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EXHIBIT 10.23
SECOND AMENDMENT TO LEASE
This Second Amendment to Lease is entered into as of October
15, 1997 by and between CONTINENTAL TOWERS, a New York general partnership,
hereafter referred to as "Landlord" and THE MUTUAL LIFE INSURANCE COMPANY OF NEW
YORK, a New York corporation, hereafter referred to as "Tenant".
WHEREAS, as of December 21, 1988, Landlord and Tenant entered
into that certain Agreement of Lease (the "Lease") relating to the premises (the
"Premises") located at ▇▇▇-▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, also known as
MONY Towers, a memorandum of which Lease was recorded in the Onondaga County
Clerk's Office on December 22, 1988 in Book 3499, page 128; and
WHEREAS, as of January 14, 1994, Landlord and Tenant entered
into that certain First Amendment to Lease (the "First Amendment"), a memorandum
of which First Amendment was recorded in the Onondaga County Clerk's Office on
January 18, 1994 in Book 3901 of Deeds, page 8; and
WHEREAS, as of October 15, 1997, Tenant assigned to Landlord,
et al., a right of way and easement reserved in a deed dated October 15, 1997
from Tenant to the City of Syracuse, which deed was recorded in the Onondaga
County Clerk's Office on October 20, 1997 in Book 4192 of Deeds at page 9; and
WHEREAS, Landlord and Tenant desire to amend the Lease, as
amended, to grant to Tenant a right of way and easement over and through the
premises assigned to Landlord;
NOW THEREFORE,
In consideration of the mutual covenants contained herein and
other good and valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, Landlord and Tenant hereby agree as follows:
1. ARTICLE 1. Article 1 of the Lease is hereby amended by
granting Tenant, its successors and assigns, a right of way and easement
("Easement") for persons and motor vehicles on, over, across and through the
premises described in Schedule A attached to this Second Amendment and
incorporated herein ("the easement premises") for the purpose of obtaining
ingress to and egress from the vehicular ramp(s) at ▇▇▇▇▇▇▇▇▇▇ Street that
lead(s) to and from the bottom level of the premises to the loading docks
serving the office buildings located on the parcel of real property described on
Schedule B attached to this Second Amendment and incorporated herein. This
Easement is subject to any and all easements, rights of way of record,
restrictions of record and zoning rules and regulations. This Easement shall
terminate automatically six months after the office buildings located on the
parcel of real property described on
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Schedule B have not been used or are not under repair for future use for a
continuous period of at least one year and, in such event, Tenant, by its
acceptance of this Easement, hereby agrees that upon demand of the Landlord, it
will reconvey the Easement to the Landlord.
2. INGRESS AND EGRESS. Subject to reasonable provisions for
security, Tenant shall have the right of free ingress and egress to and from the
easement premises for all purposes set forth in this Easement.
3. MAINTENANCE. Tenant shall, at its own expense, at all times
take all measures to keep and maintain the easement premises in first-class
condition and repair, including all the making of structural and non-structural
repairs and replacements, and to keep the easement premises in a clean, orderly,
sanitary and safe condition, including but not limited to doing such things as
are necessary to comply with applicable laws, ordinances, rules, regulations and
orders by governmental and public bodies and agencies. Tenant shall, at its own
expense, (a) keep the easement premises free of insects, rodents, vermin and
other pests; (b) not permit undue accumulation of garbage, trash, rubbish and
other refuse and shall remove the same; (c) keep the easement premises and the
vehicular ramps in a neat, orderly fashion; (d) remove all snow and ice from the
easement premises; and (e) conduct its operation of the easement premises in all
respects in a dignified manner. Tenant agrees to repair or pay for any damage
done to the easement premises caused by Tenant in exercising the rights, powers
and privileges granted by this Easement.
4. USE OF EASEMENT PREMISES BY LANDLORD. The right to use the
easement premises for any purpose not interfering or inconsistent with this
Easement is expressly reserved by Landlord, provided, however, that Landlord
shall neither build, erect, construct or place upon the easement premises
anything of a permanent nature or character to interfere with the easement
premises.
5. RUNNING OF BENEFITS AND BURDENS. All provisions of this
Easement, including the benefits and burdens, run with the land and are binding
upon and inure to the assigns, successors, lessees, tenants and representatives
of the parties thereto.
6. RAMIFICATIONS. Except as specifically herein amended, all
terms, provisions, conditions and exhibits contained in the Lease shall remain
unmodified and in full force and effect. Any terms used in this Second Amendment
and not otherwise defined herein shall have the same definition as in the Lease.
In the event that any provision of this Second Amendment shall conflict with the
terms, provisions, conditions and exhibits of the Lease, the terms, provisions,
conditions and exhibits of this Second Amendment shall govern and control. All
references in the Lease to "this Lease", "herein" or terms of similar import
shall refer to the Lease as amended hereby and as the same may be hereafter
amended.
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7. COUNTERPARTS. This Second Amendment may be executed in any
number of counterparts and by each of the undersigned on separate counterparts,
and each such counterpart shall be deemed to be an original, but all such
counterparts put together shall constitute but one and the same Second
Amendment.
8. CAPTIONS. The captions used in this Second Amendment are
provided for convenience and reference only and should not be used in construing
this Second Amendment.
9. MEMORANDUM OF LEASE. Landlord and Tenant hereby agree that
they shall, at the request of either party, execute a memorandum of the First
Amendment (if not previously recorded) and this Second Amendment setting forth
such matters as are necessary to comply with applicable statutory requirements.
Both Landlord and Tenant agree to cause such memorandum to be recorded in the
real estate records of the county where the premises are located and to execute
and deliver all necessary transfer tax returns and other instruments necessary
to permit such recording. Landlord agrees that it shall pay all recording
charges, fees and taxes incurred in connection with recording such memorandum.
This Second Amendment has been duly executed and delivered by
the undersigned as of the day and year first above written.
CONTINENTAL TOWERS
a New York General Partnership
By: Twin Towers Investors, L.P., a New York
limited partnership, general partner
By: Continental Realty of New York,
Inc., a New York corporation,
general partner
By:/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Assistant Secretary
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By: Continental Realty Funding Limited
Partnership, a New York Limited
partnership, general partner
By: Continental Realty of New York,
Inc., a New York corporation,
general partner
By:/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Assistant Secretary
THE MUTUAL LIFE INSURANCE COMPANY OF NEW YORK
By: /s/ ▇▇▇▇▇▇ ▇. Bank
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Name: ▇▇▇▇▇▇ ▇. Bank
Title: VP & Deputy General Counsel
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STATE OF NEW YORK )
COUNTY OF ONONDAGA ) ss.:
On the 4th day of November, 1997, before me personally came
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, to me known, who, being by me duly sworn, did depose and say
that he is the Assistant Secretary of CONTINENTAL REALTY OF NEW YORK, INC., the
corporation which executed the foregoing instrument as the general partner of
TWIN TOWERS INVESTORS, L.P., a general partner of CONTINENTAL TOWERS, the
partnership described in and which executed the above instrument, and that he
signed his name thereto by order of the Board of Directors of said corporation,
as the act of said corporation, as general partner of a general partner of
Continental Towers.
/s/ ▇▇▇▇ ▇. Ranger
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Notary Public
Stamped: ▇▇▇▇ ▇. Ranger, Notary Public, State of New York, No. 01RA5048359,
Qualified in Onondaga County, Commission Expires August 21, ▇▇▇▇
▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇ )
COUNTY OF ONONDAGA ) ss.:
On the day of 4th day of November, 1997, before me- personally
came ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, to me known, who, being by me duly sworn, did depose and
say that he is the Assistant Secretary of CONTINENTAL REALTY OF NEW YORK, INC.,
the corporation which executed the foregoing instrument as the general partner
of CONTINENTAL REALTY FUNDING LIMITED PARTNERSHIP, a general partner of
CONTINENTAL TOWERS, the partnership described in and which executed the above
instrument, and that he signed his name thereto by order of the Board of
Directors of said corporation, as the act of said corporation, as general
partner of a general partner of Continental Towers.
/s/ ▇▇▇▇ ▇. Ranger
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Notary Public
Stamped: ▇▇▇▇ ▇. Ranger, Notary Public, State of New York, No. 01RA5048359,
Qualified in Onondaga County, Commission Expires August 21, 1999
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STATE OF NEW YORK )
COUNTY OF NEW YORK ) ss.:
On this 31 day of October 1997, before me personally came
▇▇▇▇▇▇ ▇. BANK, to me known, who, being by me duly sworn did depose and say that
he resides in New York, New York, that he is the Vice President of THE MUTUAL
LIFE INSURANCE COMPANY OF NEW YORK, the corporation described in and which
executed the above instrument, and that he signed his name thereto by order of
the Board of Directors of said corporation.
/s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Notary Public
Stamped: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Notary Public of New York, No.▇▇-▇▇▇▇▇▇▇,
Qualified in New York County, Term Expires February 28, 1999
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SCHEDULE A
All that certain real property situate in the City of
Syracuse, County of Onondaga and State of New York, being part of Block 134 in
said City, and being more particularly described as follows:
Beginning at a point in the westerly boundary of ▇▇▇▇▇▇▇▇▇▇
Street, said point being N 0(0) 06' 00" E, measured along said westerly street
boundary, a distance of 85.91 feet from its intersection with the northerly
boundary of ▇▇▇▇▇▇▇▇ Street; running thence through said Block 134, the
following 9 courses and distances:
1. N 30(degree) 31' 22" W, 19.96 feet to a point of curvature;
2. Northwesterly, following a curve to the left having a
radius of 48.00 feet, an arc distance of 68.33 feet to a
point of tangency;
3. S 67(degree) 54' 53" W, 37.45 feet to a point designated
"Point A" for future reference;
4. S 67(degree) 54' 53" W, 4.55 feet;
5. N 89(degree) 40' 58" W, 84.82 feet to a point designated
"Point B," for future reference;
6. N 89(degree) 40' 58" W, 29.70 feet to a point of curvature;
7. Northwesterly, following a curve to the right having a
radius of 58.32 feet, an arc distance of 41.64 feet to a
point of tangency;
8. N 48(degree) 46' 18" W, 21.25 feet;
9. N 0(degree) 50' 22" W, 44.03 feet to a point, said point
being 179.69 feet distant northerly, measured at right
angles, from the northerly boundary of ▇▇▇▇▇▇▇▇ Street;
thence S 89(degree) 49' 40" E on a line parallel with said
northerly boundary of ▇▇▇▇▇▇▇▇ Street, a distance of 22.09
feet to a point; thence continuing through said Block 134,
the following 7 courses and distances:
1. S 27(degree) 22' 57" E, 38.33 feet to a point of curvature;
2. Southeasterly, following a curve to the left having a
radius of 21.70 feet, an arc distance of 12.79 feet to a
point of tangency;
3. S 61(degree) 08' 37" E, 6.86 feet;
4. S 89(degree) 40' 58" E, 80.47 feet to a point of curvature;
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5. Easterly, following a curve to the left having a radius of
88.70 feet, an arc distance of 28.59 feet to a point of
tangency;
6. N 71(degree) 50' 58" E, 46.35 feet;
7. S 89(degree) 50' 32" E, 70.67 feet to a point in the
westerly boundary of ▇▇▇▇▇▇▇▇▇▇ Street; thence S 0(degree)
06' 00" W along said westerly street boundary, a distance
of 66.39 feet to the point of beginning.
Excepting from the above described Permanent Easement, all
that certain real property lying above (and not below) the horizontal plane
having an elevation of 37.0 feet above that certain Datum Level known as City of
Syracuse Datum Level, bounded and described as follows:
Beginning at a point in the southerly boundary of the above
described Permanent Easement, said point being designated "Point A" therein;
running thence along said southerly boundary, the following 2 courses and
distances:
1. S 67(degree) 54' 53" W, 4.55 feet;
2. N 89(degree) 40' 58" W, 84.82 feet to "Point B" designated
therein; thence N 0(degree) 06' 00" E, a distance of 26.05
feet to a point in the northerly boundary of said Permanent
Easement; thence along said northerly boundary, the
following 3 courses and distances:
1. S 89(degree) 40' 58" E, 50.51 feet to a point of curvature;
2. Easterly, following a curve to the left having a radius of
88.70 feet, an arc distance of 28.59 feet to a point of
tangency;
3. N 71(degree) 50' 58" E, 10.96 feet;
4. thence S 0(degree) 06' 00" W, a distance of 32.35 feet to
the point of beginning.
Also, excepting from the above described Permanent Easement,
all that certain real property lying above (and not below) the horizontal plane
having an elevation of 25.0 feet above the above referenced City of Syracuse
Datum Level, bounded and described as follows:
Beginning at a point in the southerly boundary of the above
described Permanent Easement, said point being designated "Point B" therein;
running thence along the southerly and westerly boundary of said Permanent
Easement, the following 4 courses and distances:
1. N 89(degree) 40' 58" W, 29.70 feet to a point of curvature;
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2. Northerly, following a curve to the right having a radius
of 58.32 feet, an arc distance of 41.64 feet to a point of
tangency;
3. N 48(degree) 46' 18" W, 21.25 feet;
4. N 0(degree) 50' 22" W, 44.03 feet to a point in the
northerly boundary of said Permanent Easement; thence S
89(degree) 49' 40" E along said northerly boundary, a
distance of 22.09 feet to a point; thence along the
northeasterly and northerly boundary of said Permanent
Easement, the following 4 courses and distances:
1. S 27(degree) 22' 57" E, 38.33 feet to a point of curvature;
2. Southeasterly, following a curve to the left having a
radius of 21.70 feet, an arc distance of 12.79 feet to a
point of tangency;
3. S 61(degree) 08' 37" E, 6.86 feet;
4. S 89(degree) 40' 58" E, 29.96 feet;
thence S 0(degree) 06' 00" a distance of 26.05 feet to the
point of beginning.
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ALL THAT TRACT OR PARCEL OF LAND situate in the City of
Syracuse, County of Onondaga and State of New York and being a portion of Block
#134 in said City, and being more particularly described as follows:
Beginning at a point in the southerly boundary of Madison
Street at its intersection with the easterly boundary of South ▇▇▇▇▇▇ Street;
running thence S 89(degree) 47' 10" E along said southerly boundary of Madison
Street, a distance of 471.97 feet to its intersection with the westerly boundary
of ▇▇▇▇▇▇▇▇▇▇ Street; thence S 0(degree) 06' 00" W along said westerly street
boundary, a distance of 179.26 feet to a point; thence N 89(degree) 49' 40" W
through said Block 134, a distance of 471.84 feet to a point in the easterly
boundary of South ▇▇▇▇▇▇ Street; thence N 0(degree) 03' 30" E along said
easterly street boundary, a distance of 179.61 feet to the point of beginning,
containing 84,677 square feet = 1.944 acres, more or less.
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