any installations existing on the Additional Premises
Commencement Date) in "as is"
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condition on the Additional Premises Commencement Date. Except as set forth in
Paragraph 11(c), Landlord shall not be obligated to perform any work to prepare
the Additional Premises for Tenant's occupancy for the use permitted by
Paragraph 4, nor shall Landlord be obligated to perform any repairs,
maintenance, alterations or other work which may be necessary to make any
existing installations therein suitable for such occupancy.
(b) All Tenant Changes required in order to prepare the Additional
Premises for Tenant's occupancy are hereinafter referred to as the "ADDITIONAL
PREMISES INITIAL WORK". All Additional Premises Initial Work shall be prepared,
approved, performed and completed in accordance with the provisions of Article
15 of the Lease applicable to Tenant Changes other than Permitted Changes.
(c) The following items of work "LANDLORD'S ADDITIONAL PREMISES WORK")
shall be performed by Landlord at Landlord's sole cost and expense:
(i) Demising wall(s), to be constructed in accordance with Legal
Requirements, for Unit A.
(ii) Demising wall(s), to be constructed in accordance with Legal
Requirements, for Unit C.
(iii) Restoration of copper feeds to existing supplemental HVAC
Units located in the Additional Premises.
(iv) Replacement of missing ceiling tiles in Additional Premises.
Landlord's Additional Premises Work shall be completed within fourteen (14) days
after the later of (x) the Additional Premises Commencement Date, or (y)
Landlord's approval of Tenant's Final Working Drawings for the Additional
Premises Initial Work.
12. Addresses for Notices: Commencing on the date hereof, addresses for
notices shall be as follows:
Forest City Xxx Street Associates, L.P.
c/o Forest City Xxxxxx Companies
Xxx Xxxxxxxxx Xxxxxx Xxxxx, 00xx Xxxxx
Xxxxxxxx, Xxx Xxxx 00000
With copies to:
Forest City Xxxxxx Companies
Xxx Xxxxxxxxx Xxxxxx Xxxxx, 00xx Xxxxx
Xxxxxxxx, Xxx Xxxx 00000
Attention: Legal Department
Forest City Enterprises, Inc.
0000 Xxxxxxxx Xxxxx
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00 Xxxxxx Xxxxxx
Xxxxxxxxx, Xxxx 00000
Attention: Xxxxxxx Xxxxxx, Esq.
If to Tenant:
The Bear Xxxxxxx Companies, Inc.
Xxx Xxxxxxxxx Xxxxxx Xxxxx
Xxxxxxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Xxxx
With copies to:
The Bear Xxxxxxx Companies, Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxxxx
Xxxxx, Xxxxx & Xxxxx
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxxxx, Esq.
13. Extension of Term
(a) In Section 34.2(a)(i) of the Lease, the Fixed Rent for the Office
Space shall be increased to SIX MILLION FIFTY-FIVE THOUSAND THREE HUNDRED
SIXTY-EIGHT and 00/100 Dollars ($6,055,368.00) per annum or FIVE HUNDRED FOUR
THOUSAND SIX HUNDRED FOURTEEN and 00/100 Dollars ($504,614.00) per month.
(b) In Section 34.2(b)(i)(B) of the Lease, the denominator shall be the
total area of the full floors of Office Space 252,288.
14. Definitions. In the definition of "Interest Rate" in Section 36.1(b),
the words "Chemical Bank" shall be deemed deleted and the words "The Chase
Manhattan Bank (or any successor thereto)" shall be deemed substituted in lieu
thereof.
15. Miscellaneous.
(a) Tenant hereby confirms (i) that the Lease is in full force and
effect and has not been modified or amended except as herein provided, (ii) that
to the best of Tenant's knowledge, Landlord is not now in default under the
Lease beyond applicable notice and grace periods, and that Tenant knows of no
event which, with notice or the passage of time or both would constitute such a
default, and (iii) that Tenant has made no demand against Landlord and has no
present right to make such a demand with respect to charges, liens, defenses,
counterclaims, offsets, claims or credits against the payment of Rent or the
performance of Tenant's obligations under the Lease.
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(b) As modified by this First Amendment, the Lease and all covenants,
agreements, terms, provisions and conditions thereof shall continue in full
force and effect and Landlord and Tenant hereby ratify and confirm the
covenants, agreements, terms, provisions and conditions thereof.
(c) Landlord and Tenant, each upon request of the other, at any time
and from time to time hereafter and without further consideration, shall
execute, acknowledge and deliver to the other any instruments or documents, or
take such further actions, as shall be reasonably required or as may be
necessary to assure each party the full benefits of this First Amendment.
(d) This First Amendment shall not be binding upon or enforceable
against either party unless and until a fully executed counterpart of this First
Amendment shall have been unconditionally delivered to Tenant.
(e) This First Amendment supersedes all prior discussions and
correspondence between the parties and supersedes any and all prior
understandings between the parties concerning the subject matter. All prior and
contemporaneous agreements, if any, between Landlord and Tenant with respect to
the subject matter of this First Amendment are merged into this First Amendment,
which shall constitute the complete, final and entire agreement of the parties
with respect the subject matter. Neither party shall be bound by any terms,
covenants, conditions or representations not expressly contained herein.
(f) This First Amendment may not be waived or changed orally, and may
be amended only by an agreement in writing signed by the party against whom
enforcement of any such change is sought.
(g) Landlord and Tenant acknowledge and agree that this First Amendment
has been drafted jointly by the parties and that this First Amendment shall be
construed without regard to any presumption or other rule requiring construction
against the party causing the First Amendment to be drafted.
(h) This First Amendment shall be binding upon and inure to the benefit
of (i) Landlord, and the officers, employees, agents, directors partners,
successors and assigns of Landlord, and (ii) Tenant, and the officers,
employees, agents, directors, partners, successors stockholders, successors and
permitted assigns of Tenant.
(i) This First Amendment shall be interpreted and enforced in
accordance with the laws of the State of New York applicable to negotiated
agreements executed and to be performed fully therein.
(j) This First Amendment may be executed in counterparts.
[signature page follows]
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IN WITNESS WHEREOF, the parties to this First Amendment have caused this
First Amendment to be executed as of the day and year first above written.
LANDLORD:
FOREST CITY XXX STREET ASSOCIATES, L.P.
By: RRG B.U.G. Associates, L.P.
General Partner
By: RRG B.U.G. Inc.,
General Partner
By: /S/ Xxxxx X. Xxxxxx
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President
TENANT:
THE BEAR XXXXXXX COMPANIES, INC.
By: /S/ Xxxxx X. Xxxx
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Senior Managing Director
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EXHIBIT A-5
ADDITIONAL PREMISES
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EXHIBIT N
SCHEDULE OF FEES
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