Exhibit 10.4
FIRST AMENDMENT TO LEASE
THIS FIRST AMENDMENT TO LEASE (this "First Amendment") is made as of
July 13th, 2000, by and among (i) Xxxxxx Xxxxx & Company, a Delaware corporation
("Tenant"), and (ii) Xxxxxx X. Xxxxxxxxx and Xxxxxxxx X. Xxxxxxxxx, Trustees
under Trust Indenture made by Xxxxxxxx X. Xxxxxxxx dated November 28, 1953,
Xxxxxx X. Xxxxxxxxx and Xxxxxxxx X. Xxxxxxxxx, Trustees under Trust Indenture
made by Xxxxxxx X. Xxxxxxx dated November 28, 1953, Xxxxxx X. Xxxxxxxxx,
Xxxxxxxx X. Xxxxxxxxx and Xxxxxx X. Xxxx, Trustees under the Will of Xxxxxxxx
Xxxx (Trust Estates 2 through 4), Xxxxxx X. Xxxxxxxxx, Xxxxxxxx X. Xxxxxxxxx and
Xxxxxx X. Xxxx, Trustees under Trust Indenture made by Xxxx X. Xxxxxxx dated
August 14, 1959 (Trust Estates I through 4), Xxxxxx X. Xxxxxxxxx, Xxxxxxxx X.
Xxxxxxxxx and Xxxxxx X. Xxxx, Trustees under Trust Indenture made by Xxxxxxxx X.
Xxxxxxxx dated August 14, 1959 (Trust Estates 4, 5, and 6), Xxxxxx X. Xxxxxxxxx,
Xxxxxxxx X. Xxxxxxxxx and Xxxxxx X. Xxxx, Trustees under Trust Indenture made by
Xxxxxxx X. Xxxxxxx dated August 14, 1959 (Trust Estates I through 6), Xxxxxx X.
Xxxxxxxxx and Xxxxxxxx X. Xxxxxxxxx, as Trustees under the Trust Indenture made
by Xxxxx X. Xxxxxxxx (Trust Estates I and 2) dated December 5, 1956, Xxxxxx X.
Xxxxxxxxx, Xxxxxxx X. Xxxxxxxx and Xxx X. Xxxxxxxx, Trustees under Trust
Indenture No. I made by Xxxxxx X. Xxxxxxxxx dated September 21, 1959 (Trust
Estates I through 8), Xxxxxx X. Xxxxxxxxx, Xxxxxxxx X. Xxxxxxxxx and Xxxxxx X.
Xxxx, Trustees under Trust Indenture No. II made by Xxxxxx X. Xxxxxxxxx dated
September 21, 1959, and Xxxxxx X. Xxxxxxxxx and Xxxxxx X. Xxxx, Trustees under
Trust Indenture made by Xxxxxxx X. Xxxxxxxx dated May 7, 1965 (Trust Estates 3
through 9 and 11) (collectively, "Landlord").
RECITALS:
WHEREAS, Landlord and Tenant entered into that certain Office Lease
(the "Original Lease"), dated January 9, 1998, pursuant to which Landlord leased
to Tenant approximately eighty-seven thousand three hundred twenty-seven
(87,327) rentable square feet of space (the "Premises") on the 7th, 8th, and 9th
floors of the building located at 0000 X Xxxxxx, X.X., Xxxxxxxxxx, X.X. (the
"Building");
WHEREAS, pursuant to that letter dated February 24, 1999 from Tenant to
Landlord, Xxxxxx Xxxxx exercised its option to lease the fifth floor of the
Building (the "Fifth Floor") and the sixth floor of the Building (the "Sixth
Floor") in accordance with Section 39 of the Original Lease;
WHEREAS, the Federal Deposit and Insurance Corporation (the "FDIC") and
Landlord are parties to that Office Lease dated March 1, 1991, as amended by the
First Amendment dated September 27, 1995, the Second Amendment dated August 25,
1997, and the Third Amendment dated February 22, 2000 (the "FDIC Lease").
Pursuant to the FDIC Lease, the FDIC leases space in the Building, including the
Fifth and Sixth Floors. The FDIC has advised both the Landlord and Xxxxxx Xxxxx
that it is willing to vacate the Fifth and Sixth Floors prior to the FDIC Lease
expiration date for those floors, i.e. August 31, 2000, so that Xxxxxx Xxxxx can
commence its leasing of those floors prior to the date set forth in the Original
Lease, and thereby proceed to perform its tenant improvements and occupy those
floors earlier than as contemplated under the Original Lease; and
WHEREAS, Landlord and Tenant desire to amend the Original Lease for the
purpose of providing for the delivery to Tenant of the Fifth Floor and the Sixth
Floor earlier than anticipated by the Original Lease and to address other
related matters, as hereinafter provided.
NOW THEREFORE, for and in consideration of Ten Dollars ($10.00), the
Recitals set forth above, the mutual covenants and agreements hereinafter set
forth and other good and valuable consideration, the receipt, adequacy and
sufficiency of which are hereby acknowledged, Landlord and Tenant hereby
mutually agree as follows:
1. RECITALS INCORPORATED, CERTAIN DEFINED TERMS. The Recitals set forth
above are incorporated herein by this reference and shall be deemed terms and
provisions hereof with the same force and effect as if fully set forth in this
Section. Terms which are not otherwise defined herein shall be deemed to have
the same meanings herein as are ascribed to such terms in the Original Lease. As
used herein and in the Original Lease, the term "Lease" shall hereafter mean the
Original Lease, as amended by this First Amendment.
2. DELIVERY DATES FOR FIFTH FLOOR AND SIXTH FLOOR.
(a) Provided that the FDIC terminates its leasing of the Fifth and
Sixth Floors prior to August 31, 2000, enters into a termination agreement with
Landlord to that effect, including the payment of a termination fee, and
delivers said floors to Landlord, then Landlord agrees that it will deliver the
Fifth and Sixth Floors to Tenant. Tenant agrees that it shall accept the Sixth
Floor if delivered on July 15, 2000, and Tenant agrees that it shall accept the
Fifth Floor if delivered to Tenant on July 28, 2000. In such event, the Original
Lease shall commence as to each of those floors on their respective delivery
dates. As consideration for Landlord's delivery of the Sixth Floor to Tenant
earlier than anticipated under the Original Lease, Tenant shall pay to Landlord,
within ten (10) days after the date upon which Landlord delivers the Sixth Floor
to Tenant, an amount equal to One Thousand Three Hundred and 10/100 Dollars
($1,300.10) multiplied by the number of days occurring during that period
beginning on July 15, 2000, if Landlord delivers the Sixth Floor to Tenant on
July 15, 2000, and ending on August 31, 2000. As consideration for Landlord's
delivery of the Fifth Floor to Tenant earlier than anticipated under the
Original Lease, Tenant shall pay to Landlord, within ten (10) days after
Landlord's delivery of the Fifth Floor to Tenant, an amount equal to One
Thousand Three Hundred and 10/100 Dollars ($1,300.10) multiplied by the number
of days occurring during that period beginning on July 15, 2000, if Landlord
delivers the Fifth Floor to Tenant on July 15, 2000, and ending on August 31,
2000.
(b) In the event that the FDIC does not deliver the Fifth Floor by July
28, 2000 or the Sixth Floor by July 15, 2000, but is able to deliver said floors
on dates earlier than August 31, 2000, then Tenant shall have the right, but
have no obligation, to accept either floor on the date delivered. In such event,
the Original Lease shall commence as to each floor on the date of
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delivery thereof, and the following rental shall be paid: for each floor, the
rental shall be computed by multiplying the number of days from the date of
delivery to August 31, 2000, by the sum of One Thousand Three Hundred and 10/100
Dollars ($1,300.10), payable within ten (10) days after the date of delivery of
the respective floor.
(c) In the event that Tenant takes delivery of either the Fifth or
Sixth Floors as provided above, and if Tenant occupies and conducts its business
in all or a part of the Fifth Floor and/or the Sixth Floor for any period before
December 31, 2000, then Tenant shall reimburse Landlord, within ten (10) days of
Landlord's demand, for the costs of Tenant's occupancy, including all utilities
and janitorial services, attributable to Tenant's occupancy of the subject
portion(s) of the Fifth Floor and/or the Sixth Floor during the aforesaid
period(s).
(d) Landlord shall have no liability whatsoever to Tenant for the
failure of the FDIC to deliver the Fifth or Sixth Floors as provided above.
3. SECTION 39 OF ORIGINAL LEASE. In the event that Tenant takes
delivery of either the Sixth or Fifth Floors as provided above, then Section
39(a) of the Original Lease shall be amended to provide that, with respect to
the Fifth and Sixth Floors, Tenant shall commence paying, in full, Base Rent and
Additional Rent (in addition to the occupancy costs as provided in paragraph
2(c)), on and after January 1, 2001.
4. EXTERIOR SIGNAGE/SECTION 45 OF ORIGINAL LEASE. Landlord hereby
agrees that Tenant shall have the right to place one exterior sign on the
Building facing H Street in accordance with Section 45 of the Original Lease
notwithstanding the fact that Tenant exercised the Expansion Option (as defined
in Section 39 of the Original Lease) with respect to less than three entire
additional floors of the Building.
5. MEASUREMENT OF BUILDING. Landlord has remeasured the Building and
found that it contains 314,422 rentable square feet measured in accordance with
the standard identified in Section 1 (b) of the Original Lease, and Tenant's
Proportionate Share shall be computed based thereon.
6. ENTIRE AGREEMENT. This First Amendment contains the entire
understanding of Landlord and Tenant with respect to the matters addressed
herein, and no prior agreements or understandings between Landlord and Tenant
relative to the matters addressed herein shall be effective after the execution
of this First Amendment.
7. FULL FORCE AND EFFECT. This First Amendment amends the Original
Lease and the terms and provisions hereof shall supersede and govern over any
inconsistent terms or provisions contained in the Original Lease. All terms and
provisions of the Original Lease not expressly modified herein are hereby
confirmed and ratified and remain in full force and effect, and, as amended
hereby, constitute valid and binding obligations of Landlord and Tenant.
8. AUTHORIZATION TO EXECUTE. Each individual executing this First
Amendment on behalf of Landlord or Tenant, respectively, represents and warrants
that he/she is duly authorized to execute this First Amendment on behalf of
Landlord or Tenant, respectively.
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9. COUNTERPARTS. This First Amendment may be executed in multiple
counterparts, each of which it shall be deemed an original, but all of which
shall constitute one and the same instrument. Signatures to this First Amendment
which are transmitted by facsimile shall have the same binding effect as
original signatures.
IN WITNESS WHEREOF, the parties hereto have executed and delivered this
First Amendment as of the date first written above.
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ATTEST: TENANT:
/s/ XXXXXXX XXXXXXX XXXXXX XXXXX & COMPANY,
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Xxxxxxx Xxxxxxx a Delaware corporation
By: /s/ XXXX X. XXXXXXXXX
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Print name: XXXX X. XXXXXXXXX
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Its: TREASURER
--------------------------------
WITNESS: LANDLORD:
/s/ XXXXXXXXX COHUK /s/ XXXXXX X. XXXXXXXXX
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Xxxxxxxxx Cohuk Xxxxxx X. Xxxxxxxxx, Trustee
/s/ XXXXXXXXX COHUK /s/ XXXXXXXX X. XXXXXXXXX
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Xxxxxxxxx Cohuk Xxxxxxxx X. Xxxxxxxxx, Trustee
Trustees under Trust Indenture made by
Xxxxxxxx X. Xxxxxxxx dated November 28, 1953
and Trustees under Trust Indenture made by
Xxxxxxx X. Xxxxxxx dated November 28, 1953
/s/ XXXXXXXXX COHUK /s/ XXXXXX X. XXXXXXXXX
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Xxxxxxxxx Cohuk Xxxxxx X. Xxxxxxxxx, Trustee
/s/ XXXXXXXXX COHUK /s/ XXXXXXXX X. XXXXXXXXX
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Xxxxxxxxx Cohuk Xxxxxxxx X. Xxxxxxxxx, Trustee
/s/ XXXXXXXXX COHUK /s/ XXXXXX X. XXXX
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Xxxxxxxxx Cohuk Xxxxxx X. Xxxx, Trustee
Trustees under the Will of Xxxxxxxx Xxxx
(Trust Estates 2 through 4), Trustees under
Trust Indenture made by Xxxx X. Xxxxxxx
dated August 14, 1959 (Trust Estates 1
through 4), Trustees under Trust Indenture
made by Xxxxxxxx X. Xxxxxxxx dated August
14, 1959 (Trust Estates 4, 5 and 6),
Trustees under Trust Indenture made by
Xxxxxxx X. Xxxxxxx dated August 14, 1959
(Trust Estates 1 through 6), Xxxxxx X.
Xxxxxxxxx and Xxxxxxxx X. Xxxxxxxxx, as
Trustees under the Trust Indenture made by
Xxxxx X. Xxxxxxxx (Trust) Estates 1 and 2,
dated December 5, 1956, Trustees under Trust
Indenture No. II made by Xxxxxx X. Xxxxxxxxx
dated September 21, 1959.
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/s/ XXXXXXXXX COHUK /s/ XXXXXX X. XXXXXXXXX
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Xxxxxxxxx Cohuk Xxxxxx X. Xxxxxxxxx, Trustee
/s/ XXXX X. RABIALTI /s/ XXXXXXX X. XXXXXXXX
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Xxxx X. Rabialti Xxxxxxx X. Xxxxxxxx, Trustee
/s/ XXXXXXXXX COHUK /s/ XXX X. XXXXXXXX
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Xxxxxxxxx Cohuk Xxx X. Xxxxxxxx, Trustee
Trustees under Trust Indenture No. I made by
Xxxxxx X. Xxxxxxxxx dated September 21, 1959
(Trust Estate 1 through 8)
/s/ XXXXXXXXX COHUK /s/ XXXXXX X. XXXXXXXXX
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Xxxxxxxxx Cohuk Xxxxxx X. Xxxxxxxxx, Trustee
/s/ XXXXXXXXX COHUK /s/ XXXXXX X. XXXX
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Xxxxxxxxx Cohuk Xxxxxx X. Xxxx, Trustee
Trustees under Trust Indenture made by
Xxxxxxx X. Xxxxxxxx dated May 7, 1965 (Trust
Estates 3 through 9 and 11)
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