INFOCROSSING, INC. AND SUBSIDIARIES
EXHIBIT 10.6B
ELEVENTH FLOOR OPTION AGREEMNT
AGREEMENT made as of the 30th day of November, 1999, by and among G-H-G
REALTY COMPANY, L.L.C., a limited liability company formed in accordance with
the laws of the State of New York (successor to G-H-G Realty Company, a
partnership), having an office at ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
(hereinafter referred to as "Landlord"); RSL COM U.S.A., INC., a Delaware
corporation, having an office at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
(hereinafter referred to as "Subtenant"); and COMPUTER OUTSOURCING SERVICES,
INC. (formerly known as Commercial Online Systems, Inc.), a Delaware corporation
having an office at ▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
(hereinafter referred to as "COSI").
W I T N E S S E T H:
WHEREAS, the Landlord previously entered into an Agreement of Lease
dated January 24, 1991 with COSI with respect to certain space on the Tenth
(10th) and Eleventh (11th) Floors and certain basement space in the building
known as ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ (the "Building") (the said
Agreement of Lease together with five (5) separate supplemental agreements by
and between the parties thereto being collectively referred to herein as "the
Lease"); and
WHEREAS, COSI thereafter entered into an Agreement of Sublease dated
July 1998 with the Subtenant (the "Sublease"), pursuant to which COSI sublet to
Subtenant the entire Eleventh (11th) Floor of the Building (the "Eleventh Floor
Premises") consisting of approximately 22,300 rentable square feet and part of
the Tenth (10th) Floor (the "Tenth Floor Premises") of the Building, consisting
of approximately 9,200 rentable square feet (the Eleventh Floor Premises and the
Tenth Floor Premises being collectively referred to herein as the "Demised
Premises"); and
WHEREAS, Subtenant, as a condition of Landlord's consent to Sublease,
agreed to be subject and subordinate at all times to all covenants, agreements,
terms, provisions and conditions of the Lease and of a certain Consent to
Sublease dated September 14, 1998 (the "Consent"); and
WHEREAS, the parties have entered into a certain agreement of even date
herewith (the "Tenth Floor Option Agreement") pursuant to which COSI and
Subtenant have granted to Landlord an option (the "Tenth Floor Option") to take
back the Tenth Floor Premises, which option shall expire on February 15, 2000
(the "Tenth Floor Option Expiration Date"); and
WHEREAS, Landlord has requested an option to take back the Eleventh
Floor Premises, and COSI and Subtenant desire to grant such option to Landlord
on the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the premises, the mutual
obligations of the parties hereto, and other good and valuable consideration,
receipt of which is acknowledged by each of them, the parties hereby covenant
and agree as follows:
1. Grant of Option. Subtenant and COSI hereby grant Landlord the option
(the "Eleventh Floor Option"), expiring on December 3, 1999 (the "Eleventh Floor
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Option Expiration Date") to take back the Eleventh Floor Premises, effective as
of November 30, 1999 (the "Eleventh Floor Effective Date").
2. Manner of Exercise. The Eleventh Floor Option may be exercised only
by delivery of written notice of such exercise to Subtenant and COSI prior to
the Eleventh Floor Option Expiration Date. Such notice shall be deemed given on
the date of actual receipt thereof by Subtenant and COSI (such date being
referred to herein as the "Eleventh Floor Option Exercise Date").
3. Consideration. In the event that the Landlord elects to
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exercise the Eleventh Floor Option, Subtenant shall pay the total sum of
Two Hundred Fifty Thousand ($250,000.00) Dollars, ("Consideration") as follows:
a To the Landlord, the sum of Eighty Thousand Dollars
($80,000.00);
b To ▇.▇. ▇▇▇▇▇ Leasing, Inc., the sum of One Hundred
Twenty Five Thousand Dollars ($125,500.00);
c To COSI, the sum of Forty Five Thousand Dollars
($45,000.00).
4. Payment. The aforementioned payments shall be made
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within five (5) business days after receipt by Subtenant and COSI of notice of
exercise of the Eleventh Floor Option. If such payments are not timely made,
they shall accrue interest at the highest rate permitted by law. In the event
that Landlord, COSI, or ▇.▇. ▇▇▇▇▇ Leasing, Inc. as the case may be, is required
to expand any sums, including but not limited to reasonable legal fees, to
collect any such payment, Subtenant shall, in addition to all other payments
required hereunder, be liable for all such costs and expenses.
6. Amendment of Sublease; Mutual Release.
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A. The Sublease shall automatically be deemed amended, effective as of the
Eleventh Floor Effective Date, to eliminate the Eleventh Floor Premises from the
Demised Premises, and Subtenant shall have no further liability to COSI or
Landlord as of the Eleventh Floor Effective Date, for any rent or other
obligation whatsoever pertaining to the Eleventh Floor Premises, whether arising
out of the Sublease, the Lease, the Consent or otherwise, all of which
liabilities are hereby released, except for rent or other obligations under the
Sublease accruing prior to the Eleventh Floor Effective Date and the
Consideration payment obligations set forth herein. All payments due from RSL
under the Sublease shall thereupon be reduced, so that each such payment shall
be in an amount equal to (x) the payment provided for under the terms of the
Sublease, multiplied by (y) Twenty Nine and 21/100 Per Cent (29.21%).
B. Effective as of the Eleventh Floor Effective Date, Subtenant releases
COSI from all liability under the Sublease with respect to the Eleventh Floor
Premises.
6. COSI Liability. After the Eleventh Floor Effective Date, COSI shall
continue to be liable for the rent and additional rent due under the Lease but
for no other obligations thereunder, the Landlord releasing COSI from all
claims, obligations, actions, suits and the like under the Lease except COSI's
liability for the rent and additional rent thereunder as limited herein and
except for obligations under the lease, if any, arising prior to the Eleventh
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Floor Effective Date; provided, however, that effective as of the Eleventh Floor
Effective Date, the liability of COSI thereunder shall be reduced by an amount
equal to the amount by which the liability of Subtenant under the Sublease for
rent and additional rent shall have been reduced pursuant to the provisions of
paragraph "5" hereof.
7. Refund of Security. Simultaneously with the receipt of the payment
to be made to it pursuant to paragraph "3" hereof, COSI shall take such steps as
may be required to permit a portion of the security deposited (or otherwise
posted by) Subtenant under the sublease, equal to Seventy and 79/100 Per Cent
(70.79%) of the amount thereof, to be released to Subtenant (or the Letter of
Credit reduced accordingly).
8. Landlord's Work. Landlord shall, on or before the Tenth Floor Option
Expiration Date, at its sold cost and expense, cause (i) the staircase
connecting the Tenth Floor Premises and Eleventh Floor Premises to be removed
and disposed of, with any structural damage resulting from such removal to be
repaired in a workmanlike manner; (ii) the ceiling of the Tenth Floor Premises
to be closed and finished in a manner consistent with the remainder of such
ceiling; and (iii) the floor area of the Tenth Floor Premises under the
staircase to be repaired and finished to match the surrounding floor area,
except that no carpet repair or replacement shall be done.
9. Brokerage Commission. Subtenant shall have no
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liability for any brokerage commission in connection with this transaction other
than as set forth in Paragraph 3(b) hereof. Subtenant shall, however, pay any
commission which may be due any broker, other than ▇.▇. ▇▇▇▇▇ Leasing, Inc.,
with whom Subtenant may have dealt. COSI shall have no liability for any
brokerage commission in connection with this transaction.
10. Waiver of Claim. Subtenant agrees that, provided that Landlord
exercises the Eleventh Floor Option, Subtenant shall not assert any claim
against Landlord or COSI based upon or relating to efforts heretofore made by
Subtenant to further sublet the Demised Premises or any part thereof.
11. Expiration of Eleventh Floor Option. In the event that the Landlord
fails to exercise the Eleventh Floor Option on or before the Eleventh Floor
Option Expiration date, this Agreement shall immediately cease to be of any
further force or effect, and shall be deemed cancelled and terminated, as of the
Eleventh Floor Option Expiration Date.
12. Third Party Beneficiary. ▇.▇. ▇▇▇▇▇ Leasing, Inc.
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Shall be deemed a third party beneficiary of paragraphs "3" and "4" of this
Agreement.
IN WITNESS WHEREOF, the parties have duly executed this Agreement as of
this 30th day of November, 1999.
G-H-G REALTY COMPPANY, LLC, Landlord
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
By: _____________________________________
RSL COM U.S.A., INC., Subtenant
/s/ ▇▇▇▇ ▇▇▇▇▇▇
By: _____________________________________
Vice President
COMPUTER OUTSOURCING SERVICES, INC.
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
By: _____________________________________
Chief Financial Officer
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GHG REALTY COMPANY, LLC.
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
December 2, 1999
Computer Outsourcing Services, Inc. RSL COM U.S.A. Inc.
▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇▇ Attention: ▇▇▇▇ ▇▇▇▇▇▇
In accordance with Paragraph 2 of the Eleventh Floor Option Agreement
and Between us made as of the 30th Day of November, ▇▇▇▇, ("▇▇▇" Agreement).
This letter will serve to formally notify you that we have elected to exercise
the Eleventh Floor Option set forth in Paragraph 1 of the Agreement.
GHG Realty Company, LLC.
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
President
BDG:ag
Cc: ▇▇▇▇▇▇▇ ▇▇▇▇, ESQ.
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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