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Exhibit 10.4
LICENSE AGREEMENT
LICENSE AGREEMENT, dated as of February 1, 1997, between ICAHN
ASSOCIATES CORP. ("Licensor"), having an address at 000 Xxxxx Xxxxxx, Xxx Xxxx,
Xxx Xxxx 00000, and GLOBAL TRAVEL MARKETING SERVICES INC. ("Licensee"), having
an address at 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000.
The parties agree with each other as follows:
1. The Master Lease and the Subleased Premises
(a) Licensor is the tenant under the Sublease dated July 31,
1996 ("Master Lease") between KPMG Peat Marwick LLP, as landlord, and Icahn
Associates Corp., as tenant. KPMG Peat Marwick LLP is referred to herein as
"Landlord". The Master Lease is incorporated into this Agreement as if set forth
herein in its entirety.
(b) The Master Lease relates to a portion of the 47th floor
(the "Subleased Premises") of the building known as 000 Xxxxx Xxxxxx, Xxx Xxxx,
Xxx Xxxx (the "Building"). The Subleased Premises are more specifically
described in the Master Lease.
(c) Except as specifically set forth below, Licensee, with
respect to the Licensed Premises (as hereinafter defined), the Common Facilities
(as hereinafter defined) and all other portions of the Building used by
Licensee, shall be bound by and comply with all of the covenants and obligations
of the Tenant under the Master Lease. The terms "Landlord" and "Tenant" under
the Master Lease shall mean the Licensor and Licensee, respectively. All
references in the Master Lease to the term "Commencement Date" shall, for
purposes hereof, be deemed to refer to the Commencement Date as defined herein.
All references in the Master Lease to the "Subleased Premises" shall, for
purposes hereof, be deemed to be references to the Licensed Premises and the
Common Facilities, except as specifically set forth below.
2. Licensed Premises, Common Facilities, Access Areas
(a) Licensor hereby grants to Licensee (i) a nonexclusive
license to use the portion of the Subleased Premises consisting of approximately
3,696.63 rentable square feet, including secretarial areas and storage areas,
which the parties agree comprises 17.5% of the Subleased Premises (the "Licensed
Premises") as
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designated on Exhibit A, attached hereto and made a part hereof, (ii) a
nonexclusive license to use the "Common Facilities" as more fully described in
Section 4 of this Agreement, and (iii) a nonexclusive easement for access to and
from the Common Areas and the Licensed Premises over the adjacent corridors
within the Subleased Premises. Licensor and Licensee agree that the license
hereby granted to Licensee shall not be revoked at will, and may only be
canceled in accordance with its terms or pursuant to an express agreement of the
parties.
(b) During the term of this Agreement, Licensee, its employees
and invitees, shall have (i) a nonexclusive license to use the "Common
Facilities" and (ii) as granted to Licensor in the Master Lease, the
non-exclusive right to use in common with others the lobbies, elevators
(including freight elevators), lavatories and other public portions of the
Building and the common bathrooms on the 47th floor of the Building. Licensor
reserves the right for itself and in common with its legal representatives,
successors and assigns, subtenants (if any), other licensees (if any) and their
respective partners, officers, directors, employees, agents and invitees to use
the Common Facilities in common with Licensee. The "Common Facilities" shall be
the areas designated from time to time by Licensor as (i) the reception area,
(ii) the coat closet, and (iii) the copier room/pantry, and the furnishings and
equipment located in such areas (whether owned by Licensee or Licensor or any
subtenant or other licensee of Licensor). Licensor reserves the right to change,
alter, eliminate, restrict or remove the Common Facilities and Licensor's
personal property located therein (if any), from time to time; provided,
however, that no such change, alteration, elimination, restriction or removal of
the Common Facilities shall materially adversely affect Licensee's access to the
Licensed Premises or materially diminish Licensee's ability to use the Licensed
Premises, and to the extent that any Common Facilities shall be eliminated,
restricted or removed, the Rent hereunder shall be equitably adjusted.
(c) Licensee, its partners, employees and invitees, legal
representatives and successors and permitted assignees, shall have a
nonexclusive easement to use the "Access Areas" during the term of this
Agreement. Licensor reserves the right for itself and in common with legal
representatives, successors and assigns, subtenants (if any), other licensees
(if any) and their respective partners, officers, directors, employees, agents
and invitees to use the Access Areas in common with Licensee. The "Access Areas"
shall be the corridors and other areas of the Subleased Premises adjacent to the
rooms comprising the Licensed Premises and the Common Facilities. Licensor
reserves the right to change, alter, eliminate, restrict or remove the Access
Areas and the personal property located therein; provided, however, that no such
change, alteration, elimination, restriction or removal of the Access Areas
shall materially adversely affect Licensee's access to the Licensed Premises or
materially diminish Licensee's ability to use the Licensed Premises, and to the
extent
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that any Access Areas shall be eliminated, restricted or removed, the Rent
hereunder shall be equitably adjusted.
(d) From time to time and upon not less than sixty (60) days
notice to Licensee, Licensor may recapture one or more portions of the Licensed
Premises (each, a "Recaptured Portion"). If Licensor shall exercise its right of
recapture, (i) Licensee shall vacate the Recaptured Portion by the date
specified in Licensor's notice and the Recaptured Portion shall thereafter be
excluded from the Licensed Premises and all Rent (as hereinafter defined)
payable hereunder shall be equitably adjusted; provided, however, that if the
portion of the Licensed Premises which remains shall be insufficient for
Licensee's operations at the Licensed Premises, then Licensee may elect to
vacate the entire Licensed Premises and the Licensed Premises so vacated shall
be deemed to be the Recaptured Portion hereunder, (ii) the portion of the
Construction Payment (as hereinafter defined) made by Licensee to Licensor
hereunder which is equitably attributable to the Recaptured Portion shall be
adjusted so that Licensee shall have paid with respect to the Recaptured Portion
for only the number of days (the "Use Period") from the Commencement Date
through the later of (x) the date Licensee shall have vacated the Recaptured
Portion and (y) the date specified in Licensor's notice, and Licensor shall
promptly thereafter remit to Licensee the portion of the Construction Payment
previously paid by Licensee to Licensor which is equitably attributable to the
Recaptured Portion for the period from the day after the last day of Licensee's
Use Period through the end of the term of this Agreement, and (iii) if the
Recaptured Portion shall result in Licensee moving its entire operation from the
Licensed Premises, Licensor shall reimburse Licensee for Licensee's actual,
reasonable moving costs.
(e) From time to time and upon not less than sixty (60) days
notice to Licensor, Licensee may surrender one or more portions of the Licensed
Premises (each, a "Surrendered Portion"). If Licensee shall exercise its right
of surrender, (i) Licensee shall vacate the Surrendered Portion by the date
specified in Licensee's notice and the Surrendered Portion shall thereafter be
excluded from the Licensed Premises and all Rent (as hereinafter defined)
payable hereunder shall be equitably adjusted, and (ii) the portion of the
Construction Payment (as hereinafter defined) made by Licensee to Licensor
hereunder which is equitably attributable to the Surrendered Portion shall be
adjusted so that Licensee shall have paid with respect to the Surrendered
Portion for only the number of days (the "Use Period") from the Commencement
Date through the later of (x) the date Licensee shall have vacated the
Surrendered Portion and (y) the date specified in Licensee's notice, and
Licensor shall promptly thereafter remit to Licensee the portion of the
Construction Payment previously paid by Licensee to Licensor which is equitably
attributable to the Surrendered Portion for the period from the day after the
last day of Licensee's Use Period through the end of the term of this Agreement.
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(f) If as a result of Licensor's default beyond applicable
notice and/or cure periods, if any, under the Master Lease, Licensee shall
surrender the Licensed Premises or be evicted from the Licensed Premises, the
Licensed Premises as so vacated or surrendered shall be deemed to be the
Recaptured Portion for purposes of Section 2(d) above, as if Licensor shall have
elected to recapture the Licensed Premises, and, in addition to any other rights
under this Agreement, at law or in equity, Licensor shall promptly remit to
Licensee the Construction Payment calculated with respect thereto as set forth
in Section 2(d) above and Licensor shall reimburse Licensee for Licensee's
actual, reasonable moving costs.
3. Use of Premises
(a) The Licensed Premises shall be used as and for executive
and general offices in connection with Licensee's conduct of Licensee's business
and for no other purpose.
(b) On the Commencement Date (as hereinafter defined) Licensee
agrees to take possession of the Licensed Premises in its then current
condition, "as is". No furniture or furnishings will be provided by Licensor,
except for general office furniture, counters and cabinets as presently exists
or as Licensor, it its sole discretion, shall elect to provide at the
Commencement Date.
4. Use of Facilities
(a) Licensee shall not change, alter, modify or eliminate any
cable, xxxx or connection panel without the prior written consent of Licensor.
Subject to the provisions of Section 6, Licensee shall at Licensee's own cost
and expense, supply its own telephone equipment and telephone handsets and
arrange for telephone service with the telephone company serving the Subleased
Premises. Licensee shall pay directly to the telephone company all charges
incurred for its use of such telephone service. Notwithstanding the foregoing,
Licensor may, but shall not be obligated to provide, telephone equipment and/or
telephone services, the cost of which shall be allocated as provided for in
Section 6.
(b) Licensor may, but shall not be obligated to provide,
clerical, receptionist, secretarial or other personnel services to Licensee, the
cost of which shall be allocated as provided for in Section 6.
(c) Promptly after the execution and delivery of this
Agreement, Licensee shall remit to Licensor the sum of $699,019 (the
"Construction Payment") representing the costs (net of the "Allowance" as
defined on the Master Lease) to construct, decorate and furnish the Subleased
Premises.
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5. Term
(a) The term of this Agreement shall commence on the
"Commencement Date" and shall end on the "Expiration Date", unless earlier
terminated as hereinafter set forth. The "Commencement Date" of the term shall
be the earlier of (i) the date Licensee first occupies the Licensed Premises, or
(ii) March 1, 1997. The "Expiration Date" of the term shall be May 22, 2004, or
such earlier date upon which the term may expire or be terminated in accordance
with the terms hereof or upon which date the term of the Master Lease shall
expire or be terminated in accordance with the terms of the Master Lease.
(b) If in accordance with and subject to Paragraph 1(a) of the
Sublease Licensor shall be able to and shall elect to renew the term of the
Sublease, then and in such event Licensor shall give notice thereof to Licensee
and Licensee may renew the term of this Licensee Agreement on such terms and
conditions as Licensor and Licensee shall mutually agree, and each party agrees
to promptly thereafter enter into good faith negotiations to establish the terms
of the renewal. If this License Agreement shall have been previously terminated,
or if Licensor and Licensee shall not agree to the terms of the renewal within
sixty (60) days after the date of Licensor's notice, then Licensee's option to
renew shall be null and void and of no further force or effect.
6. Rent
(a) "Rent" shall include "Minimum Rent" and "Additional Rent".
Rent shall be payable to Licensor at c/o Icahn & Co., Inc., Xxx Xxxx Xxxxxx
Xxxxx, Xxx Xxxx, Xxx Xxxx 00000 (or at such other address as Licensor shall
specify by notice to Licensee) without notice, demand or set off, except as
expressly provided in this Agreement.
(b) "Minimum Rent" shall be payable at the annual rate of
$213,474.32 and shall be payable in equal monthly installments of $17,789.53 in
advance on the first day of each and every month commencing on September 15,
1997. Minimum Rent for September 1997 shall be due on September 15, 1997 and
shall be prorated for such partial month. The Minimum Rent includes a charge of
$2.75 per rentable square foot of the Licensed Premised (subject to increase in
accordance with Article 15 of the Xxxxxxxxx (the "Electric Energy Sum")) as the
value of electricity furnished to the Licensed Premises.
(c) Licensor's proportionate share, as tenant under the Master
Lease (defined in the Master Lease as "Tenant's Pro Rata Share") is equal to
32.7133%
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of Landlord's additional rent. Licensee shall pay, as additional rent
("Additional Rent") within 5 days after demand, (i) Licensee's Proportionate
Share (as hereinafter defined) of Tenant's Pro Rata Share for all items of
"Additional Rent" (as defined in the Master Lease) which are payable by Licensor
pursuant to the Master Lease, (ii) Licensee's Proportionate Share of "Tenant
Surcharges" (as defined in the Master Lease), provided, however, that (A)
Licensee shall pay 100% of Tenant Surcharges incurred at the request of Licensee
solely for Licensee's benefit, (B) Licensee shall pay Licensee's ratable share
of Tenant Surcharges incurred at the request of Licensee or consented to by
Licensee which benefit Licensee and/or the Licensed Premises together with other
occupants of the Subleased Premises, and/or other portions of the Subleased
Premises, and (C) Licensee shall not be required to pay any portion of Tenant
Surcharges which do not benefit Licensee or any portion of the Licensed
Premises, Common Facilities or Access Areas, unless expressly requested by
Licensee and (iii) Licensee's Proportionate Share of expenses with regard to
services as indicated in Section 4 hereof, if any, incurred at the request of
Licensee or consented to by Licensee, provided by Licensor for the benefit of
Licensor, Licensee, and other licensees or subtenants at the Subleased Premises,
provided, however, that Licensee shall pay 100% of costs incurred by Licensor
for services provided to Licensee at Licensee's request. "Licensee's
Proportionate Share" is 17.5%.
(d) If the Commencement Date or the Expiration Date shall be
other than the first day of a month, Rent shall be apportioned accordingly.
(e) If Licensor shall receive a refund from Landlord which
includes any amounts for which Licensee shall have paid Additional Rent or
Tenant's Surcharges to Licensor, Licensor shall retain out of such refund its
actual out-of-pocket costs and expenses payable to independent third parties, if
any, of obtaining such refund including but not limited to reasonable attorneys'
fees and disbursements, and shall then pay to Licensee promptly after receipt of
such refund from Landlord the portion of the remainder of such refund which is
equitably attributable to amounts paid by Licensor as Additional Rent or
Tenant's Surcharges hereunder.
7. Events of Default
The provisions of Paragraph 4 of the Master Lease specifically
apply as between Licensor and Licensee. In addition, any act or omission of
Licensee, its employees, agents or invitees, which causes Licensor, as tenant
under the Master Lease, to fail to have performed or observed the terms of the
Master Lease shall be an Event of Default under this Agreement. The occurrence
of an Event of Default shall permit Licensor to exercise any and all of the
rights granted to "Landlord" upon the occurrence of an Event of Default under
the Master Lease, including but not limited to
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the rights and remedies afforded under the Xxxxxxxxx (as defined in the Master
Lease) as and to the extent incorporated by reference into the Master Lease.
8. Signs
Subject to the requirements of the Master Lease, including
approval of the Landlord thereunder, and subject to Licensor's prior written
consent and approval, which consent shall not be unreasonably withheld or
delayed, Licensee shall be entitled to one directory listing and listing in the
elevator directories, if available, and at Licensee's request, Licensor shall
request that the Landlord list Licensee's name on the building directory and on
the elevator directories, if any, of elevators servicing the Subleased Premises.
All charges, if any, for Licensee's signs and directory listings shall be at
Licensee's sole cost and expense, including, without limitation, all charges of
Landlord therefor.
9. Alterations
Licensee shall make no alterations, additions, installations,
improvements, decorations or changes of any nature to the Licensed Premises, the
Common Facilities or to the Access Areas, without in each and every instance
receiving Licensor's prior written approval, which, except as set forth in the
next sentence, may be withheld in Licensor's sole discretion. Licensor's
approval with respect to decorative changes in the Licensed Premises which do
not require construction type alterations shall not be unreasonably withheld or
delayed.
10. Surrender of Premises
Prior to the Expiration Date (or any earlier termination
date), Licensee shall, at Licensee's sole cost and expense, (a) surrender the
Licensed Premises (other than any portion occupied by Licensor) in its original
condition as on the Commencement Date, subject to ordinary wear and tear and
such changes as shall be approved by Licensor hereunder, and subject to damage
by condemnation, fire or other casualty and (b) remove all of Licensee's signs
and restore any damage caused thereby. The provisions of the preceding sentence
shall survive the expiration or termination of this Agreement.
11. Insurance and Indemnity
(a) Licensee shall carry, in favor of Licensor, Landlord, the
Over landlord (as defined in the Master Lease), the ground lessor and all
mortgagees, insurance of the same types and in the same amounts as required to
be carried by Licensor as tenant under the Master Lease. In addition, Licensee
shall maintain
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workers' compensation and employee disability insurance as required by law. All
insurance required to be carried by Licensee shall comply with the provisions of
the Master Lease, and shall provide that such insurance shall not be canceled or
materially amended without at least 30 days prior written notice to Licensor and
all named insureds.
(b) Licensee shall indemnify and hold Licensor harmless from
and against all claims, loss, damage and liability (including attorneys' fees
and disbursements incurred in defending against any such claims, loss, damage
or liability or in enforcing the provisions of this indemnity) arising from (i)
the negligent or intentional acts or omissions of Licensee, its contractors,
agents, employees, licensees and invitees, (ii) the use or occupancy by
Licensee, its partners, employees, licensees, invitees, agents or contractors of
(1) the Licensed Premises, (2) the Common Facilities, (3) the Access Areas, (4)
any portion of Licensor's premises at the Building to which Licensee, its
partners, employees, licensees, invitees, agents or contractors are afforded
access, and (5) the common areas of the Building and (iii) the failure of
Licensee to vacate the Licensed Premises on the Expiration Date or at such
earlier time as shall be required hereunder.
(c) Licensor shall indemnify and hold Licensee and its
partners harmless from and against all claims, loss, damage and liability
(including attorneys' fees and disbursements incurred in defending against any
such claims, loss, damage or liability or in enforcing the provisions of this
indemnity) arising from (i) the negligent or intentional acts or omissions of
Licensor, its contractors, agents, employees and invitees, and (ii) the use or
occupancy by Licensor, its partners, employees, invitees, agents or contractors
(but not use or occupancy by licensees, subtenants or other occupants of the
Subleased Premises, or their respective partners, employees, licensees,
invitees, agents or contractors) of (1) the Licensed Premises, (2) the Common
Facilities, (3) the Access Areas, (4) any portion of Licensor's premises at the
Building to which Licensor, its partners, employees, licensees, invitees, agents
or contractors are afforded access, and (5) the common areas of the Building.
12. Master Lease Provisions
(a) The following terms of the Master Lease shall not apply to
the relationship between Licensor and Licensee:
Paragraphs 1, 2(a), 2(b), 2(c), 5, 7, 8, 13, 14, 17, 18(b),
21, 24, 25, Exhibits A, B, C;
(b) The following terms of the Master Lease, shall apply only
to the extent specified and/or modified below:
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(i) Paragraph 2(d), 2(e), 2(f), 2(g), 2(h) and 2(i)
shall be constructed together with and as modified by Section 6 of this
Agreement;
(ii) Paragraph 9 shall be construed so that the term
"Tenant" under the Xxxxxxxxx shall mean Licensee hereunder, and the term
"Landlord" in the Xxxxxxxxx shall mean "Overlandlord" with respect to any
reference in which the Master Lease retains the reference to Overlandlord;
(iii) the reference in the last sentence of Paragraph
9(c) to "21,123" shall be deemed to apply to the Subleased Premises;
(iv) Paragraph 10(a) shall be applicable to this
Agreement only to the extent that Licensee shall be entitled to receive
Licensee's Proportionate Share of the amounts actually received by Licensor from
Landlord, if, as and when received, if any, and such amounts shall be in lieu of
any payment by Licensor to Licensee under Section 2(d) or 2 (e) of this
Agreement;
(v) Paragraph 10(g) shall be construed so that the
term "Xxxxxxxxx" shall refer to the Master Lease, and the term "Sublease" shall
refer to this Agreement;
(vi) Paragraph 17 shall be construed so that the term
"Xxxxxxxxx" shall refer to the Master Lease; and
(vii) the first sentence of Paragraph 26 shall not apply
to this Agreement.
(c) Licensor shall not be required to furnish any services to
the Licensed Premises in excess of the services supplied by Landlord, unless
specifically set forth to the contrary in this Agreement. Rent payable under
this Agreement shall not xxxxx as a result of the failure of Landlord to furnish
any service or perform any covenant under the Master Lease. Licensee shall be
entitled to its proportionate share of any rent abatement afforded to the
Licensor under the Master Lease.
(d) Licensee may peaceably and quietly have, hold and enjoy
the premises hereby licensed, subject, nonetheless, to the terms and conditions
of this Agreement.
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(e) This Agreement is subject and subordinate to the Master
Lease as it may be amended from time to time and to the matters to which the
Master Lease, as so amended, is or shall be subordinate.
13. Notices
All notices to be given hereunder by either party shall be
written and sent by registered or certified mail, return receipt requested,
postage prepaid or by an express mail delivery service, or by personal delivery
addressed to the party intended to be notified at the address set forth below:
Licensor: Icahn Associates Corp.
c/o Icahn & Co., Inc.
Xxx Xxxx Xxxxxx Xxxxx
Xxxxx 000
Xxx Xxxx, XX 00000
Attention.: Xxxxxxx Xxxxxxx
Licensee: Global Travel Marketing Services, Inc.
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Either party may, at any time, or from time to time, notify
the other in writing of a substitute address for that above set forth, and
thereafter notices shall be directed to such substitute address. Notice given as
aforesaid shall be sufficient service thereof and shall be deemed given as of
the date received, as evidenced by the return receipt of the registered or
certified mail, the express mail or the delivery service delivery receipt, as
the case may be.
14. Brokers
Each party represents and warrants to the other that the party
did not deal with any broker in connection with this Agreement and agrees to
indemnify, defend and save harmless the other party from claims for brokerage
commissions resulting from a breach of the foregoing representation.
15. Assignment and Subletting
Licensee shall not assign, transfer, pledge, mortgage,
hypothecate or otherwise transfer or encumber its interest in this Agreement or
sublet or otherwise permit to be occupied by others all or any portion of the
Licensed Premises, the Common Facilities or the Access Areas. Licensee shall not
allow any
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person or entity to use or occupy the Licensed Premises, the Common Facilities
or the Access Areas in violation of the Master Lease.
16. Miscellaneous
(a) It is mutually agreed by and between Licensor and Licensee
that the respective parties hereto shall and they hereby do waive trial by jury
in any action, proceeding or counterclaim brought by either of the parties
hereto against the other on any matter whatsoever arising out of or in any way
connected to this Agreement.
(b) Except as provided in Section 9 hereof, whenever
Licensor's consent shall be required hereunder, Licensor's consent shall not be
unreasonably withheld or delayed. With respect to any provision herein which
provides that Licensor's consent shall not be unreasonably withheld or delayed,
Licensor's consent shall not be deemed to have been unreasonably withheld or
delayed if Landlord's consent shall be required and shall not have been
obtained.
(c) This Agreement contains the complete agreement between
Licensor and Licensee with respect to the premises and may not be modified
except in a writing signed by Licensor and Licensee.
To signify their agreement to the foregoing the parties have
executed this Agreement as of the date first above written.
Licensor:
ICAHN ASSOCIATES CORP.
By:
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Xxxxxx X. Xxxxxxx, President
Licensee:
GLOBAL TRAVEL MARKETING
SERVICES INC.
By:
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Xxxxxxx X. Xxxxxxx, Treasurer
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