NINTH AMENDMENT TO LEASE AND PARTIAL SURRENDER AGREEMENT
Exhibit 10.1
NINTH AMENDMENT TO LEASE AND PARTIAL SURRENDER AGREEMENT
This Ninth Amendment of Lease and Partial Surrender Agreement (this “Agreement”) dated
as of the 24th day of September, 2008, between 5 INDEPENDENCE SPE LLC, having an address c/o
Xxxx-Xxxx Realty Corporation, 000 Xxxxxxxx Xxxxxx, X.X. Xxx 0000, Xxxxxx, Xxx Xxxxxx 00000-0000
(“Landlord”) and XXXXXX INTERACTIVE, INC., having an address at 000 Xxxxxxxxx Xxxxx,
Xxxxxxxxx, Xxx Xxxx 00000-0000 (“Tenant”).
WITNESSETH:
WHEREAS:
A. Bellemead Development Corporation and Total Research Corporation, predecessor in interest to
Tenant, heretofore entered into a certain lease dated December 2, 1985, as amended on July 31,
1986, January 5, 1987, November 27, 1990, December 27, 1995, December 12, 1996, February 19, 1998,
June 15, 1998, September 28, 1999, December 15, 2000 and February 20, 2004 (said lease as it was
and may hereafter be amended is hereinafter called the “Lease”) with respect to
approximately 29,112 gross rentable square feet (the “Existing Premises”) in a portion of
the building commonly known as 0 Xxxxxxxxxxxx Xxx, Xxxxxxxxx, Xxx Xxxxxx (the “Building”);
and
B. The Term of the Lease currently expires on February 28, 2011; and
C. Tenant desires to (i) surrender to Landlord a portion of the Existing Premises consisting of
approximately 5,627 gross rentable square feet, as shown on Exhibit A attached hereto (the
“Surrender Premises”), and (ii) remain obligated under the Lease for the balance of the
Existing Premises consisting of approximately 23,485 gross rentable square feet (the “Retained
Premises”); and
D. Landlord is willing to accept Tenant’s surrender of the Surrender Premises, subject, however, to
the terms and conditions contained herein; and
E. Landlord and Tenant desire to extend the Term of the Lease with respect to the Retained Premises
so that the Term of the Lease shall now expire ten (10) years from the Effective Date (as defined
below).
NOW THEREFORE, in consideration of the promises and mutual covenants hereinafter contained,
the parties hereto agree as follows:
1. Defined Terms. All terms contained in this Agreement that are defined in the Lease,
shall, for the purposes hereof, have the same meaning ascribed to them in the Lease.
2. Incorporation by Reference. The above recitals are incorporated herein by
reference.
3. Surrender. (a) Subject to the provisions of this Agreement, the Lease and the term
and estate granted thereunder with respect to the Surrender Premises shall terminate and expire as
of the day prior to the Effective Date (the “Surrender Date”), as fully and completely as if the
Surrender Date was the date originally fixed in the Lease as the Termination Date with respect to
the Surrender Premises, and Tenant shall surrender the Surrender Premises on the Surrender Date to
Landlord as fully and completely as if the Surrender Date was the date originally fixed in the
Lease as the Termination Date with respect to the Surrender Premises, and Landlord shall accept the
Surrender Premises on the Surrender Date, to have and to hold the same for the unexpired residue of
the term of the Lease. After the Surrender Date, Tenant shall have no further rights, obligations
or liabilities of any kind or nature under the Lease with respect to the Surrender Premises, except
as expressly provided in this Agreement. Tenant acknowledges its obligation to
pay Minimum Rent, Adjusted Minimum Rent and any other charges payable by Tenant
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under the
Lease (whether or not said sum shall have been fixed as of the Surrender Date) applicable to the
Surrender Premises through the Surrender Date. Upon final computation of Adjusted Minimum Rent due
applicable to the Surrender Premises, Landlord shall promptly refund or credit, at Landlord’s
option, any excess payment (if any) and Lessee shall promptly make up any underpayment (if any).
This provision shall survive the Lease termination applicable to the Surrender Premises.
(b) Notwithstanding anything to the contrary contained in the Lease, on or before the
Surrender Date, Tenant shall surrender the Surrender Premises free from all Tenant’s furniture and
equipment, in broom clean but otherwise as-is condition. In the event that Tenant fails to
surrender the Surrender Premises to Landlord on the Surrender Date in accordance with the terms of
this Agreement, then Tenant’s occupancy of the Surrender Premises shall be deemed a holdover
tenancy for the period commencing on the Surrender Date to and including the date on which Tenant
surrenders the Surrender Premises to Landlord in accordance with the terms of this Agreement and
such occupancy shall be subject to the terms of Article 55 of the Lease.
(c) The effective date shall be the day Landlord, at Landlord’s sole cost and expense,
completes construction of a demising wall between the Surrender Premises and the Retained Premises
(the “Effective Date”), which Landlord estimates to be on or about November 1, 2008. In addition
to the demising wall, Landlord, at its sole cost and expense, shall remove wallpaper where
necessary, paint and carpet the Retained Premises in colors to be chosen by Tenant from Landlord’s
standard paint and carpet selection charts (the “Landlord’s Work”). The Landlord’s Work shall be
performed at mutually agreed upon times and Landlord shall use reasonable efforts to minimize
disruption to Tenant’s use of the Retained Premises. Tenant shall cooperate with Landlord during
the performance of any work hereunder by removing all wall hangings and relocating all furniture,
equipment and personnel as necessary, at Tenant’s sole cost. Tenant acknowledges that it is in
occupancy of the Retained Premises and hereby accepts the Retained Premises in their “AS-IS”
physical condition and state of repair as of the Effective Date, subject, however, to the terms of
this subparagraph (c). Landlord shall make reasonable efforts to erect and finish the demising wall
no later than November 1, 2008 and to complete Landlord’s Work no later than January 1, 2009 (as
reasonably approved by Tenant and subject only to minor punch-list items). Landlord shall have no
obligation to do any work, perform any services or grant any construction allowances in connection
with this Agreement or the extension of the term of the Lease, except as set forth in this
subparagraph (c).
4. Extension Term. (a) The Term applicable to the Retained Premises shall be extended
for a period of ten (10) years commencing on the Effective Date and terminating 11:59 p.m. on the
last day of the month in which the day prior to the tenth (10th) anniversary of the
Effective Date occurs.
(b) During the term of the Lease, as extended hereby, Tenant shall continue to perform all of
its obligations under the Lease, as amended hereby, including, without limitation, the payment of
Minimum Rent, Adjusted Minimum Rent, costs of electricity and all other charges under the Lease, as
amended hereby
5. Changes to Defined Terms in the Lease. From and after the Effective
Date, the Lease shall be modified as follows:
a. The term “Demised Premises” in the Lease shall be the approximately 23,485 square feet
referred to as the Retained Premises in this Amendment. All terms and agreements contained in the
Lease shall apply to the Retained Premises demised herein with the same force and effect as if the
same had been set forth in full herein except as otherwise expressly provided in this Agreement.
b. The term “Minimum Rent” shall be defined as follows:
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| Annual | ||||||||||||
| Annual | Monthly | Per Sq. | ||||||||||
| Term | Rate | Installments | Ft. Rate | |||||||||
Commencing on the Effective
Date through and including the
last day of the month in which
the day prior to the third
(3rd) year
anniversary of the Effective
Date occurs |
$ | 598,867.50 | $ | 49,905.63 | $ | 25.50 | ||||||
For the next three (3) years |
$ | 622,352.50 | $ | 51,862.71 | $ | 26.50 | ||||||
For the last four (4) years |
$ | 645,837.50 | $ | 53,819.79 | $ | 27.50 | ||||||
If the Effective Date is a day other than the first day of a calendar month, the monthly
installment of Minimum Rent for the month during which the Effective Date occurs shall be
prorated.
c. During the term of the Lease, as extended hereby, Tenant shall pay Adjusted Minimum Rent
and all other sums due under the Lease, as amended hereby.
d. The term “Occupancy Percentage” as used in the Lease shall mean 20.71%.
e. For purposes of computing the Adjusted Minimum Rent with respect to the Retained Premises,
commencing on the Effective Date through and including February 28, 2011, the terms “First Tax
Year” and “First Operating Year” shall each mean the calendar year ending December 31, 2004.
As of March 1, 2011, Tenant shall pay Landlord an Adjusted Minimum Rent as follows and Section
36 of the Lease shall be deemed amended accordingly: Tenant shall pay Landlord Tenant’s Occupancy
Percentage of Taxes and Building Operating Costs for the Building over a “Tax and Operating Cost
Expense Stop” of $1,037,390.40 ($9.15 multiplied by the gross rentable square footage of the
Building, i.e. 113,376 square feet). The Taxes and Building Operating Costs shall be combined, and
Tenant shall pay, as the Adjusted Minimum Rent, Tenant’s Occupancy Percentage that such combined
sum of Taxes and Building Operating Costs for the Building exceeds the Tax and Operating Cost
Expense Stop of $1,037,390.40 ($9.15 multiplied by the gross rentable square footage of the
Building, i.e. 113,376 square feet). Such Adjusted Minimum Rent shall be paid by Tenant to Landlord
in accordance with Section 36.5(1) of the Lease, mutatis mutandis.
f. The “parking spaces” shall be eighty-two (82) spaces.
6. Effective Date. No later than thirty (30) days after the determination of the
Effective Date, the parties shall agree to memorialize the Effective Date in writing.
7. Broker. Tenant represents and warrants to Landlord that no broker brought about
this transaction, except CB Xxxxxxx Xxxxx, Inc. The Landlord is responsible for the payment of CB
Xxxxxxx Xxxxx, Inc. and Landlord and Tenant each agree to indemnify and hold Landlord harmless from
any and all claims of any other broker arising out of or in connection with negotiations of, or
entering into of, this Agreement.
8. Estoppel. Tenant hereby represents to Landlord that (i) there exists no default
under the Lease either by Landlord or Tenant; (ii) Tenant is entitled to no credit, free rent or
other offset or abatement of the rents due under the Lease; (iii) there exists no
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offset, defense
or counterclaim to Tenant’s obligation under the Lease; (iv) and Tenant has no options to renew or
extend the term of the Lease or any rights of first refusal or first offer or any other rights with
respect to additional space or expansion space.
9. Mortgagee Approval. This Agreement is expressly conditioned upon Landlord
receiving the consent and approval of Landlord’s mortgagee to its terms and provisions not later
than thirty (30) days after its execution by Tenant and Landlord, and delivery to Landlord. Should
said consent not be received within the aforesaid time
period, either party may cancel this Agreement, and thereafter the Lease shall remain in full
force and effect.
10. Ratification. Except as expressly amended herein, the Lease, as amended herein,
shall remain in full force and effect as if the same had been set forth in full herein, and
Landlord and Tenant hereby ratify and confirm all of the terms and conditions thereof.
11. Successors and Assigns. This Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective legal representatives, successors and permitted
assigns.
IN WITNESS WHEREOF, Landlord and Tenant have hereunto set their hands and seals the date and
year first above written, and acknowledge one to the other that they possess the requisite
authority to enter into this transaction and to sign this Agreement.
LANDLORD:
5 INDEPENDENCE SPE LLC
By: Xxxx SLG NJ Mezz LLC, sole member
By: Xxxx SLG NJ Operating Partnership L.P., sole member
By: Xxxx SLG NJ GP LLC, general partner
By: Xxxx-Xxxxx-Xxxx LLC, sole member
By: Xxxx-Xxxx Ventures L.L.C., managing member
By: Xxxx-Xxxx Realty, L.P., sole member
By: Xxxx-Xxxx Realty Corporation, general partner
By: Xxxx SLG NJ Mezz LLC, sole member
By: Xxxx SLG NJ Operating Partnership L.P., sole member
By: Xxxx SLG NJ GP LLC, general partner
By: Xxxx-Xxxxx-Xxxx LLC, sole member
By: Xxxx-Xxxx Ventures L.L.C., managing member
By: Xxxx-Xxxx Realty, L.P., sole member
By: Xxxx-Xxxx Realty Corporation, general partner
| By: | /s/ Xxxxxxxx X. Xxxxx | |||
| Name: | Xxxxxxxx X. Xxxxx | |||
| Title: | President and Chief Executive Officer | |||
TENANT:
XXXXXX INTERACTIVE, INC.
| By: | /s/ Xxxxxxx X. Xxxxx | |||||||
| Name: | Xxxxxxx X. Xxxxx | |||||||
(please
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| Title: | President and CEO | |||||||
(please
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| By: | /s/ Xxxxxx X. Xxxxxxxx | |||||||
| Name: | Xxxxxx X. Xxxxxxxx | |||||||
(please
print) |
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| Title: | Chief Financial Officer | |||||||
(please
print) |
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