SECOND ADDENDUM TO AGREEMENT OF SUBLEASE
Exhibit 10.4
SECOND ADDENDUM TO AGREEMENT OF SUBLEASE
SECOND ADDENDUM TO AGREEMENT OF SUBLEASE (this “Second Addendum”),
dated as of December 20, 2010, between Xxxxxx Interactive Inc., with an address at 00 Xxxxxxxxx
Xxxxx, Xxxxxxxxx, XX 00000 (“Sub-Sublandlord”) and The Interpublic Group of Companies,
Inc., with an address at 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, XX 00000 (“Subtenant”).
WHEREAS, Sub-Sublandlord and XxXxxx Xxxxxxxx, Inc. (“Assignor”), entered into an Agreement of
Sublease, dated as of February, 2007, as amended by the First Addendum to Agreement of Sublease,
dated as of May 13, 2010, for certain premises located at 000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, XX
(the “Sublease”); and
WHEREAS, Assignor assigned the Sublease to Subtenant, by an Assignment and Assumption of
Sublease, dated as of June 24, 2010; and
WHEREAS, Sub-Sublandlord has tendered to Subtenant a statement for utilities with respect to
the Original Sub-Sublease Premises for the period June 2007 through April 2010 (the “Applicable
Period”), dated as of June 6, 2010, a copy of which is annexed hereto as Exhibit A, which
Subtenant disputes (the “Utility Dispute”); and
WHEREAS, the parties hereto wish to resolve the Utility Dispute and amend the Sublease to
reflect the substance of the resolution.
NOW, THEREFORE, in consideration of the mutual covenants herein contained, Sub-Sublandlord and
Subtenant covenant and agree as follows:
1. Capitalized terms used in this Second Addendum and not otherwise defined herein have the
meanings given to them in the Sublease.
2. In the interest of resolving the Utility Dispute, Sub-Sublandlord and Subtenant agree that
Subtenant shall pay Sub-Sublandlord $38,591.94 in full satisfaction of its obligation for utilities
with respect to the Original Sub-Sublease Premises for the Applicable Period simultaneously with
the execution of this Second Addendum.
3. Article 4A. of the Sublease is hereby deleted and replaced in its entirety with the
following:
“A. Utilities. (a) Subtenant shall pay for all utilities,
including electricity, gas, water, and telephone service furnished to the
Sub-Sublease Premises as set forth herein. So long as utilities are billed
by the Sublandlord or Master Landlord, directly or indirectly, to
Sublandlord and, in turn, to the Sub-Sublandlord based upon the consumption
measured to the Sublease Premises subject to the XxXxxx-Xxxxxx Sublease, and
so long as the square footage of the Sublease Premises and the Sub-Sublease
Premises remain unchanged, Subtenant shall pay to Sub-Sublandlord for
such utilities 49.58% of the amount paid by Sub-Sublandlord. In the event
that the square footage of either the Sublease Premises or the Sub-Sublease
Premises changes, this percentage shall change proportionately.
(b) Sub-Sublandlord shall supply Subtenant with electricity to the
Sub-Sublease Premises to the same extent and subject to the terms and
conditions set forth in Paragraph TENTH of the Master Lease; provided
however, that Sub-Sublandlord shall have no liability for failure to deliver
electricity to Subtenant unless such failure is due to Sub-Sublandlord’s
intentional act. If Subtenant shall desire any change or increase in the
nature or any such utility services, Sub-Sublandlord’s sole obligation shall
be to use reasonable efforts to cause the Master Landlord to provide such
changes in such utility services requested by Subtenant, and Subtenant,
shall, on demand, pay or reimburse Sub-Sublandlord for all reasonable costs,
charges or expenses incurred by Sub-Sublandlord in causing Master Landlord
to provide such services and in the cost for providing such services.
Sub-Sublandlord shall have no obligation to alter existing lines or
equipment providing distribution of electricity throughout the Sub-Sublease
Premises. Subtenant shall be solely responsible for any alterations to the
existing lines or equipment made necessary by Subtenant’s alterations to the
Sub-Sublease Premises or otherwise required due to Subtenant’s particular
use of the Sub-Sublease Premises; provided however, that any such
alterations shall be subject to the prior approval of Sub-Sublandlord,
Sublandlord and Master Landlord in accordance with Paragraph 9
below.
(c) The term Sub-Sublease Premises as used in this Article 4A shall
refer to both the Original Sub-Sublease Premises and the Additional
Sub-Sublease Premises.”
4. Each of Sub-Sublandlord and Subtenant represents and warrants to the other that to its best
knowledge as of the date hereof: (i) except for this Second Addendum, there are no amendments,
modifications, or other oral or written agreements that amend or modify the Sublease, and (ii)
neither party is in default in the performance of its respective obligations under the Sublease,
and no facts, circumstances or conditions exist that constitute such a default or that with the
giving of notice or the passage of time would constitute such a default.
5. All of the Exhibits attached to this Second Addendum are incorporated in and made a part of
this Second Addendum. As used in this Second Addendum: (i) the words “include”, “includes”, or
“including” are deemed followed by the words “without limitation”, (ii) all Section and Exhibit
references, unless otherwise stated, are references to the Sections and Exhibits of this Second
Addendum, (iii) if a financial obligation is stated to be at a party’s expense, such obligation
will be at that party’s sole cost and expense, and (iv) the word “will” has the same meaning as the
word “shall”, and (v) all periods of time are inclusive of their respective commencement and ending
dates, and commence at 12:00 a.m. Eastern Time on the commencement date and end at 11:59 p.m.
Eastern Time on the ending
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date. The captions used in this Second Addendum are inserted only as a matter of convenience and
for reference and do not define, limit or describe the scope or intent of this Second Addendum. The
provisions of this Second Addendum shall supersede any inconsistent provisions in the Sublease.
6. Except for the payment due hereunder, Sub-Sublandlord hereby releases and discharges
Subtenant and Assignor from and against any and all claims for utilities provided to Subtenant with
respect to the Sub-Sublease Premises, including the Original Sub-Sublease Premises and Additional
Sub-Sublease Premises during the Applicable Period.
7. Each party hereto represents to the other that, to the respective party’s knowledge, the
other party is not in default of any of its respective obligations under the Sublease and no event
has occurred, which, with the passage of time or the giving of notice, or both, would constitute a
default thereunder.
8. Except as modified by this Second Addendum, the Sublease and all covenants, agreements,
terms and conditions thereof shall remain in full force and effect and are hereby in all respects
ratified and confirmed.
9. The Sublease, as amended by this Second Addendum, constitutes the entire understanding
between the parties hereto with respect to the Sub-Sublease Premises and may not be changed orally
but only by an agreement in writing signed by the party against whom enforcement of any waiver,
change, modification or discharge is sought.
10. This Second Addendum shall not be binding upon or enforceable against either
Sub-Sublandlord or Subtenant unless, and until, Sub-Sublandlord and Subtenant, each in its sole
discretion, shall have executed and unconditionally delivered to the other an executed counterpart
of this Second Addendum.
IN WITNESS WHEREOF, Sub-Sublandlord and Subtenant have executed this Second Addendum as of
December 20, 2010.
Sub-Sublandlord:
|
Xxxxxx Interactive Inc. |
| By: | /s/ Xxxx X. Xxxxx | |||
| Name: | Xxxx X. Xxxxx | |||
| Title: | EVP, General Counsel & Corporate Secretary | |||
Subtenant:
|
The Interpublic Group of Companies, Inc. |
| By: | /s/ Xxxxxxxx X. Camera | |||
| Name: | Xxxxxxxx X. Camera | |||
| Title: | Senior Vice President | |||
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Exhibit A
Invoice
Invoice
