FIRST LEASE MODIFICATION AGREEMENT
First Lease Modification Agreement
("First Modification") dated as of May 14, 2008 between MED 469 LLC; Xxxxxx 469
LLC and TPP 469 LLC, c/o Williams U.S.A. Realty Services, Inc., 000 Xxxxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx, 00000 (hereinafter collectively referred to as the
"Landlord") and Traffix, Inc. ("Tenant").
WHEREAS, by a lease agreement dated as
of April 14, 2008 (hereinafter referred to as the “Lease”), Tenant leased from
Landlord a portion of the tenth (10th) floor
known as Room 1001(hereinafter referred to as the "Original Demised Premises")
in the building known as 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx (the "Building")
for a term which is to expire on September 30, 2018; and
WHEREAS, Landlord and Tenant now desire
to amend the Lease to (i) provide for Tenant to rent additional office space
consisting of a portion of the tenth floor known as Room 1002 and as shown on
the plan attached hereto (the “Additional Space”); and (ii) otherwise modify the
terms of the Lease as provided below;
NOW THEREFORE, in consideration of the
mutual covenants herein contained the parties hereto mutually covenant and agree
as follows:
1. Effective
as of the Additional Space Commencement Date, as such term is defined below,
Landlord shall deliver, and Tenant shall accept the Additional Space in broom
clean and otherwise in its "as is" condition, and the following amendments to
the Lease with respect to the Additional Space only shall become effective, the
intent herein being that Tenant shall pay both (a) the charges set forth in the
Lease in the manner set forth in the Lease for the Original Demised Premises
plus (b) the charges set forth herein for the Additional Space. Thereupon, the
premises demised to Tenant under the Lease shall be deemed to consist of the
Additional Space and the Original Demised Premises, and the leasing of such
Additional Space shall be upon all of the terms and conditions contained in the
Lease except that no work, work allowance or rent concession is to be performed
or granted by Landlord with respect to the Additional Space except as otherwise
expressly set forth herein and the following amendments to the Lease shall
become effective:
(i) the
"annual rental rate" with respect to solely to the Additional Space shall
be:
a)
$215,213.00 per year from the Additional Space Commencement Date to the last day
of the First (1st) “Lease
Year” (defined below);
b)
$221,669.00 per year from the first day of the Second (2nd) Lease
Year to the last day of the Second (2nd) Lease
Year;
c)
$228,319.00 per year from the first day of the Third (3rd) Lease
Year to the last day of the Third (3rd) Lease
Year;
d)
$235,169.00 from the first day of the Fourth (4th) Lease
Year to the last day of the Fourth (4th) Lease
Year;
e)
$242,224.00 per year from the first day of the Fifth (5th) Lease
Year to the last day of the Fifth (5th) Lease
Year;
f)
$263,228.00 per year from the first day of the Sixth (6th) Lease
Year to the last day of the Sixth (6th) Lease
Year;
g)
$271,125.00 per year from the first day of the Seventh (7th) Lease
Year to the last day of the Seventh (7th) Lease
Year;
h)
$279,258.00 per year from the first day of the Eighth (8th) Lease
Year to the last day of the Eighth (8th) Lease
Year;
i)
$287,636.00 per year from the first day of the Ninth (9th) Lease
Year to the last day of the Ninth (9th) Lease
Year;
j)
$296,265.00 per year from the first day of the Tenth (10th) Lease
Year to the last day of the Tenth (10th) Lease
Year; and
k)
$305,153.00 per year from the first day of the Eleventh (11th) Lease
Year to January 31, 2019;
(ii) the
percentage utilized for computing additional rent due to Real Estate Tax
Increases as set forth in Article 35 of the Lease with respect to the Additional
Space shall be 1.831;
(iii) the
additional rent due for the use of water, as set forth in Article 64 of the
Lease, and the contract price for sprinkler advisory service, as set forth in
Article 65 of the Lease with respect to the Additional Space, shall each be
$37.00;
(iv) Article
76.02 (2) of the Lease shall be deemed deleted from the Lease and replaced with
the following Article 76.02: “76.02 (2) Provided all of the
conditions set forth in subparagraph 76.02(1)(i), (ii) and (iii) above have been
met, the Letter of Credit referred to in this article shall be reduced on the
3rd
anniversary of the Commencement Date by $116,150.24 and on the 5th
anniversary of the Commencement Date by $116,150.24 so that if Tenant meets all
of the requirements set forth in subparagraph 76.02(1) above the Letter of
Credit shall ultimately be reduced to $232,300.50. On or after each such date,
Tenant shall request in writing of Landlord as to whether the applicable
conditions have been met, and, if so, Landlord shall authorize Tenant to direct
the issuer of the Letter of Credit to issue an amendment thereto reducing the
amount as provided herein, and Landlord agrees to execute and accept such
amendment and return it to Tenant.”
(v) the
provisions of Article 77 of the Lease shall be applicable with respect to the
Additional Space except that the “Landlord Maximum Contribution” as such term is
defined therein shall be modified so as to mean “$160,265.00” with respect to
the Additional Space.
(vi)
Article 78 of the Lease shall be deemed deleted therefrom;
(vii) For
purposes of this First Modification, the term (A) Additional Space
Commencement Date shall mean the
date which (i) which is three (3) business days
after the date in which Landlord gives notice to Tenant that the Landlord’s
Work, as such term is defined herein, required to be performed by Landlord,
solely with respect to Additional Space has been “substantially completed”, or
(ii) which Tenant (or its agent) enters, uses or occupies any portion of the
Additional Space, the earlier of which to occur.; and (B)"substantially
completed” shall be deemed to mean the date when Landlord's Work shall have been
completed with the exception of punch list items and insubstantial details which
do not prevent Tenant from conducting its business in the Additional
Space.
(viii)
For purposes of this First Lease Modification, the First "Lease Year" shall mean
the period from the Additional Space Commencement Date through the last day of
the month in which the anniversary of the Additional Space Commencement Date
occurs unless the Additional Space Commencement Date is the first day of the
month, in which event the First Lease Year shall end on the date preceding the
first anniversary thereof. Each successive Lease Year shall mean
successive twelve (12) calendar months and the Eleventh Lease Year shall end on
September 30, 2018;
|
|
2.
|
Landlord
agrees to perform the following work within the Additional
Space:
|
|
|
(i)
|
Demolish
and remove all existing interior non-load bearing drywall partitions and
other installations, inclusive of the existing air-conditioning unit, if
any, from the demised premises, and bring the wiring associated with the
Landlord’s Class E fire alarm system to a designated point of the
Additional Space and Tenant shall thereafter be responsible to connect
same to the designated points of the Class E fire alarm
system. Landlord will leave the existing Class E devices
(speaker, strobes etc.) and wiring in place or hanging from the ceiling.
Landlord will remove the wooden radiator enclosures, if any, but will not
remove the metal fin covers.
|
|
|
(ii)
|
Remove
existing air-conditioning unit and window unit and replace same with one
(1) new building standard ten (10) ton air-conditioning unit in location
as designated by Tenant and approved by Landlord, and replace the window
openings that have louvers with new windows. Tenant shall, at its sole
cost and expense, be responsible for any and all related distribution
ductwork.
|
|
|
(iii)
|
Deliver
the existing windows clean and in working
order;
|
|
|
(iv)
|
Remove
all existing flooring down to the
concrete.
|
Items (i)
(ii) (iii) and (iv) above and the matters described in Section 6 below are
hereinafter collectively referred to as the “Landlord’s Work”)
3. Anything
contained herein to the contrary notwithstanding, Tenant's obligations to pay
the "Fixed Rent" with respect to the Additional Space shall commence as of the
date (the "Rent Date") which is one hundred thirty five (135) days after the
Additional Space Commencement Date except that Tenant shall pay all additional
rent otherwise payable hereunder including, without limitation, charges
attributable to electric service as of the Additional Space Commencement
Date.
4. Landlord
and Tenant warrant and represent to each other that they have had no dealings
with any broker or agent except Xxxxxxxx Real Estate Co. Inc., and Xxxxxxx/Xxxxx
Realty LLC in connection with this First Modification and covenant
and agree to hold harmless and indemnify each other from and against any and all
costs, expenses or liability for any compensation, commissions, fees and charges
claimed by any other broker or agent with respect to this First Modification or
the negotiation thereof based on the actions of the indemnifying party, its
agents or representatives. The obligations of each party contained herein shall
survive the expiration and/or earlier termination of the Lease.
5. Upon
execution of this First Modification, Tenant shall furnish to Landlord an
amendment to the Letter of Credit which increases the face amount thereof by
$152,876.00.
6. Promptly
subsequent to the full execution of this First Modification and delivery of same
to both parties hereto and prior to completion of Landlord’s Work, Landlord
agrees, with respect to the Additional Space, to provide Tenant with an ACP-5
certificate, or comparable certificate providing in effect that plans for
alterations to be performed to the Additional Space may be filed by the New York
City Department of Buildings as a “no asbestos” project and that no action need
be taken regarding asbestos with respect to the Additional Space. In
addition, Landlord will be responsible, at its sole cost and expense, as part of
Landlord’s Work to promptly encapsulate or remove any friable asbestos in the
Additional Space, provided however that any violations of laws relating to
asbestos not introduced by Tenant, its contractors and/or its invitees or caused
by Tenant’s construction shall be remedied by Tenant at its sole cost and
expense.
7. This
First Modification may not be changed, modified or canceled orally and shall be
binding upon and inure to the benefit of the respective parties hereto, their
successors, and except as otherwise provided in the Lease, their
assigns.
8.
As modified and extended by this First Modification, the Lease is hereby
ratified and confirmed in all respects.
IN WITNESS WHEREOF, the parties hereto
have executed this agreement as of the day and year first above
written.
|
Witness
for Landlord:
|
Landlord:
|
|||
|
MED
469 LLC; Xxxxxx 469 LLC and TPP469 LLC
|
||||
|
|
BY:
|
|||
|
Xxxxxx
Xxxxx, Authorized Signatory
|
||||
|
Witness
for Tenant:
|
Tenant:
|
|||
|
Traffix
Inc.
|
||||
|
|
BY:
|
|||
