EXHIBIT 10.2
FIFTH AMENDMENT TO LEASE
THIS AGREEMENT is made as of the 30th day of June, 2003, by and between
000-000 XXXXXXX XXXXXX LIMITED PARTNERSHIP, a New York limited partnership
having an office x/x Xxx Xxxxxxx Xxxxx, XXX, Xxxxx 0 West, 000 Xxxx 00xx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000 ("Landlord"), and iVILLAGE INC., a Delaware corporation
having an office at 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 ("Tenant").
W I T N E S S E T H :
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Landlord is the landlord and Tenant is the tenant under that certain
Agreement of Lease dated as of March 14, 2000 (the "Original Lease"), as amended
by (i) that certain First Amendment to Lease dated as of June 7, 2000, (ii) that
certain Second Amendment to Lease dated as of January 10, 2001, (iii) that
certain Third Amendment to Lease dated as of October 17, 2001, and (iv) that
certain Fourth Amendment to Lease dated as of December 3, 2001, and as
supplemented by a letter agreement between Landlord and Tenant dated as of
December 23, 2002 (the Original Lease, as amended and supplemented, being
hereinafter referred to as the "Lease").
Pursuant to the Lease, Landlord currently leases to Tenant, and Tenant
currently leases from Landlord, the entire rentable area of the fourteenth
(14th) floor in the building located at 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
(the "500 Building") and the entire rentable area of the eleventh (11th),
twelfth (12th) and thirteenth (13th) floors in the building located at 000
Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx (the "512 Building") (collectively, the
"Demised Premises").
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Tenant desires to surrender possession of, and terminate its tenancy
under the Lease with respect to, all of the Demised Premises other than (i) the
entire rentable area of the fourteenth (14th) floor in the 500 Building, and
(ii) a portion of the twelfth (12th) floor in the 512 Building consisting of
approximately 5,638 rentable square feet as shown on Exhibit A annexed hereto
and hereby made a part hereof (the "Server Room"; the Server Room, together with
the entire rentable area of the fourteenth (14th) floor in the 500 Building,
being hereinafter referred to collectively as the "Retained Space"), and
Landlord is willing to accept such partial surrender and agree to such partial
termination subject to and upon the terms and conditions hereinafter set forth.
Landlord and Tenant desire to modify and amend the Lease in the
respects hereinafter set forth.
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt and sufficiency whereof are hereby
acknowledged, the parties hereto hereby agree as follows:
1. Effective as of the Effective Date (defined below), Tenant shall
irrevocably relinquish and surrender to Landlord all of Tenant's right, title
and interest under the Lease with respect to the following spaces (collectively,
the "Relinquished Space"): (i) the entire rentable area of the eleventh (11th)
and thirteenth (13th) floors in the 512 Building, and (ii) the entire balance of
the rentable area of the twelfth (12th) floor in the 512 Building exclusive of
the Server Room, and, subject to the terms and conditions hereinafter set forth,
Landlord shall accept such surrender. On or before the Effective Date, Tenant
shall surrender and deliver the Relinquished Space to Landlord in a condition
which will render such space reasonably suitable for viewing by prospective
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replacement tenants, free and clear of all of Tenant's employees, and of all
tenancies, subtenancies and persons in possession, other than the existing
sublease dated October 2001 (the "Sublease") of the entire rentable area of the
eleventh (11th) floor in the 512 Building between Tenant, as sublandlord, and
Dun & Bradstreet, Inc. ("D&B"), as subtenant. Exhibit B annexed hereto and
hereby made a part hereof lists (i) the items of personal property, equipment,
fixtures, trade fixtures and furniture (collectively, "Personal Property")
which, to the extent Tenant has not already done so, Tenant shall remove, at
Tenant's expense, from the Relinquished Space reasonably promptly after the
Effective Date (collectively, the "Retained Items"), and (ii) the items of
Personal Property which Tenant shall surrender with the Relinquished Space on
the Effective Date (such items, together with the balance of Tenant's existing
installation not listed as being among the Retained Items, being hereinafter
referred to as the "Relinquished Existing Installations"). Tenant shall repair
and restore any damage (other than de minimus damage) to the Demised Premises
created by Tenant's removal of the Retained Items. The Relinquished Existing
Installations (a) shall not be removed by Tenant from the Relinquished Space and
instead shall be deemed surrendered to Landlord with the Relinquished Space as
of the Effective Date, and (b) shall become the property of Landlord and shall
be deemed to have been relinquished, abandoned and conveyed by Tenant to
Landlord effective as of the Effective Date. Tenant represents to Landlord that
Tenant is, and that Tenant will be on the Effective Date, the lawful owner of
the Relinquished Existing Installations and that the same is, and that the same
will be on the Effective Date, free and clear of all claims, liens, encumbrances
and security interests, in each case other than the rights, if any, of Landlord
or Landlord's mortgagees and mezzanine lenders and, as to the eleventh (11th)
floor in the 512 Building only, the rights of D&B under the Sublease. On the
Effective Date, Tenant shall assign to Landlord all guaranties and warranties,
if any, with respect to the Relinquished Existing Installations.
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2. (a) Landlord shall have the option, at Landlord's expense,
exercisable at any time upon reasonable prior written notice to Tenant, to
construct a common corridor on the twelfth (12th) floor of the 512 Building in
order to permit access to the Server Room and the balance of the space on the
12th floor in the 512 Building, which common corridor shall comply with
applicable law, and, at Landlord's option, shall be constructed in a manner so
as to afford Landlord and any other tenant(s) of a portion or portions of the
balance of the 12th floor of the 512 Building access to the bathrooms,
utilities, mechanical and HVAC systems on such floor. Landlord shall have the
option, at Landlord's expense, exercisable at any time upon reasonable prior
written notice to Tenant, to separate the utilities, mechanical and HVAC systems
presently existing on the 12th floor of the 512 Building so that the same
service both the Server Room and the balance of the 12th floor. All such work
shall be done in a manner so as to minimize disruption of Tenant's use of the
Server Room. Nothing contained in this subparagraph 2(a) shall limit Tenant's
obligations under Exhibit C attached hereto. For so long as the Server Room
constitutes a portion of the Demised Premises, Tenant shall continue to have
reasonable access to the utility lines and panel boxes servicing, but located
outside of the perimeter of, the Server Room, including for the purposes of
maintaining and repairing the same. Landlord shall have no obligation to perform
any other work at or to the Retained Space or make any monetary contribution to
Tenant in order to ready the Retained Space for Tenant's continued occupancy
thereof or otherwise pursuant to this Agreement.
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(b) Tenant, at Tenant's sole cost and expense, shall perform, as
promptly as commercially reasonable following the Effective Date and in any
event within sixty (60) days after Tenant's receipt of the requisite building
permits therefor, all of the work listed on Exhibit C annexed hereto and hereby
made a part hereof (the "Tenant's Required Work") in or affecting the Retained
Space and the Relinquished Space, which work hereby is approved by Landlord
(subject to the submission of plans and specifications for Landlord approval to
the extent preparation of plans and specifications, and submission of the same
for approval, is required under the Original Lease or applicable law) and which
work Landlord and Tenant have agreed constitutes all the work necessary for
Tenant to perform to effect the surrender of the Relinquished Space and the
possession and occupancy thereafter by Tenant of the Retained Space alone.
Tenant, at Tenant's expense, shall promptly apply for all requisite building
permits required in connection with Tenant's Required Work and, upon the
completion thereof, Tenant shall obtain all requisite sign-offs and approvals
therefor. All application, permit, filing and like fees and architect's,
engineer's, expediter's and other professional fees incurred in connection
therewith shall be borne by Tenant. Such work shall be performed with due
diligence in accordance with applicable law and the provisions of Article 13 of
the Original Lease.
(c) Upon the completion of all of Tenant's Required Work and
Tenant's obtaining of any requisite sign-offs and lien waivers therefor and a
certificate from Tenant's licensed architect that Tenant's Required Work has
been completed, Landlord shall confirm such completion in writing.
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(d) Tenant's performance of Tenant's Required Work shall satisfy
all of Tenant's obligations with respect to the Relinquished Space, including
without limitation any additional obligations of Tenant which otherwise may have
arisen under paragraph 2 of the Second Amendment to Lease. Nothing contained
herein shall be deemed to relieve Tenant from any of Tenant's additional
obligations under paragraph 2 of the Second Amendment to Lease with respect to
the Retained Space, all of which are hereby ratified and confirmed.
Notwithstanding the foregoing, Landlord and Tenant acknowledge and agree that
Tenant shall have no obligation to comply with Section 2(b) of the Second
Amendment to Lease between the parties dated as of January 10, 2001 with respect
to the 14th floor of the 500 Building or with respect to the 12th floor of the
500 Building, except as specified on Exhibit C hereto.
3. To and until the later to occur of (i) the Effective Date, and (ii)
the date on which Tenant surrenders the Relinquished Space to Landlord, Tenant
(x) shall continue to pay fixed rent, electricity charges, Tenant's Tax Payment,
xxxxxx'x wage escalation, and all other items of additional rent and other sums
and charges for the Relinquished Space and for the Retained Space in accordance
with the terms of the Lease, calculated without regard to this Agreement, and
(y) shall otherwise continue to comply with the terms thereof. Tenant shall be
deemed to have fulfilled the requirements of subdivision (ii) of the preceding
sentence notwithstanding the fact that Tenant has not commenced Tenant's
Required Work as of the surrender date.
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4. Time shall be of the essence as to Tenant's obligation to surrender
the Relinquished Space to Landlord on or before the Effective Date; provided,
however, that if for any reason whatsoever Tenant fails to surrender the
Relinquished Space to Landlord in accordance with paragraph 1 above within
fifteen (15) days after the occurrence of the Effective Date, this Agreement
shall nevertheless remain in effect on all of its terms, but Tenant shall pay to
Landlord on demand, as additional rent (which shall be in addition to the fixed
rent and additional rent payable for the Retained Space and the Relinquished
Space calculated pursuant to paragraph 3 above), the additional sum of $2,500
per day for each day during which Tenant holds over in the Relinquished Space
beyond such 15-day period. In addition and without limiting Landlord's other
remedies provided for above, Landlord shall also be entitled to proceed against
Tenant with a holdover proceeding in the Civil Court of the City of New York
with respect to the Relinquished Space. Tenant warrants and represents that it
will not defend against, interpose in such proceeding an answer and/or
counterclaim, or otherwise contest any such holdover proceeding commenced by
Landlord to recover possession of the Relinquished Space, except for a defense
based on Tenant's good faith interpretation of this Agreement (as opposed to
merely for delaying purposes). Tenant hereby agrees that in connection with any
such holdover proceeding it: (a) consents to Landlord's service of process by
certified mail, return receipt requested, at the address first above written for
Tenant; (b) admits the existence of the Lease, as amended hereby; (c) admits
that the term of the Lease, as amended hereby, expires on the Effective Date
with respect to the Relinquished Space; (d) consents to Landlord's right to
terminate Tenant's occupancy of the Relinquished Space on the Effective Date
based upon the obligations herein
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contained; (e) admits that Landlord has standing to commence and prosecute a
holdover summary proceeding with respect to the Relinquished Space only if
Tenant holds over in the Relinquished Space; and (f) if Tenant holds over in the
Relinquished Space, consents to the immediate issuance of a warrant of eviction
with respect to the Relinquished Space only without any stays of the execution
thereof, and Tenant hereby waives the right to appeal therefrom except for an
appeal based upon Tenant's good faith interpretation of this Agreement (as
opposed to merely for delaying purposes). In the event that a bankruptcy
proceeding is filed by or against Tenant, then, in such event, Tenant, to the
extent permitted under applicable law, hereby consents to the immediate lifting
of the automatic stay provisions of the Bankruptcy Code so as to permit Landlord
to commence and/or prosecute any necessary action or proceeding to regain
possession of the Relinquished Space. If Landlord elects to commence a holdover
or other action or proceeding by reason of Tenant's failure to timely comply
with Tenant's obligations hereunder, Tenant shall reimburse Landlord for
Landlord's reasonable and actual attorneys' fees and expenses and costs incurred
in prosecuting such action and/or proceeding.
5. From and after the later to occur of (i) the Effective Date, and
(ii) the date on which Tenant surrenders the Relinquished Space to Landlord
(irrespective of whether Tenant has commenced Tenant's Required Work), and for
the balance of the term of the Lease, as amended hereby, and the Extension Term
(if the Extension Option is exercised), (i) the premises demised under the
Lease, as amended hereby, shall be comprised solely of the Retained Space, and
(ii) all references under the Lease, as amended hereby, to the "Demised
Premises" shall, for all purposes (including the exercise of any Extension
Option), be deemed to mean solely the Retained Space.
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6. Effective as of, and conditional upon the occurrence of, the
Effective Date, the Lease shall be modified as follows:
(a) Section 1.04 of the Original Lease, as amended by paragraph
6(b) of the Third Amendment to Lease, shall be further amended such that the
annual fixed rent to be paid by Tenant to Landlord under the Lease shall be at
the rate of One Million Four Hundred Seventy Thousand Dollars ($1,470,000.00),
exclusive of electricity (which shall continue to be payable by Tenant pursuant
to Article 16 of the Original Lease), which shall be payable in equal monthly
installments of One Hundred Twenty-Two Thousand Five Hundred Dollars
($122,500.00) each.
(b) Provided that Tenant is not then in monetary or material
non-monetary default under the Lease, as amended hereby, beyond any applicable
period of notice and grace, Tenant shall be entitled to a one-time credit
against Tenant's obligation to pay fixed rent in the aggregate amount of One
Million Nine Hundred Sixty Thousand Hundred Dollars ($1,960,000.00) (the
"Credit"), which shall be applied against Tenant's obligation to pay fixed rent
for the period commencing on January 1, 2014 and ending on April 30, 2015.
Notwithstanding the foregoing, the Credit shall not be applied against
electricity charges, Tenant's Tax Payment, or any other item of additional rent,
all of which amounts shall be paid without abatement in accordance with the
terms of the Lease, as amended hereby. Without limiting the generality of the
foregoing, Tenant shall not be required to pay xxxxxx'x wage escalation under
Section 5.07(h) of the Original Lease accruing solely during the period from
January 1, 2014 through April 30, 2015. The Credit shall not be taken into
account in determining the annual fixed rent payable by Tenant during the
Extension Term, if the Extension Option is exercised.
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(c) Sections 2.01(b), 2.03 and 13.04 of the Original Lease shall
be amended only insofar as to provide that no portion of the Demised Premises
shall be used as a cafeteria or for the cooking and preparation of food.
(d) Section 5.01(d) of the Original Lease, as amended by paragraph
6(c) of the Third Amendment to Lease, shall be further amended as follows: (i)
"Tenant's 500 Proportionate Share" shall mean 6%, and (ii) the rentable square
foot area of the portion of the Demised Premises in the 500 Building shall be
deemed to be 36,362 square feet.
(e) Section 5.01(e) of the Original Lease shall be amended as
follows: (i) "Tenant's 512 Proportionate Share shall mean 1.1%; and (ii) the
rentable square foot area of the portion of the Demised Premises in the 512
Building shall be deemed to be 5,638 square feet.
(f) Section 5.07(g) of the Original Lease, as amended by paragraph
6(d) of the Third Amendment to Lease, shall be further amended such that the
term "Wage Rate Multiple" shall mean 42,000.
(g) Tenant shall not be required to maintain a security deposit
under the Lease, as amended hereby, and all references to a security deposit
(including the letter of credit delivered as security) in the Original Lease
shall be deemed deleted for all purposes.
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(h) Article 39 of the Original Lease shall be deleted in its
entirety.
(i) The last sentence of Section 9.04(a)(x) of the Original Lease
shall be deleted.
(j) The last sentence of Section 43.01 of the Original Lease shall
be deleted and Section 43.02 of the Original Lease shall be deleted in its
entirety.
(k) The reference to "5,000 rentable square feet" in the second
line of Section 9.11(e) of the Original Lease shall be changed to "3,000
rentable square feet."
(l) Section 11.02(a) of the Original Lease shall be amended to
require Tenant to carry insurance with liability limits of not less than Three
Million Dollars ($3,000,000).
(m) A new Section 9.05(n) shall be added to the Original Lease to
read in its entirety as follows:
"Notwithstanding anything to the contrary herein, the Credit
described in paragraph 6(b) of the Fifth Amendment to Lease shall be applicable
to whichever person is the then tenant under this Lease notwithstanding
assignment or sublease of this Lease."
7. Tenant acknowledges that effective as of the Effective Date, it will
no longer be satisfying the Occupancy Requirement.
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8. Modifying Article 32 of the Original Lease, notices to Landlord
shall be sent to Landlord to the address set forth on the first page of this
Agreement, with a copy simultaneously only of notices of default or lease
termination to Gerstein Xxxxxxx & Xxxxxxx LLP, 00 Xxxx 00xx Xxxxxx, 0xx Xxxxx,
Xxx Xxxx, Xxx Xxxx 00000, Attn: Xxxxxx Xxxxxxxx, Esq., and (b) a copy only of
notices to Tenant of default or lease termination shall be sent simultaneously
to Xxxxxx Xxxx & Xxxxxxxx LLP, 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attn:
Xxxxx Xxxxxx, Esq.
9. Provided that all requisite lender consents to this Agreement set
forth in paragraph 11 below shall have been obtained within the time period set
forth in paragraph 11 below, Tenant hereby irrevocably authorizes Landlord to
draw down in full on the Letter of Credit in the amount of Eight Million Four
Hundred Seventy-Four Thousand Three Hundred Eighty and 10/100 Dollars
($8,474,380.10) being held by Landlord as security under the Lease and to retain
and apply the entire proceeds thereof (other than the sum of Five Hundred
Forty-Seven Thousand Fifty-Eight and 50/100 Dollars ($547,058.50) thereof,
representing the entire unpaid balance of the Construction Payment due to Tenant
pursuant to the Lease, as amended hereby, which sum of Five Hundred Forty-Seven
Thousand Fifty-Eight and 50/100 Dollars ($547,058.50) shall be paid by Landlord
to Tenant out of the proceeds of the Letter of Credit immediately after
Landlord's receipt of such entire proceeds), in reimbursement of amounts
heretofore expended by Landlord on the Construction Payment and brokerage
commissions in connection with the Lease and amounts Landlord reasonably
anticipates expending in order to relet the Relinquished Space, and/or for such
other matters as Landlord may determine in its sole and absolute discretion.
Tenant confirms that provided all requisite lender consents to this Agreement
set forth in paragraph 11 below shall have been obtained, the Letter of Credit
and the entire proceeds thereof (other than the sum of Five
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Hundred Forty-Seven Thousand Fifty-Eight and 50/100 Dollars ($547,058.50) of
such proceeds, which shall be paid to Tenant as aforesaid) shall constitute the
sole, exclusive and absolute property of Landlord and Tenant shall not make a
claim that the receipt and retention of such proceeds shall constitute a
preference by Landlord. Tenant shall promptly take all appropriate action and
execute any and all authorizations, instruments and documents of any kind as may
be necessary or required to permit Landlord's draw down in full of the Letter of
Credit. Tenant has represented to Landlord that the cost of drawing down upon
the Letter of Credit does not exceed $11,000, and Landlord and Tenant shall each
bear 50% of such cost. Landlord expressly agrees that all requirements and
conditions of the Lease to payment of the balance payable to Tenant of the
Construction Payment have been met, satisfied or waived, that the balance of the
Construction Payment now due and payable by Landlord and unpaid is Five Hundred
Forty-Seven Thousand Fifty-Eight and 50/100 Dollars ($547,058.50), and that if
such balance is not paid in full to Tenant in accordance with the provisions of
this paragraph 9 and this Agreement terminates for any reason, this sentence
shall survive termination of this Agreement and Landlord shall be liable
immediately to pay said amount to Tenant. Tenant acknowledges that upon its
receipt of said sum of Five Hundred Forty-Seven Thousand Fifty-Eight and 50/100
Dollars ($547,058.50), Landlord shall have fulfilled all of Landlord's
obligations under the Lease, as amended hereby, with respect to the Construction
Payment. Landlord's timely payment to Tenant of said sum of Five Hundred
Forty-Seven Thousand Fifty-Eight and 50/100 Dollars ($547,058.50) shall be a
condition to Tenant's obligations hereunder.
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10. Not later than three (3) business days after the receipt of all
requisite lender consents described in paragraph 11 below, Landlord shall
deliver to Tenant an attornment agreement in the form of Exhibit D attached
hereto and made a part hereof in all material respects (the "Attornment
Agreement") executed by Landlord in which Landlord exercises its option,
pursuant to Section 5(a) of the Sublease and Section 3 of the consent thereto
dated as of December 3, 2001 (the "Consent"), that D&B shall attorn directly to
Landlord on the terms of the Sublease. Promptly after the execution hereof,
Tenant shall execute and shall cause D&B, as subtenant under the Sublease, to
execute the Attornment Agreement and Tenant shall deliver partially executed
counterparts of the same to Landlord upon Tenant's receipt of counterparts
thereof executed by Landlord. If requested by Landlord, Tenant shall execute and
deliver to Landlord an assignment of Tenant's interest as sublandlord under the
Sublease in form reasonably satisfactory to Landlord. Landlord represents to
Tenant that Landlord has reviewed the Sublease and the representations made by
D&B in the Attornment Agreement, is satisfied with the same, acknowledges that
Landlord is not entitled to payment by Tenant of any amounts in respect of the
Sublease under Section 9.10 of the Original Lease, and accepts Tenant's interest
as sublandlord under the Sublease without recourse to or warranty by Tenant,
except that Tenant hereby represents to Landlord that to the best of Tenant's
knowledge, all of the representations and warranties made by D&B in the
Attornment Agreement are true and correct in all material respects.
11. This Agreement and the rights and obligations of Landlord and
Tenant hereunder are conditional on Landlord's obtaining the written consent to
all of the terms of this Agreement from (i) Wachovia Bank, National Association,
and Xxxxxxx
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Xxxxx Mortgage Capital Inc., respectively, the holders of the first and second
mortgages on the 500 Building and 512 Building (collectively, "Landlord's
Mortgagees") and from (ii) Capital Trust and (iii) XX Xxxxx, each of which is a
mezzanine lender to Landlord whose consent is required for the transaction
provided for herein and which lenders collectively are all of Landlord's
mezzanine lenders and are the only persons in addition to Landlord's Mortgagees
whose consent is required for the transaction provided for herein. Landlord
shall promptly request such consents in writing, and each request shall, inter
alia, reference the Credit provided for in paragraph 6(b) hereof. Landlord shall
provide Tenant with a copy of each such consent promptly after Landlord's
receipt thereof. Notwithstanding the foregoing, if for any reason whatsoever all
such requisite written consents are not obtained within twenty (20) business
days after the date hereof, then this Agreement shall be void ab initio and of
no force or effect, and the Lease shall continue in full force and effect on all
of its terms as if this Agreement had not been entered into. Landlord shall not
be required to modify the terms of any of its existing loans or make any payment
to any of its lenders (other than customary legal and processing fees, the first
$5,000 of which shall be paid by Landlord and the balance, if any, shall be paid
50% by each of Landlord and Tenant) or commence an action against any of its
lenders in order to obtain any of the requisite consents.
12. The "Effective Date" shall be the first day on which all of the
following conditions shall have been fulfilled:
(a) Landlord shall have received all requisite lender consents
pursuant to paragraph 11 above;
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(b) D&B and Tenant shall have executed and delivered to Landlord
the Attornment Agreement in accordance with paragraph 10 above; and
(c) Landlord shall have received proceeds of the Letter of Credit
in the amount of Seven Million Nine Hundred Twenty-Seven Thousand Three Hundred
and Twenty-One and 60/100 Dollars ($7,927,321.60) payable to Landlord in
accordance with paragraph 9 above.
If for any reason the Effective Date shall not have occurred on or
before August 15, 2003, then this Agreement shall be void ab initio and of no
force or effect and the Lease shall continue in full force and effect on all of
its terms.
13. Tenant hereby covenants and represents that (i) it has not assigned
the Lease, as amended hereby, and except for the Sublease it has not sublet all
or a portion of the Demised Premises or allowed all or a portion of the Demised
Premises to be used by any third party in violation of the terms of the Lease,
(ii) it has done nothing which would give any person or entity a claim in and to
the Demised Premises and/or the Lease, as amended hereby, in violation of the
terms of the Lease, and (iii) it will not assign the Lease, as amended hereby,
or sublet all or a portion of the Demised Premises, or allow all or a portion of
the Demised Premises to be used by any third party, in each case in a manner
which is in violation of the terms of the Lease, as amended hereby, and in any
event will not sublet all or any portion of the Relinquished Space. Landlord
agrees that in determining any amount payable to Landlord under Section 9.10 of
the Lease, the amount of the Credit shall be added to "Assignment Expenses" and
to "Tenant's Basic Cost," as applicable. Landlord agrees that notwithstanding
Sections 9.02-9.04 of the Original Lease, Landlord shall not be entitled to
exercise any recapture, leaseback or
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termination right in a manner which would deprive Tenant of the opportunity to
recover from an assignee or sublessee the amount of the Credit. In order to give
effect to the preceding sentence, Landlord agrees that the following shall apply
(pro-rated in the event of a transaction involving less than the entire Demised
Premises) (i) in the event of termination of the Lease, as amended hereby,
pursuant to Section 9.02 of the Original lease, Landlord shall pay to Tenant the
dollar amount (without any present value discount) of all or any portion of the
Credit not yet enjoyed by Tenant, (ii) in the event of a leaseback by Landlord
pursuant to Section 9.02 of the Original Lease, the amount of the Credit shall
be added to the rental obligations of Landlord to Tenant, and (iii) in the event
of another or different transaction not arising out of or related to a
termination of the Lease, as amended hereby, resulting from a default by Tenant
thereunder, Landlord shall be liable to pursue its rights with respect to such
transaction only in a manner which shall not deprive Tenant of the opportunity
to recover from an assignee or sublessee the amount of the Credit.
14. Tenant acknowledges that as of the date hereof, Landlord has
complied with all of Landlord's obligations under the Lease, subject to the
matters described below in this paragraph 14, and is not in default in respect
of any of Landlord's obligations under the Lease. Landlord acknowledges that as
of the date hereof, Tenant has complied with all of Tenant's obligations under
the Lease, subject to the matters described below in this paragraph 14, and is
not in default in any of Tenant's obligations under the Lease. Notwithstanding
anything in this Agreement to the contrary, Landlord and Tenant acknowledge the
existence of an outstanding dispute between them with respect to Tenant's right
to receive payment of, or a refund or credit in respect of, a
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proportionate share of a real estate tax abatement received by Landlord for the
Tax Years 2001-2002 and 2002-2003 based on tax escalation payments made by
Tenant prior to the date of this Agreement. Landlord and Tenant both wish to
settle such dispute and, to that end and in full settlement and satisfaction of
such dispute, (i) Tenant is hereby released from Tenant's obligation to pay the
outstanding balance of the amount billed by Landlord to Tenant for Tenant's Tax
Payment for the second half installment of the 2002-2003 Tax Year (it being
understood and agreed that any amounts heretofore paid by Tenant to Landlord on
account of such installment shall be retained by Landlord), and (iii) Tenant
shall receive a one-time rent credit in the aggregate amount of $10,500 to be
applied against Tenant's monthly installment of fixed rent due under the Lease,
as amended hereby, for the month of August 2003. Such rent credit shall be in
addition to the Credit provided for in paragraph 6(b) above. Upon Tenant's
receipt of such credit in the sum of $10,500, Landlord and Tenant shall be
deemed to have released one another from any claims and demands for the
overpayment or underpayment of real estate tax escalation under the Lease, as
amended hereby, through the Tax Year ending June 30, 2003; provided, however,
that nothing contained herein shall relieve or release Tenant from its
obligation to pay Tenant's Tax Payments in respect of the 2003-2004 Tax Year and
for the balance of the term of the Lease, as amended hereby.
15. Landlord further acknowledges that it has not yet delivered to
Tenant a Subordination, Non-Disturbance and Attornment Agreement between Tenant
and Landlord's Mortgagees and Tenant hereby irrevocably withdraws its request to
receive the same from Landlord's Mortgagees, but such withdrawal shall be
without prejudice to Tenant's right under the Lease (as amended hereby) to
receive an SNDA from any future mortgagee.
-18-
16. Landlord shall have the option (the "Partial Recapture Option"),
exercisable by giving written notice to Tenant ("Landlord's Notice") at any time
during the initial term hereof, to cause Tenant to surrender the Server Room on
a date (the "Surrender Date") specified in Landlord's Notice, which Surrender
Date shall be at least 90 days after the date of Landlord's Notice. If Landlord
exercises the Partial Recapture Option, then and in such event (i) Tenant shall
surrender the Server Room free and clear of all of Tenant's employees,
subtenants, possessory rights and persons in possession, and otherwise in the
condition hereinafter set forth on or before the Surrender Date, and (ii)
effective as of the later to occur of (x) the Surrender Date, and (y) the date
upon which Tenant actually surrenders the Server Room in the condition
hereinafter set forth, (A) the Server Room shall no longer be deemed to be part
of the Demised Premises, (B) the annual fixed rent to be paid by Tenant to
Landlord under the Lease, as amended hereby, shall be reduced to One Million Two
Hundred Seventy-Two Six Hundred Seventy Dollars ($1,272,670), exclusive of
electricity, which shall be payable in equal monthly installments of One Hundred
Six Thousand Fifty-Five and 83/100 Dollars ($106,055.83), (C) the Credit shall
be reduced by an amount equal to the product of (i) a fraction (not to exceed
1.0), the numerator of which shall be an amount equal to the difference between
(x) the number of calendar months in the period from the Effective Date through
April 2015, less (y) the number of calendar months in the period from the
Effective Date through the Surrender Date, and the denominator of which shall be
the number of calendar months in the period from the Effective Date through
April 2015,
-19-
multiplied by (ii) Two Hundred Sixty-Three Thousand One Hundred Six and 67/100
Dollars ($263,106.67), (D) the Wage Rate Multiple set forth in Section 5.07(g)
of the Original Lease, as amended by paragraph 6(d) of the Third Amendment to
Lease and as further amended by paragraph 6(f) hereof, shall be reduced to
36,362, and (E) Tenant's 512 Proportionate Share shall be reduced to zero
percent (0%), the rentable square foot area of the Demised Premises in the 512
Building shall be reduced to zero, and Tenant shall no longer be required to pay
real estate tax escalation in respect of the Server Room. Landlord's Notice
shall specify whether Tenant shall (i) surrender the Server Room in its then
"as-is" condition as of the date specified in Landlord's Notice, or (ii)
demolish the Server Room, at Tenant's expense, substantially in accordance with
Landlord's building-standard demolition requirements, and in either event Tenant
shall promptly perform the work specified in Exhibit C annexed hereto
specifically required to be performed after Tenant's surrender of the Server
Room. Tenant shall surrender the Server Room in the condition specified in
Landlord's Notice, but in either case, (x) Tenant shall be entitled to remove
its computers and computer data, server, racks and storage equipment and related
peripherals and accessories from the Server Room, and (y) Tenant shall surrender
the Server Room to Landlord free of all debris and free of all hazardous
materials installed by Tenant.
17. This Agreement, together with the Lease, constitutes the entire
Agreement of the parties hereto with respect to the matters stated herein, and
may not be amended or modified unless such amendment or modification shall be in
writing and shall have been signed by the party against whom enforcement is
sought.
-20-
18. As modified hereby, all of the terms, covenants and conditions of
the Lease shall remain in full force and effect and are hereby ratified and
confirmed in all respects. Each party hereto hereby irrevocably and
unconditionally submits to the jurisdiction of a Court in the State of New York,
County of New York.
19. Landlord and Tenant each represents and warrants to the other that
it neither consulted nor negotiated with any broker or finder with respect to
this Agreement other than Newmark & Company Real Estate, Inc. ("Newmark") and
Xxxxxxx & Xxxxxxxxx, Inc. Landlord agrees to indemnify, defend and save Tenant
harmless from and against any and all liability, damages, settlement payments,
costs and expenses (including, without limitation, legal fees and disbursements
incurred in defending any claim or action or in enforcing this indemnity),
incurred by Tenant as a result of or in connection with any claim, demand or
action for fees or commissions from anyone other than Xxxxxxx & Wakefield, Inc.
with which Landlord has dealt in connection with this Agreement. Tenant agrees
to indemnify, defend and save Landlord harmless from and against any and all
liability, damages, settlement payments, costs and expenses (including, without
limitation, legal fees and disbursements incurred in defending any claim or
action or in enforcing this indemnity), incurred by Landlord as a result of or
in connection with any claim, demand or action for fees or commissions from
anyone other than Newmark with which Tenant has dealt in connection with this
Agreement. Landlord represents to Tenant that no fee is due to Newmark in
connection with this Agreement. Tenant represents to Landlord that no fee is due
to Xxxxxxx & Xxxxxxxxx, Inc. in connection with this Agreement.
-21-
20. This Agreement shall be construed and governed by the laws of the
State of New York.
21. No waiver by either party of any failure or refusal by the other
party to comply with its obligations hereunder shall be deemed a waiver of any
other or subsequent failure or refusal to so comply.
22. If any provision of this Agreement shall be invalid or
unenforceable, the remainder of this Agreement or the application of such
provision other than to the extent that it is invalid or unenforceable shall not
be affected, and each provision of this Agreement shall remain in full force and
effect notwithstanding the invalidity or unenforceability of such provision, but
only to the extent that application and/or enforcement, as the case may be,
would be equitable and consistent with the intent of the parties in entering
into this Agreement.
23. This Agreement shall be binding upon and inure to the benefit of
the parties hereto and their respective legal representatives, successors and
permitted assigns.
24. This Agreement shall not be binding upon the parties hereto until
this Agreement has been executed and delivered by each of the parties hereto.
25. It is agreed by and between the parties that this Agreement is the
result of extensive negotiations between the parties and that both parties shall
be deemed to have prepared this Agreement and any ancillary documents, in order
to avoid any negative inference by any court as against the preparer of this
Agreement. This Agreement supersedes and revokes all previous negotiations,
arrangements, representations and information, whether oral or in writing,
between Landlord and Tenant and their respective representatives or any other
person purporting to represent Landlord or Tenant with respect to the subject
matter hereof. This Agreement may be executed in one or more facsimile
counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument.
-22-
26. The submission by Landlord of this Agreement for execution by
Tenant shall have no binding force or effect on Landlord unless and until
Landlord shall have executed this Agreement and a counterpart thereof shall have
been delivered to Tenant.
27. Capitalized terms used but not expressly defined herein shall have
the meanings ascribed to them in the Original Lease.
28. This Agreement shall not be recorded.
[The balance of this page has been left blank intentionally]
-23-
29. Each party hereto represents to the other that it is duly
authorized to execute and deliver this Agreement and to perform the transactions
provided for herein.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the day and year first above written.
000-000 XXXXXXX XXXXXX LIMITED
PARTNERSHIP
By: 000-000 XXXXXXX XXXXXX XX LLC
By: /s/ Xxxxx Xxxxxxx
-------------------------------------------
Name: Xxxxx Xxxxxxx
Title: President
AND
By: /s/ Xxxxxx Xxxxxxxx
-------------------------------------------
Name: Xxxxxx Xxxxxxxx
Title: Vice President
iVILLAGE INC.
By: /s/ Xxxxxx X. Xxxxx
-------------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Executive Vice President, Operations
and Business Affairs
-24-
EXHIBIT A
[Floor plan describing the Server Room and the 12th Floor of the 512 Building]
EXHIBIT B
ITEMS IVILLAGE WILL BE REMOVING FROM
000 0XX XXX FLOODS 12 AND 13
SEE ATTACHED FLOOR PLANS FOR LOCATIONS LISTED BELOW
LOCATION* FLOOR ITEM
--------- ----- ----
Conference Rooms 13 iVillage will take 1 PC 1VCR and 1
television - (1 conference room table, 10
chairs 1 TV cabinet, 1 side table will stay)
Pantry 13 iVillage will be taking 2 vending machines,
1 water cooler, 2 coffee machines and all
supplies and small appliances on the
counters and in cupboard (iVillage will not
be taking the refrigerator, 2 microwaves or
dishwasher)
Hallways/Reception 13 iVillage will take all artwork, accessories,
plants, signs, pictures and decorations
Filing Cabinets 13 All 5, 3 & 2 drawer file cabinets (total of
70 cabinets)
CopyRoom 13 Self standing shelving from storage
cabinets, supplies and 2 copy machines, all
office supplies, all stationary, etc
Offices 13 All whiteboards, and corkboards
Offices 13 Up to 10 offices full of furniture (10
desks, 20 side chairs, 10 credenzas, 10 desk
chair, 20 file cabinets, 10 bookcases) ALL
of the systems furniture (cubicles), round
tables and desk chairs and at least 11
complete offices full of furniture will stay
on the floor
Security Closet 12 Security System (computer hardware,
software, security system, including 5
Cameras located on the 13th)
Pantry 12 iVillage will be taking 2 vending machines,
1 water cooler, 2 coffee machines and all
supplies and small appliances on the
counters and in cupboard (iVillage will not
be taking the refrigerator, 2 microwaves or
dishwasher)
Conference Rooms 12 iVillage will take 1 PC 1VCR and 1
television - (1 conference room table, 10
chairs, 1 TV cabinet, 1 side table will
stay)
Telephone Room 12 iVillage will be taking all desks, shelving
and storage cabinets,1 Lucent PBX Phone
System,1 Lucent Voicemail System, 1UPS for
PBX Phone System, all spare Lucent Phones
and all telephone equipment
NOTWITHSTANDING THE ABOVE, AT A MINIMUM, EACH OFFICE, CUBICLE AND WORK STATION
SHALL BE EQUIPPED WITH A DESK AND AT LEAST ONE CHAIR.
2
EXHIBIT C
Tenant's Required Work
1. Work Required Pursuant to Section 2(b):
--------------------------------------
a. Separate all multi-floor and multi-building mechanical and HVAC systems,
electrical, telecommunications, utility and other systems (except as
provided in Section 2 below), specifically:
00xx Xxxxx, 000 Xxxxxxx Xxxxxx
------------------------------
o In-fill with concrete block (2 each) existing passageways between
the 14th floor of 000 Xxxxxxx Xxxxxx and the 13th floor of 000
Xxxxxxx Xxxxxx to separate these floors/buildings;
o Finish in-filled openings with fire rated gypsum wall board to
finish flush with existing walls; tape and spackle same, paint to
match existing walls; and
o In-fill and fire stud (2 each) poke through locations in the slab
between 13th floor and 12th floor of 000 Xxxxxxx Xxxxxx.
12th Floor, 000 Xxxxxxx Xxxxxx
------------------------------
o Disconnect power serving computer racks in server room from 13th
floor; and
o Disconnect redundant power source from 13th floor to air
conditioning units, leaving one power source to serve unit.
000 Xxxxxxx Xxxxxx
------------------
o Disconnect all redundant power to 000 Xxxxxxx Xxxxxx universal power
source (UPS) from 000 Xxxxxxx Xxxxxx; and
o Disconnect all redundant power to 000 Xxxxxxx Xxxxxx mechanical
units from 000 Xxxxxxx Xxxxxx.
b. On the 12th Floor of 000 Xxxxxxx Xxxxxx, perform such work as is necessary to
permit Landlord to create a pass-through between the "A" and "B" sections of
such floor in the future at Landlord's option by continuing the existing
corridor in the "A" section formerly leased by Tenant up to the existing
demising wall separating the "A" and "B" sections. Landlord and Tenant
acknowledge and agree that this project involves removing the existing doors to
the electrical closet in such corridor, finishing the walls, flooring and
ceiling that will constitute such corridor, reducing and renovating the existing
men's bathroom, removing and relocating certain electrical equipment in the
corridor, and creating a new small electrical closet for such equipment. All
such work shall be performed by Tenant in accordance with applicable building
codes, rules and regulations and the terms of the Lease. Notwithstanding the
foregoing, Tenant shall not be required to break the existing demising wall
between the "A" and "B" sections of such floor or create a finished pass-through
corridor. Landlord, at its own option and expense, shall be responsible for
creating a finished pass-through once Tenant has performed the work set forth
above.
2. Work Required Pursuant to Section 16: In addition to the other work set forth
------------------------------------
in Section 16, upon Landlord's exercise of the Partial Recapture Option, Tenant
shall also remove and terminate any cabling from 000 Xxxxxxx Xxxxxx to 000
Xxxxxxx Xxxxxx within the time frame set forth in such Section 16.
Landlord agrees to provide access to, or the right to use thereafter, any riser
space or common areas necessary in order to complete the work set forth in this
Exhibit C.
Tenant agrees to surrender the Relinquished Space (other than the eleventh floor
of the 512 Building which is subject to the provisions of the Sublease with D&B)
broom clean, free of debris and free of any hazardous materials installed by
Tenant.
2
EXHIBIT D
D&B Attornment Agreement
This Agreement dated as of June 30, 2003 by and among Dun & Bradstreet,
Inc., a Delaware corporation having an office at 000 XXX Xxxxxxx, Xxxxx Xxxxx,
Xxx Xxxxxx 00000 ("Subtenant"), iVillage Inc., a Delaware corporation having an
office at 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 ("Tenant"), and 000-000
XXXXXXX XXXXXX LIMITED PARTNERSHIP, a New York limited partnership having an
office x/x Xxx Xxxxxxx Xxxxx, XXX, Xxxxx 0 West, 000 Xxxx 00xx Xxxxxx, Xxx Xxxx,
Xxx Xxxx 00000 ("Landlord").
W I T N E S S E T H :
- - - - - - - - - -
Whereas, Landlord is the landlord and Tenant is the tenant under that
certain Agreement of Lease dated as of March 14, 2000 (the "Original Lease"), as
amended by (i) that certain First Amendment to Lease dated as of June 7, 2000,
(ii) that certain Second Amendment to Lease dated as of January 10, 2001, (iii)
that certain Third Amendment to Lease dated as of October 17, 2001, (iv) that
certain Fourth Amendment to Lease dated as of December 3, 2001, and that certain
Fifth Amendment to Lease dated as of the date hereof (the "Fifth Amendment to
Lease"), and as supplemented by a letter agreement between Landlord and Tenant
dated as of December 23, 2002 (the Original Lease, as amended and supplemented,
being hereinafter referred to as the "Lease").
Whereas, pursuant to the Lease, Landlord leased to Tenant, and Tenant
leased from Landlord, the entire rentable area of the fourteenth (14th) floor in
the building located at 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx (the "500
Building") and the entire rentable area of the eleventh (11th), twelfth (12th)
and thirteenth (13th) floors in the Building located at 000 Xxxxxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx (the "512 Building") (collectively, the "Demised Premises").
Whereas, Tenant is the sublandlord and Subtenant is the subtenant under
that certain Sublease dated as of October 2001 pursuant to which Subtenant
subleased from Tenant the entire rentable area of the eleventh (11th) floor in
the 512 Building") (the "Sublet Premises").
Whereas, Landlord consented to the Sublease pursuant to that certain
consent to sublease dated as of December 3, 2001 (the "Consent") between
Landlord, Tenant and Subtenant.
Whereas, Landlord and Tenant have agreed to terminate Tenant's lease
and tenancy under the Lease with respect to a portion of the Demised Premises
which includes the Sublet Premises as of the "Effective Date" as defined in the
Fifth Amendment to Lease (the "Transition Date").
Whereas, Section 5(a) of the Sublease and Section 3 of the Consent
provide that in the event of such termination, Landlord may, at its option,
succeed to the interest of Tenant under the Sublease and cause Subtenant to
attorn directly to Landlord under the Sublease, and Landlord has elected to
exercise said option.
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt and sufficiency whereof are hereby
acknowledged, the parties hereto hereby agree as follows:
1. As of the Transition Date, Landlord is the sublandlord under the
Sublease as to the Subleased Premises, Subtenant agrees to attorn directly to
Landlord as the sublandlord under the Sublease, to make all payments that it is
required to make under the Sublease to Landlord, and otherwise to perform the
Sublease in accordance with its terms, and Tenant is released and relieved of
any and all liability under or in respect of the Sublease accruing prior to the
Transition Date.
2. Notwithstanding the foregoing, Subtenant agrees that Landlord shall
not (i) be liable for any prepayment of more than one (1) month's rent or any
security deposit paid by Subtenant under the Sublease (except to the extent such
security deposit is assigned and delivered by Tenant to Landlord), (ii) be
liable for any defaults of Tenant as sublandlord under the Sublease, (iii) be
subject to any defenses or offsets accrued prior to such attornment which
Subtenant may have against Tenant as sublandlord under the Sublease, or (iv) be
bound by any changes or modifications made to the Sublease without the written
consent of Landlord. Subtenant hereby represents and warrants to Landlord and to
Tenant that as of the date hereof (i) Subtenant has not paid any rent under the
Sublease for more than the current month due and payable, nor has Subtenant paid
or deposited any security deposit under the Sublease, (ii) there are no defaults
by Tenant as sublandlord under the Sublease, (iii) Subtenant has no defenses or
offsets accrued against Tenant as sublandlord under the Sublease and knows of no
events which, with the giving of notice or the passage of time, would constitute
a default by Tenant under the Sublease, (iv) Subtenant has not entered into any
changes or modifications to the Sublease and a true and complete copy of the
Sublease is attached hereto, (v) Subtenant is in occupancy of the Sublet
Premises (subject, as to a portion of the Sublet Premises, to that certain Space
Sharing Agreement made as of May 1, 2001 and the Consent thereto by Landlord
made as of December 3, 2001 and Subtenant has not given any notice to Tenant of
Subtenant's intention to vacate the Sublet Premises, (vi) the Sublease is in
full force and effect, (vii) Subtenant is not entitled to any free rent, rent
credit, rent abatement or work contribution under the Sublease; (viii) Tenant
has completed all of the work at or to the Sublet Premises required to be
performed by Tenant under the Sublease, and (ix) the annual fixed rent under the
Sublease is Six Hundred Fourteen Thousand Four Hundred Sixty Dollars
($614,460.00), exclusive of electricity.
3. Landlord, Tenant and Subtenant hereby acknowledge and agree that
Landlord's and Subtenant's respective rights and obligations under the Sublease
shall not be increased, reduced, impaired or affected as a result of the
modification of the Lease pursuant to the Fifth Amendment to Lease being entered
into concurrently herewith; provided, however, that Sections 3(g) and 5(b)(10)
of the Sublease shall be of no further force or effect.
2
4. Notices to Subtenant shall be sent to 000 XXX Xxxxxxx, Xxxxx Xxxxx,
Xxx Xxxxxx 00000, Attention: Real Estate Department, with a copy to Subtenant at
the Sublet Premises. Notices to Landlord shall be sent to the address in the
first paragraph hereof, with a copy to Xxxxxx Xxxxxxxx, Esq., Gerstein, Xxxxxxx
& Xxxxxxx, LLP, 00 Xxxx 00xx Xxxxxx, 0xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000.
5. This Agreement shall be of no force or effect until it has been
executed and delivered by all parties hereto. This Agreement may be entered into
in counterparts, and such counterparts shall have the same force as if each
party had signed the same single instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the day and year first above written.
000-000 XXXXXXX XXXXXX LIMITED
PARTNERSHIP
By: 000-000 XXXXXXX XXXXXX XX LLC
By:
------------------------------------
Name: Xxxxx Xxxxxxx
Title: President
AND
By:
------------------------------------
Name:
Title: Vice President
iVILLAGE INC.
By:
------------------------------------
Name:
Title:
DUN & BRADSTREET, INC.
By:
------------------------------------
Name:
Title:
3
