EXHIBIT 10.D(b)
FIRST SUPPLEMENTAL AGREEMENT
FIRST SUPPLEMENTAL AGREEMENT dated as of the lst day of January,
1989, between THE BANK OF NEW YORK as trustee under the will of Harold D. Uris,
deceased, d/b/a URIS HOLDING COMPANY, having an office at 300 Park Avenue, New
York, New York 10022 (hereinafter called "Landlord"), and COLGATE-PALMOLIVE
COMPANY, a Delaware corporation, having an office at 300 Park Avenue, New York,
New York 10022 (hereinafter called "Tenant").
W I T N E S S E T H:
WHEREAS:
A. Landlord and Tenant have heretofore entered into a certain
lease dated August 15, 1978 (such lease as the same has been and may hereafter
be amended is hereinafter called the "Lease"), with respect to certain space
(hereinafter called the "Premises") in the building (hereinafter called the
"Building") known as 300 Park Avenue, New York, New York for a term ending on
June 30, 2000, or on such earlier date upon which said term may expire or be
terminated pursuant to any conditions of limitation or other provisions of the
Lease or pursuant to law; and
B. The parties hereto desire to modify the Lease to provide
for the deletion of the Operating Expense escalation provision and the
substitution of a Porter's Wage escalation provision in lieu thereof, as more
particularly hereinafter set forth in this Agreement.
NOW, THEREFORE, in consideration of the Premises and mutual
covenants hereinafter contained, the parties hereto hereby modify the Lease as
follows:
1. All terms defined in the Lease and contained in this First
Supplemental Agreement shall, unless otherwise defined herein, have the same
meaning ascribed to them in the Lease.
2. Effective as of the date hereof and for the remainder of
the term of the Lease, Sections 26.04 through 26.08 shall be deleted from the
Lease, and the following new Sections 26.04 through 26.08 shall be substituted
in their place:
"Section 26.04. (a) The following definitions shall have the
meanings hereinafter set forth wherever used in this Lease:
(i) "Operational Year" shall mean each calendar year,
subsequent to the calendar year 1988, in which occurs any part of the term of
this Lease.
(ii) "Wage Rate Multiple" shall mean (i) 394,906 for the
period beginning on January 1, 1989 and ending on April 30, 1991, and (ii)
481,924 for the period beginning on May 1, 1991 and ending on June 30, 2000.
(iii) "Base Wage Rate" shall mean the sum of $11.287.
(iv) "Legal Requirements" shall mean laws, statutes and
ordinances and the orders, rules, regulations, directives and requirements of
all federal, state, county, city and borough departments, bureaus, boards,
agencies, offices, commissions and other subdivisions thereof, or of any
official thereof, or of any other governmental public or quasi-public authority,
whether now or hereafter in force, which may be applicable to the calculation or
establishment of the "Wage Rate" (as hereinafter defined).
(v) "Wage Rate" with respect to any Operational Year shall
mean the regular hourly wage rate required to be paid to Porters in Class A
Office Buildings pursuant to any agreement between the Realty Advisory Board on
Labor Relations, Incorporated or any successor thereto (hereinafter referred to
as "R.A.B.") and Local 32B/32J of the Building Service Employees International
Union AFL-CIO, or any successor thereto (hereinafter referred to as "Local 32B")
in effect during such Operational Year, provided that if any such agreement
shall require Porters to be regularly employed on days or during hours when
overtime or other premium pay rates are in effect, then the term "regular hourly
wage rate" shall mean the average hourly wage rate for a 40 hour work week
(whether or not actually at work in the Building), e.g., if, for example, as of
November 1, 1980, an agreement between R.A.B. and Local 32B would require the
regular employment of Porters for 40 hours during a calendar week at a regular
hourly wage of $4.00 for the first 30 hours and at an overtime hourly wage of
$5.00 for the remaining 10 hours, then the average hourly wage rate under this
subsection, as of November 1, 1980, would be the sum arrived at by dividing the
total weekly average wages of $170.00 by the total number of required hours of
employment which is 40 and resulting in an average hourly wage rate of $4.25. If
there is no such agreement in effect as of the date of any Escalation Statement
on which such regular hourly wage rate is determinable, the computations shall
be made on the basis of the regular hourly wage rate for a 40 hour work week
being paid by Landlord or by the contractor performing the services performed by
Porters for Landlord as of the date of such Escalation Statement and appropriate
retroactive adjustments shall be made when the regular or average hourly wage
rate is finally determined. The regular or average hourly wage rate shall be
computed without including the value of any "fringe benefits" provided by
Landlord (including, without limitation, social security, unemployment or
similar taxes as are payable in the first-instance by Landlord, holiday and
vacation time. jury duty or other paid time-off, sick pay, accident, health and
welfare insurance programs, pension plans and other benefit programs of a
similar or dissimilar nature irrespective of whether they may be required by any
laws, ordinances, rules or regulations of any governmental authority or
otherwise). If length of service shall be a factor in determining any element of
wages, it shall be conclusively presumed that all employees have two years of
service. The Wage Rate is intended to be an index in the nature of a cost of
living index, and is not intended to reflect the actual costs of wages or
expenses for the Building.
(vi) "Porters" shall mean that classification of employee
engaged in the general maintenance and operation of Class A Office Buildings
most nearly comparable to the classification now applicable to porters in the
current agreements between R.A.B. and Local 32B (which classification is
presently termed "others" in said agreement).
(vii) "Class A Office Buildings" shall mean office buildings
in the same class or category as the Building under any building operating
agreement between R.A.B. and Local 32B, regardless of the designation given to
such office buildings in any such agreement.
(viii) "Escalation Statement" shall mean a written statement
setting forth in reasonable detail, the calculation of the Wage Rate and the
amount payable by Tenant for a specified Operational Year pursuant to this
Article 26. In the event that the Wage Rate is, at any time, based on actual
wages paid by Landlord or a contractor as provided in subsection 26.04(a)(v),
and the amounts payable pursuant to Subsection 26.04(b) are calculated on the
basis of such Wage Rate, then the Escalation Statement delivered with respect to
such period shall be certified as true and correct to the best knowledge and
belief of the chief financial officer of Uris Holding Company or any successor
thereto as Landlord under this Lease.
(b) If the Wage Rate for any Operational Year shall be greater than
the Base Wage Rate, then Tenant shall pay to Landlord as additional rent for the
Premises for such Operational Year an amount equal to the product obtained by
multiplying the difference between the Wage Rate for such Operational Year and
the Base Wage Rate, by the Wage Rate Multiple. If the Wage Rate shall increase
or decrease during any Operational Year (for any reason other than the
implementation of an agreement after the interim calculations contemplated by
clause (v) of Subsection 26.04(a), then Landlord shall furnish a revised
Escalation Statement with respect to such increase or decrease and effective
upon the date of such increase or decrease, the amounts payable pursuant to this
paragraph (b) shall be increased or decreased and shall become payable (except
as to the effective date) in the same manner as provided in Section 26.05. In no
event shall Tenant receive any credit, reduction or decrease for any decline in
the Wage Rate below the Base Wage Rate.
Section 26.05. Any such additional rent payable by reason of the
provisions of subsection 26.04(b) hereof shall commence as of the first day of
the relevant Operational Year and, after Landlord shall furnish Tenant with an
Escalation Statement relating to such Operational Year, all monthly installments
of rental shall reflect one-twelfth of the annual amount of such adjustment
until a new adjustment becomes effective pursuant to the provisions of this
Article 26, provided, however, that if said Escalation Statement is furnished to
Tenant after the commencement of such Operational Year, there shall be promptly
paid by Tenant to Landlord, an amount equal to the portion of such adjustment
allocable to the part of such Operational Year which shall have elapsed prior to
the first day of the calendar month next succeeding the calendar month in which
said Escalation Statement is furnished to Tenant. In the event that by reason of
any Legal Requirement, an increase in the Wage Rate for any Operational Year is
reduced or does not take effect, or increases in the Wage Rate for any
Operational Year are limited or prohibited, then during the period beginning on
the effective date of any such Legal Requirement and ending on the date that
such Legal Requirement shall cease to be in effect (hereinafter called the
"Control Period"), the Wage Rate for purposes of the adjustment payments to be
made by Tenant in accordance with subsection 26.04(b) hereof, shall be deemed to
increase for each Operational Year during the Control Period that the Wage Rate
is affected by such Legal Requirement at the same annual rate that the same
increased for the Operational Year immediately preceding the first Operational
Year affected by such Legal Requirement.
Section 26.06. In the event that the date of the expiration or other
termination of this Lease shall be a day other than the last day of an
Operational Year, then, the additional rent payable pursuant to Section 26.04(b)
shall be appropriately prorated for such Operational Year.
Section 26.07. Landlord's failure to render an Escalation Statement
with respect to any Operational Year shall not prejudice Landlord's right to
thereafter render an Escalation Statement with respect thereto or with respect
to any subsequent Operational Year. Tenant's obligation to pay escalation for
any Operational Year during the term of this Lease shall survive the expiration
or earlier termination of this Lease; provided, however, if Landlord shall fail
to render any Escalation Statement within ninety (90) days after such expiration
or earlier termination of this Lease, then Tenant may give notice of such
failure to Landlord, and if Landlord shall thereafter fail within thirty (30)
days of the receipt of such notice to render an Escalation Statement, Landlord
shall be deemed to have waived its right thereafter to submit the same and
require payment thereof.
Section 26.08. (a) Each Escalation Statement provided by Landlord to
Tenant pursuant to Section 26.05 shall be conclusive and binding upon Tenant
unless (i) within six (6) months after the receipt of such statement Tenant
shall notify Landlord that it disputes the correctness thereof, specifying the
particular respects in which the statement is claimed to be incorrect, and (ii)
if such dispute shall not have been settled by agreement, Tenant shall submit
the dispute to arbitration within ninety (90) days after the expiration of said
six (6) month period. Pending the determination of such dispute by agreement or
arbitration as aforesaid, Tenant shall within thirty (30) days after receipt of
such statement, pay additional rent in accordance with the Escalation Statement,
and such payment shall be without prejudice to Tenant's position. If the dispute
shall be determined in Tenant's favor, Landlord shall forthwith pay Tenant the
amount of Tenant's overpayment of rents resulting from compliance with the
Escalation Statement.
(b) Landlord shall furnish to Tenant by the later of (i) April 30
following each Operational Year or (ii) thirty (30) days after Landlord shall
receive notice from Tenant demanding the same which notice may be furnished no
earlier than April 1 following any Operational Year with a written detailed
statement of operating expenses incurred by Landlord during the preceding
Operational Year substantially in the form of statements of operating expenses
provided to Tenant prior to the execution of.this First Supplemental Agreement.
The statement to be furnished under this Section 26.08(b) shall be certified as
correct by the chief financial officer of Uris Holding Company or any successor
thereto as Landlord under this lease. Upon reasonable notice, Landlord shall,
during the six (6) months after delivery of any such statement of operating
expenses afford Tenant access during reasonable hours to those books and records
of Landlord upon which such statement is based and permit Tenant to make copies
at Tenant's expense of bills and vouchers relating thereto.
3. Tenant and Landlord each covenant, represent and warrant to the
other that it has had no dealings or communications with any broker or agent in
connection with the consummation of this First Supplemental Agreement other than
Abrams, Benisch, Riker, Inc., and Tenant and Landlord each covenant and agree to
pay, hold harmless and indemnify the other from and against any and all cost,
expense (including reasonable attorney's fees) or liability for any
compensation, commissions or charges claimed by any other broker or agent with
whom it has had dealings or communications, with respect to this First
Supplemental Agreement. Landlord shall be responsible for any compensation to
which Abrams, Benisch, Riker, Inc. may be entitled in connection with this First
Supplemental Agreement.
4. Commencing as of the date of this First Supplemental Agreement
(i.e., January 1, 1989), and for the period ending April 30, 1991 Tenant shall
pay to Landlord on account of escalation which has previously accumulated under
the Lease pursuant to Section 26.05 (without giving effect to the modifications
thereof effected by this First Supplemental Agreement), the sum of $1,369,472
per annum payable in equal monthly installments of $114,122.67 per month. For
the period commencing May 1, 1991 and continuing thereafter, Tenant shall pay on
account of accumulated escalation pursuant to Section 26.05 as aforesaid, the
sum of $1,671,238 per annum in equal monthly installments of $139,269.84 which
amounts shall be due and payable on the first day of each month without demand
throughout the balance of the term. Landlord hereby acknowledges receipt of
$280,665.16 in full payment of all amounts due pursuant to Sections 26.04
through 26.08 of the Lease for the period from January 1, 1989 through June 30,
1991.
5. If the cost to Landlord for painting the Premises (as provided in
Section 17.11 of the Lease) after the initial painting of the Premises
(contemplated at the time the Lease was executed to be done in 1985) shall be
more per square foot than the cost of the initial painting, Tenant shall pay
said excess cost as additional rent ten (10) days after the rendition to Tenant
of a bill therefor.
6. Except as modified by this First Supplemental 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.
7. The covenants, agreements, terms and conditions contained in
this First Supplemental Agreement shall bind and inure to the benefit of the
parties hereto and their respective successors and, except as otherwise provided
in the Lease as hereby supplemented, their respective assigns.
8. This First Supplemental Agreement may not be changed or
terminated orally but only by an agreement in writing signed by the party
against which enforcement of any waiver, change, termination, modification or
discharge is sought.
9. This First Supplemental Agreement shall be construed without
regard to any presumption or other rule requiring construction against the party
causing this First Supplemental Agreement to be drafted.
10. This First Supplemental Agreement is executed by The Bank of New
York (successor to Irving Trust Company), Trustee under the Will of Harold D.
Uris, Deceased, doing business as Uris Holding Company, not personally but
solely as Trustee, as aforesaid, in the exercise of the power and authority
conferred upon and vested in it as such Trustee. All the terms, provisions,
stipulations, covenants and conditions to be performed by The Bank of New York
(successor to Irving Trust Company) are undertaken by it solely as Trustee as
aforesaid, and not individually and all statements herein made are made on
information and belief and are to be construed accordingly, and no personal
liability shall be asserted or be enforceable against The Bank of New York
(successor to Irving Trust Company) by reason of any of the terms, provisions,
stipulations, covenants and/or statements contained in this First Supplemental
Agreement.
11. This First Supplemental Agreement is subject to the approval of
the holder of the current first mortgage on the Building. If such approval is
not obtained or is denied within sixty (60) days after the date hereof, then
this First Supplemental Agreement shall be void and without any force or effect.
Landlord shall give prompt notice to Tenant of its receipt of any such approval
or disapproval, as the case may be.
12. IN WITNESS WHEREOF, the parties hereto have executed this First
Supplemental Agreement as of this 23 day of July, 1991 to be effective as of the
day and year first above written.
URIS HOLDING COMPANY
By The Bank of New York (successor to
Irving Trust Company), Trustee under
the Last Will and Testament of Harold
D. Uris, Deceased, for the benefit of
Ruth Uris:
ATTEST
/s/ By: /s/ Roy A. Weydig
-------------------- ----------------------------------
COLGATE-PALMOLIVE COMPANY, Tenant
ATTEST:
/s/ Joan Licht Mantel By: /s/ John J. Huston, Jr.
----------------------- ----------------------------------
STATE OF NEW YORK )
: ss.:
COUNTY OF NEW YORK )
On the 23 day of July in the year 1991, before me personally came
Roy A. Weydig, to me known, who, being by me duly sworn, did depose and say that
he resides at 403 Wellington Rd., Mineola, NY that he is a Vice President of THE
BANK OF NEW YORK, the corporation described in and which executed the above
instrument as Trustee under the will of Harold D. Uris d/b/a Uris Holding
Company for Landlord; and that he signed his name thereto by order of the board
of directors of said corporation.
/s/ Mary Ann Bruzzesse
Notary Public
MARY ANN BRUZZESSE
Commissioner of Deeds
City of New York -- No. 5-901
Certificate Filed in Richmond County
Commission Expires Oct. 1, 1991
STATE OF NEW YORK )
: ss.:
COUNTY OF NEW YORK )
On the 23 day of July in the year 1991, before me personally came
John J. Huston, Jr., to me known, who, being by me duly sworn, did depose and
say that he resides at 23 Hart Avenue, Hopewell, New Jersey 08525 that he is
Vice President, Real Estate of COLGATE-PALMOLIVE COMPANY, 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/ Lorraine Anderson
Notary Public
LORRAINE ANDERSON
Notary Public, State of New York
No. 31-4662340
Qualified in New York County
Term Expires January 31, 1992