EXHIBIT 10.22
FOURTH AMENDMENT TO LEASE
between
000-000 XXXXXXX XXXXXX LIMITED PARTNERSHIP, Landlord
and
iVILLAGE INC., Tenant
FOURTH AMENDMENT TO LEASE
THIS FOURTH AMENDMENT TO LEASE (this "Amendment") made as of the 3rd
day of December, 2001, by and between 000-000 XXXXXXX XXXXXX LIMITED
PARTNERSHIP, a New York limited partnership, having an office c/o Newmark &
Company Real Estate, Inc., 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000
("Landlord"), and iVILLAGE INC., a Delaware corporation, having an office at 000
Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx ("Tenant").
W I T N E S S E T H:
WHEREAS, by Agreement of Lease dated as of March 14, 2000, by and
between Landlord and Tenant, as amended by that certain First Amendment to Lease
dated as of June 7, 2000, and further amended by that certain Second Amendment
to Lease dated as of January 10, 2000 (the "Second Amendment"), and that certain
Third Amendment to Lease dated as of October 17, 2001 (such lease, as the same
may have been or may hereafter be amended, is hereinafter called the "Lease"),
Landlord did demise and let unto Tenant and Tenant did hire and take from
Landlord in the buildings located at 000 Xxxxxxx Xxxxxx (the "500 Building") and
at 000 Xxxxxxx Xxxxxx (the "512 Building") each in the borough of Manhattan,
City and State of New York (hereinafter collectively known as the "Building"),
the entire rentable area of the fourteenth (14th) floor and a portion of the
twelfth (12th) floor in the 500 Building, and the entire eleventh (11th),
twelfth (12th) and thirteenth (13th) floors in the 512 Building (collectively,
the Demised Premises"), as more particularly described in the Lease;
WHEREAS, the term of the Lease currently expires on April 30, 2015; and
WHEREAS, Landlord and Tenant desire to modify and amend certain
provisions of the Lease, subject to the terms and conditions hereinafter set
forth.
NOW THEREFORE, in consideration of the premises and the agreements
hereinafter contained, it is mutually covenanted and agreed as follows:
1. All capitalized terms used herein shall have the meanings ascribed
to them in the Lease unless otherwise specifically set forth herein to the
contrary.
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2. Landlord and Tenant acknowledge and agree that the Second Amendment
is incorrectly dated. The date of the Second Amendment is hereby amended such
that the Second Amendment shall be deemed dated "as of January 10, 2001", and
not as of January 10, 2000 as such date appears on the Second Amendment.
3. Section 13.07 of the Lease is hereby amended by deleting "thirty
(30)" in the last sentence of the paragraph and substituting "twenty (20)" in
lieu thereof and by adding the following:
"In the event a mechanic's lien (the "Lien") is filed,
Landlord shall have the right and option, in its sole
discretion, to (i) draw and apply a portion of the Letter of
Credit in the full amount of the Lien, plus twenty (20%)
percent (the "Lien Amount"), or (ii) deduct from Tenant's
remaining Construction Payment the Lien Amount. In addition to
any right or remedy Landlord may have under the Lease,
Landlord may, but shall not be obligated to, discharge the
Lien by applying the Lien Amount drawn and held by Landlord in
accordance with the preceding sentence to the amount claimed
to be due under the Lien or by procuring the discharge of the
Lien by deposit or bonding proceedings, and in any such event
Landlord shall be entitled, if Landlord so elects, to compel
the prosecution of an action for the foreclosure of the Lien
by the lienor and to pay, for Tenant's account and subject to
reimbursement thereof, as hereinafter provided, the amount of
the judgment in favor of the lienor with interest, costs and
allowances. Tenant hereby agrees to reimburse and to pay to
Landlord on demand, as additional rent, all costs and
expenses, including, without limitation, reasonable attorney's
fees, incurred by Landlord in connection therewith, together
with interest at the Interest Rate from the respective dates
of Landlord's notice to Tenant of the making of the payment or
the incurring of the cost and expense, including such
attorney's fees. Tenant further agrees that in the event that
Landlord applies or retains any portion of the Letter of
Credit, as set forth in subparagraph (i) above, the amount not
so used, applied or retained shall continue to be treated as
Tenant's security under this Lease, and Tenant shall restore
the amount so applied or retained in accordance with Section
6.01 of this Lease, so that at all times the amount deposited
shall be $8,474,380.10. The Lien Amount shall be held by
Landlord in escrow and in the event Landlord elects not to
discharge the Lien in accordance with the provisions of this
Section 13.07, Tenant shall discharge the Lien in accordance
with this Lease and Landlord shall return or credit (as
applicable) the Lien Amount upon discharge of the Lien, less
any reasonable costs and expenses incurred by Landlord,
including without limitation, reasonable attorney's fees. In
the event Landlord elects to discharge the Lien in accordance
with the provisions of this Section 13.07, Landlord agrees to
refund, within five (5) Business Days of such discharge, any
portion of the Lien Amount remaining, if any, after
discharging the Lien and after reimbursement of Landlord's
costs and expenses, including, without limitation reasonable
attorneys fees, in connection with such discharge."
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4. Section 25.02(b) of the Lease is hereby amended by adding the
following after the word "necessary" in the last line of Section 25.02(b):
"; notwithstanding the foregoing, the cure period set forth in
this Section 25.02(b) with respect to a default under Section
13.07 hereof shall be twenty (20) days only (as opposed to
thirty days as provided herein)"
5. Each party hereto covenants, warrants and represents to the other
party that it has had no dealings, conversations or negotiations with any broker
concerning the execution and delivery of this Amendment. Each party hereto
agrees to defend, indemnify and hold harmless the other party against and from
any claims for any brokerage commissions and all costs, expenses and liabilities
in connection therewith, including, without limitation, reasonable attorneys'
fees and disbursements, arising out of its respective representations and
warranties contained in this Paragraph 5 being untrue.
6. Except as expressly set forth in this Amendment, the terms and
conditions of the Lease shall continue in full force and effect without any
change or modification and shall apply for the balance of the term of the Lease
as hereby extended and are hereby ratified and confirmed. In the event of a
conflict between the terms of the Lease and the terms of this Amendment, the
terms of this Amendment shall govern.
7. This Amendment shall not be altered, amended, changed, waived,
terminated or otherwise modified in any respect or particular, and no consent or
approval required pursuant to this Amendment shall be effective, unless the same
shall be in writing and signed by or on behalf of the party to be charged.
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8. This Amendment shall be binding upon and shall inure to the benefit
of the parties hereto and to their respective heirs, executors, administrators,
successors and permitted assigns.
9. All prior statements, understandings, representations and agreements
between the parties, oral or written, are superseded by and merged in this
Amendment, which alone fully and completely expresses the agreement between them
in connection with this transaction and which is entered into after full
investigation, neither party relying upon any statement, understanding,
representation or agreement made by the other not embodied in this Amendment.
10. This Amendment shall be interpreted and enforced in accordance with
the laws of the State of New York without reference to principles of conflicts
of laws.
11. If any provision of this Amendment shall be unenforceable or
invalid, the same shall not affect the remaining provisions of this Amendment
and to this end the provisions of this Amendment are intended to be and shall be
severable. Notwithstanding the foregoing sentence, if (i) any provision of this
Amendment is finally determined by a court of competent jurisdiction to be
unenforceable or invalid in whole or in part, (ii) the opportunity for all
appeals of such determination have expired, and (iii) such unenforceability or
invalidity alters the substance of this Amendment (taken as a whole) so as to
deny either party, in a material way, the realization of the intended benefit of
its bargain, such party may terminate this Amendment within thirty (30) days
after the final determination by notice to the other. If such party so elects to
terminate this Amendment, then this Amendment shall be terminated and neither
party shall have any further rights, obligations or liabilities hereunder,
except those obligations which expressly survive the termination of this
Amendment.
12. LANDLORD AND TENANT HEREBY KNOWINGLY, VOLUNTARILY, INTENTIONALLY,
UNCONDITIONALLY AND IRREVOCABLY WAIVE ANY RIGHT EACH MAY HAVE TO TRIAL BY JURY
IN ANY ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER ARISING IN TORT OR CONTRACT)
BROUGHT BY EITHER AGAINST THE OTHER ON ANY MATTER ARISING OUT OF OR IN ANY WAY
CONNECTED WITH THIS AMENDMENT OR ANY OTHER DOCUMENT EXECUTED AND DELIVERED BY
EITHER PARTY IN CONNECTION HEREWITH (INCLUDING ANY ACTION TO RESCIND OR CANCEL
THIS AMENDMENT ON THE GROUNDS THAT THIS AMENDMENT WAS FRAUDULENTLY INDUCED OR IS
OTHERWISE VOID OR VOIDABLE).
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13. This Amendment may be executed in any number of counterparts. It is
not necessary that all parties sign all or any one of the counterparts, but each
party must sign at least one counterpart for this Amendment to be effective.
14. This Amendment shall not be binding upon either party unless and
until it is fully executed and delivered to both parties.
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the signature page follows.]
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IN WITNESS WHEREOF, Landlord and Tenant have executed this Amendment as
of the date and year first above written.
LANDLORD:
000-000 XXXXXXX XXXXXX LIMITED
PARTNERSHIP
By: 500-512 ArCap LLC
By: /s/ Xxxxxxx Xxxxxxx
-------------------------------
Xxxxxxx Xxxxxxx
Authorized Representative
TENANT:
iVILLAGE INC.
By: /s/ Xxxxxx X. Xxxxx
--------------------------------
Name: Xxxxxx X. Xxxxx
Title: Executive Vice President--
Operations and Business Affairs
