AMENDMENT OF LEASE
THIS
AMENDMENT OF LEASE (this "Amendment"),
made
as of the 27th day of June, 2005, between 000 XXXX 00XX XXXXXX, XXX, a Delaware
limited liability company, having an address c/o Colliers ABR, Inc., 00 Xxxx
00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 ("Landlord"),
and
XXXXX ONLINE, INC., a Delaware corporation, duly qualified to conduct business
in the State of New York, having an office at 000 Xxxx 00xx Xxxxxx, Xxx Xxxx,
Xxx Xxxx 00000 ("Tenant").
W
I T N E S S E T H:
WHEREAS,
by lease dated as of the 7th day of February, 2000, between Landlord and Tenant
(the "Lease"),
Landlord did demise and let unto Tenant, and Tenant did hire and take from
Landlord, a portion of the twenty-seventh (27th) floor, more particularly
identified in the Lease and known as Suite No. 2700 (the "Original
Premises"),
in
the building known as the Xxxxxx Building, 122 East 42nd Street, New York,
New
York (the "Building"),
for a
term commencing on February 7, 2000, and ending on April 30, 2007;
and
WHEREAS,
Landlord and Tenant desire to modify the Lease to provide for (i) the relocation
of Tenant from the Original Premises to space situated on the twenty-fourth
(24th) floor of the Building and designated as Suite No. 2400 and (ii) the
extension of the Term of the Lease for an additional period commencing on May
1,
2007, and ending approximately seven (7) years after Tenant shall have commenced
the payment of rent for said Suite No. 2400, all upon the terms, conditions
and
provisions hereinafter set forth.
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NOW,
THEREFORE, in consideration of the premises, the mutual covenants contained
herein, and other good and valuable consideration, the mutual receipt and legal
sufficiency of which are hereby acknowledged, the parties hereto, for themselves
and their respective successors and assigns, hereby agree as
follows:
1. Definitions.
All
capitalized terms used herein shall have the same meanings ascribed to them
in
the Lease, unless otherwise defined herein.
2. Substitute
Space.
Landlord hereby leases to Tenant, and Tenant hereby hires from Landlord, that
portion of the twenty-fourth (24th) floor of the Building indicated by the
hatching on the floor plan annexed hereto as Exhibit "A" and made a part hereof
(the "Substitute
Space")
and
designated as Suite No. 2400, upon all of the same terms, covenants and
conditions set forth in the Lease, except as modified herein, for a term (a)
commencing on the date (the "Substitute
Space Effective Date")
on
which this Amendment is fully executed and unconditionally delivered by the
parties hereto and (b) ending (unless such term is sooner terminated pursuant
to
the terms of the Lease or by law) on the date (the "Fixed
Expiration Date")
which
is (a) the day immediately preceding the seventh (7th) anniversary of the
Substitute Space Rent Commencement Date (hereinafter defined) if the Substitute
Space Rent Commencement Date is the first day of the month or (b) the last
day
of the month in which the seventh (7th) anniversary of the Substitute Space
Rent
Commencement Date shall occur if the Substitute Space Rent Commencement Date
is
not the first day of the month. The Fixed Expiration Date of the Term of the
Lease is hereby changed from April 30, 2007, to the Fixed Expiration Date
defined in the immediately preceding sentence. As used in this Amendment, the
term "Substitute
Space Rent Commencement Date"
shall
mean the date which is the earlier of (a) the Relocation Date (hereinafter
defined) and (b) the date which is sixty (60) days after the Substitute Space
Effective Date. Provided that Tenant is not then in default hereunder beyond
any
applicable grace, notice or cure period, payment of the Fixed Rent for the
Substitute Space, exclusive of the Electricity Inclusion Factor for the
Substitute Space, shall be abated for the period from the Substitute Space
Effective Date through the date immediately preceding the Substitute Space
Rent
Commencement Date. If the Substitute Space Rent Commencement Date shall occur
on
a date other than the first (1st) day of any calendar month, on the Substitute
Space Rent Commencement Date, Tenant shall pay to Landlord a sum equal to One
Thousand, One Hundred Sixty and 07/100 ($1,160.07) Dollars, multiplied by the
number of calendar days in the period from the Substitute Space Rent
Commencement Date to the last day of the month in which the Substitute Space
Rent Commencement Date shall occur, both dates inclusive, as Fixed Rent,
inclusive of the Electricity Inclusion Factor, for the Substitute Space for
such
period. Promptly following the Substitute Space Rent Commencement Date, Landlord
and Tenant shall enter into an agreement confirming the Substitute Space
Effective Date, the Substitute Space Rent Commencement Date, and the Fixed
Expiration Date, provided, however, the failure to execute and deliver such
agreement shall not affect the validity of the Substitute Space Effective Date,
the Substitute Space Rent Commencement Date, or the Fixed Expiration Date as
set
forth herein.
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3. Condition
of the Substitute Space.
Tenant
acknowledges that Landlord has made and makes no representation or warranty
of
any kind, express or implied, to Tenant with respect to the condition of the
Substitute Space. Tenant further acknowledges that it has inspected, and is
fully familiar with, the condition of the Substitute Space, agrees to accept
the
Substitute Space in the condition existing on the Substitute Space Effective
Date, and further agrees that Landlord shall have no obligation to alter,
improve, paint, decorate or otherwise prepare the Substitute Space for Tenant's
initial occupancy.
4. Landlord's
Contribution to Tenant's Alterations within the Substitute Space.
A. Promptly
after the date hereof, subject to the provisions of Article 3 and Section
37(C)(1) of the Lease, Tenant, at Tenant's own cost and expense, shall prepare
and deliver to Landlord, preliminary drawings and specifications for Landlord's
approval, which approval shall be granted or denied within ten (10) Business
Days after Landlord shall have received such preliminary drawings and
specifications and any other relevant information Landlord may reasonably
request, and, promptly after Landlord's approval thereof pursuant to the
provisions of said Section 37(C)(1), detailed working drawings and
specifications for Landlord's approval, which approval shall be granted or
denied within ten (10) Business Days after Landlord shall have received such
detailed working drawings and specifications and any other relevant information
Landlord may reasonably request, for the work to be performed by Tenant within
the Substitute Space to prepare the Substitute Space for Tenant's occupancy
(hereinafter referred to as the "Tenant's
Alterations").
After
Landlord's approval of such preliminary, and then detailed working, drawings
and
specifications, Tenant's Alterations shall be performed by Tenant subject to,
and in accordance with, all applicable provisions of the Lease, including,
without limitation, the provisions of Articles 3 and 37C(1) thereof. Landlord
shall contribute, pursuant to the provisions of this Article 4, an amount not
to
exceed Forty-One Thousand, One Hundred and 00/100 ($41,100.00) Dollars (the
"Tenant
Fund")
towards the "hard costs" of Tenant's Alterations. The term "hard costs," as
used
in this Article 4, shall be deemed to exclude (a) any and all costs and expenses
of relocating to the Substitute Space Tenant's office furniture, furnishings,
equipment and other personal property then existing in the Original Premises
and
relocating, furnishing and installing telephone and computer systems, any other
telecommunication wiring and equipment, security system, and access system,
if
any, and (b) any and all "soft costs" in connection with Tenant's Alterations,
including, without limitation, (i) any and all architectural, engineering,
designing, and decorating fees and expenses incurred in connection with the
preparation and execution of any and all drawings and specifications for
Tenant's Alterations and the review and supervision of the performance of
Tenant's Alterations, (ii) any and all attorneys' fees and disbursements in
connection with the preparation, execution and delivery of this Amendment and
the preparation for, and performance of, Tenant's Alterations, (iii) any and
all
permit application costs, filing fees, and related expenses in connection with
filing all drawings and specifications for Tenant's Alterations with the
appropriate Governmental Authorities, and (iv) any and all fees for expediter
services pertaining to obtaining necessary permits and approvals in connection
with the performance of Tenant's Alterations. It is expressly understood and
agreed that the foregoing costs and expenses excluded from "hard costs" shall
be
the sole responsibility of Tenant and that no portion of any such costs and
expenses shall be paid for out of the Tenant Fund.
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B. Landlord
shall disburse a portion of the Tenant Fund to Tenant from time to time, within
thirty (30) days after receipt of the items set forth in Section 4.C hereof,
provided that, on the date of a request and on the date of disbursement from
the
Tenant Fund, no event of default hereunder on the part of Tenant shall have
occurred and be continuing beyond any applicable grace, notice, or cure period.
Disburse-ments from the Tenant Fund shall not be made more frequently than
monthly and shall not exceed the amounts theretofore paid by Tenant (as
certified by the Chief Financial Officer of Tenant and Tenant's inde-pendent,
licensed architect) to contractors, subcontractors and materialmen with respect
to the portion of Tenant's Alterations theretofore com-pleted and for which
the
disbursements were requested.
C. Landlord's
obligation to make disburse-ments from the Tenant Fund shall be subject to
Landlord's receipt of: (a) a request for such disbursement from Tenant signed
by
the Chief Financial Officer of Tenant, (b) copies of all receipts, paid invoices
and paid bills for the work completed and materials furnished in connection
with
Tenant's Alterations and incorporated in the Substitute Space and for the prior
payment of which Tenant seeks reimbursement from the requested disbursement,
(c)
copies of all contracts, work orders, change orders and other materials relating
to the work or materials which are the subject of the requested disbursement,
and (d) a certificate of Tenant's independent, licensed architect stating,
in
his opinion, that the portion of Tenant's Alterations theretofore completed
and
for which the disbursement is requested was performed in a good and work-manlike
manner and substantially in accordance with the final detailed plans and
specifications for such Tenant's Alterations, as approved by
Landlord.
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D. In
no
event shall the aggregate amount paid by Landlord to Tenant under this Article
4
exceed the amount of the Tenant Fund. Upon the completion of Tenant's
Alterations and satisfaction of the conditions set forth in Section 4.E hereof,
any amount of the Tenant Fund which has not been previously disbursed shall
be
retained by Landlord. Upon the disbursement of the entire Tenant Fund (or the
portion thereof if, upon completion of Tenant's Alterations, the Tenant Fund
is
not exhausted), Landlord shall have no further obligation or liability
whatsoever to Tenant for further disbursement of any portion of the Tenant
Fund
to Tenant. It is expressly understood and agreed that Tenant shall com-plete,
at
its sole cost and expense, Tenant's Alterations, whether or not the Tenant
Fund
is sufficient to fund such completion. Any costs to complete Tenant's
Alterations in excess of the Tenant Fund shall be the sole responsibility and
obligation of Tenant.
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E. Within
thirty (30) days after com-pletion of Tenant's Alterations, Tenant shall deliver
to Landlord (i) general releases and waivers of lien from all con-tractors,
subcontractors and materialmen involved in the performance of Tenant's
Alterations and the materials furnished in con-nec-tion therewith, (ii) a
certificate from Tenant's indepen-dent, licensed architect certifying that
Tenant's Alterations have been completed substantially in accordance with the
plans and specifications therefor approved by Landlord, and (iii) a certificate
from a duly authorized officer of Tenant certifying that all contractors,
subcontractors and material-men have been paid for Tenant's Alterations and
materials furnished through such date. Notwithstanding the foregoing, Tenant
shall not be required to deliver to Landlord any general release or waiver
of
lien if Tenant shall be disputing in good faith the payment which would
otherwise entitle Tenant to such release or waiver, provided that Tenant shall
keep Landlord advised in a timely fashion of the status of such dispute and
the
basis therefor and Tenant shall deliver to Landlord the general release and
waiver of lien when the dispute is settled. Nothing contained in this Section
4.E, however, shall relieve Tenant from complying with the provi-sions of
Articles 3 and 37C(1) of the Lease.
F. Within
thirty (30) days after the completion of Tenant's Alterations, Tenant shall
deliver to Landlord a full set of architectural, structural, mechanical and
electrical drawings and specifications showing the Tenant's Alterations "as
built" by the performance of Tenant's Alterations.
5. Tenant's
Relocation.
Tenant
hereby agrees to vacate the Original Premises, to surrender the same to Landlord
vacant, broom-clean, free of tenants and any other occupants, and free of rights
of possession by any person or other entity, and in good order and condition,
ordinary wear and tear and damage for which Tenant is not responsible under
the
terms of the Lease excepted, and otherwise in compliance with the provisions
of
Articles 3 and 22 of the Lease as if the Original Premises were being
surrendered at the end of the Term, and to relocate to the Substitute Space
on
the date (the "Relocation
Date")
which
shall be designated by Tenant upon at least ten (10) days' prior written notice
to Landlord, provided that the Relocation Date shall in no event be later than
one hundred twenty (120) days immediately after the Substitute Space Effective
Date, such time within which Tenant must relocate to the Substitute Space being
of the essence of this Amendment, subject, however, only to Unavoidable Delays
(as such term is defined in Article 37B(13) of the Lease, except that, wherever
in said Article 37B(13) the word "Owner" appears, such word shall be deemed
to
be replaced by the word "Tenant" solely for purposes of this Article 5). On
the
Relocation Date, Tenant, at Tenant's sole cost and expense, will move from
the
Original Premises to the Substitute Space all of the Tenant's office furniture,
furnishings, equipment, telephone and computer systems, and other personal
property then existing in the Original Premises. In the event that any such
Unavoidable Delay shall prevent Tenant from relocating from the Original
Premises to the Substitute Space within said one hundred twenty (120) day period
immediately after the Substitute Space Effective Date, Tenant shall use
commercially reasonable efforts to relocate from the Original Premises to the
Substitute Space as promptly as possible after the cessation of such Unavoidable
Delay. The failure or refusal of Tenant to relocate from the Original Premises
to the Substitute Space within said period of time and in the manner, as
aforesaid, shall be deemed to be a material breach of the terms and conditions
of the Lease. Without limiting any rights and remedies which Landlord may have
if Tenant should fail or refuse to move from the Original Premises to the
Substitute Space within such period of time and in such manner, Tenant agrees
that Landlord shall be entitled to specific performance to require Tenant to
relocate from the Original Premises to the Substitute Space pursuant to the
provisions of this Article 5.
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6. Original
Premises.
Effective from and after the date hereof through and including the Relocation
Date on which Tenant shall have vacated the Original Premises and surrendered
same to Landlord in compliance with the provisions of Article 5 hereof, Tenant
shall continue to lease the Original Premises from Landlord upon all of the
same
terms, conditions and provisions of the Lease which apply to the Original
Premises.
7. Modifications
of the Lease.
Effective from and after the Substitute Space Effective Date, the Lease shall
be
modified and amended as follows:
A. The
Substitute Space shall be added to, and deemed a part of, the Demised Premises
for all purposes of the Lease, so that the premises leased under the Lease
shall
include the Substitute Space. In addition, from and after the date hereof
through and including the Relocation Date on which Tenant shall have vacated
the
Original Premises and surrendered same to Landlord in compliance with the
provisions of Article 5 hereof, the Original Premises shall continue to be
part
of the Demised Premises leased under the Lease. From and after the day
immediately following the Relocation Date and Tenant's compliance with the
provisions of said Article 5, the Lease shall no longer apply to the Original
Premises, except with respect to Tenant's obligations and liabilities which
accrued under the Lease or this Amendment with respect to the Original Premises
for any period up to and including the Relocation Date on which Tenant shall
have vacated the Original Premises and surrendered same to Landlord in
compliance with the provisions of Article 5 hereof.
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B. Tenant
shall pay Fixed Rent for the Substitute Space (exclusive of the Electricity
Inclusion Factor for the Substitute Space), payable in advance at the times
and
in the manner provided in the Lease, as follows:
(i) Three
Hundred Ninety-Two Thousand, Nine Hundred Sixty-Four and 56/100 ($392,964.56)
Dollars per annum, payable in equal monthly installments of Thirty-Two Thousand,
Seven Hundred Forty-Seven and 05/100 ($32,747.05) Dollars, for the period
commencing on the Substitute Space Effective Date and ending on the 24th day
of
February, 2006, both dates inclusive, subject to the abatement of Fixed Rent
(exclusive of the Electricity Inclusion Factor) for the Substitute Space for
the
period prior to the Substitute Space Rent Commencement Date, as more
particularly set forth in Article 2 hereof;
(ii) Four
Hundred Thousand, Seven Hundred Fifty-Five and 08/100 ($400,755.08) Dollars
per
annum, payable in equal monthly installments of Thirty-Three Thousand, Three
Hundred Ninety-Six and 26/100 ($33,396.26) Dollars, for the period commencing
on
the 25th day of February, 2006, and ending on the day immediately preceding
the
first (1st) anniversary of the Substitute Space Rent Commencement Date, both
dates inclusive,
(iii)
Four Hundred Four Thousand, Eighty-Seven and 08/100 ($404,087.08) Dollars per
annum, payable in equal monthly installments of Thirty-Three Thousand, Six
Hundred Seventy-Three and 92/100 ($33,673.92) Dollars, for the period commencing
on the first (1st) anniversary of the Substitute Space Rent Commencement Date
and ending on the 24th day of February, 2007, both dates inclusive; and
(iv)
Four
Hundred Twelve Thousand, One Hundred Eleven and 36/100 ($412,111.36) Dollars
per
annum, payable in equal monthly installments of Thirty-Four Thousand, Three
Hundred Forty-Two and 61/100 ($34,342.61) Dollars, for the period commencing
on
the 25th day of February, 2007, and ending on the 30th day of April, 2007,
both
dates inclusive; and
(v) Three
Hundred Thirty-Seven Thousand, Twenty and 00/100 ($337,020.00) Dollars per
annum, payable in equal monthly installments of Twenty-Eight Thousand,
Eighty-Five ($28,085.00) Dollars, for the period commencing on the 1st day
of
May, 2007, and ending on the day immediately preceding the second (2nd)
anniversary of the Substitute Space Rent Commencement Date, both dates
inclusive; and
(vi) Three
Hundred Seventy-Nine Thousand, One Hundred Forty-Seven and 50/100 ($379,147.50)
Dollars per annum, payable in equal monthly installments of Thirty-One Thousand,
Five Hundred Ninety-Five and 63/100 ($31,595.63) Dollars, for the period
commencing on the second (2nd) anniversary of the Substitute Space Rent
Commencement Date and ending on the day immediately preceding the third (3rd)
anniversary of the Substitute Space Rent Commencement Date, both dates
inclusive; and
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(vii)
Three Hundred Eighty-Eight Thousand, Six Hundred Twenty-Six and 19/100
($388,626.19) Dollars per annum, payable in equal monthly installments of
Thirty-Two Thousand, Three Hundred Eighty-Five and 52/100 ($32,385.52) Dollars,
for the period commencing on the third (3rd) anniversary of the Substitute
Space
Rent Commencement Date and ending on the day immediately preceding the fourth
(4th) anniversary of the Substitute Space Rent Commencement Date, both dates
inclusive; and
(viii)
Three Hundred Ninety-Eight Thousand, Three Hundred Forty-One and 84/100
($398,341.84) Dollars per annum, payable in equal monthly installments of
Thirty-Three Thousand, One Hundred Ninety-Five and 15/100 ($33,195.15) Dollars,
for the period commencing on the fourth (4th) anniversary of the Substitute
Space Rent Commencement Date and ending on the day immediately preceding the
fifth (5th) anniversary of the Substitute Space Rent Commencement Date, both
dates inclusive; and
(ix)
Four
Hundred Eight Thousand, Three Hundred and 39/100 ($408,300.39) Dollars per
annum, payable in equal monthly installments of Thirty-Four Thousand,
Twenty-Five and 03/100 ($34,025.03) Dollars, for the period commencing on the
fifth (5th) anniversary of the Substitute Space Rent Commencement Date and
ending on the day immediately preceding the sixth (6th) anniversary of the
Substitute Space Rent Commencement Date, both dates inclusive; and
(x)
Four
Hundred Eighteen Thousand, Five Hundred Seven and 90/100 ($418,507.90) Dollars
per annum, payable in equal monthly installments of Thirty-Four Thousand, Eight
Hundred Seventy-Five and 66/100 ($34,875.66) Dollars, for the period commencing
on the sixth (6th) anniversary of the Substitute Space Rent Commencement Date
and ending on the Fixed Expiration Date, both dates inclusive.
C. With
respect to the Substitute Space only, the amount of the Electricity Inclusion
Factor, set forth in the twelfth (12th) and thirteenth (13th) lines of Article
38D(1) of the Lease, shall be deemed to be the sum of Twenty-Four Thousand,
Six
Hundred Sixty and 00/100 ($24,660.00) Dollars, as such sum may be increased
pursuant to the provisions of the Lease.
D. For
the
purpose of computing the Tax Payment for the Substitute Space pursuant to
Article 42 of the Lease for the period commencing on the Substitute Space
Effective Date and ending on April 30, 2007, both dates inclusive, the
Substitute Space shall be deemed to be divided into two (2) parts, one part
hereinafter called "Part 'A'" and the other part hereinafter called "Part 'B'".
For the aforementioned period, Tenant shall pay Landlord the Tax Payment for
the
Substitute Space, computed separately for Part A and Part B, pursuant to the
terms, conditions, and provisions set forth in Article 42 of the Lease, except
as follows:
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(i) (a)
With
respect to Part A, Article 37B(12) of the Lease shall continue to read as
follows:
"(12)
'Tenant's Proportionate Share' shall mean sixty-seven hundredths percent (.67%),
as the same may be increased or decreased pursuant to the terms
hereof."
(b) With
respect to Part A, Article 42A(2) of the Lease shall continue to read as
follows:
"(2) 'Base
Taxes' shall mean one-half (½) of the aggregate Taxes payable for the Tax Year
commencing on July 1, 1999, and ending on June 30, 2000, and for the Tax Year
commencing on July 1, 2000, and ending on June 30, 2001."
(ii)
(a) With
respect to Part B, Article 37B(12) of the Lease shall be deemed to be amended
to
read as follows:
"(12)
'Tenant's Proportionate Share' shall mean forty-five hundredths percent (.45%),
as the same may be increased or decreased pursuant to the terms
hereof."
(b) With
respect to Part B, Article 42A(2) of the Lease shall be deemed to be amended
to
read as follows:
"(2) 'Base
Taxes' shall mean the Taxes payable for the Tax Year commencing on July 1,
2005,
and ending on June 30, 2006."
E. For
the
period commencing on May 1, 2007, and ending on the Fixed Expiration Date,
both
dates inclusive, Tenant shall pay Landlord the Tax Payment for the Substitute
Space pursuant to the terms, conditions, and provisions set forth in Article
42
of the Lease, except that:
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(i)
Article 37B(12) of the Lease shall be deemed to be amended to read as
follows:
"(12)
'Tenant's Proportionate Share' shall mean one and twelve hundredths percent
(1.12%), as the same may be increased or decreased pursuant to the terms
hereof."
(ii) Article
42A(2) of the Lease shall be deemed to be amended to read as
follows:
"(2) 'Base
Taxes' shall mean the Taxes payable for the Tax Year commencing on July 1,
2005,
and ending on June 30, 2006."
F. The
provisions of Article 43 (entitled "Additional Escalation Payment") shall not
apply to the Substitute Space, but shall remain in full force and effect with
respect to the Original Premises.
G. It
is
expressly understood and agreed that, with respect to any period in which Tenant
is required to pay Fixed Rent and other charges for both the Original Premises
and the Substitute Space at the same time, the payment of the Fixed Rent, the
Electricity Additional Rent, if any, the Electricity Inclusion Factor, and
the
escalation in the Fixed Rent for Real Estate Tax increases, with respect to
the
Substitute Space, provided for in the Lease as modified by Sections B, C, D,
and
E of this Article 7, shall be in addition to, and separate from, the payment
of
the Fixed Rent, the Electricity Additional Rent, if any, the Electricity
Inclusion Factor, the escalation in the Fixed Rent for Real Estate Tax
increases, and the Additional Escalation Payment, with respect to the Original
Premises.
H. Article
55 of the Lease shall be deemed to be amended as follows:
(i) Section
55A shall be deemed to be deleted in its entirety.
(ii) Section
55B shall be deemed to be restated in its entirety to read as
follows:
"B. All
cash
security deposited hereunder will be deposited by Owner in an interest
bearing bank account at Apple Bank for Savings located at 0000 Xxxxxxxx, Xxx
Xxxx, Xxx Xxxx 00000 or such other branch of such bank or other bank as Owner
shall designate, and all interest which shall be earned by Tenant on such
account shall be accumulated and added to said security deposit as a part
thereof, except that Owner shall be entitled to withdraw from such account
and
pay over to itself from time to time, as administration expenses, a sum equal
to
one (1%) percent per annum upon the security monies so deposited, except that,
for any period during which the interest rate for such account shall be one
and
one-half (1 ½%) percent per annum or less, Owner shall be entitled to withdraw
from such account and pay over to itself from time to time, as administrative
expenses, a sum equal to one-half (1/2) of the interest earned on such account.
Owner shall not be required to credit Tenant with any interest for any period
during which Owner does not receive any interest on such security deposit.
Furthermore, if during the Term of this Lease, Owner applies or retains,
pursuant to the provisions of Article 34 of this Lease, the whole or any part
of
the security deposit in the sum of Two Hundred Seventy-Nine Thousand, Five
Hundred Ninety-Four and 00/100 ($279,594.00) Dollars, together with interest
then accrued thereon, Tenant,
upon demand, shall deposit with Owner additional security in a sum equal to
the
amount so applied or retained so that Owner shall have said full security
deposit, with accrued interest, on hand at all times during the Term of this
Lease. The failure or refusal by Tenant to deposit such additional security
demanded by Owner shall be deemed a material default hereunder and shall entitle
Owner to exercise any and all remedies provided hereunder in the event of a
default in the payment of rent."
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(iii)
Section
55C shall remain unchanged, except that the parties acknowledge that the portion
of the cash security deposit to be returned to Tenant pursuant to such section
has been fully paid to, and received by, Tenant and that such section shall
have
not further operative effect.
8. Tenant's
Use of the Substitute Space.
Tenant
shall use and occupy the Substitute Space for the purposes permitted under
the
Lease and for no other purpose.
9. Additional
Security Deposit.
Simultaneously with the execution and delivery of this Amendment, Tenant has
deposited with Landlord additional security in the sum of Ninety-Nine Thousand,
Nine Hundred Sixty and 00/100 ($99,960.00) Dollars. Such additional security
deposit shall be added to the previously deposited security, which had been
reduced, pursuant to Article 55C of the Lease, to the sum of One Hundred
Seventy-Nine Thousand, Six Hundred Thirty-Four and 00/100 ($179,634.00) Dollars,
together with interest accrued thereon, and the aggregate security deposit
in
the sum of Two Hundred Seventy-Nine Thousand, Five Hundred Ninety-Four and
00/100 ($279,594.00) Dollars, together with interest accrued thereon, shall
be
held by Landlord in accordance with, and subject to, the provisions of Articles
34 and 55 of the Lease.
10. Brokerage.
Tenant
represents and warrants to Landlord that Tenant has not dealt with any broker,
finder, or like agent, other than Colliers ABR, Inc. and Xxxxxxx &
Xxxxxxxxx, Inc. (collectively, the "Brokers")
in
con-nection with this Amendment and that no broker, finder, or like agent,
other
than the Brokers, negotiated this Amendment or, to the best of Tenant's
knowledge, is entitled to any brokerage commis-sion, finder's fee, or other
compensation in connection therewith. The execution and delivery of this
Amendment by Landlord shall be conclusive evidence that Landlord has relied
upon
the foregoing representations and warranties. Tenant shall in-demnify and hold
Landlord harmless from and against any and all claims for commission, fee or
other compensation by any broker, finder, or like agent, other than the Brokers,
who shall claim to have dealt with Tenant in connec-tion with this Amendment
and
for any and all costs and expenses incurred by Landlord in connec-tion with
such
claims, includ-ing, without limitation, reasonable attorneys' fees and
disburse-ments. The provisions of this Article 10 shall survive the expiration
or prior termination of this Amendment.
11. Telecommunication
Services. Landlord
allows or may allow certain providers of voice, data and video
telecommunications services or infrastructure to offer their services or
facilities (collectively, "Telecommunications
Services")
to
Tenant at the Premises pursuant to agreements with the Landlord, solely as
an
amenity for Tenant. Should Tenant wish to use any such Telecommunications
Services, it shall enter into a separate agreement with the provider of such
services (each, a "Service
Agreement").
The
availability of Telecommunications Services at the Premises shall not be
construed as an endorsement, sponsorship or recommendation by Landlord to Tenant
of any such services and, in particular, shall not be construed as a warranty,
express or implied, of any Telecommunications Services or the provider of such
services. Tenant acknowledges and agrees that in no event shall any
interruption, delay or failure of any Telecommunications Services, loss of
data
or other telecommunications transmission, or any act or omission, whether
intentional or negligent, by any provider of any Telecommunications Services
give rise to any claim or liability against Landlord for constructive eviction
or for damages, including, without limitation, compensatory, incidental,
indirect, special, consequential, exemplary or punitive damages, including,
without limitation, damages for lost profits, whether arising out of breach
of
contract, tort or otherwise, regardless of whether Landlord was advised of
the
possibility of such damages or whether the same could have been anticipated
and/or avoided by Landlord. Any Service Agreement entered into between Tenant
and a provider of Telecommunications Services shall contain a clause to
substantially the same effect as this section, and providing that Landlord
shall
be deemed a third party beneficiary of such provision, or shall be construed
to
contain such a provision.
12. Full
Force and Effect of Lease.
As
modified by this Amendment, the Lease and all covenants, agreements, terms
and
conditions thereof shall remain in full force and effect and are hereby ratified
and confirmed in all respects. All references in the Lease to "this lease",
"this Lease", "the lease" or "the Lease" shall be deemed to be, unless the
context requires otherwise, references to the Lease as supplemented by this
Amendment and by any other agreement supplemental to the Lease then in
effect.
13. Tenant's
Authority.
Tenant
represents and warrants to Landlord
that the execution and delivery of this Amendment by the Tenant has been duly
authorized, that the person executing such Amendment on behalf of Tenant has
been duly authorized to do so, and that no other action or approval by or on
behalf of Tenant is required with respect to this transaction.
14. Binding
Effect.
This
Amendment is offered for signature by Tenant, and it is understood and agreed
that such Amendment shall not be binding upon Landlord unless and until
Land-lord shall have executed and delivered a fully executed counterpart of
such
Amendment to Tenant.
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IN
WITNESS WHEREOF, the parties hereto have executed this Amendment as of the
day
and year first above written.
000
XXXX 00XX XXXXXX, XXX, Xxxxxxxx
By: 000
XXXX 00XX XXXXXX FINANCING
CORP.,
ITS MANAGING MEMBER
By:
/s/
Xxxxxxx X. Xxxxx
Xxxxxxx
X. Xxxxx
Co-President
XXXXX
ONLINE, INC., TENANT|
By:
/s/
Xxxxx Xxxxxxxxxx
Xxxxx
Xxxxxxxxxx
President
and
Chief
Executive Officer
|
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