Exhibit 10.5
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FACILITIES OCCUPANCY, MANAGEMENT AND SUPPORT SERVICE AGREEMENT
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1. Authority of Manager. Manager shall perform the Service for Customer as an
independent contractor on a non-exclusive basis, and nothing contained
herein shall be deemed to create any association, partnership, joint
venture, or relationship of employer and employee between the parties
hereto or any of their respective affiliates or subsidiaries. Customer
hereby appoints Manager as its agent to negotiate and/or award any and all
contacts incidental and necessary to the performance by Manager of the
Services and to approve and pay any and all invoices for services provided
for the Property to the extent such contracts and invoices comply with
Citicorp policies. In each instance, Manager shall execute such contracts
and approve such invoices on behalf of Customer. Manager shall obtain and
maintain evidence of: (i) current liability insurance (including, without
limitation, employer's liability, automobile liability and comprehensive
general liability) in such amounts as shall be determined by Manager, (ii)
fidelity insurance containing a third party endorsement, if available, in
form and amounts determined by Manager, and (iii) workers' compensation
insurance in statutory amounts, from all third parties performing Services
specified herein or such other services as customer shall request from
Manager from time-to-time in writing, except that Manager shall have
authority to perform those acts incidental and necessary to its performance
hereunder.
2. Compliance with Laws. Each party hereto agrees that it shall comply with
all applicable federal, state, and local laws, ordinances, codes and
regulations in the performance of its obligations under this Agreement,
including the procurement of permits and certificates where required. If at
any time during the term of this Agreement, a party is informed or
information comes to its attention that it is or may be in violation of any
law, ordinance or code (or if it is so determined by any court, tribunal or
other authority), that party shall immediately take all appropriate steps
to remedy such violation and comply with such law, regulation, ordinance or
code in all respects. Further, each party shall establish and maintain all
proper records (particularly, but without limitation, accounting records)
required by any law, code of practice or corporate policy applicable to it
from time to time.
3. Indemnification. Each party to this Agreement shall indemnify and hold
harmless the other party and any of its directors, officers, employees and
agents from and against any action or threatened action, suit or proceeding
arising out of or as a result of, the indemnifying party's performance
under this Agreement and against any and all claims, expenses, losses or
damages (including reasonable attorneys' fees that result from the actions
or inaction of the indemnifying party); provided, however, that in no event
shall a party to this Agreement be obligated for any claims, expenses,
losses, or damages resulting from the negligent or willful acts or
omissions of the other party, its agents, employees or subcontractors.
A party seeking indemnification under this Agreement shall (i) give prompt
written notice to the indemnifying party as to the existence of the
indefinable event, (ii) provide such information, cooperation and
assistance as may reasonably be necessary for the defense of such action or
claim and (iii) grant full authority to the indemnifying party to defend or
settle such action or claim. A party seeking indemnification shall not
compromise or settle any action or claim without the consent of the
indemnifying party.
4. Force Majeure. In the event that either party is unable to fulfill any of
its obligations under this Agreement, other than the payment of money,
because of causes beyond its reasonable control, such party will give
immediate notice thereof to the other party and, upon such notice being
given, such obligation or obligations
shall be suspended during the continuance of such cause beyond such party's
control. Causes beyond a party's control shall include fire, flood or other
natural disaster; wars, civil wars, riots or civil commotion; priorities or
other government allocations or controls; lockouts, strikes or other work
stoppages; interference or restraint of public authority (whether lawful or
not); explosion or accident; epidemics or quarantine restrictions; or any
cause which it cannot provide against by the exercise of reasonable
diligence.
5. Confidentiality. The Customer and the Manager agree that all information
provided pursuant to this Agreement by each party to the other party is
confidential and proprietary to the party providing the information and no
party shall use any information provided by the other party for any purpose
other than as permitted or required for performance under this Agreement.
Each party agrees not to disclose or provide any information provided by
the other party to any third party (with the exception of (i) any parent,
affiliate or subsidiary, which is bound to retain the confidentiality of
the information; (ii) employees who have a need to know in the course of
performance Services pursuant to this Agreement, provided that such
employees are bound to retain the confidentially of the information; (iii)
third party vendors as necessary for the Manager to provide Services to the
Customer under this Agreement, provided that such vendors are bound to
retain the confidentially of this information; and (iv) the Customer's
disclosure of data to its external auditors) without the express written
consent of the other party, and each party agrees to take all reasonable
measures, including, without limitation, measures taken by each party to
safeguard its own confidential information to prevent any such disclosure
by employees, agents, or contractors. In no event shall the Customer
divulge to any third party the contents in any invoices/charge
documentation that it receives from the Manager without the written consent
of the Manager. Nothing provided herein shall prevent any party from
disclosing information to the extent the information (i) is or hereafter
becomes part of the public domain through no fault of that party; (ii) is
received from or furnished to a third party without similar restriction of
the third party's rights; (iii) is independently developed by it; (iv) is
disclosed pursuant to requirements of law; or (v) is already known to it.
If either party hires another person to assist it in the performance of
this Agreement, or assigns any portion of its rights or delegates any
portion of its responsibilities or obligations under this Agreement to
another person, the assigning or delegating party shall cause its assignee
or delegate to be bound to retain the confidentiality of the information.
6. Taxes. Customer shall pay all taxes levied or based upon the Services
rendered in accordance with this agreement, and Manager has the right to
collect any and all applicable sales or use taxes from the Customer. If
Manager does not impose sales and use taxes, then Customer agrees to
self-impose such taxes on payments under this Agreement and shall not hold
Manager responsible for any unpaid taxes not charged or self-imposed by
Customer. Notwithstanding the foregoing provision, Customer shall have no
liability and Manager shall be solely responsible for the payment of any
taxes that are based on Manager's income and any assessments/penalties
related thereto.
7. Assignment. Neither party may assign any of it rights, obligations or
responsibilities under this Agreement at any time without the prior written
consent of the other (such consent not to be unreasonably withheld), except
that either party may assign such obligations and responsibilities at any
time to its parent or any of its subsidiaries or affiliates having
reasonably adequate resources to perform the obligations and undertake the
responsibilities under this Agreement. All terms and conditions of the
agreement shall be binding upon and shall inure to the benefit of the
parties hereto and their successors and authorized assigns. Notwithstanding
the foregoing, it is expressly understood and agreed by Customer that
Manager may provide the Service through an affiliate of Manager or other
third party.
8. Corporate Authority; Further Assurances. Each party represents that it has
taken all necessary corporate action to authorize the execution and
consummation of the Agreement and will furnish the other party with
satisfactory evidence of same upon request. Each party agrees to negotiate
in good faith the execution of such other documents or agreements as may be
necessary or desirable for the implementation of this Agreement and the
effective execution of the transactions contemplated hereby, and will
continue to do so during the term of the Agreement.
9. Notices. All notices, demands, and other communications hereunder shall be
in writing and shall be deemed given to the other party when delivered in
person, by overnight delivery or sent by certified or registered mail,
return receipt requested, postage prepaid, to the following address:
Manager:
Citicorp North America, Inc.
00 Xxxxxxx Xxxx
Xxxxxxxxx, Xxx Xxxx 00000
Att: On-Site Manager
Customer:
The Student Loan Corporation
00 Xxxxxxx Xxxx
Xxxxxxxxx, Xxx Xxxx 00000
Att: Legal Department
SECTION D: FEE
1. Payment for Services and Expenses. As compensation for the Occupancy, and
Facility Management and Support Services, Customer shall pay to Manager or
such third party as Manager may designate, on or before the tenth (10th)
day of every month, the amount set forth in Exhibit F attached hereto (the
"Fee"), which Fee represents the fair value of the use of the property and
services provided. Manager and Customer agree to renegotiate the fee in
good faith on an annual basis, such new fee to be effective for a 12-month
period beginning January 1st of each year. Customer further agrees to
reimburse Manager for any third party fees or expenses which Manager may be
requested to incur as a direct result of providing any Service hereunder to
the extent such third party fees and expenses comply with Citicorp
policies. All other costs for services not specifically provided for in
this Agreement will be negotiated between Customer and Manager. Any
proposed change to the Fee resulting from a change in the level or nature
of the Services provided or an increase in the Customer's occupancy square
footage must be approved in writing by Manager and Customer prior to the
change. Customer and Manager, as agent for Owner, likewise acknowledge that
Customer is participating in an exercise to consider consolidation of
certain of Customer's business processed to other locations, which are
owned or managed by affiliates of Owner. A change in Customer's square
footage occupancy arising solely by the relocation of one or more of
Customer's business functions to a location affiliated by common ownership
to owner shall result in a corresponding change to the fee and space
allocation, such change to be approved in writing by Manager and Customer.
Customer shall have the right, during normal business hours, to inspect
Manager's books and records with respect to the Services. Manager shall
keep adequate records of its Services hereunder and all costs and expenses
associated therewith.
Term and Termination. This agreement shall commence on the date hereof and
will continue in full force and effect for one year from the commencement
date of the agreement.
Entire Agreement. This Agreement is the sole agreement between the parties
with respect to the provision of the Services, and supersedes all prior
oral or written agreements for the Services. This Agreement may be signed
in
counterparts, all of which taken together shall constitute one
instrument. This Agreement may be amended only by the written agreement
of the parties.
Waiver. Either party may delay or forego exercising any of its rights
under this Agreement without waiving any of its rights.
Governing Law. This agreement shall be governed by and constructed in
accordance to the laws of the State of New York.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the date first written above.
CUSTOMER: OWNER:
The Student Loan Corporation Citibank (NYS) by Citicorp North
America, Inc., Agent.
By: /s/ Yiannis Zographakis By: /s/ Xxxxxx Xxxxx
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Yiannis Zographakis Xxxxxx Xxxxx
EXHIBIT A
PROPERTY
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The Customer occupies forty four thousand three hundred and ninety one
(44,391) square footage of usable and allocated common space at
property located at 00 Xxxxxxx Xxxx, Xxxxxxxxx, Xxxx of Perinton, New
York.
EXHIBIT B
PREMISES SERVICES INCLUDED IN FEE
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o BASE BUILDING OPERATIONS
o Building Access Control and Security Maintenance and Repair
o Electrical distribution System Maintenance and Repair
o HVAC Systems Maintenance and Repair
o Life/Fire/Safety Systems Maintenance and Repair
o Interior building structure Maintenance and Repair
o Interior and Exterior water systems Maintenance and Repair
o Parking Lot and sidewalk/walkway Maintenance (including follow up with
Landlord as applicable, that lot plowing is completed adequately,
salting as needed and winter maintenance of sidewalks and building
entrances/exits). If resurfacing of parking lot repair and maintenance
is responsibility of Landlord, manager will act as agent for Customer
in Landlord maintenance issues.
o Exterior Building Signage Maintenance and Repair
o Exterior Landscape service
o Light bulb/Lighting replacement
o Environmental monitoring, maintenance and repairs as needed
o Cafeteria/Kitchen Equipment Maintenance and Repair
o General building interior painting
o Surveillance equipment, surveillance film and processing
o BUILDING SERVICES
o Cleaning Service (Including vacuuming, general dusting, lavatory
cleaning and supply replacement, floor washing, and window cleaning)
o Emergency Lock replacement or access service
o Coordinate and implement fire and safety evacuation plans
o Rubbish collection and removal
o Recycle collection and removal
o Pest Control
o Restack coordination and implementations services
o Furniture replacement/repairs (All purchases will be upon mutual
agreement between Manager and Customer)
o Furniture storage
This listing represents services in the CRS Northeast Region specific to
the 00 Xxxxxxx Xxxx, Xxxxxxxxx XX Location.
EXTENSION AGREEMENT
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This Extension Agreement is entered into as of the 1st day of January 1999, by
and between Citicorp North America, Inc., ("Manager"), a Delaware corporation
having an office at 00 Xxxxxxx Xxxx, Xxxxxxxxx, Xxx Xxxx, as agent for Citibank
(New York State) and The Student Loan Corporation ("Customer"), a Delaware
corporation having an office at 00 Xxxxxxx Xxxx, Xxxxxxxxx, Xxx Xxxx.
Whereas, Customer is the tenant of certain premises more particularly described
in Exhibit A upon terms of a Facilities Occupancy, Management and Support
Service Agreement (the "Agreement") dated January 1, 1998 by and between
Customer and Manager; and
Whereas, Customer and Manager desire that Customer remain as a tenant in the
premises for an additional term subject to the terms of the Agreement and this
Extension Agreement.
NOW THERFORE, in consideration of the mutual covenants and agreement hereinafter
set forth and for other good and valuable consideration, the parties agree as
follows:
1. The term of the extended tenancy shall commence on the first day of January
1999 and will continue in full force and effect for until December 31, 1999
unless extended or modified by agreement of the parties.
2. The premises occupied by Customer for the extended term shall be as
described in Amended Schedule A.
3. As compensation for the tenancy, Customer shall pay to Manager or such
third party as Manager may designate the amount set forth in Amended
Schedule F attached hereto (the "Fee") which shall represent the fair
market value of the use of the property and services provided. All other
terms and provisions of SECTION D 1. not amended by this paragraph shall
remain in full force and effect for the term of Customer's tenancy as
extended by this Extension Agreement.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed as of
the date first above written.
The Student Loan Corporation Citibank (New York State) by Citicorp
North America, Inc., authorized agent
By /s/ Yiannis Zographakis By: /s/ Xxxxx X. Xxxxx
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Yiannis Zographakis Xxxxx Xxxxx
EXTENSION AGREEMENT
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This Extension Agreement is entered into as of the 1st day of January 2000, by
and between Citicorp North America, Inc., ("Manager"), a Delaware corporation
having an office at 00 Xxxxxxx Xxxx, Xxxxxxxxx, Xxx Xxxx, as agent for Citibank
(New York State) and The Student Loan Corporation ("Customer"). Whereas,
Customer is the tenant of certain premises more particularly described in
Exhibit A upon terms of a Facilities Occupancy, Management and Support Service
Agreement (the "Agreement") dated January 1, 1998 by and between Customer and
Manager; and
Whereas, Customer and Manager desire that Customer remain as a tenant in the
premises for an additional term subject to the terms of the Agreement and this
Extension Agreement.
NOW THERFORE, in consideration of the mutual covenants and agreement hereinafter
set forth and for other good and valuable consideration, the parties agree as
follows:
1. The term of the extended tenancy shall commence on the first day of
January, 2000 and will continue in full force and effect for until December
31, 2000 unless extended or modified by agreement of the parties.
2. The premises occupied by Customer for the extended term shall be as
described in Exhibit A.
3. Premises Services included in fee shall be as described in Exhibit B.
4. As compensation for the tenancy, Customer shall pay to Manager or such
third party as Manager may designate the amount set forth in Exhibit C
attached hereto (the "Fee") which shall represent the fair market value of
the use of the property and services provided. All other terms and
provision of SECTION D 1. not amended by this paragraph shall remain in
full force and effect for the term of Customer's tenancy as extended by
this Extension Agreement.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed as of
the date first above written.
The Student Loan Corporation Citibank (New York State) by Citicorp
North America, Inc., authorized agent
By: /s/ Yiannis Zographakis By: /s/ Xxxxx X. Xxxxx
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Yiannis Zographakis Xxxxx X. Xxxxx
Citigroup Corporate Realty Services
Midwest Region, St. Louis
MEMO TO: Xxxx Xxxxxxxx, CEO Student Loan Corporation
Xxx Xxxxxx, President, Citibank New York State
FROM: Xxxxx Xxxxx
SUBJECT: Commitment to Leaseback space, 00 Xxxxxxx Xx., Xxxxxxxxx, X.X.
DATE: February 8, 2000
CC: Xxx Means, CRS
Xxxx Xxxx, CRS
This memorandum is intended as an update of the lease back option agreement as
it applies to the proposed staffing requirements provided to CRS by the Student
Loan Corporation and Citibank New York State in regards to business operations
at the above noted Citi facility. The revised staffing and space requirements
are now as follows: The Student Loan Corporation and Citibank New York State
remain the primary occupants of the lease back space with a combined long term
total population of 345. In summary, the Student Loan Corporation projects 275
staff, CNYS 28, and the combined support businesses total 40 staff. The lease
back option will commit these Citigroup businesses to approximately 62M RSF for
a seven (7) year term.
By way of signing this memorandum, SLC and CNYS hereby agree and commit to full
financial responsibility related to the remodeling, relocation, leasing,
license, and operation of the leased space for a 7-year term. 100% of the costs
related to this space will be transferred to SLC and CNYS and support groups by
way of a yet to be finalized direct charge calculated by CRS and based upon a
pro rata allocation of the space occupied by these respective Citigroup
businesses. The preliminary estimate of the anticipated direct charge remains in
the range of $24 per sq ft.
/s/ Xxxx Xxxxxxxx
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Xxxx Xxxxxxxx, CEO Student Loan Corporation
/s/ Xxx Xxxxxx
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Xxx Xxxxxx, President, Citibank New York State
