Exhibit 10.2
SECOND AMENDMENT AND SURRENDER AGREEMENT
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SECOND AMENDMENT AND SURRENDER AGREEMENT (this "Agreement") made as
of May 1, 2003, by and between 11 WEST 42 LIMITED PARTNERSHIP, a New York
limited partnership, having an office at c/o Tishman Speyer Properties, 000
Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 ("Landlord"), and XXXXXX A.S.L., LTD.,
a Delaware corporation, having an office at 00 Xxxxx Xxx, Xxxxxxxx, Xxx Xxxxxx
00000 ("Tenant").
W I T N E S S E T H
WHEREAS:
A. Landlord and Tenant (as successor-in-interest to Xxxx Xxxxx &
Company and Xxxx of the Lion Associates) have heretofore entered into a certain
Lease dated as of June 4, 1996 (the "1996 Lease") with respect to the entirety
of the 20th, 21st, 22nd and 23rd floors (the "1996 Premises") in the building
known as 00 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx (the "Building");
B. Landlord and Tenant have heretofore entered into a certain
Surrender Agreement and Amendment dated as of December 31, 1999 (the "1999
Surrender Agreement"; the 1996 Lease, as modified by the 1999 Surrender
Agreement, is hereinafter referred to as the "Original Lease"; the Original
Lease, as modified by this Agreement, is hereinafter referred to as the
"Lease"), pursuant to which Tenant surrendered the 23rd floor of the Building
(the "23rd Floor Premises"; the 1996 Premises less the 23rd Floor Premises are
hereinafter referred to as the "Premises") to Landlord;
C. The term of the Lease by its terms shall expire on June 30, 2012,
unless renewed by Tenant pursuant to Article 37 of the Lease;
D. Tenant desires to surrender a portion of the Premises comprising
the entire 20th floor of the Building, as more particularly shown in Exhibit A-1
attached hereto (the "20th Floor Surrendered Premises"), and a portion of the
21st floor of the Building, as more particularly shown in Exhibit A-2 attached
hereto (the "21st Floor Surrendered Premises" and, together with the 20th Floor
Surrendered Premises, collectively the "Surrendered Premises"; the Premises less
the 20th Floor Surrendered Premises are hereinafter referred to as the
"Initially Retained Premises"; the Initially Retained Premises less the 21st
Floor Surrendered Premises are hereinafter referred to as the "Retained
Premises"), to Landlord and Landlord is willing to accept such surrender in the
manner and upon the terms and conditions hereinafter set forth;
E. Landlord desires the right to relocate Tenant from the portion of
the Initially Retained Premises comprising the portion of the 21st floor of the
Building not surrendered by Tenant as provided above, as more particularly shown
in Exhibit B attached hereto (the "Retained 21st Floor Premises"; the Retained
21st Floor Premises and the 21st Floor Surrendered Premises are hereinafter
referred to as the "21st Floor Premises"), and Tenant is willing to grant
Landlord such right;
F. Landlord and Tenant desire to further modify the Lease as provided
herein; and
G. Tenant filed a voluntary petition in bankruptcy on February 2,
2002 (the "Petition Date") seeking reorganization under federal bankruptcy law
in the United States Bankruptcy Court for the Southern District of New York (the
"Bankruptcy Court") in the Chapter XI proceeding Case No. 02-10497.
NOW, THEREFORE, in consideration of the premises and the agreements
hereinafter contained, it is mutually covenanted and agreed as follows:
1. Definitions. All capitalized terms used and not otherwise defined
in this Agreement shall have the respective meanings ascribed to them in the
Original Lease.
2. Surrender of Surrendered Premises.
(a) On the First Effective Date (as hereinafter defined),
in the case of the 20th Floor Surrendered Premises, and on the Second Effective
Date (as hereinafter defined), in the case of 21st Floor Surrendered Premises,
Tenant shall surrender to Landlord, and Landlord shall accept the surrender of,
the 20th Floor Surrendered Premises and the 21st Floor Surrendered Premises, as
the case may be, and the Original Lease is amended so that the term of the
Original Lease in respect of the 20th Floor Surrendered Premises shall expire on
the First Effective Date and in respect of the 21st Floor Surrendered Premises
shall expire on the Second Effective Date in the same manner and with the same
effect as if each such date were the date set forth in the Original Lease for
the expiration of the term thereof. Time is of the essence in Tenant's
surrendering each portion of the Surrendered Premises on the Effective Date
applicable thereto except that each Effective Date shall be extended by any
delay encountered by Tenant in vacating the Surrendered Premises by any cause
beyond Tenant's reasonable control affecting the operation of the Building,
including a strike of employees at the Building or mechanical breakdown ("Tenant
Unavoidable Delays"). For the purpose hereof, "First Effective Date" shall mean
the date which is the later to occur of (x) May 1, 2003 and (y) the date the
Bankruptcy Court shall have approved (1) this Agreement and the assumption by
Tenant of the Lease, (2) the payment of all obligations due under this Agreement
and (3) the payment of all unpaid obligations of Tenant accruing under the Lease
prior to (i) the Petition Date and (ii) the date of the approval of such
assumption, and "Second Effective Date" shall mean the date which is the earlier
to occur of (x) the Substitution Date (as defined in Article 38 of the Lease)
and (y) the date which is the later to occur of (i) the date Landlord notifies
Tenant that Landlord shall not exercise its right to relocate Tenant pursuant to
Article 38 of the Lease and (ii) the date Landlord substantially completes the
construction of a common corridor to serve the 21st floor of the Building as
more particularly shown on Exhibit B. The First Effective Date and the Second
Effective Date are hereinafter referred to individually as an "Effective Date"
and collectively as the "Effective Dates".
(b) Condition of the Surrendered Premises. On or before the
applicable Effective Date, time being of the essence with respect to such date,
Tenant shall remove all of Tenant's personal property, trade fixtures, signs and
equipment from the Surrendered Premises in question and vacate such Surrendered
Premises and deliver vacant possession thereof to Landlord "As Is", except
Tenant shall repair any significant damage to the Surrendered Premises and any
damage to the Building in either case caused by the removal of Tenant's personal
property, trade fixtures, signs and equipment from the Surrendered Premises. The
foregoing shall satisfy all of Tenant's obligations under the Original Lease
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with respect to the condition required upon delivery of possession of the
Surrendered Premises by Tenant at the expiration of the term thereof. Without
limiting Tenant's obligations set forth above, any personal property, fixtures,
installations or other property remaining in either portion of the Surrendered
Premises after the Effective Date in respect thereof shall be deemed abandoned
by Tenant and Landlord may take possession thereof and retain the same as
Landlord's property or dispose of same at Tenant's reasonable expense in any
manner Landlord determines without accountability therefor to Tenant.
Notwithstanding any provision of the Lease to the contrary, in no event shall
Tenant have any obligation to remove any work stations built into the 20th Floor
Surrendered Premises.
3. Payment. In consideration of the surrender described in Section 2,
Tenant shall pay Landlord (a) $2,600,000 within 5 days after the First Effective
Date in lawful money of the United States by wire transfer of funds to
Landlord's account, as designated by Landlord, or by bank or certified check,
(b) $150,000 within 5 days after the First Effective Date in lawful money of the
United States in the same manner as provided above to compensate Landlord for
the cost of installing a common corridor on the 21st floor of the Building,
redemising the premises located on such floor and performing other related
construction work, (c) $33,187.23 within 5 days after the First Effective Date
in lawful money of the United States in the same manner as provided above on
account of prepetition arrears, and (d) $14,960.11 within 5 days after the First
Effective Date in lawful money of the United States in the same manner as
provided above on account of a deficiency in Tenant's Operating Payments for
2002. Tenant agrees that Landlord shall have the right to apply the proceeds of
Tenant's letter of credit previously drawn down by Landlord to the above
amounts. Any excess amounts, after taking into account the amount of the new
security deposit (being the reduced amount specified Section 10(c)(i)), will be
paid to Tenant.
4. Absence of Encumbrances. Tenant hereby represents and covenants
that as of the Effective Date in respect of each portion of the Surrendered
Premise nothing will done or suffered whereby the Original Lease in respect of
such portion of the Surrendered Premises, or the term or estate thereby granted
in respect of such portion of the Surrendered Premises, or such portion of the
Surrendered Premises, or any part thereof, or any alterations, decorations,
installations, additions and improvements in and to such portion of the
Surrendered Premises, or any part thereof, will be encumbered in any way
whatsoever, and that as of each Effective Date Tenant will own the Original
Lease in respect of the Surrendered Premises in question and will have good
right to surrender the same on the Effective Date in question, and that as of
such Effective Date no one will have acquired through or under Tenant any right,
title or interest in or to such portion of the Surrendered Premises and there
shall be no subtenants, licensees or occupants of such portion of the
Surrendered Premises, or any part thereof, or in or to said alterations,
decorations, installations, additions and/or improvements or any part thereof.
5. Release of Obligations. Landlord shall accept the surrender of
each portion of the Surrendered Premises as of the Effective Date applicable
thereto and in consideration of such surrender by Tenant and of the acceptance
of such surrender by Landlord, Tenant and Landlord do hereby mutually release
each other, their respective successors and assigns (and, in the case of Tenant,
Tenant's officers, directors, shareholders, members, partners, managers, agents
and employees, and, in the case of Landlord, Landlord's officers, directors,
shareholders, members, partners, managers, agents and employees) of and from any
and all claims, damages, obligations, liabilities, actions and causes of action,
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of every kind and nature whatsoever arising under or in connection with the
Original Lease in respect of such portion of the Surrendered Premises from and
after the Effective Date applicable thereto, except that nothing herein
contained shall be deemed to constitute a release or discharge of Landlord or
Tenant with respect to any obligation or liability (i) accrued or incurred under
the Original Lease in respect of the Surrendered Premises or this Agreement and
outstanding and unsatisfied on the Effective Date applicable to the portion of
the Surrendered Premises being surrendered (including, without limitation, any
deficiency in Tenant's Operating Payment in respect of such portion of the
Surrendered Premises for the 2002 calendar year), (ii) to a third party (under
the indemnification provisions of the Lease or otherwise) arising prior to, on
or after the Effective Date in respect of the portion of the Surrendered
Premises in question as a result of an event occurring or condition existing
prior to or on the applicable Effective Date and (iii) accrued or incurred under
this Agreement. Tenant waives all rights to receive any payments, credits,
refunds, adjustments or other amounts that may be payable by Landlord under the
Lease in respect of the Surrendered Premises on account of Taxes or Operating
Expenses for any period prior to Effective Date in respect thereof. Landlord
waives all rights to receive any payments, credits, refunds, adjustments or
other amounts that may be payable by Tenant under the Lease in respect of the
Surrendered Premises on account of Taxes or Operating Expenses for any period
prior to the 2003 calendar year except as provided in Section 3(d).
6. Brokerage. Landlord and Tenant each covenants, represents and
warrants to the other that it has had no dealings or communications with any
broker or agent in connection herewith other than Tishman Speyer Properties,
L.P., PBS Realty Advisors, LLC and Xxxxxxx & Xxxxxxxxx, Inc. Landlord and Tenant
each agrees to hold harmless and indemnify the other from and against any and
all reasonable costs, expenses (including, without limitation, reasonable
attorneys' fees and disbursements) or liabilities for any compensation,
commission or other charge claimed by any broker or agent claiming to have dealt
with the indemnifying party other than Tishman Speyer Properties, L.P., PBS
Realty Advisors, LLC and Xxxxxxx & Xxxxxxxxx Inc. As between Landlord and Tenant
in respect of this Agreement, Tenant shall have no liability for any fees
payable to Tishman Speyer Properties, L.P. and Landlord shall have no liability
for any fees payable to PBS Realty Advisors LLC and Xxxxxxx & Xxxxxxxxx, Inc.
Tenant shall indemnify, defend and hold harmless Landlord from and against any
and all reasonable costs, expenses (including, without limitation, attorneys'
fees and disbursements) or liabilities which Landlord may incur by reason of any
claim of or liability to PBS Realty Advisors LLC and Xxxxxxx & Wakefield, Inc.
arising out of any dealings claimed to have occurred between Tenant and PBS
Realty Advisors LLC and/or Xxxxxxx & Xxxxxxxxx, Inc. in connection with this
Agreement. Landlord shall indemnify, defend and hold harmless Tenant from and
against any and all reasonable costs, expenses (including, without limitation,
attorneys' fees and disbursements) or liabilities which Tenant may incur by
reason of any claim of or liability to Tishman Speyer Properties, L.P. arising
out of any dealings claimed to have occurred between Landlord and Tishman Speyer
Properties, L.P. in connection with this Agreement. The provisions of this
Section 6 shall survive the expiration or termination of this Agreement and the
Lease.
7. Holdover. If Tenant shall fail to surrender either portion of the
Surrendered Premises pursuant to this Agreement, then Tenant shall be deemed to
be a holdover in respect of the entirety of such portion of the Surrendered
Premises and be subject to all of Landlord's rights and remedies set forth in
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the Lease and this Agreement, and Landlord may pursue against Tenant any and all
remedies available to it as landlord under the Lease or this Agreement or
otherwise, at law or in equity. The provisions of Section 22.2 of the Original
Lease shall apply separately to each portion of the Surrendered Premises.
8. Transfer Taxes. Landlord and Tenant shall promptly prepare,
execute and file such returns, affidavits and other documentation, if any, as
may be required in connection with any real property transfer tax that may
become, or may be asserted to be or become due owing or imposed in connection
with this Agreement at any time by the City of New York or the State of New York
or any agency or instrumentality of such City or State. The provisions of this
Section 8 shall survive the expiration or earlier termination of this Agreement.
9. 21st Floor Work. If Landlord elects not to exercise its right to
relocate Tenant from the Retained 21st Floor Premises pursuant to Article 38 of
the Lease, Landlord shall demise the Retained 21st Floor Premises and construct
a common corridor to serve the 21st floor of the Building (collectively, the
"21st Floor Work"). Landlord and its employees, contractors and agents shall
have access to the necessary portions of the 21st Floor Premises (as required to
perform the 21st Floor Work) at all reasonable times for the performance of the
21st Floor Work and for the storage of materials reasonably required in
connection therewith, and Tenant will use all commercially reasonable efforts to
minimize any interference with the performance of the 21st Floor Work. Landlord
shall use all commercially reasonable efforts to minimize any interference with
Tenant's use and occupancy of the 21st Floor Premises during the performance of
the 21st Floor Work. Landlord shall install temporary plastic curtains within
the Retained 21st Floor Premises while performing the corridor work. Landlord
shall use all commercially reasonable efforts to store materials for the 21st
Floor Work on, and stage such work from, the side of the temporary plastic
curtains away from Tenant's business operations. Upon Landlord's request, given
in writing to Tenant at least 10 days' prior to the commencement of the 21st
Floor Work, Tenant shall vacate the portion of the 21st Floor Premises
designated by Landlord during the performance of the 21st Floor Work. Tenant
shall, at Tenant's sole cost and expense, remove or relocate Tenant's Property
in such designated area of the 21st Floor Premises during the performance of the
21st Floor Work so as not to interfere (other than to a de minimis extent) with
the performance of the 21st Floor Work and shall take reasonable steps to
protect same against damage or loss during the performance of the 21st Floor
Work. Landlord shall have no obligation to employ contractors or labor at
overtime 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 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, annoyance or injury to business arising from the performance of
such work. The preceding sentence shall not be deemed a waiver of any claims for
personal injury or property damage caused by the negligence or willful
misconduct of Landlord, as such claims may be limited by the terms of the
Original Lease. Notwithstanding anything to the contrary contained herein,
Landlord shall have the right to shut down and remove the condenser water pumps,
piping and ancillary equipment installed by Tenant and currently existing on the
20th and 21st floors on the earliest to occur of the date which is forty-five
(45) days following the date (a) Landlord provides written notice to Tenant that
Landlord has entered into a lease with a tenant for the 20th Floor Surrendered
Premises or for the 21st Floor Surrendered Premises, as the case may be; (b)
Landlord provides written notice to Tenant that Landlord has elected not to
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exercise its right to relocate Tenant from the Retained 21st Floor Premises
pursuant to Article 38 of the Lease and that Landlord shall perform the 21st
Floor Work; and (c) of the Substitute Notice (as defined in Article 38 of the
Lease).
10. Modifications.
(a) During the period commencing on the First Effective Date and
ending on the day preceding the Second Effective Date, both dates inclusive, thc
Lease is modified as follows:
(i) Premises (as such term is defined in Article 1 of the
Lease) shall mean the Initially Retained Premises.
(ii) Tenant's Proportionate Share (as such term is defined
Article 1 of the Lease) shall mean 4.4522 percent.
(iii) Agreed Area of Premises (as such term is defined in
Article 1 of the Lease) shall mean 52,133 rentable square feet, consisting of
25,515 rentable square feet on the 22nd floor of the Building and 26,618
rentable square feet on the 21st floor of the building (without giving effect to
any substitution of space pursuant to Article 38 of the Lease).
(iv) Fixed Rent (as such term is defined in Article 1 of
the Lease) payable pursuant to the Lease shall be decreased to and shall be
$1,511,857 per annum ($125,988 per month) for the period commencing on the First
Effective Date and ending on June 3, 2007, both dates inclusive; and $1,616,l23
per annum ($134,676.92 per month) for the period beginning on June 4, 2007 and
ending on the Expiration Date, both dates inclusive.
(v) Notwithstanding any provision of the Lease to the
contrary, if the Lease shall be in full force and effect, the Fixed Rent payable
under the Lease with respect to the 21st Floor Surrendered Premises only shall
be abated in an amount equal to $35,602.33 per month (appropriately prorated for
partial months) during the period commencing on the First Effective Date and
ending on the day preceding the Second Effective Date, both dates inclusive.
(vi) The 21st Floor Surrendered Premises shall be deemed
part of the Premises for all purposes of the Lease until the Second Effective
Date, but Tenant shall not pay Fixed Rent on account of the 21st Floor
Surrendered Premises after giving effect to the abatement contained in Section
l0(a)(v). In addition, Tenant shall not be obligated to make Tenant's Tax
Payment or Tenant's Operating Payment on account of the 21st Floor Surrendered
Premises, and Tenant's Proportionate Share has been adjusted to take such
abatement into account.
(vii) Notwithstanding any provision of this Section 10(a)
to the contrary, Sections l0(a)(ii), (iii), (iv) and (v) shall be applicable on
May 1, 2003 (rather than on the Effective Date), if the First Effective Date
occurs on or before May 20, 2003.
(b) Effective as of the Second Effective Date and for the remainder
of the Term, the Lease is modified as follows;
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(i) Premises (as such term is defined in Article 1 of the
Lease) shall mean the Retained Premises.
(ii) Tenant's Proportionate Share (as such term is defined
in Article 1 of the Lease) shall mean 4.4522 percent.
(iii) Agreed Area of Premises (as such term is defined in
Article 1 of the Lease) shall mean 37,401 rentable square feet, consisting of
25,515 rentable square feet on the 22nd floor of the Building and 11,886
rentable square feet on the 21st floor of the building (without giving effect to
any substitution of space pursuant to Article 38 of the Lease).
(iv) Fixed Rent (as such term is defined in Article 1 of
the Lease) payable pursuant to the Lease shall be decreased to and shall be
$1,084,629 per annum ($90,385.75 per month) for the period commencing on the
Second Effective Date and ending on June 3, 2007, both dates inclusive; and
$1,159,431 per annum ($96,619.25 per month) for the period beginning on June 4,
2007 and ending on the Expiration Date, both dates inclusive,
(c) Effective as of the First Effective Date for the remainder of the
Term, the Lease is modified as follows;
(i) The definition of Security Deposit contained in Article
1 of the Original Lease is modified to mean "$2,169,258".
(ii) Article 36 or the Original Lease is modified by adding
Section 36.5 thereto reading in its entirety as follows:
"Section 36.5 Reduction. If no monetary or material
non-monetary default after the expiration of all applicable
notice and cure periods shall have then occurred and be
continuing under this Lease, then, provided that Tenant
complies with the provisions of this Section 36.5, (i) on
the second anniversary of the First Effective Date (as such
term is defined in the Second Amendment and Surrender
Agreement modifying this Lease (the "2nd Amendment")), the
amount of the Letter of Credit or cash security shall be
reduced to $1,626,943.50 and (ii) provided the amount of
the Letter of Credit or cash security shall have previously
been reduced pursuant to the preceding clause (i), on the
fifth anniversary of the First Effective Date the amount of
the Letter of Credit or cash security shall be reduced to
$1,159,431. The security shall be reduced as follows: (A)
if the security is in the form of cash, Landlord shall,
within 10 Business Days following notice by Tenant to
Landlord that Tenant is entitled to reduce the security
pursuant to this Section 36.5, deliver to Tenant the amount
by which the cash security is reduced, or (B) if the
security is in the form of a Letter of Credit, Tenant shall
deliver to Landlord a consent to an amendment to the Letter
of Credit (which amendment must be reasonably acceptable to
Landlord in all respects), reducing the amount of the
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Letter of Credit by the amount of the permitted reduction,
and Landlord shall execute such consent and such other
documents as are reasonably necessary to reduce the amount
of the Letter of Credit in accordance with the terms
hereof. If Tenant delivers to Landlord a consent to an
amendment to the Letter of Credit in accordance with the
terms hereof, Landlord shall, within 10 Business Days after
delivery of such consent, either (1) provide its reasonable
objections to such amendment or (2) execute such consent in
accordance with the terms hereof."
(iii) The Original Lease is modified by adding Article 38
thereto reading in its entirety as follows:
"ARTICLE 38
SUBSTITUTE SPACE
"Section 38.1 At any time after the First Effective Date
and before the eighteen month anniversary of the First
Effective Date, Landlord shall have the right to substitute
other space in the Building (`Substitute Space') for the
Retained 21st Floor Premises (as defined in the 2nd
Amendment) by written notice (a `Substitution Notice')
given to Tenant at least 15 days prior to the notice
referred to in Section 38.2(c) and designating the space so
substituted for the Retained 21st Floor Premises. The
Substitute Space shall consist of the space located on the
fifteenth floor of the Building, as more particularly shown
on Exhibit G (the `15th Floor Substitute Space'), or other
space in the Building designated by Landlord located not
lower than the 7th floor of the Building if the Substitute
Space is located on the south side of the Building and not
lower than the 12th floor of the Building if the Substitute
Space is located on the north side of the Building and
having a rentable area substantially similar to the 15th
Floor Substitute Space (i.e., having not less than 7,125
rentable square feet and not more than 8,709 rentable
square feet) and at least 8 windows having either a
southern or northern (but located in the western half of
the Building) exposure. The 15th Floor Substitute Space
shall be deemed by Landlord and Tenant for all purposes of
this Lease to contain 7,917 rentable square feet.
Notwithstanding such substitution of space, this Lease and
all the terms, provisions, covenants and conditions
contained in this Lease shall remain and continue in full
force and effect, except that on the Substitution Date the
Substitute Space shall be and be deemed to be part of the
Retained Premises (as defined in the 2nd Amendment), with
the same force and effect as if the Substitute Space were
originally specified in this Lease as the Retained 21st
Floor Premises (as defined in the 2nd Amendment) demised
hereunder.
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"Section 38.2 In the event of the substitution of space as
provided in Section 38.1 the following provisions (a)
through (e) shall apply:
(a) If the Substitute Space is the
15th Floor Substitute Space, the Fixed Rent shall be
reduced to $969,528 per annum ($80,794.00 per month) for
the period commencing on the Substitution Date and ending
on June 3, 2007, both dates inclusive, and $1,036,392 per
annum ($86,366.00 per month) for the period commencing on
June 4, 2007 and ending on the Expiration Date, both dates
inclusive, and Tenant's Proportionate Share shall be
reduced to 3.98%, if the Substitute Space is not the 15th
Floor Substitute Space and has a rentable area greater or
less than the Agreed Area of Premises applicable to the
Retained 21st Floor Premises (but having not less than
7,125 rentable square feet and not more than 8,709 rentable
square feet), the Fixed Rent payable under this Lease,
effective on the date the Substitute Space is substantially
completed and available for occupancy by Tenant (the
`Substitution Date'), shall be appropriately increased or
decreased by $29 per rentable square foot for the period
commencing on the Substitution Date and ending on June 3,
2007, both dates inclusive, and by $31 per rentable square
foot for the period commencing on June 4, 2007 and ending
on the Expiration Date, both dates inclusive, and Tenant's
Proportionate Share shall be appropriately adjusted based
on the proportion that the rentable square feet of the
Substitute Space bears to the Agreed Area of Building.
`Substantial completion' or `substantially completed' as to
any construction performed by any party pursuant to this
Lease means that such work has been completed as reasonably
determined by the architect responsible for such work, in
accordance with (i) the provisions of this Lease applicable
thereto, (ii) the plans and specifications for such work,
and (iii) the applicable legal requirements, except for
long-lead items and minor details of construction,
decoration and mechanical adjustments, if any, the
noncompletion of which does not materially interfere with
Tenant's use of the Premises, or which, in accordance with
good construction practice, should be completed after the
completion of other work to be performed in the Premises.
(b) Landlord shall, at Landlord's
expense, prepare the Substitute Space for Tenant's
occupancy by constructing perimeter and interior offices
and open work areas only in accordance with the
specifications attached hereto as Exhibit H (`Landlord's
Work'). Landlord represents to Tenant that such
specifications are substantially the same as those used to
prepare the prebuilt space located on the 39th floor of the
building known as 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
and shown to Tenant in April 2003. Within 10 Business Days
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following the date of the Substitution Notice, Tenant shall
notify Landlord of the number of workstations and/or
offices Tenant requires in the Substitute Space and of any
other information that shall reasonably be required in
connection with the layout of the Substitute Space (the
`Substitute Space Requirements'). If requested by Tenant,
Landlord shall have Landlord's architect meet with Tenant
to assist Tenant in developing the Substitute Space
Requirements. Landlord shall provide Tenant with a layout
plan for the Substitute Space for Tenant's approval within
10 Business Days following Landlord's receipt of the
Substitute Space Requirements. Subject to the terms and
conditions contained herein, Landlord and Tenant shall
cooperate with each other and work together in good faith
and as promptly as practicable to finalize a layout for the
Substitute Space. Tenant shall respond to Landlord's
request for approval of the layout plan within 10 Business
Days of the submission thereof to Tenant, provided that
such 10 Business Day period may be extended for a
reasonable time (but in no event for more than 3 additional
Business Days) if Tenant determines, in its reasonable
discretion, to submit the layout plan for review to its
independent consulting engineer or architect. If Tenant
disapproves of all or a portion of the layout plan, Tenant
shall promptly notify Landlord of its reasons therefor in
reasonable detail, in which event Landlord shall revise the
layout plan and resubmit it to Tenant within 5 Business
Days after notice from Tenant. Tenant shall respond to
Landlord's request for approval of the revised layout plan
within 5 Business Days of submission. If Tenant falls to
respond to any layout plan or revision thereto submitted by
Landlord within 10 Business Days or 5 Business Days (as the
case may be) after receipt by Tenant, such plan or revision
thereto shall be deemed to be approved by Tenant if Tenant
fails to respond to a second request notice within 2
Business Days after the expiration of such 10 Business Day
or 5 Business Day period (as the case may be), provided
that all permits and approvals required to be issued by any
Governmental Authority as a prerequisite to the performance
of such Alterations are obtainable. Landlord shall have the
right to move any millwork, floor covering, cabinet work,
and any other decoration as well as telephone lines and any
other communication line and other reusable items, from the
Retained 21st Floor Premises to the Substitute Space.
Landlord shall relocate the cubicles existing in the
Retained 21st Floor Premises to the Substitute Space;
provided, however, that Tenant hereby agrees to reasonably
cooperate with Landlord in connection with such relocation,
including designing the layout of the Substitute Space to
accommodate such cubicles. Landlord's construction work
shall be performed in a good and workmanlike manner.
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Landlord shall regularly update Tenant on the progress of
Landlord's Work. If Tenant requests that Landlord install
tile in the entrance to the Substitute Space rather than
carpet (the `Tile Option'), Tenant shall identify the type
and color of the tile at the same time that Tenant approves
the final layout plan. If such change increases the cost of
constructing Landlord's Work, Tenant shall bear such cost
and shall pay to Landlord, on demand, the amount by which
(A) the actual cost incurred by Landlord to construct
Landlord's Work, as so modified, exceeds (B) the actual
cost which would have been incurred by Landlord to
construct Landlord's Work in the absence of such change.
(c) As soon as Landlord has
substantially completed preparing the Substitute Space as
set forth in Section 38.2(b), Tenant, upon 10 days' prior
written notice, shall, subject to Tenant Unavoidable
Delays, move to the Substitute Space at Landlord's
reasonable cost and expense, and upon failure of Tenant so
to move to the Substitute Space (subject to Tenant
Unavoidable Delays), Landlord, as Tenant's agent, may
remove Tenant from the Retained 21st Floor Premises to the
Substitute Space. The failure of Tenant to move to the
Substitute Space pursuant to this Article 38 within 10 days
after the expiration of such 10 days' notice shall, subject
to Tenant Unavoidable Delays, be an Event of Default, and
Tenant shall, subject to Tenant Unavoidable Delays, be
deemed to have held over in the Retained 21st Floor
Premises and Landlord may pursue against Tenant any and all
remedies available to it as landlord under this Lease,
including Section 22.2 as if such Section were separately
applicable to the Retained 21st Floor Premises, or
otherwise, at law or equity. Notwithstanding anything to
the contrary contained herein, if Tenant has elected the
Tile Option and the type and/or color of the tile requested
by Tenant is not readily available at the time Landlord is
ready to install same, and the substantial completion of
the Substitute Space is delayed as a result of the exercise
by Tenant of the Tile Option, the Substitute Space shall be
deemed substantially completed for all purposes of this
Lease as of the date that the Substitute Space would have
been substantially completed but for such delay.
(d) Promptly after Tenant shall enter
into occupancy of the Substitute Space, Landlord
shall reimburse Tenant for Tenant's reasonable, direct,
out-of-pocket moving expenses, unless Landlord undertook to
move Tenant into the Substitute Space pursuant to Section
38.2(c) above. Tenant shall supply Landlord with
satisfactory evidence of direct out-of-pocket expenses
incurred by Tenant in moving from the Retained 21st Floor
Premises to the Substitute Space. Landlord shall reimburse
Tenant within 30 days after receipt of such evidence.
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(e) Tenant shall pay Landlord $300,000
for performing Landlord's Work, one-half of which
amount shall become due and payable by Tenant to Landlord
within 10 days after the giving of the Substitution Notice
and the remainder of which amount shall become due and
payable by Tenant to Landlord within 10 days after the
Substitution Date. Landlord shall have no obligation to
commence or thereafter proceed with Landlord's Work until
such time as Tenant shall have paid the first installment
of the amount due under this Section 38.1(e). If the
Substitution Date shall be delayed by reason of any delay
to the extent resulting from any act or omission of Tenant,
including Tenant's failure to timely respond to Landlord's
layout plan or to cooperate in the preparation of
Landlord's layout plan or to make the payment required by
the preceding sentence, the Substitute Space shall be
deemed substantially completed for the purposes of
determining the Substitution Date as of the date that the
Substitute Space would have been substantially completed
but for any such delay as determined by Landlord in its
sole discretion.
"Section 38.3 Following any substitution of space
pursuant to this Article 38, Landlord and Tenant, promptly
at the request of either party, shall execute and deliver a
supplementary agreement setting forth such substitution of
space, the Substitution Date and the change (if any) in the
Fixed Rent and Tenant's Proportionate Share but the failure
of either party to execute and deliver such a supplementary
agreement shall not affect the rights of the parties under
this Lease."
(iv) The Original Lease is modified by attaching Exhibits G
and H hereto as Exhibits G and H to the Original Lease.
(v) Article 27 of the Original Lease is modified as to
Tenant by: (i) deleting the name "Xxxxxxx X. Xxxx" in clauses (a) and (b), and
replacing such name with "General Counsel"; and (ii) deleting the name and
address for Xxxxxx Xxxxxxxxxx Xxxxxxx Syracuse & Hirschtritt LLP in clause (d),
and replacing same with "Xxxxxx & Xxxxxx, LLP, 0000 Xxxxxxxx, 00xx Xxxxx, Xxx
Xxxx, Xxx Xxxx 00000, Attention: Xxxxxx X. Xxxxxx, Esq."
11. Showing of 21st Floor Premises. After the First Effective Date
Landlord and Landlord's agents shall have the right to enter the 21st Floor
Premises at all reasonable times to show the 21st Floor Premises to prospective
lessees of the Building and to others. Tenant shall have the right to have a
representative present whenever Landlord elects to show the 21st Floor Premises
as aforesaid but Tenant's failure to make such representative available shall
not otherwise preclude or limit Landlord's right to show the 21st Floor
Premises. Tenant shall provide Landlord with access cards so that Landlord may
enter the 21st Floor Premises for the purposes of marketing the 21st Floor
Premises.
12. Discontinuance of Audit. On the First Effective Date Tenant
agrees to discontinue any examination, audit and dispute of the accuracy of
Landlord's Statements as such Statements relate to Operating Expenses for any
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Comparison Year prior to the 2003 Comparison Year and acknowledges and agrees
that there shall be no adjustment at any time in Tenant's Operating Payments for
any such prior period, provided that Landlord and Tenant agree that Tenant
reserves its right under the Lease to examine and dispute in accordance with the
terms of the Lease any Statement in respect of Operating Expenses for any
subsequent period. Tenant waives all rights to receive any payments, credits,
refunds, adjustments or other amounts that may be payable by Landlord under the
Lease in respect of the Premises on account of Taxes or Operating Expenses for
any period prior to the 2003 calendar year. Landlord waives all rights to
receive any payments, credits, refunds, adjustments or other amounts that may be
payable by Tenant under the Lease in respect of the Premises on account of Taxes
or Operating Expenses for any period prior to the 2003 calendar year except as
provided in Section 3(d).
13. Amendments. This Agreement may not be changed orally but only by
an agreement in writing signed by the party against whom enforcement or any
waiver, change, modification or discharge is sought.
14. Representations. (i) 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 as provided herein; (b) there are no defaults
existing under the Original Lease by Tenant, except that Tenant owes Landlord
$33,187.23 for pre-petition charges; (c) there exist no valid abatements, causes
of action, counterclaims, disputes, defenses, offsets, credits, deductions, or
claims against the enforcements of any of the terms and conditions of the
Original Lease; (d) this Agreement 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 Original Lease in connection with Tenant's initial
occupancy of the Premises; and (f) to Tenant's knowledge, Landlord is not in
default of any of its obligations or covenants under the Original Lease.
15. Bankruptcy Court Approval. Notwithstanding anything to the
contrary contained herein, this Agreement is subject to the approval of the
Bankruptcy Court and the assumption of the Original Lease, as modified hereby,
by Tenant and this Agreement shall not become effective unless and until an
order substantially in the form attached hereto as Exhibit C, approving this
Agreement and the assumption of the Original Lease, as modified hereby, by
Tenant, is entered into by the Bankruptcy Court. If the Bankruptcy Court fails
to approve this Agreement and the assumption of the Original Lease, as modified
hereby, by Tenant within 30 days after the execution and delivery of this
Agreement by Landlord and Tenant, this Agreement shall become null and void,
without waiver of, or prejudice to, the rights of either party hereunto under
the United States Bankruptcy Code, 11 U.S.C. xx.xx. 101 et seq. (the "Bankruptcy
Code").
16. Miscellaneous. (a) Except as set forth herein, nothing contained
in this Agreement shall be deemed to amend or modify in any respect the terms of
the Lease.
(b) This Agreement 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.
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(c) This Agreement 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 Agreement shall not be binding upon Landlord or Tenant
unless and until Landlord shall have delivered a fully executed counterpart of
this Agreement to Tenant.
(e) This Agreement shall be governed by the laws of the State of New
York without giving effect to conflict of laws principles thereof.
(f) This Agreement shall be binding upon and inure to the benefit of
Landlord and Tenant and their successors and permitted assigns.
(g) The terms and provisions of this Agreement shall survive the
expiration or earlier termination of the Lease.
IN WITNESS WHEREOF, the parties hereto have respectively executed
this Agreement as of the day and year first above written.
11 WEST 42 LIMITED PARTNERSHIP
By: 00 Xxxx 00 Corp., a general partner
By: /s/ Xxxx X. Xxxx
-------------------------------
Name: Xxxx X. Xxxx
Title: Vice President
XXXXXX A.S.L., LTD.
By: /s/ Xxxx X. Idol
-----------------------------------
Name: Xxxx X. Idol
Title: Chairman & CEO
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