Exhibit 10.44
ASSIGNMENT AND ASSUMPTION OF LEASE
THIS AGREEMENT, dated effective as of February 24, 1999
("Agreement"), by and between UBS AG (successor by merger to Union Bank of
Switzerland), NEW YORK BRANCH, a Swiss banking corporation, having an office at
000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 ("Assignor") and PIMCO ADVISORS L.P. a
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Delaware limited partnership having an office at 000 Xxxxxxx Xxxxxx Xxxxx,
Xxxxxxx Xxxxx, Xxxxxxxxxx 00000 ("Assignee").
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W I T N E S S E T H:
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WHEREAS, pursuant to an Agreement of Lease dated as of December 31,
1994 between THE XXXXXX-SIXTH AVENUE COMPANY and HAWAIIAN SIXTH AVENUE CORP., as
landlord ("Initial Landlord"), and Assignor, as tenant, as amended by the side
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letters, dated April 6, 1995 and May 30, 1996 and by the First Supplemental
Agreement, dated as of April 30, 1995 (collectively, "Lease"), true and complete
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copies of which are attached hereto as Exhibit A, Initial Landlord leased and
Assignor hired the entire 46th, 47th, 48th, 49th and 50th floors ("Premises") in
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the building known as 0000 Xxxxxx xx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000
("Building"), upon and subject to such terms and provisions as are more
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particularly set forth in the Lease; and
WHEREAS, pursuant to a Cleaning Agreement, dated as of December 31,
1994 between 1345 CLEANING SERVICE CO., as contractor ("Contractor"), and
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Assignor, as tenant, as amended by the First Amendment To Cleaning Agreement
dated April 3O, 1995 and the side letter dated May 30, 1996 (collectively
"Cleaning Agreement"), true and complete copies of which are attached hereto as
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Exhibit B,
Contractor agreed to furnish and Assignor hired the cleaning services of
Contractor ("Cleaning Services") for the Premises through the term of the Lease;
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and
WHEREAS, as of May 30, 1996, 1345 LEASEHOLD LIMITED PARTNERSHIP
("Landlord") consisting of the same ownership as Initial Landlord succeeded to
the interests of Initial Landlord; and
WHEREAS, Assignor desires to assign to Assignee all of Assignor's
right, title and interest in and to the Lease effective as of the Effective Date
(hereinafter defined) and Assignee desires to assume from Assignor all of
Assignor's obligations under the Lease to the extent such obligations are
allocable to the period from and after the Effective Date; and
WHEREAS, Assignor desires to convey to Assignee certain items of
real and personal property located in the Premises including, without
limitation, the items described more fully on Schedule 1 annexed hereto
("FF&E"); and
----
WHEREAS, Assignor desires to assign to Assignee all of Assignor's
right, title and interest in and to the Cleaning Agreement effective as of the
Effective Date, and Assignee desires to assume from Assignor all of Assignor's
obligations under the Cleaning Agreement to the extent such obligations are
allocable to the period from and after the Effective Date; and
WHEREAS, Assignee intends to retain Plaza Construction Corp., a
company affiliated with Landlord ("Landlord's Affiliated Contractor"), in
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connection
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with Assignee's initial alterations and improvements ("Initial Construction") in
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the Premises.
NOW, THEREFORE, in consideration of the terms and conditions herein
set forth and other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, Assignor and Assignee hereby agree as follows:
(a) Definitions. All capitalized terms used herein, unless otherwise
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defined in this Agreement, shall have the meaning given such terms in the Lease
and/or the Cleaning Agreement, as the case may be.
(b) Assignment and Assumption. Effective as of the Effective Date,
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Assignor hereby assigns, conveys and transfers to Assignee, without recourse or
warranty, all of Assignor's right, title and interest as Tenant in and to the
Lease, the Cleaning Agreement and the FF&E except that Assignor shall remain (i)
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entitled to receive all benefits, rights and privileges and (ii) liable for and
obligated to discharge all of the obligations of Assignor under the Lease and
the Cleaning Agreement, to the extent such rights and obligations are allocable
to the period prior to the Effective Date. It is hereby acknowledged and agreed
that the consideration of Nineteen Million Two Hundred Fifty Thousand
($19,250,000) Dollars payable by Assignee to Assignor in connection with this
Agreement ("Consideration") shall be paid into escrow upon the execution of this
Agreement. The Effective Date of this Agreement shall be defined as the date on
which that Agreement has been executed and delivered by Assignor and Assignee,
has been consented to by Landlord, and all of the other Conditions listed in the
Escrow Agreement between Assignor and Assignee dated effective as of February
24, 1999 have been met and the Consideration is delivered to Assignor.
Notwithstanding anything herein
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contained to the contrary, if the Conditions in the Escrow Agreement are not
satisfied, and this Agreement is terminated, Assignor shall have no liability to
Assignee therefor.
Assignee hereby accepts such assignment and agrees from and after
the Effective Date to assume and discharge all of the liabilities and
obligations of Assignor under the Lease and Cleaning Agreement and agrees to be
personally bound by and upon all of the covenants, agreements, terms, provisions
and conditions thereof on the part of Assignor to be performed or observed from
and after the Effective Date, and Assignee further agrees that the provisions of
Section 15.1 of the Lease shall, notwithstanding any future assignment or
transfer, continue to be binding upon it in the future in the same manner and
with the same force and effect as if Assignee had originally executed the
Cleaning Agreement and the Lease as the tenant thereunder.
Assignor and Assignee acknowledge that the method for computation,
as currently employed by Contractor in the Building, of the charges for
additional cleaning services is acceptable and Landlord agrees to cause such
Contractor to only escalate the charges for such additional services from year
to year as is consistent with past practice (based on increases in the hourly
wage rate for employment of porters in Class A office Buildings, from time to
time established by agreement between RAB and Local 32B-32J of the Building
Service Employees International Union AFL-CIO or by the successors to either or
both of them, as provided in the Cleaning Agreement with respect to cleaning
cost escalation). The kinds and frequency of additional cleaning services of
Contractor used by Assignee are subject to agreement by Contractor and Assignee,
and nothing herein shall obligate Assignee to use any additional cleaning
services or to use the same
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kinds and frequency of special cleaning services as Assignor. Assignor and
Assignee have reviewed the methods and procedures used by Contractor in
calculating cleaning cost escalations under the Cleaning Agreement and agree
that such methods and procedures may be used at calculating such cleaning cost
escalations going forward.
Assignee shall indemnify, defend and save harmless Assignor, its
officers, agents, servants and employees from and against any claims, liability,
expense, suit, damage, action or charge including, without limitation,
reasonable attorneys' fees (collectively "Claims"), suffered or incurred by
Assignor by reason of (i) death, personal injury or property damage (other than
to the property of Assignee) at the Premises arising out of Assignee's
possession of the Premises occurring on or after the Effective Date, except to
the extent caused by the negligent or willfull actions after the Effective Date
of Assignor, its officers, agents, servants or employees or (ii) a breach of
Assignee's duty to apportion fixed minimum rent and Additional Rent (as
hereinafter defined), or to promptly refund to Assignor any payments or credits
received from either Landlord or Contractor in respect of any matter pertaining
to the Lease or the Cleaning Agreement for periods prior to the Effective Date,
as described more fully in paragraph (e).
Assignor shall indemnify, defend and save harmless Assignee, its
officers, agents, servants and employees from and against any Claims suffered or
incurred by Assignee by reason of (i) death, personal injury or property damage
(other than to the property of Assignor) at the Premises arising out of
Assignor's possession of the Premises occurring prior to the Effective Date,
except to the extent caused by the negligent or willful actions prior to the
Effective Date of Assignee, its officers, agents, servants or employees, (ii) a
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breach of Assignor's duty to apportion fixed minimum rent and Additional Rent,
or to promptly reimburse Assignee for payments reasonably made to Landlord or
Contractor in respect of any matter pertaining to the Lease or Cleaning
Agreement for periods prior to the Effective Date, as described more fully in
paragraph (e), or (iii) the breach or inaccuracy of any representation,
warranty, certification, covenant or agreement made by Assignor in this
Agreement or in Assignor's estoppel certificate ("Estoppel Certificate") to be
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delivered by Assignor to Assignee.
(c) Further Transfer Conditions (i) This Agreement is subject to all
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of the terms, covenants, agreements, provisions, and conditions of the Lease;
(ii) Assignee shall not have the right to a further assignment hereof or
sublease or assignment under the Lease, or to allow the Premises to be used by
others, except as provided expressly in Section 15.2 of the Lease, without the
consent of Landlord in each instance, as provided in the Lease; (iii) a consent
by Landlord thereto shall not be deemed or construed to modify, amend or affect
the terms and provisions of the Lease, or Assignee's obligations thereunder,
which shall continue to apply to the Premises involved, and the occupants
thereof, as if the assignment had not been made; (iv) if Assignee defaults in
the payment of any rent, Landlord is authorized to collect any rents due or
accruing from any other assignee, subtenant or other occupant of the Premises
and to apply the net amounts collected to the fixed annual rent and additional
rent reserved under the Lease; and (v) the receipt by Landlord of any amounts
from any other assignee or subtenant, or other occupant of any part of the
Premises shall not be deemed or construed as releasing
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Assignee from Assignee's obligations under the Lease or the acceptance of that
party as a direct tenant.
(d) Landlord's Out of Pocket Costs. Assignor shall, together with
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requesting Landlord's consent to the Agreement, pay Landlord's reasonable
out-of-pocket costs and expenses with respect to the requested consent.
(e) Assignee's Rent and Escalations. The fixed minimum rent to be
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paid by Assignee shall be in accordance with the terms of the Lease. Further,
Assignee shall be obligated to pay to Landlord additional rent pursuant to,
inter alia, Article 4 and Article 5 of the Lease, and escalations pursuant to
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the Cleaning Agreement (or pursuant to Article 6 of the Lease if such Cleaning
Agreement is terminated for any reason) as escalations in the cost of Cleaning
Services ("Cleaning Costs") (all such additional rent and escalations are
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hereinafter referred to as "Additional Rent"). For the purposes of determining
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the amounts that Assignee is obligated to pay thereunder, the amounts that
Assignee shall be obligated to pay under Article 4 and Article 5 of the Lease
shall be computed as provided in the Lease. In calculating the amounts that
Assignee is obligated to pay under the Cleaning Agreement, the amounts that
Assignee shall be obligated to pay as escalations in Cleaning Costs shall be
computed as provided in such Cleaning Agreement. In the event that the Cleaning
Agreement is terminated for any reason, the amount that Assignee is obligated to
pay Landlord as Cleaning Costs shall be determined under Article 6 of the Lease.
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In addition to the foregoing, Assignee shall pay any and all other
additional rent or charges due to Landlord as provided in the Lease and the
Cleaning Agreement.
Any fixed minimum rent and/or Additional Rent payable for the month
in which the Effective Date shall occur shall be equitably and reasonably
apportioned between Assignor and Assignee as of 11:59 p.m. of the day before the
Effective Date. The amount of any fixed minimum rent and Additional Rein paid by
Assignor but attributable to the period beginning with the Effective Date based
on such apportionment shall be promptly reimbursed by Assignee to Assignor. Any
errors or omissions in computing apportionments or other adjustments shall be
corrected within a reasonable time following the Effective Date. If any
additional Rent paid by Assignor for periods prior to the Effective Date shall
be determined upon reconciliation, audit or similar process to be less or more
than the amounts payable as finally determined, (i) Assignee shall pay to
Assignor (at the direction of Assignor after prompt notice to Assignor) any
refund or credit of such overpayment of Additional Rent received from Landlord
or Contractor, and (ii) Assignor shall pay to Assignee (at the direction of
Assignee after prompt notice to Assignor) any additional amount of Additional
Rent due for payment to Landlord or Contractor, whichever the case may be.
(f) Brokerage. Assignor represents and warrants that it has dealt
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with no broker other than Xxxxxxx & Xxxxxxxxx or CB Xxxxxxx Xxxxx, Inc. in
connection with this Agreement. Assignee represents and warrants that it has
dealt with no broker other than CB Xxxxxxx Xxxxx or Xxxxxxx & Xxxxxxxxx in
connection with this Agreement.
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Assignor shall be responsible only for paying all compensation due solely to
Xxxxxxx & Wakefield pursuant to a separate agreement. Assignee shall be
responsible for paying all compensation due to CB Xxxxxxx Xxxxx, Inc. in
connection with this Agreement. Each party shall indemnify, the other party and
hold the other party harmless from and against any and all costs, claims,
losses, liability and expenses (including reasonable attorneys' fees, costs and
disbursements) arising out of any inaccuracy or alleged inaccuracy of the
foregoing representation.
(g) Effectiveness of Agreement. This Agreement shall become
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effective upon the occurrence of the Effective Date. Pursuant to Section 15.5 of
the Lease, Assignee shall promptly furnish to Landlord such information as may
be reasonably requested to obtain Landlord's consent (including, without
limitation, all financial information regarding Assignee as is required by
Landlord under the Lease) and to enter into such agreements among Landlord,
Assignor and Assignee as Landlord may reasonably require pursuant to the Lease
in connection with the giving of its consent to this Agreement. In the event
that the Effective Date does not occur because all of the Conditions listed in
the Escrow Agreement between Assignor and Assignee are not satisfied as provided
therein, then either party shall have the right by written notice to the other
to terminate this Agreement and neither party shall have any further obligation
or liability to one another.
(h) Assignee currently intends to engage Landlord's Affiliated
Contractor, subject to negotiation, execution and delivery of a mutually
acceptable engagement agreement, to be the general contractor and construction
manager for
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Assignee's Initial Construction in the Premises; the fees of Landlord's
Affiliated Contractor shall be commercially competitive in accordance with a
separate agreement to be mutually agreed upon between Assignee and Landlord's
Affiliated Contractor.
(i) Compliance with Applicable Laws and Other Possible Limitations.
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Assignor represents and warrants that, to the best of Assignor's knowledge, the
Premises complies with all applicable laws and does not contain any friable
asbestos, friable asbestos containing materials or other hazardous materials.
(j) Entire Agreement. This Agreement constitutes the entire
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agreement between the parties hereto with respect to the matters stated herein
and may not be amended or modified unless such amendment or modification shall
be in writing and signed by the party against whom enforcement is sought.
(k) Successors and Assigns. The terms, covenants and conditions
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contained in this Agreement shall bind and inure to the benefit of the parties
hereto and their respective successors and assigns.
(l) Governing Law. This Agreement shall be governed in all respects
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by the laws of the State of New York.
(m) Counterparts. This Agreement may be executed in any number of
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duplicate originals and each such duplicate original shall be deemed to
constitute but one and the same Agreement. Facsimile signatures shall constitute
valid and binding signatures of the parties when delivered by telefax to the
attorneys for the parties to this Agreement. The parties shall exchange original
signatures in due course but the failure to
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deliver original signatures shall in no way effect the validity and
enforceability of this Agreement.
(n) Unenforceability. If any terms, covenants or conditions of this
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Agreement shall be held to be invalid, illegal or unenforceable in any respect,
this Agreement shall be construed without such provision.
(o) Payment of Taxes. Assignor shall be responsible for the payment
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of all real property transfer and sales taxes, if any, due in connection with
the assignment, conveyance and transfer effected by this Agreement and agrees to
indemnify and hold harmless Assignee with respect to any costs arising out of
Assignor's failure to pay same.
(p) Representations. Assignor hereby covenants, represents and
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warrants (i) that Assignor is the legal and beneficial owner of the interest
being assigned free and clear of all adverse claims and encumbrances including,
without limitation, any encumbrance on the FF&E (ii) that Assignor is a duly
licensed New York branch of a Swiss banking corporation and (iii) that the
persons executing this Agreement on behalf of Assignor are officers of said
Assignor, that they as such officers are duly authorized to execute, acknowledge
and deliver this Agreement to Assignee, and that the delivery of this Agreement
by Assignor to Assignee has been ratified by all necessary corporate action.
Assignee hereby covenants, represents and warrants (i) that Assignee
is a duly qualified Delaware limited partnership authorized to do business in
the State of New York and (ii) that the persons executing this Agreement on
behalf of Assignee are general partners of such Assignee, and that they as such
general partners are
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duly authorized to execute, acknowledge and deliver this Agreement to Assignor,
and that delivery of this Agreement by Assignee to Assignor has been ratified by
all necessary partnership action.
(q) Notices. All notices, demands or requests between Assignor and
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Assignee shall be given in the manner set forth in Section 31 of the Lease to
the following parties:
Assignor: UBS AG, Stamford Branch
-------- 000 Xxxxxxxxxx Xxxxxxxxx
Xxxxxxxx, XX 00000
X.X. Xxx 000000
Xxxxxxxx, XX 00000-0000
Attn Director, Corporate Real Estate
with a copy to
UBS AG, Stamford Branch
000 Xxxxxxxxxx Xxxxxxxxx
Xxxxxxxx, XX 00000
X.X. Xxx 000000
Xxxxxxxx, XX 00000-0000
Office of the General Counsel
Assignee: PIMCO ADVISORS L.P.
-------- 000 Xxxxxxx Xxxxxx Xxxxx
Xxxxxxx Xxxxx, XX 00000
Xxxxxxx Xxxxxx, Esq., Chief Operating
Officer
with a Copy to
Xxxxxxxxxxx Capital
000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Secretary
Landlord: 1345 Leasehold Limited Partnership
-------- 000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
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Attn: Office of General Counsel
Contractor: 1345 Cleaning Service Co.
---------- 000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Office of General Counsel
After the Effective Date, any notices to the tenant under the Lease
or under the Cleaning Agreement shall be given in the manner set forth in
Section 31 of the Lease and in the Cleaning Agreement, except that the parties
and addresses set forth above shall be substituted for the parties and addresses
set forth in Section 31 of the Lease and the Cleaning Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed on the day and year first above written.
UBS AG, NEW YORK BRANCH
By: /s/ Xxxxxxx X. Xxxxxx, Xx.
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Name: Xxxxxxx X. Xxxxxx, Xx.
Title: Director
By: /s/ Xxxxxx X. Xxxxxxxx
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Name: Xxxxxx X. Xxxxxxxx
Title: Executive Director
PIMCO ADVISORS L.P.
By: /s/ Xxxxxxx X. Xxxx
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Name: Xxxxxxx X. Xxxx
Title: General Counsel
By:
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Name:
Title: General Partner
CONSENTED TO:
1345 LEASEHOLD LIMITED PARTNERSHIP
BY THE XXXXXX SIXTH-AVENUE COMPANY
General Partner
By:
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General Partner
BY HAWAIIAN SIXTH AVENUE CORP.
General Partner
By:
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General Partner
STATE OF CONNECTICUT
:ss.:
COUNTY OF FAIRFIELD
On the 16th day of March in the year 1999 before me, the
undersigned, personally appeared Xxxxxxx Xxxxxx, personally known to me or
proved to me on the basis of satisfactory evidence to be the individual whose
name is subscribed to the within instrument and acknowledged to me that he/she
executed the same in his/her capacity as a Director of UBS AG, New York Branch,
that by his/her signature on the instrument, the person upon behalf of which the
individual acted, executed the instrument, and that such individual made such
appearance before the undersigned in the
(insert the city or other political subdivision and the state or country or
other place the acknowledgment was taken).
/s/ Xxxxxxx Xxxxxxx
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Notary Public
XXXXXXX XXXXXXX
NOTARY PUBLIC
MY COMMISSION EXPIRES FEB 28, 0000
XXXXX XX XXXXXXXXXXX
:xx.:
XXXXXX XX XXXXXXXXX
Xx the 16th day of March in the year 1999 before me, the
undersigned, personally appeared Xxxxxx Xxxxxxxx, personally known to me or
proved to me on the basis of satisfactory evidence to be the individual whose
name is subscribed to the within instrument and acknowledged to me that he/she
executed the same in his/her capacity as a Executive Director of UBS AG, New
York Branch, that by his/her signature on the instrument, the person upon behalf
of which the individual acted, executed the instrument, and that such individual
made such appearance before the undersigned in the
(insert the city or other political subdivision and the state or country or
other place the acknowledgment was taken).
/s/ Xxxxxxx Xxxxxxx
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Notary Public
XXXXXXX XXXXXXX
NOTARY PUBLIC
MY COMMISSION EXPIRES FEB 28, 0000
XXXXX XX XXX XXXX)
:ss.:
COUNTY OF NEW YORK)
On the 11th day of March in the year 1999 before me, the
undersigned, personally appeared Xxxxxxx X. Xxxx, personally known to me or
proved to me on the basis of satisfactory evidence to be the individual whose
name is subscribed to the within instrument and acknowledged to me that he/she
executed the same in his/her capacity as a General Counsel of PIMCO ADVISORS,
L.P., that by his/her signature on the instrument, the person upon behalf of
which the individual acted, executed the instrument, and that such individual
made such appearance before the undersigned in the City of New York, State of
New York.
(insert the city or other political subdivision and the state or country or
other place the acknowledgment was taken).
/s/ Xxxx Xxxx X. Xxxxx
----------------------
Notary Public
XXXX XXXX X. XXXXX
Notary Public [ILLEGIBLE] of New York
No. [ILLEGIBLE]
Qualified in New York County
Commission Expires Oct 26, 2000
Schedule I
1. Reception Desk;
2. Built-in kitchen equipment;
3. Approximately 28 trading desks, including IPC telephone equipment and the
turrets servicing those desks on the 48th floor;
4. Built-in supplemental A/C equipment;
5. Under-floor cabling;
6. Raised floor;
7. Data Centers and IDF Rooms
(a) vertical and horizontal cubic and terminations, including
telephone, fiber, and level 5 cable;
(b) level 5 and fiber patch panels and telephone "110 b1ocks"
mounted in racks and on walls;
(c) labels on both ends or all cables;
(d) equipment cabinets, including power cabling and power strips,
shelves and keys for door locks;
(e) IPC Turret telephone switch;
(f) five racks of Telco-provided equipment in 50th floor data
center;
(g) environmental and security monitoring and alarm sensors,
wiring, and systems, including contents of Security Room;
(h) Liebert UPS systems and batteries, including main UPS/Battery
Room and power distribution cabling, switches and circuit
breakers, and monitoring equipment;
8. Outside Data Centers and IDF Rooms
(a) vertical and horizontal cable and terminations, including
telephone, fiber, and level 5 cable;
(b) voice, data and power outlets in raised floors, built-in
furniture, trading desks, offices and other existing
locations;
(c) IPC Turret phone sets on trading desks;
(d) light dimming controls, projection screen and window screen
controls;
(e) equipment enclosures and cabling for audio/visual systems in
conference rooms;
To the extent same is in Assignor's possession, or is otherwise available to
Assignor, documentation for power, data, and voice enabling, UPS equipment, and
supplementary A/C equipment as well as complete architectural drawings for the
Demised Premises will be provided to the Assignee or its designated agents on
the Closing Date. All transferable guarantees and warranties relating to the
FF&E shall be transferred from Assignor to Assignee. Assignor shall reasonably
cooperate with Assignee to effectuate the transfer of any other guarantees and
warrantees with respect to the FF&E.
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[LETTERHEAD OF 1345 LEASEHOLD LIMITED PARTNERSHIP]
March 18, 1999
UBS AG NEW YORK BRANCH
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Re: 1345 Avenue of the Americas;
Assignment and Assumption of Lease
("Assignment and Assumption of Lease")
dated as of February 24, 1999 between
UBS AG (successor by merger to Union
bank of Zwitzerland) NEW YORK BRANCH,
a Swiss banking corporation, having
an office at 000 Xxxx Xxxxxx, Xxx Xxxx,
Xxx Xxxx 00000 ("Assignor") and PIMCO ADVISORS
--------
L.P. a Delaware limited partnership having
an office at 000 Xxxxxxx Xxxxxx Xxxxx,
Xxxxxxx Xxxxx, Xxxxxxxxxx 00000 ("Assignee").
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Gentlemen:
This letter is to indicate our consent to the Assignment and Assumption of
Lease, a copy of which is attached hereto.
Very truly yours,
1345 LEASEHOLD LIMITED PARTNERSHIP
/s/ Xxxxxxx Xxxxxx
By: Xxxxxxx Xxxxxx
KF/ad
Attachment
