Exhibit 10.100
FIFTH AMENDMENT TO OFFICE
LEASE
This Fifth Amendment to Office
Lease (the “Fifth Amendment”) , dated January 27, 2006, is made by and
between DOUGLAS EMMETT 2000, LLC, a Delaware limited liability
company, successor in interest to Brighton Enterprises, LLC, a
California limited liability company (“Landlord”), with
offices at 808 Wilshire Boulevard, Suite 200, Santa Monica,
California 90401, and KENNEDY- WILSON, INC. a Delaware corporation
(“Tenant”), with offices at 9601 Wilshire Boulevard,
Suite 220, Beverly Hills, California 90210.
WHEREAS,
A.
Wilshire-Camden Associates, a California limited partnership
(“Wilshire-Camden”), Landlord’s
predecessor-in-interest, pursuant to the provisions of that certain
written Office Lease, dated August 19, 1998, as amended by
that certain First Amendment to Lease (Expansion) dated
March 5, 1999, that certain Second Amendment to Lease
(Expansion) dated June 2, 1999, and that certain Termination
Agreement dated October 19, 1999 (collectively the
“Original Lease”), leased to Tenant, and Tenant leased
from Wilshire-Camden space in the property located at 9601 Wilshire
Boulevard, Beverly Hills, California 90210 (the
“Building”), commonly known as Suite 200 (the
entire second floor), and Suite GL-15A/GL-9 (the
“Original Premises”);
B.
Pursuant to that certain Third Amendment to Office Lease between
Landlord’s predecessor-in-interest and Tenant dated
December 20, 2002 (the “Third Amendment”), as
amended by that certain Fourth Amendment to Office Lease dated
September 11, 2003 (the “Fourth Amendment”),
Tenant reduced its occupancy in the Building to a portion of
Suite 200 renamed as Suite 220 (the “Existing
Premises”), and extended the term of the Lease to expire on
June 30, 2010 (the “Termination Date”);
C.
The Original Lease, the Third Amendment and the Fourth Amendment
shall be collectively referred to herein as the
“Lease”);
D.
On or about January 20, 2006, DOUGLAS EMMETT 2000, LLC, a
Delaware limited liability company acquired Brighton Enterprises,
LLC, a California limited liability company’s right title and
interest in the Lease;
E.
Tenant wishes to expand its occupancy within the Building to
include additional office space adjacent to the Existing Premises
in the Building, commonly known as a portion of Suite 270 (the
“Expansion Premises”), as shown on Exhibit A-I,
which expansion Landlord has conditionally permitted, contingent
upon Tenant’s acceptance of and compliance with the
provisions of this Fifth Amendment; and
F.
Landlord and Tenant, for their mutual benefit, wish to revise
certain other covenants and provisions of the Lease;
NOW, THEREFORE, in consideration of the covenants and provisions
contained herein, and other good and valuable consideration, the
sufficiency of which Landlord and Tenant hereby acknowledge,
Landlord and Tenant agree:
1.
Confirmation of Defined
Terms. Unless modified herein, all
terms previously defined and capitalized in the Lease, as amended
shall hold the same meaning for the purposes of this Fifth
Amendment.
2.
Expansion Date and Expansion
Term. The
expansion contemplated hereunder shall be effective the next
business day after the date Landlord substantially completes the
improvements contemplated under Paragraph 11.1 below (the
“Expansion Date”), and continue for such period of
time, co-terminus with the term of the Lease for the Existing
Premises, the Termination Date, unless sooner terminated (the
“Expansion Term”). For the purposes of establishing the
Expansion Date, substantial completion shall be defined as that
point in the construction process when all of the Landlord’s
Work to be performed under Paragraph 11.1 below has been completed
in such a manner that Tenant could, if it took possession of the
Expansion Premises, enjoy beneficial occupancy thereof.
Tenant’s taking delivery of keys to the Expansion Premises
shall constitute Tenant’s acknowledgment that Landlord has
substantially completed the Landlord’s Work, and that the
Expansion Premises is in good condition and order. The anticipated
Expansion Date is January 15, 2006. Landlord and Tenant shall
promptly execute an amendment to the Lease (the “Sixth
Amendment”), confirming the finalized Expansion Date, and
Expansion Term, as soon as they are confirmed.
If for any reason (including
Landlord’s inability to complete the Landlord’s Work
called for hereunder) Landlord is unable to deliver possession of
the Expansion Premises to Tenant on the anticipated Expansion Date,
this Lease shall not be void or voidable, nor shall Landlord be
liable to Tenant for any damage resulting from Landlord’s
inability to deliver such possession.. However, solely with respect
to the Expansion Premises, Tenant shall not be obligated to pay any
increase in the Base Rent or Additional Rent, as called for
hereunder with respect to the Expansion Premises, until the
Expansion Date (as defined and confirmed in this paragraph). Except
for such delay in the commencement of Rent, Landlord’s
failure to give possession of the Expansion Premises on the
anticipated Expansion Date shall in no way affect Tenant’s
obligations hereunder.
If possession of the Expansion
Premises is not tendered by Landlord within one hundred twenty
(120) days after the anticipated Expansion Date, then Tenant shall
have the right to terminate the provisions of this Fifth Amendment
with respect to the Expansion Premises only by giving written
notice to Landlord within ten (10) days after such failure. If
such notice of termination is not given by Tenant within said ten
(10) day period, then the provisions of this Fifth Amendment
shall continue in full force and effect.
If due to “Force
Majeure” (as defined in Lease Section 27.04), Landlord
is unable to tender possession of the Expansion Premises within one
hundred fifty (150) days after the anticipated Expansion Date, then
this Fifth Amendment with respect to the Expansion Premises only,
and the rights and obligations of Landlord and Tenant hereunder,
shall terminate automatically, without further documentation being
required.
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3.
Expansion of Premises.
As of the
Expansion Date, the definition of the Premises shall be revised to
include both the Existing Premises and the Expansion Premises, and
wherever in the Lease the word “Premises” or
“Suite 220” is found, it shall thereafter refer to
both the Existing Premises and the Expansion Premises together, as
if the same had been originally included in said Lease, except to
the extent of the certain provisions in this Fifth Amendment which
shall continue to exclusively apply to the Expansion Premises for
the duration of the Expansion Term, as extended.
As of the Expansion Date, the Usable
Area of the Existing Premises shall increase by approximately 1,013
square feet from approximately 9,731 square feet to approximately
10,744 square feet and the Rentable Area of the Existing Premises
shall increase by approximately 1,221 square feet from
approximately 11,947 square feet to approximately 13,168 square
feet.
4.
Measurement of Expansion
Premises. Landlord and Tenant agree
that the Usable Area of the Expansion Space has been measured
according to the June, 1996 standards published by the Building
Owners’ and Managers’ Association (“BOMA”),
and that Landlord is utilizing a deemed loss factor of 20.53% to
compute the Rentable Area of the Expansion Space. Rentable Area
herein is calculated as 1.2053 times the estimated Usable Area,
regardless of what the actual square footage of the common areas of
the Building may be, and whether or not they are more or less than
20.53% of the total estimated Usable Area of the Building. The
purpose of this calculation is solely to provide a general basis
for comparison and pricing of this space in relation to other
spaces in the market area.
5.
Revision to Base Rent.
Commencing on the
Expansion Date and continuing through June 30, 2006, the
monthly installment of Base Rent payable by Tenant for the
Expansion Premises shall be $4,395.60 per month.
Commencing on July 1, 2006 and
continuing through June 30, 2007, the monthly installment of
Base Rent payable by Tenant for the Expansion Premises shall
increase from $4,395.60 per month to $4,527.47 per
month.
Commencing on July 1, 2007 and
continuing through June 30, 2008, the monthly installment of
Base Rent payable by Tenant for the Expansion Premises shall
increase from $4,527.47 per month to $4,663.29 per
month.
Commencing on July 1, 2008 and
continuing through June 30, 2009, the monthly installment of
Base Rent payable by Tenant for the Expansion Premises shall
increase from $4,663.29 per month to $4,803.19 per
month.
Commencing on July 1, 2009 and
continuing and continuing throughout the remainder of the Expansion
Term, the monthly installment of Base Rent payable by Tenant for
the Expansion Premises shall increase from $4,803.19 per month to
$4,947.29 per month.
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6.
Revision to Base Year.
As of the
Expansion Date, the Base Year for Tenant’s payment of
increases in Property Taxes and Operating Expenses, solely as it
relates to the Expansion Premises, shall be calendar year
2006.
7.
Revision to Tenant’s
Percentage Share. Tenant’s Percentage
Share of increases in Property Taxes and Operating Expenses over
the Base Year, solely as it relates to the Expansion Premises,
shall be 0.46%.
8.
Increase in
Security Deposit. Landlord acknowledges that it currently holds the
sum of $47,284.47 as a Security Deposit under the Lease, which
amount Landlord shall continue to hold throughout the term for the
Existing Premises and Expansion Term, unless otherwise applied
pursuant to the provisions of the Lease. Concurrent with
Tenant’s execution and tendering to Landlord of this Fifth
Amendment, Tenant shall tender the sum of $4,947.29, which amount
Landlord shall add to the Security Deposit already held by
Landlord, so that thereafter, throughout the term for the Existing
Premises and Expansion Term, provided the same is not otherwise
applied, Landlord shall hold a total of $52,231.76 as a Security
Deposit on behalf of Tenant. ·
9.
Intentionally
Omitted.
10.
Parking. As of
the Expansion Date, Tenant is entitled to purchase an additional
three (3) unreserved parking permits pursuant to the Lease and
at the prevailing monthly Building parking rates then in effect,
which monthly rates may change from time to time, in
Landlord’s sole discretion.
11.
Acceptance of
Premises. Tenant acknowledges that (i) it has been in
possession of the Existing Premises for over two (2) years,
and (ii) to the best of Tenant’s knowledge, as of the
date hereof, it has no claim against Landlord in connection with
the Existing Premises or the Lease. Tenant has made its own
inspection of and inquiries regarding the Expansion Premises, which
is already unproved. Therefore, except to the extent of the
Landlord’s Work to be performed by Landlord’s
contractor pursuant to Paragraph 11.1 below, Tenant accepts the
Expansion Premises in its “as-is” condition. Tenant
further acknowledges that Landlord has made no currently effective
representation or warranty, express or implied regarding the
condition, suitability or usability of the Existing Premises,
Expansion Premises or the Building for the purposes intended by
Tenant.
11.1
Tenant Improvements-Expansion
Premises. Prior to the Expansion Date,
(and concurrent with Tenant’s occupancy of the Existing
Premises which shall not entitle Tenant to any set-off or rent
abatement for the Existing Premises), Landlord agrees to perform
the following improvements in the Expansion Premises, at
Landlord’s sole expense (the “Landlord’s
Work”):
(a)
Demolish and
remove three (3) walls, in the area indicated on
Exhibit B attached hereto and incorporated herein;
(b)
Repaint the
interior wails previously painted, using Building standard
materials and a maximum of two coats of paint previously selected
by Tenant; and
(c)
Replace the
carpeting, base molding and padding (only if the padding is
deteriorated), using Building standard materials previously
selected by Tenant (collectively the “Landlord’s
Work”).
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If Tenant elects to make any other
improvements to the Premises during the Expansion Term or the term
for the Existing Premises, the same shall be considered an
“Alteration”, to be completed by Tenant, at
Tenant’s sole expense, pursuant to the provisions of the
Lease, Article 9, Section 9.01.
12.
Option to Extend
the Expansion Term.
12.1
Paragraph 12.1. Option to Extend Expansion
Term.
12.2
Option to Extend Term.
Provided Tenant
is not in material default after the expiration of notice and the
opportunity to cure on the date or at any time during the remainder
of the Expansion Term after Tenant gives notice to Landlord of
Tenant’s intent to exercise its rights pursuant to this
Paragraph 12, Tenant is given the option to extend the term for an
additional Five (5) year period (the
“Suite 270-Extended Term”), commencing the next
calendar day after the expiration of the Expansion Term (the
“Suite 270-Option”). The Suite 270-Option
shall apply only to the entirety of the Expansion Premises, and
Tenant shall have no right to exercise the Suite 270-Option as
to only a portion of the Expansion, Premises. Further the
Suite 270- Option is separately exercisable by Tenant from the
Option to Extend the Suite 220 Term as set forth in Paragraph
12 of the Third Amendment, and intended to apply only to the
Expansion Premises.
Tenant’s exercise of this
Suite 270-Option is contingent upon Tenant giving written
notice to Landlord (the “Suite 270-Option Notice”)
of Tenant’s election to exercise its rights pursuant to this
Suite 270-Option by Certified Mail, Return Receipt Requested,
no more than twelve (12) and no less than nine (9) months
prior to the Termination Date.
12.3
Monthly Base Rent Payable.
The Base Rent
payable by Tenant during the Suite 270- Extended Term
(“Suite 270-Option Rent”) shall be equal to the
Fair Market Value of the Expansion Premises as of the commencement
date of the Suite 270-Extended Term. The term “Fair
Market Value” shall be defined as the effective rent
reasonably achievable by Landlord, and shall include but not be
limited to, all economic benefits obtainable by Landlord, such as
monthly Base Rent (including periodic adjustments), Additional Rent
in the form of Operating Expense reimbursements, and any and all
other monetary or non-monetary consideration that may be given in
the market place to a non-renewal tenant, as is chargeable for a
similar use of comparable space in the Beverly Hills area of the
Expansion Premises. Said computation shall specifically be based on
the Expansion Premises in its “as-is”
condition.
Landlord and Tenant shall have
thirty (30) days (the “Suite 270-Negotiation
Period”) after Landlord receives the Suite 270-Option
Notice in which to agree on the Fair Market Value. If Landlord and
Tenant agree on the Fair Market Value during the
Suite 270-Negotiation Period, they shall immediately execute
an amendment to the Lease extending the Expansion Term and stating
the Fair Market Value.
12.4
Appraisers to Set
Fixed Rent. If Landlord and Tenant are unable to agree on the Fair
Market Value during the Suite 270-Negotiation Period,
then:
(a)
Landlord and
Tenant, each at its own cost, shall select an independent real
estate appraiser with at least ten (10) years full-time
commercial appraisal experience in the area in which the Expansion
Premises are located, and shall provide written notice to the other
party of the identity and address of the appraiser so
appointed.
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Landlord and
Tenant shall make such selection within ten (10) days after
the expiration of the Suite 270-Negotiation
Period.
(b)
Within thirty
(30) days of having been appointed to do so (the “Suite
270-Appraisal Period”), the two (2) appraisers so appointed
shall meet and set the Fair Market Value for the Suite 270-Extended
Term. In setting the Fair Market Value, the appraisers shall solely
consider the use of the Expansion Premises for general office
purposes.
12.5
Failure by Appraisers to Set Fair
Market Value. If the two (2) appointed
appraisers are unable to agree on the Fair Market Value within ten
(10) days after expiration of the Suite 270- Appraisal
Period, they shall elect a third appraiser of like or better
qualifications, and who has not previously acted in any capacity
far either Landlord or Tenant. Landlord and Tenant shall each bear
one half of the costs of the third appraiser’s
fee.
Within thirty (30) days after the
selection of the third appraiser (the “Second Suite 270-
Appraisal Period”) the Fair Market Value for the
Suite 270-Extended Term shall be set by a majority of the
appraisers now appointed.
If a majority of the appraisers are
unable to set the Fair Market Value within the Second Suite
270-Appraisal Period, the three (3) appraisers shall individually
render separate appraisals of the Fair Market Value, and their
three (3) appraisals shall be added together, then divided by three
(3); resulting in an average of the appraisals, which shall be the
Fair Market Value during the Suite 270-Extended Term.
However, if the Low appraisal or
high appraisal varies by more than ten percent (10%) from the
middle appraisal, then one (1) or both shall be disregarded.
If only one (1) appraisal is disregarded, the r
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