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EXHIBIT 10.23
SECOND AMENDMENT TO LEASE
THIS SECOND AMENDMENT TO LEASE (this "Amendment") is entered into
as of the 30th day of November 2000 between 000 XXXXXXXX OWNERS LLC, a New York
limited liability company, with an office c/o 000 Xxxx 00xx Xxxxxx, Xxx Xxxx,
Xxx Xxxx 00000 ("Landlord") and ORGANIC INC., a Delaware corporation, with an
office at 000 Xxxxx Xxxxxx, 0xx Xxxxx, Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
("Tenant").
W I T N E S S E T H:
WHEREAS, Landlord and Tenant entered into a lease, dated November
4, 1999, as amended by that certain First Amendment to Lease, dated August 30,
2000 (collectively, the "Lease") for certain premises which are more
particularly described in the Lease;
WHEREAS, Tenant desires to surrender the seventeenth (17th) floor
to Landlord and Landlord desires to accept same;
NOW, THEREFORE, in consideration of the foregoing and certain
other considerations, the receipt of which is hereby acknowledged, Landlord and
Tenant hereby agree as follows:
1. Unless otherwise defined herein, all capitalized terms used
herein shall have the meanings set forth in the Lease. To the extent of any
inconsistency between the terms of the Lease and this Amendment, the terms of
this Amendment shall control.
2. Tenant hereby surrenders to Landlord as of 11:59 p.m. on
November 30, 2000 (the "First Surrender Date") the seventeenth (17th) floor of
the Premises. Tenant shall vacate and surrender the seventeenth (17th) floor in
the Surrender Condition on the First Surrender Date. For purposes of this
Amendment, the term "Surrender Condition" shall mean (i) vacant and broom clean,
(ii) all alterations, decorations, installations, additions, improvements,
fixtures, furnishings and equipment located on the floor to be surrendered
remaining in place on such floor except all moveable office furniture shall be
removed from such floor by Tenant, (iii) all systems which Tenant has installed
which connect the floor to be surrendered to the other floors of the Premises
shall, at Tenant's sole cost, be disconnected in order that the floor to be
surrendered is independent of the remaining floors of the Premises (including
but not limited to, (a) disconnecting such floors from any totalizer, (b)
disconnecting any security and fire life safety systems and installing in
substitution thereof panic bars on the doors, where appropriate, and (c)
disconnecting all telecommunications systems) and (iv) all damage, other than de
minimis damage, caused by Tenant's surrender shall be repaired by Landlord and
Tenant shall pay the cost thereof as Additional Rent.
3. Tenant hereby represents and warrants that Tenant has good
right to surrender the seventeenth (17th) floor and that no one other than
Tenant has acquired any right, title or interest in and to said floors.
4. In consideration of the execution of this Amendment and
surrender of the seventeenth (17th) floor in accordance with the terms of this
Amendment, provided that on the Payment Date Tenant shall not be in default
under the Lease, Landlord shall, on the Payment Date, pay to Tenant in an amount
equal to $1,200,000.00 (hereinafter called the "Surrender Payment"). The Payment
Date shall mean the earlier to occur of (i) the closing of any refinancing of
the Building or (ii) May 30, 2001.
5. (a) Simultaneously with the payment of the Surrender Payment to
Tenant by Landlord, Landlord and Tenant shall complete and execute separate New
York City Real Property
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Transfer Tax Returns. Landlord shall file same on or promptly after the date
that the Surrender Payment is paid to Tenant with the New York City Department
of Finance and shall give Tenant notice of such filing. Tenant hereby agrees to
pay simultaneously with the receipt of the Surrender Payment, to the extent such
tax is imposed with respect to the surrender of the sixteenth and seventeenth
floors of the Premises, any New York City Real Property Transfer Tax
(hereinafter called "RPT Tax"). Tenant further agrees to indemnify and hold
Landlord harmless from any obligation for any RPT Tax and any loss, liability,
cost or expense that Landlord may incur by reason of Tenant's failure to pay
same in a timely manner. The provisions of this subparagraph 5(a) shall survive
the termination or expiration of the Lease.
(b) Simultaneously with the payment of the Surrender Payment
to Tenant by Landlord, Landlord and Tenant shall complete and execute separate
New York State Combined Real Estate Transfer Tax Return Credit Line Mortgage
Certificates (TP-584). Landlord shall file the same on or promptly after the
date that the Surrender Payment is paid to Tenant with the New York State
Department of Taxation and Finance. Tenant hereby agrees to pay simultaneously
with the receipt of the Surrender Payment, to the extent such tax is imposed
with respect to the surrender of the sixteenth and seventeenth floors, any New
York State Real Estate Transfer Tax (hereinafter called "Transfer Tax"). Tenant
further agrees to indemnify and hold Landlord harmless from any obligation for
any Transfer Tax and any loss, liability, cost or expense that Landlord may
incur by reason of Tenant's failure to pay same in a timely manner. The
provisions of this subparagraph 5(b) shall survive the termination or expiration
of the Lease.
6. Section 38.2(a) and (b) are hereby deleted from the Lease.
7. Each of the persons executing this Amendment on behalf of
Landlord and Tenant represents that he or she has been so duly authorized by
Landlord and Tenant, respectively.
8. This Amendment contains the entire agreement between the
parties, and any executory or oral agreement hereinbefore or hereafter made
shall be ineffective to change, modify, discharge or effect an abandonment of it
in whole or in part unless such agreement is made after the date hereof and is
in writing and signed by the party against whom enforcement of the change,
modification, discharge or abandonment is sought.
9. Except as modified by this Amendment, the Lease and all
covenants, agreements, terms and conditions thereof shall remain in full force
and effect and are hereby in all respects ratified and confirmed.
10. The covenants, agreements, terms and conditions contained in
this Amendment shall bind and inure to the benefit of the parties hereto and
their respective successors and, except as otherwise provided in the Lease as
hereby supplemented, their respective assigns.
11. This Amendment may not be changed or terminated orally but
only by an agreement in writing signed by the party against which enforcement of
any waiver, change, modification or discharge is sought.
12. This Amendment shall be governed by and interpreted in
accordance with the laws of the State of New York.
13. This Amendment may be executed in any number of counterparts,
each of which shall, when executed, be deemed to be an original and all of which
shall be deemed to be one and the same instrument.
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14. If any provisions of this Amendment or the application thereof
to any person or circumstance shall for any reason and to any extent, be invalid
or unenforceable, the remainder of this Amendment and the application of that
provision to other persons or circumstances shall not be affected but rather
shall be enforced if and to the extent permitted by law.
15. All terms and words used in this Amendment, shall be deemed to
include the singular where plural form is used, the plural where singular form
is used, and any other gender, all as the context may require.
16. This Amendment shall not be binding upon Landlord unless and
until a fully executed counterpart of this Amendment is delivered by Landlord or
its attorney to Tenant or its attorney.
IN WITNESS WHEREOF, the parties hereto have executed this
Amendment as of the day and year first above written.
LANDLORD:
000 XXXXXXXX OWNERS LLC
By: ___________________________
Name:
Title: Manager
TENANT:
ORGANIC, INC.
By: ___________________________
Name:
Title:
