FIFTH LEASE MODIFICATION AGREEMENT
THIS FIFTH LEASE MODIFICATION AGREEMENT, made this 18th day of July, 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, June 9,1994 and June 18, 1996 (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, Now Jersey 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 December 31, 2016
(the "Expiration Date") ; and
WHEREAS, Landlord and Tenant wish to increase 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. LEASING OF SIXTH FLOOR SPACE: The following space, collectively
constituting the entire sixth floor of the Building (the "Sixth Floor") is
hereby added to the Demised Premises effective upon the vacancy and surrender
thereof by the individual tenants listed below:
i. Approximately 15,632 square feet occupied by Xxxx Elsevier, Inc. with
a termination date of March 31, 1997.
ii. Approximately 6,705 square feet occupied by the Marcus Group with a
termination date of December 31, 1996.
iii. Approximately 12,273 square feet occupied by Nedloyd with a
termination date of December 31, 1996.
iv. Approximately 15,616 square feet occupied by Pichony with a
termination date of September 30, 1996.
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. Effective on the date Tenant takes possession of any part of the
Sixth Floor, the Tenant's Fraction shall be increased proportionately. Landlord
agrees to use reasonable efforts to effect the vacancy of the Sixth Floor in
connection with its efforts to deliver the Sixth Floor to Tenant on or before
April 1, 1997, or as soon thereafter as practicable.
B. NON-DELIVERY PENALTY: During the month of April, 1997, in the event
any portion of the Sixth Floor is not delivered to Tenant on or before April 1,
1997, Tenant shall receive an abatement
of Fixed Rent for all space on the Sixth Floor delivered to Tenant for the
period commencing on April 1, 1997 until the date the entire Sixth Floor has
been delivered to Tenant. In the event any portion of the Sixth Floor remains
undelivered on May 1, 1997, Tenant's Fixed Rent abatement on the full Sixth
Floor shall continue until the date of delivery of the full Sixth Floor and
Tenant shall receive an additional abatement of one day's Fixed Rent for the
full Sixth Floor for each day after May 1, 1997 that the date of delivery of the
full sixth Floor is delayed.
2. ADA COMPLIANCE: To the extent required by any governmental authority
having jurisdiction over the Sixth Floor Landlord agrees to correct any
violations of the American with Disabilities Act, 42 USCA 12101-12213, with
respect to the core bathrooms, elevator buttons and strobe lights on the Sixth
Floor.
3. FIXED RENT: Fixed Rent for the Floor Space on the Sixth Floor will be at
the rate of seven ($7.00) dollars per annum multiplied by the Floor Space of the
premises delivered, from the date of delivery until August 17, 1998; nineteen
($19.00) dollars per annum multiplied by the Floor Space from August 16, 1998
until June 15, 2007; twenty-four dollars ($24.00) per annum multiplied by the
Floor Space from June 16, 2007 until June 15, 2012; and twenty eight dollars
($28.00) multiplied by the Floor space from June 16, 2012 until the Expiration
Date of the Lease.
4. BASE YEAR: For purposes of calculating Real Estate Taxes and Operating
Expenses on the Sixth Floor, the Base Year shall be the twelve month period of
August 1998 through August 1999.
5. TENANT'S WORK:
A. Tenant shall demolish and build out the Sixth Floor space in
accordance with its requirements and subject to all terms and conditions of the
Lease pertaining to Landlord's review and approval of same.
B. Subject to Tenant's receipt of a one year warranty for all work
performed in connection with its buildout of the Sixth Floor, Landlord hereby
approves both Plaza Construction and Structuretone as general contractors for
Tenant's buildout, provided, however, that Tenant shall use a subcontractor
designated by Landlord to do the electrical hookups, provided that the costs
associated with using such designated contractor shall be competitive with those
of other contractors in Xxxxxx County. Landlord will review Tenant's
construction plans within ten (10) business days of receipt. Notwithstanding
the foregoing, Landlord or its affiliate will be provided with a copy of the bid
from or the proposed contract with the subcontractor(s) which is about to be
designated to perform the HVAC work and electrical hookups, along with all
necessary plans and specifications, and Tenant shall award the subcontract(s)
for the HVAC work and electrical hookups to Landlord (or its affiliate) in the
event Landlord's bid does not exceed that of the Tenant's subcontractor(s).
C. Subject to Landlord's review of plans and specifications pertaining to
same, Landlord will not unreasonably withhold or delay its approval to Tenant's
installation of an additional 50 tons of air conditioning for the Demised
Premises and to Tenant's installation of additional electrical capacity.
D. The second sentence of Article 15.01 of the Lease is hereby replaced
with the following: "No consent will be necessary for non-structural changes of
less than one hundred thousand dollars ($100,000.00) provided that Tenant must
notify Landlord of such changes in advance and, if Tenant has or should be
reasonably expected to have plans and specifications prepared for such
nonstructural changes, Tenant shall supply Landlord with plans and
specifications pertaining to such changes in advance."
6. SURRENDER: Tenant shall have the right to install a pedestrian staircase
between contiguous floors leased by Tenant. Landlord, at its option, shall have
the right to require the removal of and
Tenant shall remove the staircase and restore the space at Tenant's expense on
or before the later of the Expiration Date or thirty days following notice from
Landlord, provided that Landlord shall notify Tenant of Landlord's requirement
for the removal of the staircase not later than thirty days following the later
of the Expiration Date or the date Tenant vacates either of the two floors
serviced by such staircase.
7. SIGNAGE: Other than rights of pre-existing tenants, Landlord will not
allow any tenant to install any exterior ground mounted signage adjacent to the
Building larger than that of Tenant's exterior ground mounted signage unless
said tenant leases space totaling more than 150% of the Demised Premises.
8. EXPANSION OPTION:
A. Landlord agrees that, with respect to any full floor of space
currently leased to Xxxx Elsevier, Inc. ("Xxxx"), Tenant shall,
provided Tenant is not then in default of this Lease beyond any
applicable notice and cure periods and provided Xxxx fails to renew or
extend the term of its lease, have the option to lease such space
provided Tenant notifies Landlord of its election to do so not later
than December 24, 2000 (which is fifteen months and one week prior to
the current Read lease expiration date of March 31, 2002) ("Tenant's
Notice"). If Tenant shall notify Landlord in writing of its election
to enter into such lease as tenant for such additional premises within
said period Landlord shall, on or before January 15, 2001, advise
Tenant concerning Xxxx'x extension or failure to extend the term of
its lease and, if Xxxx fails to exercise its option, Landlord shall
subsequently deliver and Tenant shall execute a modification of this
Lease incorporating the rent, terms and conditions with respect to the
additional premises. Time is of the essence with respect to Tenant's
exercise of such expansion option. The term of
Tenant's leasing such premises shall be from the date Xxxx vacates
such space until June 15, 2012. The Fixed Rent during such
(approximately) ten year and two month period shall be at the greater
of 95% of Fair Market Value ("FMV"), as hereinafter defined, or as
provided in paragraph 2 of the Fourth Lease Modification Agreement.
The Base Year shall be as provided in paragraph 3 of the Fourth Lease
Modification Agreement. FMV shall be determined by mutual agreement
of the parties. If the parties are unable to agree on the FMV, the
parties shall choose a licensed Real Estate Appraiser who shall
determine the FMV. The cost of said Real Estate Appraiser shall be
borne equally by the parties. If the parties are unable to agree on a
licensed Real Estate Appraiser, each party shall select one Appraiser
to appraise the FMV. If the difference between the two appraisals is
20% or less of the lower appraisal, then the FMV shall be the average
of the two appraisals. If the difference between the two appraisals
is greater than 20% of the lower appraisal, the two Appraisers shall
select a third licensed Real Estate Appraiser to appraise the FMV.
The FMV shall in such case be the average of the three appraisals.
The cost of the third appraisal shall be borne equally by the parties.
B. 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 period referred to in subsection (A) hereof, then
the expansion option granted to the Tenant as set forth in subsection
(A) of this Section shall automatically terminate and come to and end.
C. 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.
D. Notwithstanding anything contained herein or in the Lease to the
contrary, in the event Tenant exercises its right to expand by
forwarding the Tenant's Notice as provided in
subsection (A) of this section, Tenant shall have waived,
automatically and without any further documentation, its right as
provided in paragraph 6 of the Fourth Lease Modification Agreement to
cancel the Lease effective as of June 15, 2007. The foregoing shall
not alter or modify Tenant's right to cancel on June 15, 2012, subject
to the terms of such paragraph 6 of the Fourth Lease Modification
Agreement.
9. PARKING: The allocation of parking spaces for Tenant will be increased to
a total of 24 on the date Tenant takes full possession of the Sixth Floor.
10. CLEANING: Upon not less than thirty days prior notice to Landlord, Tenant
will be allowed to use its own full time employees for additional cleaning
within the Demised Premises in lieu of Landlord's cleaning contractor performing
such additional services.
11. 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 Fifth 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, attorney's fees and disbursements) incurred by the other by reason
of any claim of or liability for commissions or other compensation in connection
with this Fifth Lease Modification Agreement 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.
12. FREIGHT ELEVATOR: During the initial buildout of the Sixth Floor by
Tenant, Tenant's after hours use of the freight elevator will be at no extra
charge to Tenant other than custodial supervision at the rate of $25 per hour
(and other than costs incurred as a result of misuse thereof).
13. MISCELLANEOUS: Except as modified by this Fifth 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 Fifth 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.
BY: ALLIANCE CAPITAL MANAGEMENT CORPORATION,
Its General Partner
BY: /s/ Xxxx X. Xxxxxx
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Xxxx X. Xxxxxx
President & Chief Operating Officer
