FOURTH AMENDMENT TO
XXXXXXXXX & XXXXX LEASE DATED AS OF JANUARY 27, 1988
AND SIXTH AMENDMENT TO XXXXXXXXX & XXXXX LEASE
DATED AS OF NOVEMBER 9, 1988
THIS FOURTH AMENDMENT TO XXXXXXXXX & XXXXX OFFICE LEASE DATED JANUARY 27,
1988 AND THIS SIXTH AMENDMENT TO XXXXXXXXX & XXXXX OFFICE LEASE DATED AS OF
NOVEMBER 9, 1988 (collectively, this "Amendment") is made and entered into as of
November 26, 1997, by and between THE EQUITABLE LIFE ASSURANCE SOCIETY OF THE
UNITED STATES, a New York corporation ("Landlord") and XXXXXXXXX & XXXXX LLC, a
Delaware limited liability company ("Tenant").
R E C I T A L S
A. Landlord and Tenant previously entered into that certain Office Lease
for space in that certain building commonly known as One Xxxx Street (the
"Building") located in San Francisco, California (the "Original Lease") dated as
of November 9, 1988, which Original Lease was amended by those certain Lease
Amendments No. 1 (the "First Amendment") dated as of August 1, 1989 and January
27, 1993, respectively, by that certain Lease Amendment Number Two (the "Second
Amendment") dated as of May 14, 1993, that certain Lease Amendment Number Three
(the "Third Amendment") dated as of January 17, 1995; that certain Lease
Amendment Number Four (the "Fourth Amendment") dated as of January 8, 1996; and
that certain Lease Amendment Number Five (the "Fifth Amendment") dated as of
June 10, 1996. Landlord and Tenant also previously entered into that certain
Office Lease for space in the Building dated as of January 27, 1988 (the "Second
Original Lease"), which Second Original Lease was amended by that certain Lease
Amendment No. One (the "First Amendment to Second Original Lease") dated as of
November 9, 1988 and that certain Lease Amendment No. Two (the "Second Amendment
to Second Original Lease") dated as of August 1, 1989. The Original Lease, the
First through Fifth Amendments, the Second Original Lease, the First and Second
Amendment to the Second Original Lease and all riders, exhibits, rules and
regulations referred to therein comprise, and are collectively referred to
herein as, the "Lease." All capitalized terms otherwise undefined in this
Amendment shall have the meanings assigned to such terms in the Lease.
B. Landlord and Tenant desire to amend the Lease to document the terms and
conditions of their agreement with respect to (i) the right of Tenant to lease
the Premises for an additional term of seven (7) years, (ii) the right of Tenant
to extend the term of the Lease for an additional period of five (5) years and
(iii) Tenant's right of first offer on additional space in the Building.
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AGREEMENT
NOW, THEREFORE, for valuable consideration, receipt and sufficiency of
which are hereby acknowledged, Landlord and Tenant agree as follows:
1. RECITALS. Recitals A and B above are true and correct and are
incorporated herein as though set forth in full.
2. TERM OF THE LEASE. The term of the Lease ("Term") shall be extended
commencing on the dates as set forth below (each, an "Extension Date") and
terminating on December 31, 2005.
RENTABLE
FLOORS SQUARE FEET COMMENCEMENT DATE
14-18 81,785 1/1/99
13 5,705 4/1/99
13 6,209 9/1/98
13 4,646 12/10/97
12 16,560 5/1/98
11 3,085 12/10/97
11 13,475 1/1/99
10 16,560 1/1/99
7 3,542 1/1/99
6 12,419 12/10/97
6 4,141 1/1/99
4 7,186 1/1/99
As of the applicable Extension Date (as set forth above), the applicable
space which is not currently part of the Premises shall be added to and shall
become a part of the Premises. The space described above is more particularly
described on Exhibit "A" attached hereto and made a part hereof. Landlord and
Tenant hereby agree that the rentable square feet described above shall not be
subject to redetermination and that such rentable square feet shall bind
Landlord and Tenant for all purposes of this Amendment. In no event shall
Landlord be deemed to have guaranteed the availability of the space described
above that is currently occupied by other tenants as of the stated availability
date or dates. If the then-existing tenant should hold over, or
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if for any other cause beyond Landlord's reasonable control, Landlord shall be
unable to deliver possession of such space as of the stated or agreed-to
availability date, Landlord shall have no liability whatsoever to Tenant.
Without limiting the above, Landlord agrees to use its commercially reasonable
efforts to enforce its right to possession to the subject space against such
other tenant, including institution of legal proceedings. The applicable
Extension Date shall be delayed until such time as such space shall become
available.
3. BASE EXPENSE AND TAX YEAR. Effective upon the Extension Date for each
space, the "Base Expense Year" and the "Base Tax Year" in the Basic Lease
Information shall be amended to read as follows:
RENTABLE
FLOORS SQUARE FEET BASE EXPENSE AND TAX YEAR
14-18 81,785 1999
13 5,705 1999
13 6,209 1998
13 4,646 1998
12 16,560 1998
11 3,085 1998
11 13,475 1999
10 16,560 1999
7 3,542 1999
6 12,419 1998
6 4,141 1999
4 7,186 1999
4. TENANT'S PERCENTAGE SHARE. Effective upon the Extension Date for each
space, the "Tenant's Percentage Share" in the Basic Lease Information shall be
amended to read as follows:
RENTABLE TENANT'S
FLOORS SQUARE FEET PERCENTAGE SHARE
14-18 81,785 29.16%
13 5,705 2.03%
13 6,209 2.21%
13 4,646 1.66%
12 16,560 5.90%
11 3,085 1.10%
11 13,475 4.80%
10 16,560 5.90%
7 3,542 1.27%
6 12,419 4.43%
6 4,141 1.47%
4 7,186 2.57%
5. BASE RENT. The "Base Rent" in the Basic Lease Information is hereby
amended to read as follows:
Extension Date through December 31, 2003: $36.00 per rentable square foot
per year
January 1, 2004 to December 31, 2005: $42.00 per rentable square foot per
year
6. TENANT IMPROVEMENTS. The Premises will be improved in accordance with
Exhibit "B" attached hereto and made a part hereof.
7. OPTION TO RENEW.
(a) Tenant shall have one (1) option to extend the Lease for a period of
five (5) years (the "Option Period") with at least twelve (12) months (but no
more than eighteen (18) months) prior written notice of its intention to extend
the Lease prior to the expiration of the Term. Notwithstanding anything herein
to the contrary, if Landlord has given notice to Tenant that an Event of
Default, as defined in the Lease, has occurred, which Event of Default has not
been cured by Tenant at the time Tenant gives Landlord notice of its exercise of
the option
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granted hereunder or at the time of the commencement date of the extended term,
the option shall automatically terminate and become null and void.
(b) In the event the renewal option is timely exercised, the Lease shall be
extended for the term of the Option Period upon all of the terms and conditions
of the Lease (except that the Option Period shall apply to the Additional Space
only to the extent provided in Section 7(h) below), provided that (i) the annual
Base Rent for the Option Period shall be ninety-five percent (95%) of the "Fair
Market Rent", subject to periodic adjustments thereto, for the Premises,
excluding all Additional Space, if any, already added to the Premises pursuant
to the provisions of Section 8 herein, (ii) the Base Expense and Tax Year xxxxx
xx 0000, (xxx) Tenant shall have no further right to extend the term of this
Lease, (iv) the Premises shall be accepted by Tenant in "AS IS" condition with
no tenant improvements to be built by Landlord or tenant improvement allowance
to be paid by Landlord and (v) the provisions of Section 12 below shall apply to
such renewal. For purposes hereof, "Fair Market Rent" shall mean such base rent
as constitutes the prevailing base rent paid by new and renewing tenants, which
occupy a minimum of 25,000 square feet in other Class "A" office buildings in
the San Francisco financial district, which the parties agree will mean the area
on the north of Market Street, west of the Embarcadero, east of Kearny Street
and south of Washington Street, for comparable space and for comparable terms
pursuant to leases entered into or renewed by such other tenants on or about the
commencement of the Option Period. Determination of prevailing base rent shall
take into consideration all relevant lease terms, effective rental rates, rental
escalations, the Operating Expenses and Property Taxes to be paid by Tenant,
Building identification and signage, the age of tenant improvements and other
economic factors being obtained by such other tenants, including tenant
allowances and other monetary concessions, if any, granted to such other
tenants, in connection with comparable space.
(c) Within sixty (60) days after receipt of Tenant's notice of exercise,
Landlord shall notify Tenant in writing of Landlord's estimate of the Fair
Market Rent, including, without limitation, periodic adjustments thereto, and,
thus, of the Base Rent for the Option Period, based on the provisions of Section
7(b) above. Within thirty (30) days after receipt of such notice from Landlord,
Tenant shall have the right either to (i) accept Landlord's statement of Fair
Market Rent as the Base Rent for the Option Period; or (ii) elect to arbitrate
Landlord's estimate of Fair Market Rent, such arbitration to be conducted
pursuant to the provisions hereof. Failure on the part of Tenant to require
arbitration of Fair Market Rent within said 30-day period shall constitute
acceptance of the Base Rent for the Option Period as calculated by Landlord. If
Tenant elects arbitration, the arbitration shall be concluded within ninety (90)
days after the date of Tenant's election, subject to extension for an additional
30-day period if a third arbitrator is required and does not act in a timely
manner. To the extent that arbitration has not been completed prior to the
expiration of any preceding period for which Base Rent has been determined,
Tenant shall continue to pay Base Rent at such rate, with any appropriate
adjustment to be made once Fair Market Rent is ultimately determined by
arbitration and Tenant shall immediately pay any increase in Base Rent to
Landlord.
(d) In the event of arbitration, the judgment or the award rendered in any
such arbitration may be entered in any court having jurisdiction and shall be
final and binding between the parties. The arbitration shall be conducted and
determined as follows:
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(i) Tenant shall make demand for arbitration in writing within thirty
(30) days after service of Landlord's determination of Fair Market Rent given
under Section 7(c) above specifying therein the name and address of the person
to act as the arbitrator on its behalf. The arbitrator shall be qualified as a
real estate broker familiar with the Fair Market Rent of first-class commercial
office space in the downtown San Francisco area with at least ten (10) years of
experience. Failure on the part of Tenant to make a timely and proper demand for
such arbitration shall constitute a waiver of the right thereto. Within fifteen
(15) business days after the service of the demand for arbitration, Landlord
shall give notice to Tenant, specifying the name and address of the person
designated by Landlord to act as arbitrator on its behalf who shall be similarly
qualified.
(ii) In the event that two arbitrators are chosen pursuant to Section
7(d)(i) above, the arbitrators so chosen shall meet within ten (10) business
days after the second arbitrator is appointed and, if within ten (10) business
days after such first meeting the two arbitrators shall be unable to agree
promptly upon a determination of Fair Market Rent, they, themselves, shall
appoint a third arbitrator, who shall be a competent and impartial person with
qualifications similar to those required of the first two arbitrators pursuant
to Section 7(d)(i). In the event they are unable to agree upon such appointment
within five (5) business days after expiration of said 10-business day period,
the third arbitrator shall be selected by the parties themselves, if they can
agree thereon, within a further period of five (5) business days. If the parties
do not so agree, then either party, on behalf of both, may request appointment
of such a qualified person by the Presiding Judge of the Superior Court of the
County of San Francisco and the other party shall not raise any question as to
such person's full power and jurisdiction to entertain the application for and
make the appointment. The three arbitrators shall decide the dispute if it has
not previously been resolved by following the procedure set forth below.
(iii) Where an issue cannot be resolved by agreement between the two
arbitrators selected by Landlord and Tenant or settlement between the parties
during the course of arbitration, the issue shall be resolved by the three
arbitrators in accordance with the following procedure: The arbitrator selected
by each of the parties shall state in writing his or her determination of the
Fair Market Rent supported by the reasons therefor with counterpart copies to
each party. The arbitrators shall arrange for a simultaneous exchange of such
proposed resolutions. The role of the third arbitrator shall be to select which
of the two proposed resolutions most closely approximates his or her
determination of Fair Market Rent. The third arbitrator shall have no right to
propose a middle ground or any modification of either of the two proposed
resolutions. The resolution he or she chooses as most closely approximating his
or her determination shall constitute the decision of the arbitrators and be
final and binding upon the parties.
(iv) In the event of a failure, refusal or inability of any arbitrator
to act, his or her successor shall be appointed by the party on whose behalf
such arbitrator is to act, but in the case of the third arbitrator, his or her
successor shall be appointed in the same manner as provided for appointment of
the third arbitrator. The arbitrators shall attempt to decide the issue within
ten (10) business days after the appointment of the
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third arbitrator. Any decision in which the arbitrator appointed by Landlord and
the arbitrator appointed by Tenant concur shall be binding and conclusive upon
the parties.
(e) In the event that Tenant shall exercise the renewal option,
Landlord and Tenant shall execute an amendment to this Lease, setting forth the
lease terms to apply during the Option Period, within fifteen (15) business days
of the final determination of Fair Market Rent with respect to the Option
Period.
(f) The right contained in this Section is personal to Xxxxxxxxx &
Xxxxx and its Permitted Assignees, as such term is defined below, and such right
shall not inure to the benefit of any assignee or subtenant of Xxxxxxxxx & Xxxxx
other than a Permitted Assignee and in the event Xxxxxxxxx & Xxxxx and its
Permitted Assignees assigns the Lease or subleases more than thirty-three
percent (33%) of the Premises, this right shall automatically terminate and
shall be null and void.
(g) "Permitted Assignees" are those parties for whom assignments are
permitted pursuant to Section 13.2 of the Original Lease or the Second Original
Lease, as applicable.
(h) The provisions of this Section 7 shall only apply to such
Additional Spaces which (i) at the time of the commencement of the Option Period
(i.e. January 1, 2006) have already been added to the Premises pursuant to
Section 8, and (ii) which have terms (including, without limitation all option
terms, if any) as determined by Landlord pursuant to Section 8 below that expire
during the Option Period (i.e. prior to December 31, 2010). With respect to such
Additional Spaces, if any, when Tenant exercises its option to extend the Term
of the Lease for the Option Period, Tenant shall also be deemed to have extended
the term of the Lease with respect to such Additional Spaces only for the
periods of time, if any, from the then expiration dates of such terms for such
Additional Spaces until the end of the Option Period (i.e. December 31, 2010)
(such extensions of the terms for such Additional Spaces are referred to
hereunder as the "Additional Space Extension Periods"). For the Additional Space
Extension Periods, such Additional Spaces shall be accepted by Tenant in "AS IS"
condition with no tenant improvements to be built by Landlord or tenant
improvement allowance to be paid by Landlord. With respect to such Additional
Spaces during their respective Additional Space Extension Periods, (w) the Base
Expense and Tax Year shall be 2006, (x) the other terms and conditions of the
Lease, as amended hereby, shall apply thereto, (y) the monthly and yearly Base
Rent payable by the Tenant for such Additional Spaces shall be the same rate per
rentable square foot, as it may be adjusted from time to time, for the remainder
of the Premises (excluding such Additional Spaces) as determined pursuant to
this section 7 above, and (z) Tenant shall pay all additional rent required
under the terms of the Lease on the same terms as those applicable to the
remainder of the Premises excluding such Additional Spaces. The provisions of
this Section 7(h) and such Additional Spaces shall not be taken into
consideration in determining Fair Market Rent in this section 7 above.
8. RIGHT OF FIRST OFFER:
(a) If at any time prior to the date on which the Term of the Lease
expires, Landlord determines that additional space in the Building ("Additional
Space") will become
6
vacant and available at a future time prior to the expiration of the Term of the
Lease, provided Landlord has not given Tenant notice of an Event of Default
which has not been cured, Landlord shall give Tenant written notice (the
"Offer") of the future availability of Additional Space and the terms and
conditions (including, without limitation, Base Rent, and any and all additional
sums payable by a tenant) under which Landlord would be willing to rent the
space to a prospective tenant under a lease which commences as of the date such
Additional Space shall become available, on an "AS IS" basis without any tenant
improvements allowance or other payment by Landlord or with such tenant
improvement allowance, if any, offered by Landlord to Tenant, and for a period
of time equal to the remainder of the then existing Term of the Lease
(including, without limitation, the Option Period, if the Tenant has exercised
its option to extend the Term of the Lease for the Option Period) or for such
other term determined by Landlord; provided, however, in no event shall Landlord
be obligated to deliver an Offer to Tenant for Additional Space that will be
vacant and available no earlier than the last twenty four (24) months of the
Term. Tenant shall have fifteen (15) days following receipt of the Offer to
elect by written notice given to Landlord to lease the Additional Space upon the
terms and conditions contained in the Offer. Notwithstanding anything to the
contrary contained herein, such Additional Space will not be considered vacant
and available if any tenant occupying such space executes a new lease or an
amendment to lease with Landlord to extend the term of such tenant's occupancy
of such space, and nothing contained in this Section shall be construed to limit
the right of Landlord to enter into such lease or amendment to lease.
(b) If Tenant does not timely elect to lease such Additional Space on
the terms and conditions contained in the Offer, the Offer shall terminate and
Landlord may lease such Additional Space to other prospective tenants subject to
the following conditions:
(i) Landlord shall not offer to another tenant or prospective
tenant less than all the Additional Space; and
(ii) If Landlord desires to lease less than all the Additional
Space, Landlord shall give Tenant the right of first offer with respect to the
portion of the Additional Space Landlord desires to lease as set forth in
Section 8(a) above; and
(iii) Landlord shall be free to lease the Additional Space to any
unaffiliated person or entity on any terms and conditions or to any affiliated
person if the leasing is an "arm's-length" transaction for a bona fide
occupancy; provided, however, Landlord shall not lease the Additional Space to
any other person or entity on basic economic terms which in the aggregate are
less than ninety-five percent (95%) of the effective rate, as defined below, at
which Landlord offered the Additional Space to Tenant, without first giving
Tenant at least fifteen (15) days prior written notice of such economic terms
and the opportunity (during such fifteen (15) day period by delivery of written
notice to Landlord) to agree to lease such Additional Space on the same economic
terms and such other terms as proposed by Landlord in Landlord's good faith
discretion. Tenant's failure to give Landlord any written notice during such
fifteen (15) day period shall be deemed Tenant's election not to lease such
Additional Space. "Effective rate," as used herein, means the sum of Base Rent
and escalations to Base Rent, taking into account any tenant improvement
allowance which is part of the proposed other lease and any free rent, moving
allowances, lease takeovers to be paid by Landlord and other sums to be paid by
Landlord to the tenant or other monetary credits from Landlord to the tenant.
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For any item in such calculation which is customarily discounted to present
value, the discount rate shall be eight percent (8%). In addition to the
foregoing, if a lease is not signed within six (6) months after delivery of the
Offer to Tenant, Landlord shall not lease the Additional Space to any other
person or entity without first giving Tenant another right of first offer as
provided in this Section 8.
If Landlord does lease the Additional Space in question to another tenant, then
if during the Term of the Lease, (i) such tenant's lease expires, (ii) such
tenant vacates such Additional Space, and (iii) Landlord determines that such
Additional Space is otherwise vacant and available, then Landlord shall not
lease such Additional Space to any other person or entity without first giving
Tenant another right of first offer with respect to such Additional Space as
provided in Section 8(a) above.
(c) If Tenant does timely accept the Offer as provided herein and
execute a lease amendment therefor, such Additional Space shall be added to and
deemed a part of the Premises for all purposes of the Second Original Lease, and
on all terms and conditions contained in the Offer. The amendment shall include,
without limitation:
(i) The delivery date;
(ii) The rentable area of the Premises with the addition of the
Additional Space;
(iii) The percentage that constitutes Tenant's Percentage Share
of Operating Expenses and Property Taxes, as adjusted to reflect the increased
rentable area of the Premises;
(iv) The rental commencement date for the Additional Space; and
(v) The other terms and conditions contained in the Offer.
(d) The right contained in this Section is personal to Xxxxxxxxx &
Xxxxx and its Permitted Assignees, and such right shall not inure to the benefit
of any assignee or subtenant of Xxxxxxxxx & Xxxxx other than a Permitted
Assignee and in the event Xxxxxxxxx & Xxxxx and its Permitted Assignees assigns
the Lease or subleases more than thirty-three percent (33%) of the Premises,
this right shall automatically terminate and shall be null and void.
In no circumstances shall Landlord be deemed to have guaranteed the
availability of such Additional Space to Tenant as of the stated availability
date or dates. If the then-existing tenant should hold over, or if for any other
cause beyond Landlord's reasonable control, Landlord shall be unable to deliver
possession of such Additional Space as of the stated or agreed-to availability
date, Tenant's sole recourse shall be a delay in the commencement of Base Rent
until such time as possession is legally delivered by Landlord to Tenant.
Without limiting the above, Landlord agrees to use its commercially reasonable
efforts to enforce its right to possession to the subject space against such
other tenant, including institution of legal proceedings.
9. LIMITED RECOURSE. Notwithstanding anything to the contrary in the Lease
or in any document delivered by Landlord in connection with the consummation of
the transaction
8
contemplated hereby, it is expressly understood and agreed that The Equitable
Life Assurance Society of the United States is acting solely on behalf and for
the benefit of Separate Account No. S-16III and Landlord's liability shall be
limited to, and payable and collectible only out of, assets allocated to, or
held by Landlord for the benefit of, Separate Account No. S-16III (including,
without limitation, the Building) and no other property or asset of Landlord or
of any of Landlord's directors, officers, employees, shareholders,
contractholders or policyholders, shall be subject to any lien, levy, execution,
setoff or other enforcement procedure for satisfaction of any right or remedy of
Tenant in connection with the transaction contemplated hereby.
10. CROSS DEFAULT. An Event of Default by Tenant under that certain
Original Lease as amended by the First through Fifth Amendments and this
Amendment shall constitute an Event of Default under the Second Original Lease
as amended by the First and Second Amendments to the Second Original Lease and
this Amendment and an Event of Default under that certain Second Original Lease
as amended by the First and Second Amendments to the Second Original Lease and
this Amendment shall constitute an Event of Default under that certain Original
Lease as amended by the First through Fifth Amendments and this Amendment. Upon
an Event of Default by Tenant, Landlord shall have any and all remedies
available pursuant to the Lease , as amended.
11. OPERATING EXPENSES. "Operating Expenses" shall be amended to reflect
that in the event Landlord elects to purchase energy on an alternate basis, for
purposes of calculating Operating Expenses, the sums paid that are attributable
to such energy purchased in the first full calendar year of such alternative
basis shall be deemed the expenses paid in such Base Year for such energy.
12. RENT CREDIT AND INTERIM RENT. The references in the Lease to and
provisions providing for "Rent Credit," "Interim Rent" and "Free Rent" are not
applicable to this Amendment or the Lease and shall be deleted in their
entirety.
13. RIGHT TO SEPARATELY METER. The following shall be added to Section 7 of
the Lease: "Landlord shall have the right at any time to install an electric
current meter or meters in the Premises or otherwise to measure the amount of
electric current consumed on the Premises, and the cost of such meter or meters
or other corrective measures and the installation and maintenance thereof shall
be paid for by Landlord."
14. BROKERAGE COMMISSIONS. Landlord and Tenant represent and warrant to
each other that they have dealt with no broker, agent or other person in
connection with the transaction evidenced by this Amendment and that no broker,
agent, or other person brought about this transaction, other than Compass
Management and Leasing ("Landlord's Broker"), and Landlord agrees that Tenant
shall have no obligation to pay commission or any other form of compensation to
Landlord's Broker with regard to this leasing transaction, and each party hereby
agrees to indemnify and hold the other harmless from and against any claims by
any other broker, agent or other person claiming a commission or other form of
compensation by virtue of having dealt with the indemnifying party with regard
to this leasing transaction. The provisions of this Section 14 shall survive the
termination of this Lease.
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15. ADDITIONAL SPACE. When space is added to the Premises pursuant to this
Amendment, such space shall be added to the Second Original Lease as amended by
the First and Second Amendments to the Second Original Lease, on the terms and
conditions contained therein as amended hereby.
16. RATIFICATION. Except as modified by this Amendment, the Lease is hereby
ratified by Landlord and Tenant and shall remain in full force and effect. In
the event of any conflict between the Lease and this Amendment, this Amendment
shall control.
17. COUNTERPARTS. This Amendment may be executed in counterparts, each of
which shall be deem an original, all of which together shall constitute one and
the same instrument.
IN WITNESS WHEREOF, Landlord and Tenant have each caused their duly
authorized representatives to execute this Amendment as of the date or dates set
forth below.
LANDLORD:
THE EQUITABLE ASSURANCE SOCIETY OF
THE UNITED STATES
Date: December 10, 1997 By: /s/ Xxxxx X. Xxxxx
Its: Investment Officer
TENANT:
XXXXXXXXX & XXXXX LLC, a Delaware limited
liability company
Date: December 10, 1997 By: /s/ J. Xxxxx Xxxxx
Its: Vice President
