FIRST AMENDMENT TO SUBLEASE
FIRST
AMENDMENT TO SUBLEASE
This
FIRST AMENDMENT TO SUBLEASE dated as of June __, 2009 (this “Amendment”) between
XXXXXXXX CORPORATION,
having an office at 0000 Xxxxxx Xxxxxx, Xxx Xxxxxx, Xxxx 00000 (“Sublandlord”), and
INTRALINKS, INC., having
an office at 000 Xxxx 00xx Xxxxxx, 0xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000 (“Subtenant”).
WITNESSETH:
WHEREAS,
Sublandlord and Subtenant entered into that certain Sublease dated as of
September 24, 2007 (the “Original Sublease”,
as modified by this Amendment, the “Sublease”), covering
a portion of the 8th floor (the “Premises”) of the
building known as 000 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx (the “Building”), all as
more particularly described in the Sublease; and
WHEREAS.
Sublandlord and Subtenant desire to amend the Original Sublease to (i) provide
for the subleasing by Subtenant of the balance of Sublandlord’s remaining space
on the 8th floor of the Building, which space is shown as the portion not
cross-hatched on Exhibit A attached
hereto (the “Additional
Premises”), and (ii) otherwise modify the terms and conditions of the
Original Sublease, on the terms hereinafter set forth.
NOW.
THEREFORE, in consideration of the mutual covenants herein contained, and other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, Sublandlord and Subtenant agree as follows;
1. Capitalized Terms.
All capitalized terms used and not otherwise defined in this Amendment shall
have the respective meanings ascribed to them in the Sublease.
2. Lease of Additional
Premises. (a) Sublandlord hereby subleases to Subtenant, and Subtenant
hereby subleases from Sublandlord the Additional Premises for a term commencing
on the later of (i) the date upon which Sublandlord receives written consent
from Hiro Real Estate Co. (“Overlandlord”) to
Subtenant’s subleasing of the Additional Premises from Sublandlord (the “Overlandlord
Consent”) (which Overlandlord Consent shall be evidenced by
Overlandlord’s signature appended hereto or a separate consent in the form
utilized by Overlandlord), or (ii) the date upon which Sublandlord delivers
possession of the Additional Premises to Subtenant (the later of such dates, the
“Additional Premises
Commencement Date”; provided, however, that Sublandlord shall notify
Subtenant on the date it receives the Overlandlord Consent), and ending on the
Sublease Expiration Date, or such earlier date upon which the term of the
Sublease may expire or be terminated pursuant to any of the conditions of
limitation or other provisions of the Sublease or pursuant to law. upon all of
the terms and conditions of the Original Sublease. as modified by this
Amendment. Following the execution of this Amendment by Sublandlord and
Subtenant. Sublandlord shall promptly and diligently pursue the Overlandlord
Consent in accordance with the terms and conditions of the Xxxxxxxxx (as such
term is hereinafter defined below). Sublandlord and Subtenant shall execute an
instrument in form and substance reasonably acceptable to both parties setting
forth the Additional Premises Commencement Date;
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provided,
however, that the failure to prepare or execute such instrument shall not affect
or be a condition to the commencement of the sublease of the Additional
Premises. Notwithstanding anything to the contrary contained herein, prior to
the Additional Premises Commencement Date and upon Sublandlord’s prior
reasonable approval, Subtenant may enter the Additional Premises, at times
reasonably convenient to Sublandlord, solely to inspect the Additional Premises
(including FF&E (as such term is hereinafter defined below)) and to take
inventory of the FF&E.
(b) Notwithstanding
anything in this agreement to the contrary, Sublandlord shall endeavor to
deliver the Additional Premises to Subtenant on or before June 30, 2009;
provided, however, that so long as Sublandlord takes reasonable steps to timely
vacate the Additional Premises, and without prejudice to Subtenant’s right to
possession of the Additional Premises and specific performance of this
Amendment, failure of Sublandlord to deliver possession of the Additional
Premises to Subtenant on such date shall not be grounds for termination of this
Amendment, and such failure shall not impair the validity of this
Amendment.
(c) Effective
as of the Additional Premises Commencement Date, Subtenant shall sublease the
Additional Premises upon all of the terms and conditions of the Original
Sublease, except as follows:
(i) The
fixed rent payable under the Sublease with respect to the Additional Premises
shall be an amount equal to (A) $456,120.00 per annum ($38,010.00 per month) for
the period commencing on the Additional Premises Commencement Date and ending on
the day preceding the first year anniversary of the Additional Premises
Commencement Date, both dates inclusive (subject, however, to the rent abatement
described in Section 2(c)(iv) below), and (B) $465,242.40 per annum ($38,770.20
per month) for the period commencing on the first year anniversary of the
Additional Premises Commencement Date and ending on the day preceding the second
year anniversary of the Additional Premises Commencement Date, both dates
inclusive, and (C) $474,547.24 per annum ($39,545.60 per month) for the period
commencing on the second year anniversary of the Additional Premises
Commencement Date and ending on the Sublease Expiration Date, both dates
inclusive, payable at the times and in the manner specified in the Sublease for
the payment of fixed rent. If the Additional Premises Commencement Date is other
than the first day of a calendar month, then the fixed rent payable with respect
to the Additional Premises shall be appropriately pro-rated.
(ii) The
Additional Premises shall be deemed, without representation by either party, to
consist of 15,204 rentable square feet for all purposes of the
Sublease.
(iii) Subtenant
shall continue to pay all additional rent payable pursuant to the Original
Sublease, including Section 1.2
thereof, except that with respect to the Additional Premises only, (A)
Subtenant’s proportionate share of ‘creases in Taxes (as such term is defined in
the Xxxxxxxxx) over the Premises Base Tax Year (as such terra is hereinafter
defined below) shall be deemed to be 1.05% and (B) the “Additional Premises Base
Tax Year” shall be the Taxes as finally determined for the 2009/2010 tax fiscal
year of New York City.
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(iv) Notwithstanding
the foregoing, provided that the Sublease is in full force and effect and
Subtenant shall not be in default beyond the expiration of any applicable notice
and cure periods set forth in the Sublease of any of the terms, conditions or
covenants contained in the Sublease. Subtenant’s obligation to pay fixed rent in
the amount of $38,010.00, with respect to the Additional Premises only, shall be
abated for the period commencing on the Additional Premises Commencement Date
and ending thirty (30) days thereafter, both dates inclusive.
(d) Subtenant
has inspected the Additional Premises and agrees (A) to accept possession of the
Additional Premises in the “as is” condition existing on the Additional Premises
Commencement Date, it being agreed, however, that Sublandlord shall deliver the
Additional Premises to Subtenant vacant (except for FF&E), broom-clean, and
in the same condition existing on the date hereof, ordinary wear and tear
excepted, (B) that, except as otherwise provided in the Sublease, neither
Sublandlord nor Sublandlord’s agents have made any representations or warranties
with respect to the Additional Premises, the Premises or the Building, and (C)
Sublandlord has no obligation to perform any work, supply any materials, incur
any expense or make any alterations or improvements to the Additional Premises
to prepare the Additional Premises for Subtenant’s occupancy, except as
follows:
(i) The
Additional Premises shall include the furniture, fixtures and equipment set
forth on the furniture plan and inventory attached hereto as Exhibit B (the
“FF&E”), the cost of which shall be included in fixed rent, for the
remainder of the Sublease Term. The terms and conditions of the Sublease shall
apply to the FF&E, including, without limitation, the fact that the FF&E
shall be delivered in its “as-is” condition. If Subtenant is not in default
under the Sublease beyond the expiration of any applicable notice and cure
periods, then in consideration of the fixed rent and additional rent payable
under the Sublease plus the additional sum of One Dollar ($1.00), the FF&E
shall become the exclusive property of Subtenant at the end of the Sublease
Term. This section shall be self-operative and no further instrument of transfer
or conveyance with respect to the FF&E shall be required. Sublandlord
represents and warrants to Subtenant that as of the date hereof (which shall be
deemed to be remade as of the Additional Premises Commencement Date), (a) the
FF&E is in working order, and (b) Sublandlord owns the FF&E free and
clear of all liens and other encumbrances. During the Sublease Term, Subtenant
shall have the right to dispose of any unwanted FF&E as it deems
appropriate, at its sole cost and expense.
(ii) Sublandlord
represents and warrants to Subtenant that as of the date hereof (which shall be
deemed to be remade as of the Additional Premises Commencement Date), to the
best of its knowledge, the Additional Premises are in compliance with all codes
and regulations pursuant to any federal, state or local governmental law or
regulation, including, without limitation, the American with Disabilities Act of
1992 (“Applicable Legal Requirements”): ‘provided. however. that such
representation shall be no greater than Overlandlord’s representations to
Sublandlord in Article 9 or any other Article or Section in that certain lease
between Overlandlord and Sublandlord’s predecessor-in-interest, dated as of
September 6, 1996 (as amended, the “Xxxxxxxxx”).
Sublandlord agrees to deliver the Additional Premises (including the life safety
systems therein) in a condition that complies with all Applicable Legal
Requirements, with fully code-compliant sprinklers and fire safety equipment
installed as required, and access to base-building lavatories in compliance with
all Applicable Legal Requirements.
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(iii) Sublandlord
represents and warrants to Subtenant that as of the date hereof (which shall be
deemed to be remade as of the Additional Premises Commencement Date), to the
best of its knowledge, the Additional Premises are free of known asbestos and
other hazardous materials; provided, however, that such representation shall be
no greater than Overlandlord’s representations to Sublandlord in Sections 4.4
and 9.2 or any other Article or Section in the Xxxxxxxxx. In addition, prior to
the Additional Premises Commencement Date, Sublandlord shall deliver to
Subtenant a duly and properly issued copy of the ACP-5 Form issued with respect
to the Additional Premises. To the extent that such ACP-5 Form reveals the
existence of asbestos or other hazardous materials in the Additional Premises,
Sublandlord shall be responsible, at its sole cost and expense, for the prompt
removal or abatement of such asbestos or other hazardous materials in full
compliance with all Applicable Legal Requirements. In such event, the Additional
Premises Commencement Date shall be delayed until the date on which Sublandlord
delivers possession of the Additional Premises to Subtenant free from all such
asbestos and other hazardous materials and in compliance with all other terms
and conditions of the Sublease.
(e) Subtenant’s
occupancy of any part of the Additional Premises shall be conclusive evidence,
as against Subtenant, that (1) Subtenant has accepted possession of the
Additional Premises in their then current condition, latent defects relating to
or arising from existing tenant installments excepted, and (2) subject to the
repair and maintenance obligations of Overlandlord under the Xxxxxxxxx, the
Additional Premises, the Premises and, to the best of Subtenant’s knowledge, the
Building are in a good and satisfactory condition as required by this Amendment.
Notwithstanding the foregoing, nothing in the Sublease shall be interpreted to
release Overlandlord from liability for any latent defects in the Premises
whether or not arising in connection with a tenant installation, and Sublandlord
shall, at Subtenant’s sole cost and expense, take appropriate action to secure
the remedy of any such latent defects or shall permit Subtenant to act in
Sublandlord’s name as more particularly described in Section 7.1 of the
Sublease.
(f) As
of the date hereof, there shall be no increase in the amount of security deposit
held by Sublandlord pursuant to the Original Sublease; it being agreed that
Subtenant shall continue to be entitled to a reduction in the amount of the
security deposit on the second anniversary of the Sublease Commencement Date (as
defined in the Original Sublease) pursuant to and in accordance with the terms
of Section 1.3 of the Original Sublease. If Subtenant shall faithfully observe
and perform all of the terms and conditions of the Sublease, then the security
deposit shall be returned promptly to Subtenant after the expiration or earlier
termination of the Sublease, as set forth in the Original Sublease.
(g) The
following Sections (or portions thereof) in the Original Sublease shall be
deemed inapplicable to the subleasing of the Additional Premises: (1) all of
Sections 1.5, 4.1 and 11.1; (2) the second through sixth sentences in Section
1.1; (3) Section 1.1(a); (4) the words “except that Subtenant shall not be
required to pay monthly rent of $99,521 for the first four (4) months of the
Sublease Term” in the last part of the first sentence in 1.1(b); and (5) the
second sentence in 1.1(b).
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(h) Except
as provided in this Amendment, all references in the Original Sublease to the
“Premises” shall be deemed to include the Additional Premises for all purposes
of the Sublease. With respect to the Additional Premises only, all references in
the Original Sublease to “term”, “Sublease Term”, or “term of this Sublease” or
words of similar import shall be deemed to refer to the term of the subleasing
of the Additional Premises and all references to “termination or expiration of
this Sublease” or words of similar import shall be deemed to refer to the
termination or expiration of the subleasing of the Additional Premises. Each
reference in the Original Sublease to “this Sublease”, “herein”, “hereunder” or
words of similar import shall be deemed to refer to the Sublease.
3. Modifications. (a)
Effective as of the Additional Premises Commencement Date, Section 14.1 of the
Original Sublease is hereby deleted and replaced with the
following:
“Subtenant
shall pay Sublandlord, at the times and in the manner specified herein, any and
all charges payable under the Sublease for 100% of the electric current used in
the Premises, without markup, as reflected on the two sub-meters that
exclusively register the usage of electricity on the 8th floor.”
(b) Effective
as of the Additional Premises Commencement Date, Section 15.1 of the Original
Sublease is hereby amended by adding the following sentence at the end of the
second paragraph:
“Notwithstanding
the foregoing. Subtenant shall have no liability to Sublandlord for Subtenant’s
failure to comply with the provisions of this paragraph so long as: (1)
Overlandlord and Subtenant enter into a separate agreement pursuant to which
Overlandlord permits Subtenant to use and occupy the Premises after the
expiration of the Sublease Term; and (2) Overlandlord agrees that Sublandlord
shall in no way be liable under the Xxxxxxxxx for Subtenant’s use and occupancy
of the Premises after the expiration of the Sublease Term.”
4. Brokerage. Each of
Sublandlord and Subtenant represents and warrants to the other that it has not
dealt with any broker in connection with this Amendment, other than CB Xxxxxxx
Xxxxx (the “Broker”) and that, to
the best of its knowledge, no other broker negotiated this Amendment or is
entitled to any fee or commission in connection herewith. Sublandlord shall pay
the Broker any commission which may be due in connection with this Amendment
pursuant to a separate agreement or agreements. Each of Sublandlord and
Subtenant shall indemnify. defend. protect and hold the other party harmless
from and against any and all losses. liabilities, damages. claims. judgments,
fines. suits, demands. costs. interest and expenses of any kind or nature
(including reasonable attorneys’ fees and disbursements) incurred in connection
with any claim, proceeding or judgment and the defense thereof which the
indemnified party may incur by reason of any claim of or liability to any
broker, finder or like agent (other than the Broker) arising out of any dealings
claimed to have occurred between the indemnifying party and the claimant in
connection with this Amendment. or the above representation being false. The
provisions of this Section 3 shall
survive the expiration or earlier termination of the term of the
Sublease.
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5. Representations and
Warranties. (a) Subtenant represents and warrants to Sublandlord that, as
of the date hereof (which shall be deemed to be remade as of the Additional
Premises Commencement Date), (i) the Sublease is in full force and effect and
has not been modified except pursuant to this Amendment; (ii) there are no
defaults by Subtenant existing under the Original Sublease beyond the expiration
of any applicable notice and cure periods; (iii) there exist no valid
abatements, causes of action, counterclaims, disputes, defenses, offsets,
credits, deductions, or claims against the enforcement of any of the terms and
conditions of the Original Sublease; (iv) this Amendment has been duly
authorized, executed and delivered by Subtenant and constitutes the legal, valid
and binding obligation of Subtenant; (v) Sublandlord has paid all amounts and
performed all work required to be paid or performed under the Sublease in
connection with Subtenant’s initial occupancy of the Premises under the Original
Sublease; and (vi) to the best of Subtenant’s knowledge, Sublandlord is not in
default of any of its obligations or covenants under the Original
Sublease.
(b) Sublandlord
represents and warrants to Subtenant that, as of the date hereof (which shall be
deemed to be remade as of the Additional Premises Commencement Date), (i) the
Sublease is in full force and effect and has not been modified except pursuant
to this Amendment; (ii) there are no defaults by Sublandlord existing under the
Original Sublease beyond the expiration of any applicable notice and cure
periods; (iii) there exist no valid abatements, causes of action, counterclaims,
disputes, defenses, offsets, credits, deductions, or claims against the
enforcement of any of the terms and conditions of the Original Sublease; (iv)
this Amendment has been duly authorized, executed and delivered by Sublandlord
and constitutes the legal, valid and binding obligation of Sublandlord; (v)
Sublandlord has paid all amounts and performed all work required to be paid or
performed under the Sublease in connection with Subtenant’s initial occupancy of
the Premises under the Original Sublease; (vi) to the best of Sublandlord’s
knowledge, Subtenant is not in default of any of its obligations or covenants
under the Original Sublease; (vii) Sublandlord is the holder of the interest of
the tenant under the Xxxxxxxxx; (viii) the Xxxxxxxxx is in full force and effect
and has not been modified except pursuant to the amendments listed on Exhibit A
to the Original Sublease; and (ix) neither Sublandlord nor Overlandlord is
currently in default under the terms of the Xxxxxxxxx, nor are any conditions
present that could ripen into a default under the terms of the
Xxxxxxxxx.
6. Miscellaneous. (a)
Except as set forth herein, nothing contained in this Amendment shall be deemed
to amend or modify in any respect the terms of the Original Sublease and such
terms shall remain in full force and effect as modified hereby. If there is any
inconsistency between the terms of this Amendment and the terms of the Original
Sublease, the terms of this Amendment shall be controlling and
prevail.
(b) This
Amendment 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
Amendment 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
Amendment shall not be binding upon Sublandlord or Subtenant unless and until
each party hereto shall have delivered a fully executed counterpart of this
Amendment to the other party.
(e) This
Amendment shall be binding upon and inure to the benefit of Sublandlord and
Subtenant and their successors and permitted assigns.
(f) This
Amendment shall be governed by the laws of the State of New York without giving
effect to conflict of laws principles thereof.
(g) The
captions, headings, and titles in this Amendment are solely for convenience of
reference and shall not affect its interpretation.
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IN
WITNESS WHEREOF, Sublandlord and Subtenant have executed this Amendment as of
the day and year first above written.
| SUBLANDLORD: | |||
| XXXXXXXX CORPORATION | |||
|
|
By:
|
/s/ Xxxxxx Xxxxxxxx | |
| Name: | Xxxxxx Xxxxxxxx | ||
| Title: | CFO | ||
| SUBTENANT: | |||
| INTRALINKS, INC. | |||
|
|
By:
|
/s/ Xxxxxxx Xxxxxxx | |
| Name: | Xxxxxxx Xxxxxxx | ||
| Title: | CFO | ||
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EXHIBIT
A
ADDITIONAL
PREMISES
9
EXHIBIT
B
FURNITURE,
FIXTURES AND EQUIPMENT
To be
provided
10
INVENTORY
|
Offices
desks
|
7
|
|
Workstations
|
53
|
|
Desk
chairs
|
68
|
|
Guest
chairs
|
28
|
|
Guest
tables
|
17
|
|
Conference
tables
|
2
|
|
Café
tables
|
3
|
|
Cafe
stools
|
6
|
|
File
lateral (assorted)
|
31
|
|
Shelving
|
22
|
