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Exhibit 10.2
FIFTH AMENDMENT TO LEASE
This FIFTH AMENDMENT TO LEASE dated as of May 14th, 2001 (this
"Amendment") between RCPI LANDMARK PROPERTIES, L.L.C., a Delaware limited
liability company, having an office c/o Tishman Speyer Properties, L.P., 00
Xxxxxxxxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000 ("Landlord"), and XXXXX MANAGEMENT
CO., INC., a Delaware corporation, having an office at Xxx Xxxxxxxxxxx Xxxxx,
Xxx Xxxx, Xxx Xxxx 00000 ("Tenant").
WITNESSETH:
WHEREAS, Landlord's predecessor-in-interest, Rockefeller Center
Properties, and Tenant's predecessor-in-interest, Xxxx X. Xxxxx & Co., Inc.,
entered into that certain Lease dated December 20, 1993, as amended by
Supplemental Indenture, dated March 2, 1995 (the "Supplemental Indenture"), the
First Amendment to Lease, dated June 23, 1997 (the "First Amendment"), the
Second Amendment to Lease, dated as of January 22, 1998 (the "Second
Amendment"), the Third Amendment to Lease dated as of December 31, 1998 ("the
"Third Amendment"), and the Fourth Amendment of Lease, dated July 18, 2000 (the
"Fourth Amendment"), in respect of Space 'D' on the 3rd floor of the Building
(the "Third Floor Premises"), Space 'A' on the 19th floor of the Building (the
"19th Floor Premises"), Space 'A' on the 25th floor of the Building (the "25th
Floor Premises") and Space 'P' on the 22nd floor of the Building (the "Storage
Space" and, together with the 3rd Floor Premises, the 19th Floor Premises and
the 25th Floor Premises, collectively the "Premises") of the building known as
One Rockefeller Plaza, New York, New York (the "Building") (the Lease, as
heretofore amended by the Supplemental Indenture, the First Amendment, the
Second Amendment, the Third Amendment and the Fourth Amendment, is hereinafter
called the "Original Lease").
WHEREAS, Landlord and Tenant desire to modify the Original Lease to (i)
provide for the leasing by Tenant of the entire fourth floor of the Building,
designated as Space 'A', and being more particularly shown on Exhibit A attached
hereto (the "4th Floor Premises"), (ii) provide for the extension of the term of
the Original Lease in respect of the 19th Floor Premises and the 25th Floor
Premises and (iii) otherwise modify the terms and conditions of the Original
Lease, all as hereinafter set forth (the Original Lease, as modified by this
Amendment, the "Lease").
NOW, THEREFORE, in consideration of the mutual covenants herein
contained, and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Landlord and Tenant agree as
follows:
1. Capitalized Terms. All capitalized terms used and not otherwise
defined in this Amendment shall have the respective meanings ascribed to them in
the Original Lease.
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2. Lease of 4th Floor Premises. (a) Landlord hereby leases to Tenant,
and Tenant hereby leases from Landlord, subject and subordinate to the Qualified
Encumbrances, the 4th Floor Premises for a term commencing on the later to occur
of (i) July 1, 2001 and (ii) the date that Landlord delivers possession of the
4th Floor Premises to Tenant (the "4th Floor Premises Commencement Date") and
ending on the 2001 Extended Expiration Date (as hereinafter defined), or such
earlier date upon which the term of the Lease may expire or be terminated
pursuant to any of the conditions of limitation or other provisions of the Lease
or pursuant to law, upon all of the terms and conditions of the Original Lease,
as modified by this Amendment.
(b) Landlord shall not be liable for failure to deliver possession of
the 4th Floor Premises to Tenant on any specified date, and such failure shall
not impair the validity of this Amendment. Landlord shall be deemed to have
delivered possession of the 4th Floor Premises to Tenant upon the giving of
notice by Landlord to Tenant stating that the entire 4th Floor Premises are
vacant, broom-clean, free of moveable furniture and fixtures, free of all
tenancies and occupants and available for Tenant's occupancy (subject to such
notice being factually correct). There shall be no postponement of the 4th Floor
Premises Commencement Date for any delay in the delivery of possession of the
4th Floor Premises to Tenant that results from any Tenant Delay. The provisions
of this Section 2(b) are intended to constitute "an express provision to the
contrary" within the meaning of Section 223-a of the New York Real Property Law
or any successor Requirement. If Landlord fails to deliver vacant possession of
the 4th Floor Premises in accordance with the terms of this Lease prior to
December 31, 2001, as extended by any delays resulting from force majeure (the
"Outside Delivery Date"), Tenant shall have the right within 30 days after the
Outside Delivery Date, as its sole and exclusive remedy therefor, to cancel this
Amendment by giving notice of cancellation to Landlord. If Tenant timely
delivers the aforesaid cancellation notice, this Amendment shall terminate 30
days after the date of such notice, unless Landlord delivers vacant possession
of the 4th Floor Premises within such 30 day period, in which case Tenant's
cancellation notice shall be void and this Amendment shall continue in full
force and effect. Failure by Tenant to exercise such right to cancel this
Amendment within such 30-day period shall constitute a waiver of such right;
time being of the essence with respect thereto.
(c) Effective as of the 4th Floor Premises Commencement Date, Tenant
shall lease the 4th Floor Premises upon all of the terms and conditions of the
Original Lease, except as follows:
(i) The fixed rent payable under the Lease with respect to the
4th Floor Premises shall be an amount equal to (A) $1,294,784.00 per
annum ($107,898.67 per month) for the period commencing on the date that
is the fourth-month anniversary of the 4th Floor Premises Commencement
Date (the "4th Floor Premises Rent Commencement Date") and ending on the
day immediately preceding the 5th anniversary of the 4th Floor Premises
Commencement Date,
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both dates inclusive; and (B) $1,395,939.00 per annum ($116,328.25 per
month) for the period commencing on the 5th anniversary of the 4th
Floor Premises Commencement Date and ending on the 2001 Extended
Expiration Date, both dates inclusive.
(ii) The 4th Floor Premises shall be deemed to consist of
20,231 rentable square feet for all purposes of the Lease.
(iii) Tenant shall pay all additional rent payable pursuant to
the Original Lease including Article Twenty-Four thereof, except with
respect to the 4th Floor Premises only, (A) the clause "110% of" in
Section 24.1 of the Original Lease shall be deemed to be deleted in both
places in which it appears, (B) the clause "110% of" in Section 24.2(b)
of the Original Lease shall be deemed to be deleted in both places in
which it appears, (C) the term "Base Real Estate Taxes" shall mean the
R.E. Tax Share of the Real Estate Taxes for the Tax Year beginning on
July 1, 2001 and ending on June 30, 2002, (D) the term "Base COM" shall
mean the O.E. Share of the Cost of Operation and Maintenance for the
Computation Year beginning on January 1, 2001 and ending on December 31,
2001, and (E) the term "Tenant's Area" shall mean 20,231 rentable square
feet.
(iv) Tenant has inspected the 4th Floor Premises and agrees
(A) to accept possession of the 4th Floor Premises in the "as is"
condition existing on the 4th Floor Premises Commencement Date, (B) that
neither Landlord nor Landlord's agents have made any representations or
warranties with respect to the 4th Floor Premises or the Building except
as expressly set forth herein, and (C) except for Landlord's Additional
Contribution, (as hereinafter defined) Landlord has no obligation to
perform any work, supply any materials, incur any expense or make any
alterations or improvements to the 4th Floor Premises to prepare the 4th
Floor Premises for Tenant's occupancy. Tenant's occupancy of any part of
the 4th Floor Premises shall be conclusive evidence, as against Tenant,
that (1) Tenant has accepted possession of the 4th Floor Premises in its
then current condition, and (2) the 4th Floor Premises and the Building
are in a good and satisfactory condition as required by this Amendment.
(v) Tenant shall modify, to the extent necessary, as part of
its initial Alterations of the 4th Floor Premises and thereafter maintain
in good order and repair, a sprinkler system and fire-alarm and
life-safety system serving the 4th Floor Premises. Such modification and
maintenance shall be performed by Tenant in accordance with this Lease,
the rules and regulations and all Requirements. If the Fire Insurance
Rating Organization or any Governmental Authority (as hereinafter
defined) or any of Landlord's insurers requires or recommends any
modifications or Alterations be made or any additional equipment be
supplied in connection with the sprinkler system or fire-alarm and
life-safety system serving the Building or the 4th Floor Premises by
reason of
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Tenants business, or the location of the partitions, trade fixtures, or
other contents of the 4th Floor Premises, Landlord (to the extent such
modifications or Alterations are structural, affect any building system
or involve the performance of work outside the 4th Floor Premises), or
Tenant (to the extent such modifications or Alterations are
nonstructural, do not affect any building system and do not involve the
performance of work outside the 4th Floor Premises) shall make such
modifications or Alterations, and supply such additional equipment, in
either case at Tenant's expense. Landlord represents and warrants to
Tenant that, as of the 4th Floor Premises Commencement Date, the
sprinkler system and fire-alarm and life-safety system serving the 4th
Floor Premises shall be in good working order.
(vi) Except as provided in this Amendment, all references in the
Original Lease to the "Premises" shall be deemed to include the 4th Floor
Premises for all purposes of the Lease. With respect to the 4th Floor
Premises only, all references in the Original Lease to "term" or "term of
this Lease" or words of similar import shall be deemed to refer to the
term of the leasing of the 4th Floor Premises (i.e., the portion of the
term from and after the 4th Floor Premises Commencement Date).
(vii) (x) Landlord agrees to pay to Tenant, toward payment of the
cost of the work to be performed by Tenant in the Premises and/or the 4th
Floor Premises (the "Additional Installations"), an amount not to exceed
$445,082.00 ("Landlord's Additional Contribution"), provided that as of
the date on which Landlord is required to make payment pursuant to
Section 2(b)(vii)(y): (i) the Lease is in full force and effect, and (ii)
no event of default under the Lease then exists. Tenant shall pay all
costs of the Additional Installations in excess of Landlord's Additional
Contribution. Landlord's Additional Contribution shall be payable solely
on account of (A) labor directly related to the Additional Installations
and materials delivered to the Premises or the 4th Floor Premises in
connection with the Additional Installations, except that Tenant may
apply up to 10% of Landlord's Additional Contribution to pay "soft costs"
incurred in connection with the Additional Installations, which shall be
limited to the actual architectural, consulting and engineering fees
incurred by Tenant in connection therewith, (B) overtime freight elevator
charges incurred by Tenant in connection with any such Additional
Installations and (C) the installation of computer and telecommunications
wiring, cable and conduit. Tenant shall not be entitled to receive any
portion of Landlord's Additional Contribution not actually expended by
Tenant in the performance of the Additional Installations in accordance
with this Section 2(b)(vii)(x), nor shall Tenant have any right to apply
any unexpended portion of Landlord's Additional Contribution as a credit
against Rent or any other obligation of Tenant hereunder.
(y) Landlord shall pay Landlord's Additional Contribution to Tenant
following commencement of Tenant's business operations at the 4th Floor
Premises and the final completion of the Additional Installations, within
30
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days following the submission by Tenant to Landlord of a written
requisition, signed by the chief financial officer of Tenant and
accompanied by (i) copies of paid invoices covering all of the Additional
Installations, (ii) a written certification from Tenant's architect
stating that (A) the Additional Installations described on such invoices
have been completed in accordance with the plans and specifications
approved by Landlord, (B) such work has been paid in full by Tenant and
(C) all contractors, subcontractors and materialmen have delivered to
Tenant waivers of lien with respect to such work (copies of which shall
be included with such architects certification), (iii) proof of the
satisfactory completion of all required inspections and the issuance of
any required approvals and sign-offs by Governmental Authorities having
jurisdiction with respect thereto, (iv) certificates of final approval of
such Additional Installations required by any Governmental Authority, and
shall furnish Landlord with copies thereof, together with "as-built"
plans and specifications for such Additional Installations prepared on an
Autocad Computer Assisted Drafting and Design System (or such other
system or medium as Landlord may accept) using naming conventions issued
by the American Institute of Architects in June, 1990 (or such other
naming convention as Landlord may accept) and magnetic computer media of
such record drawings and specifications, translated into DXF format or
another format acceptable to Landlord, and (v) such other documents and
information as Landlord may reasonably request. The right to receive
Landlord's Additional Contribution is for the exclusive benefit of
Tenant, and in no event shall such right be assigned to or be enforceable
by or for the benefit of any third party, including any contractor,
subcontractor, materialman, laborer, architect, engineer, attorney or any
other person or entity. For purposes hereof, "Governmental Authority
(Authorities)" shall mean the United States of America, the City, County
or State of New York or any political subdivision, agency, department,
commission, board, bureau or instrumentality of any of the foregoing, or
any landmarks preservation agency (or other entity designated or accepted
for such purpose by any Governmental Authority or landmarks preservation
agency), now existing or hereafter created, having jurisdiction over the
Building, the Land or the Center.
(viii) The provisions of Article Five of the Original Lease shall be
applicable to the 4th Floor Premises, except that the reference to "four
xxxxx" in the first sentence of Section 5.1 shall be deemed to be deleted
and reference to "six xxxxx" substituted therefor.
(ix) Section 6.1(e)(ii) of the Original Lease is amended by
restating the proviso at the end thereof to read in its entirety as
follows:
"; provided that in connection with any work or Alterations to be
performed by Tenant in the Premises or the 4th Floor Premises after
the 4th Floor Premises
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Commencement Date, such reasonable charges shall not include a
Landlord supervisory fee."
(x) The second sentence of Section 6.1(e)(ix) of the Original Lease
is hereby deleted.
(xi) The following provisions of the Original Lease shall not be
applicable to the leasing of the 4th Floor Premises: Section 20.2 and
Articles Twenty-Seven, Thirty, Thirty-One and Thirty-Two.
(xii) Notwithstanding anything to the contrary contained in the
Lease, if in connection with the Additional Installations in respect of
the 4th Floor Premises only, Requirements mandate that asbestos or
asbestos containing material located within the 4th Floor Premises be
abated, removed, or encapsulated, Landlord shall perform such work to
comply with Requirements ("Landlord's Asbestos Work") provided (i) such
work does not require abatement, encapsulation, or removal of any
asbestos-containing materials located in the Building's core or
perimeter, core toilets, behind perimeter heating units or in shafts,
columns, beams, floor tiles, wet stacks, ceiling tile mastic or in the
mechanical and fan rooms not demised to Tenant, and (ii) such Additional
Installations are being performed by Tenant strictly in accordance with
approved plans. Tenant shall use commercially reasonable efforts to
minimize the extent of such abatement. Other than Landlord's Asbestos
Work, Tenant, at its sole costs and expense, shall be solely responsible
for any abatement, removal, or encapsulation that may be required to
comply with any and all applicable Requirements. In the event Landlord is
required to perform Landlord's Asbestos Work as aforesaid, Landlord shall
perform the same following the 4th Floor Premises Commencement Date at a
time to be mutually agreed upon by Landlord and Tenant. Tenant will
afford Landlord and its employees, contractors and agents access to the
4th Floor Premises at all reasonable times for the performance of
Landlord's Asbestos Work and for the storage of materials reasonably
required in connection therewith, and Tenant will avoid any interference
by Tenant, its agents, contractors, subcontractors, employees, invitees
or licensees (collectively, "Tenant Parties") with the performance of
such work. Upon Landlord's request, all Tenant Parties shall vacate the
4th Floor Premises during the performance of Landlord's Asbestos Work
(and Landlord shall not be obligated to perform Landlord's Asbestos Work
if any Tenant Party fails to do so). Tenant shall, at Tenant's sole cost
and expense, remove or relocate Tenant's property in the 4th Floor
Premises during the performance of Landlord's Asbestos Work so as not to
interfere with the performance of Landlord's Asbestos Work and to protect
same against damage or loss during the performance of Landlord's Asbestos
Work (and Landlord shall not be obligated to perform Landlord's Asbestos
Work if any Tenant Party fails to do so), Landlord shall have no
obligation to employ contractors or labor at overtime
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or other premium pay rates or to incur any other overtime costs or
additional expenses whatsoever. There shall be no Rent abatement or
allowance to Tenant for a diminution of rental value, no delay of the 4th
Floor Premises Commencement Date, no actual or constructive eviction of
Tenant, in whole or in part, no relief from any of Tenant's other
obligations under the Lease, and no liability on the part of Landlord, by
reason of inconvenience, delay, annoyance or injury to business or to
Tenant's installations (or the performance of Alterations) or Tenant's
property in the Premises arising from the performance of Landlord's
Asbestos Work or the storage of any materials in connection therewith.
Following the completion of Landlord's Asbestos Work, Landlord shall
provide Tenant with a Form ACP-5 reflecting the completion of such work.
3. Extension of Term: Rent. (a) Landlord and Tenant hereby acknowledge
and agree that the Extended Expiration Date (as defined in the Second Amendment)
is January 31, 2008. The term of the Original Lease with respect to the 19th
Floor Premises and the 25th Floor Premises only is hereby extended for the
period (the "2001 Extension Period") commencing on February 1, 2008 (the "2001
Extension Period Commencement Date") and ending on September 30, 2011 (the "2001
Extended Expiration Date"), or such earlier date upon which the term may expire
or be terminated pursuant to any of the conditions of limitation or other
provisions of the Lease or pursuant to law, upon all of the terms and conditions
of the Original Lease, as modified by this Amendment. All references in the
Original Lease with respect to the 19th Floor Premises and/or the 25th Floor
Premises to the expiration date of "September 30, 2004" or the Extended
Expiration Date shall be deemed to be references to the "2001 Extended
Expiration Date" and all references to "term" or "term of this Lease or words of
similar import shall be deemed with respect to the 19th Floor Premises and the
25th Floor Premises only to refer to the term of the Original Lease as extended
by the 2001 Extension Period.
(b) The fixed rent payable under the Lease for the 2001 Extension
Period with respect to the 19th Floor Premises only shall be an amount equal to
$1,155,312.00 per annum ($96,276.00 per month) payable at the times and in the
manner specified in the Lease for the payment of Rent, provided that,
notwithstanding the foregoing, Tenant shall be entitled to a credit against the
first two installments of fixed rent payable as provided above, provided no
default has occurred hereunder and is then continuing, of $96,276 for each such
month and of $192,552 in the aggregate for such two months.
(c) The fixed rent payable under the Lease for the 2001 Extension
Period with respect to the 25th Floor Premises only shall be an amount equal to
$1,221,696.00 per annum ($101,808.00 per month) payable at the times and in the
manner specified in the Lease for the payment of Rent, provided that,
notwithstanding the foregoing, Tenant shall be entitled to a credit against the
first two installments of fixed rent payable as provided above, provided no
default has occurred hereunder and
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is then continuing, of $101,808 for each such month and of $203,616 in the
aggregate for such two months.
(d) During the 2001 Extension Period with respect to the 19th Floor
Premises and the 25th Floor Premises only, (i) the term "Base Real Estate Taxes"
shall mean the R. E. Tax Share of the Real Estate Taxes for the Tax Year
beginning on July 1, 2001 and ending on June 30, 2002 and (ii) the term "Base
COM" shall mean the O.E. Share of the Cost of Operation and Maintenance for the
Computation Year beginning on January 1, 2001 and ending on December 31, 2001.
(e) The term of the Original Lease with respect to the Storage Space
only is hereby extended for the period (the "Storage Space Extension Period")
commencing on October 1, 2004 (the "Storage Space Extension Period Commencement
Date") and ending on September 30, 2009 (the "Storage Space Extended Expiration
Date"), or such earlier date upon which the term may expire or be terminated
pursuant to any of the conditions of limitation or other provisions of the Lease
or pursuant to law, upon all of the terms and conditions of the Original Lease,
as modifed by this Amendment. All references in the Original Lease with respect
to the Storage Space or to the expiration date of "September 30, 2004" shall be
deemed to be references to the "Storage Space Extended Expiration Date" and all
references to "term" or "term of this Lease" or words of similar import shall be
deemed with respect to the Storage Space only to refer to the term of the
Original Lease as extended by the Storage Space Extension Period.
(f) The fixed rent payable under the Lease for the Storage Space
Extension Period with respect to the Storage Space only shall be an amount equal
to $9,538 per annum ($794.83 per month) payable at the times and in the manner
specified in the Lease for the payment of Rent.
4. Modifications. Effective as of the date hereof, the Original
Lease shall be amended as follows:
(a) The provisions of Article Five of the Original Lease shall be
applicable to the 25th Floor Premises, except that the reference to
"four xxxxx" in the first sentence of Section 5.1 shall be deemed to be
deleted and reference to "six xxxxx" substituted therefor.
(b) Paragraph 6(e)(C) of the Second Amendment is hereby amended
by deleting the reference to "June 1, 2001" contained therein and by
substituting "July 1, 2004" therefor.
(c) Section 6(k)(i) of the Original Lease is hereby amended by
deleting the reference to "$3,000,000" and "$5,000,000" contained
therein and by substituting "$5,000,000" and "$10,000,000" therefor,
respectively.
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(d) Section 7.2.1 of the Original Lease is amended by adding the
following sentence at the end thereof:
"Notwithstanding any provision contained in this Section 7.2.1 to the
contrary, the Tenant named herein shall have the right to sublet one or
more portions of the 25th Floor Premises for a term expiring no later
than the 5th anniversary of the 4th Floor Premises Commencement Date in
each case without any obligation, in each case, to comply with the
provisions of this Section 7.2.1. Such subleases by Tenant shall not be
subject to Landlord's right to terminate this Lease pursuant to Section
7.2.2 but shall be subject to the other provisions of this Article,
including Section 7.2.5."
(e) Section 7.2.3 of the Original Lease is amended by inserting
the following sentence at the end thereof:
"The term 'Applicable Rental Rate' as used in this Article with respect
to (A) the 4th Floor Premises only shall mean (x) $64.00 per annum for
the period commencing on the 4th Floor Premises Commencement Date and
ending on the day immediately preceding the 5th anniversary of the 4th
Floor Premises Commencement Date, both dates inclusive, and (y) $69.00
per annum for the period commencing on the 5th anniversary of the 4th
Floor Premises Commencement Date and ending on the 2001 Extended
Expiration Date, both dates inclusive, and (B) the 19th Floor Premises
and the 25th Floor Premises only shall mean $72.00 per annum during the
2001 Extension Period."
(f) Section 7.2.5(a) of the Original Lease is hereby amended by
deleting the words "either the Landlord or a subsidiary or affiliate of the
Landlord" contained therein and by substituting "the Landlord" therefor.
(g) Paragraph 7 of the First Amendment is deleted from the Lease.
(h) The penultimate sentence of Section 13.1 of the Original
Lease is deleted from the Lease.
5. Landlord shall install new electric meters on the 4th and 25th
floors of the Building to measure Tenant's consumption of electricity in the 4th
Floor
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Premises and the 25th Floor Premises. Tenant shall reimburse Landlord for
one-half of the cost thereof within 30 days after demand therefor and thereafter
pay for the maintenance thereof.
6. Brokerage. Each of Landlord and Tenant represents and warrants to
the other that it has not dealt with any broker in connection with this
Amendment other than Tishman Speyer Properties, L.P. ("TSP") and Colliers ABR,
Inc. (the "Broker") and that, to the best of its knowledge, no other broker
negotiated this Amendment or is entitled to any fee or commission in connection
herewith. Landlord shall pay TSP and Broker any commissions which they may be
due in connection with this Amendment pursuant to separate agreements. Each of
Landlord and Tenant shall indemnify, defend, protect and hold the other party
harmless from and against any and all losses, liabilities, damages, claims,
judgments, fines, suits, demands, costs, interest and expenses of any kind or
nature (including reasonable attorneys' fees and disbursements) incurred in
connection with any claim, proceeding or judgment and the defense thereof which
the indemnified party may incur by reason of any claim of or liability to any
broker, finder or like agent (other than TSP or Broker) arising out of any
dealings claimed to have occurred between the indemnifying party and the
claimant in connection with this Amendment, or the above representation being
false. The provisions of this Section 6 shall survive the expiration or earlier
termination of the term of the Lease.
7. Representations and Warranties. Tenant represents and warrants to
Landlord that, as of the date hereof, (a) the Original Lease is in full force
and effect and has not been modified except pursuant to this Amendment; (b) to
the best of Tenant's knowledge, there are no defaults existing under the Lease;
(c) to the best of Tenant's knowledge, there exist no valid abatements, causes
of action, counterclaims, disputes, defenses, offsets, credits, deductions, or
claims against the enforcement of any of the terms and conditions of the Lease;
(d) this Amendment has been duly authorized, executed and delivered by Tenant
and constitutes the legal, valid and binding obligation of Tenant; (e) Landlord
has paid all amounts and performed all work required to be paid or performed
under the Lease in connection with Tenant's initial occupancy of the Premises
under the Lease; and (f) to the best of Tenant's knowledge, Landlord is not in
default of any of its obligations or covenants under the Lease.
8. Nondisturbance Agreement. Any subordination, nondisturbance and
attornment agreement obtained pursuant to Section 13.1 of the Lease shall cover
the 4th Floor Premises as well as the Premises and the Conduit License Agreement
dated the same date as this Amendment between Landlord, as licensor, and Tenant,
as licensee.
9. Miscellaneous. (a) Except as set forth herein, nothing contained
in this Amendment shall be deemed to amend or modify in any respect the terms of
the Original Lease and such terms shall remain in full force and effect as
modified hereby. If there is any inconsistency between the terms of this
Amendment
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and the terms of the Original Lease, the terms of this Amendment shall be
controlling and prevail.
(b) This Amendment contains the entire agreement of the parties with
respect to its subject matter and all prior negotiations, discussions,
representations, agreements and understandings heretofore had among the parties
with respect thereto are merged herein.
(c) This Amendment may be executed in duplicate counterparts, each
of which shall be deemed an original and all of which, when taken together,
shall constitute one and the same instrument.
(d) This Amendment shall not be binding upon Landlord or Tenant
unless and until Landlord shall have delivered a fully executed counterpart of
this Amendment to Tenant.
(e) This Amendment shall be binding upon and inure to the benefit of
Landlord and Tenant and their successors and permitted assigns.
(f) This Amendment shall be governed by the laws of the State of New
York without giving effect to conflict of laws principles thereof.
(g) The captions, headings, and titles in this Amendment are solely
for convenience of reference and shall not affect its interpretation.
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IN WITNESS WHEREOF, Landlord and Tenant have executed this Amendment
as of the day and year first above written.
LANDLORD:
RCPI LANDMARK PROPERTIES, L.L.C.
By: Tishman Speyer Properties, L.P.,
its Agent
By: /s/ Xxxxxxxx X. Xxxxxxx
____________________________
Xxxxxxxx X. Xxxxxxx
TENANT:
XXXXX MANAGEMENT CO., INC.
By: /s/ Xxxxx X. Xxxxx
____________________________
Name: Xxxxx X. Xxxxx
Title: SVP & CFO
The undersigned acknowledges and agrees that
the terms and conditions contained in the
Original Lease, as amended by the above
Amendment, are considered part of the
obligations guaranteed by the undersigned
pursuant to that certain Guaranty executed
on July 31, 1996, and the undersigned hereby
confirms that its obligations under such
Guaranty are ratified and shall remain and
continue in full force and effect with
respect to the Lease.
XXXX X. XXXXX & CO.
By: /s/ Xxxxxx Xxxxxx
____________________________
Name: Xxxxxx Xxxxxx
Title: VP & General Counsel
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EXHIBIT A
The floor plan that follows is intended solely to identify the general location
of the 4th Floor Premises of the Building and should not be used for any other
purpose. All areas, dimensions, and locations are approximate, and any physical
conditions indicated may not exist as shown.
See Attached
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[FLOOR PLAN SHOWING APPROXIMATE DIMENSIONS AND LOCATIONS
OF 4TH FLOOR PREMISES OF BUILDING.]
