Exhibit 10.9
June 14, 2001
Xxxxxxxxxxx.xxx inc.
000 Xxxxx Xxxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxx Xxxxxx
Dear Xxxxx:
We are writing this letter to you in reference to that certain Lease
Agreement dated January 3, 2000 (the "Original Lease"), as amended by that
certain First Amendment to Lease dated as of March 31, 2000 (the "First
Amendment"), and as further amended by that certain Second Amendment to Lease
dated as of November 30, 2000 (the "Second Amendment") (the Original Lease, as
amended by the First Amendment and the Second Amendment, is hereinafter referred
to as the "Lease"), between xxxxxxxxxxx.xxx inc, as tenant ("Tenant"), and 000
Xxxxx Xxxxxxxx Trust, a Delaware business trust, as landlord ("Landlord"), for
certain premises comprising approximately 62,408 square feet on the 8th, 11th,
12th, 13th, 14th, 16th, 18th, 19th, 20th and 21st floors of the building
commonly known as 000 Xxxxx Xxxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx (the "Premises").
All capitalized terms and phrases, unless defined in this letter agreement
(the "Agreement"), shall have the specific meanings as are set forth in the
Lease.
Tenant acknowledges that as of the date of this Agreement several defaults
by Tenant have occurred under the Lease and are continuing, which include the
following: (a) the failure by Tenant to pay to Landlord the Rent due under the
Lease as of May 1, 2001; (b) the failure by Tenant to deliver to Landlord an
irrevocable, standby letter of credit in the amount of $231,552.00 as required
under the terms of the First Amendment; (c) the delivery by Tenant to Landlord
of an irrevocable, standby letter of credit bearing reference number 60751358
improperly reducing the face amount during the term of the Lease; (d) the
failure by Tenant to deliver to Landlord a replacement letter of credit for the
irrevocable, standby letter of credit bearing reference number 60751398 in the
amount of $750,000.00; and (e) the failure by Tenant to pay to or deposit with
Landlord certain monies relating to tenant improvements for the Premises owed to
(i) Interior Alterations, Inc., the contractor retained by Landlord ("IAI"),
(ii) Xxxxx & Associates, the engineer retained by Tenant ("Xxxxx"), (iii)
Partners by Design, the architect retained by Tenant ("Partners"), (iv)
Commercial Light Company, a subcontractor retained by Tenant ("CLC"), and (v)
Advent Systems, Inc., a subcontractor retained by Tenant ("Advent")
(individually a "Default" and collectively the "Defaults"). For purposes of this
Agreement, during the "Forbearance Period" (as defined below) only, Tenant's
future failure to pay any Rent in accordance with the terms of the Lease shall
be deemed to be a "Default" as defined in the immediately preceding sentence.
Mr. Xxxxx Xxxxxx
June 14, 2001
Page -2-
Tenant has requested that Landlord forbear exercising its rights and
remedies under the Lease or at law or equity with respect to the Defaults.
Landlord agrees to forbear from exercising its rights under the Lease with
respect to the Defaults until the earlier to occur of (a) the date Tenant has
cured all of the Defaults; and (b) the occurrence of any "Forbearance Event of
Default" (as defined below) (the "Forbearance Period"), subject to the
satisfaction of the following conditions:
(1) Tenant must pay to Landlord, on or before June 30, 2001 and continuing
on or before the last day of each successive calendar month during the
Forbearance Period, the full amount of the Rent due under the Lease
for the month of June, 2001 and for each successive calendar month
thereafter, together with any applicable late charges due under the
Lease.
(2) Tenant must deliver to Landlord, on or before June 30, 2001, an
irrevocable, standby letter of credit in the amount of $100,000.00 as
required under the terms of the First Amendment.
(3) Tenant must deliver to Landlord, on or before September 30, 2001, an
additional, irrevocable, standby letter of credit in the amount of
$131,552.00 as required under the terms of the First Amendment.
(4) Tenant must deliver to Landlord, on or before June 20, 2001, an
amendment to or replacement of that certain irrevocable, standby
letter of credit bearing reference number 60751358 in the current
amount of $703,171.00 maintaining the applicable face amounts as
required under the terms of the Lease, and terminating on December 31,
2002. Any subsequent amendment, renewal or replacement of said letter
of credit must be delivered to Landlord not less than thirty (30) days
prior to the expiration date of said letter of credit. Upon written
request therefor, Landlord shall promptly execute and deliver all
documents reasonably requested by the issuing bank relating to
amending the letter of credit as set forth herein.
(5) Tenant must deliver to Landlord, on or before June 20, 2001, an
amendment to or replacement of that certain irrevocable, standby
letter of credit bearing reference number 60751398 in the amount of
$750,000.00 maintaining the applicable face amounts as required under
the terms of the Lease, and terminating on December 31, 2002. Any
subsequent amendment, renewal or replacement of said letter of credit
must be delivered to Landlord not less than thirty (30) days prior to
the expiration date of said letter of credit. Upon written request
therefor, Landlord shall promptly
Mr. Xxxxx Xxxxxx
June 14, 2001
Page -3-
execute and deliver all documents reasonably requested by the issuing
bank relating to amending the letter of credit as set forth herein.
(6) Tenant must pay the sum of $331,473.15 to IAI for tenant improvements
relating to the Premises, which amount will be paid in accordance with
any payment plan or amendment thereto entered into by Tenant and IAI.
Tenant will deliver to Landlord a copy of any such plan and amendment
thereto, if applicable. Tenant will not allow any lien to be filed
against the Premises by IAI, and if any such lien is filed against the
Premises, Tenant will cause it to be removed within thirty (30) days
after the date said lien is recorded.
(7) Tenant must pay the sum of $24,113.99 (plus any applicable finance
charges) to Xxxxx for engineering services relating to the Premises,
which amount will be paid in accordance with any payment plan or
amendment thereto entered into by Tenant and Xxxxx. Tenant will
deliver to Landlord a copy of any such plan and amendment thereto, if
applicable. Tenant will not allow any lien to be filed against the
Premises by Xxxxx, and if any such lien is filed against the Premises,
Tenant will cause it to be removed within thirty (30) days after the
date said lien is recorded.
(8) Tenant must pay the sum of $39,596.72 to Partners for architectural
services relating to the Premises, which amount will be paid in
accordance with any payment plan or amendment thereto entered into by
Tenant and Partners. Tenant will deliver to Landlord a copy of any
such plan and amendment thereto, if applicable. Tenant will not allow
any lien to be filed against the Premises by Partners, and if any such
lien is filed against the Premises, Tenant will cause it to be removed
within thirty (30) days after the date said lien is recorded.
(9) Tenant must pay the sum of $151,107.42 to CLC for subcontractor's
services relating to the Premises, which amount will be paid in
accordance with any payment plan or amendment thereto entered into by
Tenant and CLC. Tenant will deliver to Landlord a copy of any such
plan and amendment thereto, if applicable. Tenant will not allow any
lien to be filed against the Premises by CLC, and if any such lien is
filed against the Premises, Tenant will cause it to be removed within
thirty (30) days after the date said lien is recorded.
(10) Tenant must pay the sum of $12,793.00 to Advent for subcontractor's
services relating to the Premises, which amount will be paid in
accordance with any payment plan or amendment thereto entered into by
Tenant and Advent. Tenant will deliver to Landlord a copy of any such
plan and amendment thereto, if applicable. Tenant will not allow any
lien to be filed against the Premises by
Mr. Xxxxx Xxxxxx
June 14, 2001
Page -4-
Advent, and if any such lien is filed against the Premises, Tenant
will cause it to be removed within thirty (30) days after the date
said lien is recorded.
(11) Tenant must pay to Landlord, on or before May 31, 2001, the sum of
$10,000.00 as an additional security deposit to be held by Landlord in
accordance with the terms of the Lease, which amount will be returned
to Tenant at such time as Tenant has delivered to Landlord the letters
of credit in accordance with paragraphs 3 and 4 above.
(12) Tenant's full compliance with the terms and provisions of the Lease
and this Agreement, and no new Event of Default (other than the
Defaults) occurs under the Lease or this Agreement. The occurrence of
any further Event of Default will entitle Landlord to void its
forbearance in accordance with the terms of this Agreement, and
Landlord will immediately be entitled to enforce its rights under the
Lease and to exercise any other rights and remedies available to
Landlord at law or in equity.
The foregoing limited forbearance shall not be construed to impair the
ability of Landlord to enforce any such rights, powers or remedies after the
Forbearance Period regardless of whether or not such enforcement relates to
actions taken or payments received during the Forbearance Period, or during the
Forbearance Period for the occurrence of any Event of Default other than the
Defaults. Unless earlier terminated in accordance with the terms of this
Agreement, Landlord's forbearance, as provided herein, will immediately cease
without notice at the end of Forbearance Period, and Tenant at that time must
comply with and perform all of the terms, conditions and provisions of the Lease
without giving effect to the forbearance set forth herein.
Landlord's forbearance is further expressly subject to and conditioned upon
Tenant's strict compliance with each and every term and provision of this
Agreement, and except with respect to the Defaults, Tenant's strict compliance
with each and every term and provision of the Lease. Tenant acknowledges and
agrees that Landlord has no obligation to extend the Forbearance Period and that
Landlord's failure to enforce any or all of its remedies under this Agreement,
the Lease, or under law or at equity after the expiration of the current
Forbearance Period will not give rise to a further extension of the Forbearance
Period absent a written agreement executed by Landlord to extend the Forbearance
Period.
In no event will this Agreement be deemed to be a waiver, except as
specifically provided herein, of (i) the enforcement of Landlord's rights with
respect to any other Event of Default hereafter arising under the Lease; or (ii)
Tenant's compliance with any covenant or provision set forth in this Agreement
(a "Forbearance Event of Default").
Mr. Xxxxx Xxxxxx
June 14, 2001
Page -5-
The forbearance set forth in this Agreement is limited precisely as written
and, except as expressly set forth herein, neither Landlord's forbearance nor
any other term or provisions of this Agreement shall or shall be deemed or
construed to (i) be a consent to any forbearance, waiver, amendment or
modification of any term, provision or condition of the Lease; (ii) affect,
impair, operate as a waiver of or prejudice any right, power or remedy which
Landlord may now or hereafter have under the Lease or any other document,
agreement, security agreement or instrument executed by an person in connection
with or related to the Lease, or at law or in equity, including, without
limitation, with regard to any existing or hereafter arising default; (iii)
impose upon Landlord any obligation, either express or implied, to consent to
any amendment or further modification of the Lease; or (iv) be a consent to any
waiver of any existing default (including, without limitation, the Defaults),
all such defaults remaining outstanding. Landlord hereby expressly reserves all
of the rights, powers and remedies specifically given to Landlord under the
Lease or now or hereafter existing at law or in equity.
Tenant expressly acknowledges and agrees that the Lease (as amended by this
Agreement) constitutes the legal, valid and binding obligations of Tenant
enforceable in accordance with its terms by Landlord, and Tenant expressly
reaffirms each of its obligations under the Lease (as amended by this
Agreement). Tenant further agrees that it will not dispute the validity or
enforceability of the Lease or any of its obligations thereunder.
Each party to this Agreement acknowledges that its legal counsel
participated in the preparation and drafting of this Agreement, and that each
has been or has had the opportunity to be represented by counsel of its own
choice throughout all negotiations which preceded the execution of this
Agreement, and that they have executed this Agreement with the consent and upon
the advice of said counsel. Accordingly, it is agreed that any legal rule of
construction to the effect that ambiguities are to be resolved against the
drafting party will not apply to the interpretation of this Agreement or any
amendments hereto to favor any party to this Agreement against the other.
This Agreement may be signed in any number of counterparts, and each such
counterpart shall be deemed an original, and all such counterparts shall
together constitute one and the same.
Mr. Xxxxx Xxxxxx
June 14, 2001
Page -6-
If you are in agreement with the foregoing, please execute this Agreement
by signing a copy in the space provided below, whereupon this Agreement will
become a binding agreement between Landlord and Tenant.
Very truly yours,
000 XXXXX XXXXXXXX TRUST,
a Delaware business trust
By: MB XXXXXXX MANAGEMENT CORP.,
its managing agent
By:________________________________
ACKNOWLEDGED AND AGREED TO
as of the ______ day of June, 2001.
Xxxxxxxxxxx.xxx inc.
By: _____________________________
