SECOND AMENDMENT AND EXTENSION TO LEASE
Exhibit 10.6.14
SECOND AMENDMENT AND EXTENSION TO LEASE
This
Agreement made this 22nd day of October, 2007, by and between XXXXXXX
7 VENTURE L.L.C., a Delaware limited liability company having an office and place of business c/o
Xxxxxx X. Xxxxxx, Inc., 000 Xxxxxxx 0, Xxxxxxx, Xxxxxxxxxxx 00000 (hereinafter called “Landlord”)
and XXXXXX INTERACTIVE INC., a corporation having a place of business at 000 Xxxxxxx 0, Xxxxxxx,
Xxxxxxxxxxx 00000 (hereinafter called “Tenant”).
WITNESSETH:
WHEREAS, Landlord and Tenant entered into a written lease dated March 27, 2001, as amended by
First Amendment of Lease dated January 21, 2005, collectively (the “Lease”) pursuant to which
Tenant demises certain space (the “Premises”) consisting of 14,211 gross leasable square feet on
the Third Floor in the Building known as Building 000, Xxxxxxx 0 Xxxxxxxxx Xxxx, Xxxxxxx,
Xxxxxxxxxxx, for an initial term scheduled to expire on May 20, 2008; and
WHEREAS, the parties desire to amend, modify and extend the Lease upon the terms and
conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the mutual conditions and covenants contained hereunder,
the Lease is hereby amended and extended as follows:
1. The term of the Lease is hereby extended for seven (7) years and ten (10) days from May 21,
2008 through May 31, 2015 (the “Extended Term”) upon and subject to all of the covenants,
agreements, terms, provisions, and conditions set forth in the Lease (excluding such covenants,
agreements, terms, provisions and conditions as are inapplicable and except as hereinafter
modified), so that said term shall end on May 31, 2015 or on such earlier date upon which said
term, as hereby extended were the term originally granted with respect to the Premises demised
under the Lease.
2. The Fixed Rent payable under Section 1.04 of the Lease for the Extended Term shall be as
follows:
(a) At the rate of $319,747.50 per annum (which is calculated at the rate of $22.50 per gross
leasable square foot) from May 21, 2008 through May 20, 2010; and
(b) At the rate of $333,958.50 per annum (which is calculated at the rate of $23.50 per gross
leasable square foot) from May 21, 2010 through May 20, 2012; and
(c) At the rate of $348,169.50 per annum (which is calculated at the rate of $24.50 per gross
leasable square foot) from May 21, 2012 through May 20, 2014; and
(d) At the rate of $383,697.00 per annum (which is calculated at the rate of $27.00 per gross
leasable square foot) from May 21, 2014 through May 31, 2015.
Such Fixed Rent shall be payable together with the cost of Tenant’s electrical consumption at
the rate set forth in Paragraph 3 hereof, subject to further adjustments as provided in Article 24,
(“Electrical Energy”), of the Lease, plus payment of Tenant’s pro rata share of operating expenses
at its then current rate, subject to further adjustments as provided in Article 26 of the Lease.
3. Effective May 21, 2008, during the Extended Term, all references to “$1.50 per square foot
per annum” set forth in Article 24 of the Lease are deleted and are replaced by “$1.75 per square
foot per annum.
4. Article 37 of the Lease is omitted in its entirety, and the following Article is
substituted in its stead:
ARTICLE 37
Tenant’s Option to Extend Term
Section 37.01 Provided that Tenant is not then in default under the terms of this Lease
beyond any applicable cure periods and further provided that no portion of the Premises is then
being sublet by Tenant, Tenant may, at Tenant’s option, extend the term of this Lease for
additional period of five (5) years (the” Further Extended Term”) commencing on the date following
the expiration of the Extended Term, such option to e exercised by Tenant giving formal written
notice thereof to Landlord by United States registered or certified mail, return receipt requested,
not later than twelve (12) months prior to the expiration of the Extended Term, TIME IS OFF THE
ESSENCE. If Tenant fails to give said notice as above provided, it shall be deemed without further
notice or agreement between the parties hereto that Tenant elected not to exercise said option. If
Tenant timely exercises its option to extend the term, then if this Lease shall be extended for a
period of five (5) years commencing on the date following the expiration of the Extended Term.
Except as hereinafter provided, the Further Extended Term shall be upon all the covenants,
agreements, terms, provisions and conditions of this Lease (except such covenants, agreements,
terms, provisions and conditions of this Lease as shall be inapplicable or irrelevant.)
(a) During the Further Extended Term, the annual rental shall be greater of (i) the Fixed
Rent in effect during the last year of the Extended Term plus the additional rent as provided in
Articles 24 and 26 at the then current rate by reason of the then current operating expenses of the
Building and then current electrical consumption by Tenant; or (ii) the fair rental value of the
Premises as determined pursuant to this Article.
(b) The fair rental value of the Premises to be determined in fixing the rental for the
Further Extended Term, by agreement of the parties, shall be based upon the fair rental value of
the Premises as of the end of the Extended Term. There shall be taken into account the then
current rentals and terms of comparable space in the Building and in comparable buildings in the
same rental area, except that consideration shall also be
given to any special features of the Building and other buildings such as floor sizes, hours of
operation of building services, and special amenities and due consideration shall be given for no
concessions, no additional tenant improvements or no tenant’s allowance.
(c) Landlord shall notify Tenant at least two hundred seventy (270) days prior to the
expiration of the Extended Term of Landlord’s determination of fair rental. If Landlord and Tenant
cannot agree at least one hundred eighty (180) days prior to expiration of the Extended Term as to
the fair rental, then in such event either party may elect to have such rent determined by
appraisal in the manner set forth in the paragraph (d) below.
(d) In the event that Landlord and Tenant are unable to agree as to the fair rental value on
the effective commencement date of the term applicable thereto, such fair rental value shall be
determined by appraisal as follows:
(i) Tenant shall appoint a disinterested person who is an MAI appraiser with at least (10)
years’ experience in appraising major office buildings (and their rental values) in the State of
Connecticut as an appraiser on its behalf and shall notify Landlord as to the name of the person so
appointed. Within fifteen (15) days after the giving of said notice, Landlord shall, by notice to
Tenant, appoint a second disinterested person possessing like qualifications as the appraiser on
its behalf. If the appraisers thus appointed cannot reach agreement on the fair market annual
rental annual rental value within thirty (30) days after the appointment of the second appraiser,
then the two appraisers thus appointed shall appoint a third disinterested person possessing the
aforesaid qualifications and such third appraiser shall alone determine the question presented as
promptly as possible, provided that if the fair market annual rental value determined by such third
appraiser shall exceed the higher of the annual rental value determinations of the first and second
appraisers or shall be less than the lower of such annual rental value determinations of such
annual rental value determinations, then the determination of such third appraiser shall be
disregarded and the appraisal next closest in amount to such third appraisal shall instead
determine said fair rental value.
(ii) Tenant and Landlord shall be entitled to present evidence and arguments to be
appraisers(s).
(iii) The appraisers or appraiser, as the case may be, shall be required to give written
notice to Tenant and Landlord stating their or his determination, and shall furnish to Tenant and
Landlord a signed copy of such determination.
(iv) Tenant and Landlord shall pay the costs and expenses of the appraiser appointed by it
and one half of the other expenses of the appraisal procedure incurred hereunder.
(e) In the event that the fair rental value has not been determined as hereinabove provided
by the commencement of the Further Extended Term, then Tenant shall pay the amount provided for in
Section 37.01a(i), and after the determination of such fair rental
value as herein provided, Tenant shall make any further payments to Landlord as a result of such
determination.”
5. Upon the commencement of the Extended Term, Landlord shall pay Tenant TWENTY-FIVE DOLLARS
AND XX/100 ($25.00) per gross leasable square foot ($355,275.00) as a one-time lump sum retrofit
work allowance (“Tenant’s Allowance”) for Tenant’s discretionary use.
(b) Notwithstanding the provisions of (a) above, upon request of Landlord, provided the cost
of the retrofit work exceeds the Tenant’s Allowance, Tenant shall assign to Landlord’s contractor,
ADP Service Corp., (which contractor shall complete said retrofit work based upon a separate
agreement with subcontractor work awarded based on competitive bidding) Tenant’s full retrofit work
allowance so that Landlord shall make payment in the amount of said allowance directly to said
Landlord’s contractor. In the event Tenant’s retrofit work costs less than Tenant’s Allowance,
Tenant shall assign to ADP Service Corp. the partial amount of Tenant’s Allowance equivalent to the
cost of said work and the balance of Tenant’s Allowance shall be paid to Tenant directly or
credited against Fixed Rent.
6. Article 38 of the Lease is omitted in its entirety, and the following is substituted in its
stead:
“ARTICLE 38
One time Right of First Offer
Section 38.01 (a) Subject to the prior rights of an existing tenant, which rights are set forth
in subsection (b) hereof, if at any time during the term of this Lease, any contiguous space on the
Third Floor of the Building becomes available for leasing (the “Option Space”), then, and provided
Tenant is not then in default under the terms of this Lease, Landlord shall grant to Tenant a ten
(10) business day right of first offer for such Option Space and Tenant shall accept Landlord’s
offer in writing within ten (10) business days of receipt of such written offer. If Landlord and
Tenant are unable to mutually agree in writing on all of the terms for a lease (rental to be the
fair rental value as defined in Article 37 hereof) of the Option Space within ten (10) business
days after receipt of notice by Landlord of Tenant’s notice accepting Landlord’s offer, Landlord
shall be free to offer such space to any third party and to conclude a leasing transaction with any
third party upon any terms and conditions which Landlord deems appropriate, and Tenant shall have
no further rights as to said offered space, unless the terms upon which Landlord offered such space
to Tenant become materially more favorable, in which case, Tenant shall again have its right of
first offer in accordance with the provisions of this paragraph.
(b) Webloyalty has first offer rights to lease space on the Third Floor of Building 101,
which space exceeds 4,000 s.f. The first offer rights of Webloyalty are effective from July 1,
2009 through January 1, 2011.”
7. Landlord and Tenant covenant, warrant and represent to each other that no broker was
instrumental in consummating this Second Amendment and Extension to Lease and that no conversations
or prior negotiations were had with any broker concerning the extension of the term of the Lease
other than CB Xxxxxxx Xxxxx, Inc. Tenant agrees to indemnify and hold Landlord harmless from all
claims, losses, damages, liabilities, costs and expenses, including legal fees, arising out of or
in connection with any breach by Tenant of the foregoing representation.
8. (a) Except as modified by this Second Amendment and Extension to Lease, the Lease and all
the covenants, terms, agreements, conditions and provisions thereof are hereby, in all respects,
ratified and confirmed.
(b) This Second Amendment and Extension to Lease shall be binding upon and injure to the
benefit of the parties hereto, their respective successors, permitted assigns and legal
representatives.
IN WITNESS WHEREOF, the parties hereto have executed this Second Amendment and Extension to
Lease as of the date first above written.
| WITNESS: | XXXXXXX 7 VENTURE L.L.C. | |||||||
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| Xxxxxxxx X. Xxxx | ||||||||
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| XXXXXX INTERACTIVE INC. | ||||||||
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STATE OF CONNECTICUT
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COUNTY OF FAIRFIELD
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On
this 22nd day of October, 2007, before me, personally appeared
Xxxx X. Xxxxxx who acknowledged himself to be a Representative of the Executive Committee of
XXXXXXX 7 VENTURE L.L.C., a Delaware limited liability company, and that he as such Representative
of the Executive Committee being authorized so to do, executed the foregoing instrument for the
purpose therein contained, by signing the name of the corporation by himself as a Representative of
the Executive Committee.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
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STATE OF NEW YORK
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COUNTY OF NEW YORK |
On this 29 day of October, 2007, before me, personally appeared Xxxxxxxx X.
Xxxx who acknowledged herself to be a Representative of the Executive Committee of XXXXXXX 7
VENTURE L.L.C., a Delaware limited liability company, and that she as such Representative of the
Executive Committee being authorized so to do, executed the foregoing instrument for the purpose
therein contained, by signing the name of the corporation by herself as a Representative of the
Executive Committee.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
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STATE OF NEW YORK
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COUNTY OF MONROE
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On this 19 day of October, 2007, before me, personally appeared Xxxxxxx X. Xxxxx who
acknowledged himself to be the President and CEO of XXXXXX INTERACTIVE INC., a corporation, and
that he as such President and CEO being authorized so to do, executed the foregoing instrument for
the purpose therein contained, by signing the name of the corporation by himself as President and
CEO.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
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| My commission expires: 2/13/2010 |
STATE OF NEW YORK
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COUNTY OF MONROE
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On this 19 day of October, 2007, before me, personally appeared Xxxxxx X. Xxxxxxx who
acknowledged himself to be the Chief Financial Officer of XXXXXX INTERACTIVE INC., a corporation,
and that he as such Chief Financial Officer being authorized so to do, executed the foregoing
instrument for the purpose therein contained, by signing the name of the corporation by himself as
Chief Financial Officer.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
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| My commission expires: 2/13/2010 |
