EXHIBIT 10.45
PARISH OF TRINITY CHURCH
00 XXXXXXX XXXXX
XXX XXXX, XXX XXXX 00000
November 20, 2001
PhotoDisc, Inc.
One Xxxxxx Square
00 Xxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Re: Lease dated as of April 1, 2000 between The Xxxxxx,
ChurchWardens and Vestrymen of Trinity Church in the City of New
York (the "Landlord") and PhotoDisc, Inc. (the "Tenant")
affecting portions of the building known as One Xxxxxx Square
(a/k/a 00 Xxxxxx Xxxxxx), Xxx Xxxx, Xxx Xxxx, as amended by First
Amendment of Lease dated as of October 31, 2000, the Agreement
Regarding Sixth Floor Premises dated as of June 19, 2001 and
Second Amendment of Lease dated as of November 20, 2001
collectively, the "Lease")
Ladies and Gentlemen:
In accordance with your request, Landlord hereby grants Tenant
permission to sublet to Xxxxxx Xxxxxxx X.X. Inc. ("Subtenant") the entire fourth
and sixth floors (the "Sublet Premises") in the above-referenced premises,
pursuant to a Sublease dated as of November 5, 2001, and Amendment dated as of
November 20, 2001 (collectively, the "Sublease") by and between Tenant, as
Sublessor, and Subtenant, as Subtenant, subject to the following terms and
conditions, to each of which Tenant and Subtenant each agree:
1. A true and correct copy of the Sublease is attached hereto as Exhibit
"A". Nothing contained herein or in the Sublease shall be construed to
modify, waive, impair or affect any of the terms, provisions or
conditions of the Lease, or to waive any breach thereof, or any rights
of Landlord against any party liable or responsible for the performance
thereof, and all of the terms, covenants and conditions of the Lease
shall remain in full force and effect. Tenant shall remain liable,
throughout the term of the Lease, for the performance of all of the
Tenant's obligations thereunder, including, without limitation, the
payment of all fixed and additional rent.
2. Subtenant shall neither assign, pledge or encumber the Sublease nor
sublet nor permit occupancy by others of all or any part of the Sublet
Premises except in accordance with the provisions of the Lease and the
Sublease. This consent by Landlord to the Sublease shall not be deemed
to give Subtenant any rights to further sublet or permit the use or
occupancy of all or any part of the Sublet Premises by others, whether
voluntarily or involuntary, without Landlord's written consent in
accordance with the terms of the Lease.
3. Subtenant agrees that, notwithstanding any provisions to the contrary in
the Sublease, the waivers, including but not limited to the waiver of
subrogation, required to be made by any subtenant pursuant to the
provisions of the Lease are hereby deemed made by Subtenant, which
waivers shall continue in effect so long as required pursuant to the
provisions of the Lease, but in no event beyond the expiration or sooner
termination of the Sublease.
4. The Sublease shall be subject and subordinate in all respects to the
Lease and all of the terms, covenants and conditions thereof and
Subtenant shall not violate or permit the violation of any of the terms,
covenants or conditions of the Lease applicable to the Sublet Premises.
The Tenant and Subtenant shall not modify the terms of the Sublease
without the prior written consent of the Landlord, which consent shall
not be unreasonably withheld. If the terms of the Sublease are modified
without the prior written consent of the Landlord (which consent shall
not be unreasonably withheld), those modifications shall be void and of
no effect against Landlord and shall not, in any way, be deemed approved
or consented to by this letter.
5. Both Tenant and Subtenant have only dealt with Plymouth Partners, Ltd.
and CB Xxxxxxx Xxxxx, Inc. (the "Brokers") in connection with this
matter and Tenant shall pay said Brokers any commission and/or fees in
connection with this transaction pursuant to separate agreement.
Subtenant and Tenant shall, jointly and severally, defend, save and hold
Landlord harmless from any brokerage fees and/or commissions arising by
reason of Subtenant's rental of the Sublet Premises from Tenant, as well
as all other claims, liability, losses or expenses, including reasonable
attorneys' fees, incurred by Landlord in connection with any claims for
a commission by any broker or agent in connection with this transaction.
Landlord represents that it has not granted any broker an exclusive or
"override" agreement whereby such party would be entitled to receive a
commission in connection with the Sublease. Subtenant agrees that if
Subtenant becomes a direct tenant of Landlord for the Sublet Premises or
any part thereof upon the expiration or earlier termination of the
Lease, Landlord shall not be responsible for the payment of any
commissions or fees in connection with such direct lease, and Tenant and
Subtenant jointly and severally agree to indemnify and hold Landlord
harmless from and against any claims, liability, losses or expenses,
including reasonable attorneys' fees, incurred by Landlord in connection
with any claims for a commission by any broker or agent in connection
with any such direct lease. Landlord represents that it has not granted
any broker an exclusive or "override" agreement whereby such party would
be entitled to receive a commission if the Subtenant becomes a direct
tenant of Landlord for the Sublet Premises, and covenants that it shall
not grant such an agreement unless Landlord agrees to be liable for the
payment of such commissions.
6. If Tenant shall default under the Sublease, Landlord shall incur no loss
or liability by reason thereof.
7. Upon the expiration or earlier termination of the Lease, or in the case
of the surrender of the Lease by Tenant to Landlord, Subtenant shall be
permitted to remain in occupancy of the Sublet Premises in accordance
with the terms of a Non-Disturbance and Attornment Agreement by and
between Landlord and Subtenant, and bearing even date herewith.
8. Landlord hereby represents and warrants to Tenant and Subtenant that, as
of the date hereof, the land and building at 0 Xxxxxx Xxxxxx (75 Varick
Street), New York, New York are not subject to any mortgage or
underlying lease to which Tenant or Subtenant's rights would be
subordinate under Article Thirteen of the Lease.
9. Tenant hereby grants Landlord a security interest in Tenant's right,
title and interest in and to the Sublease, including the fixed and
additional rent and all other amounts payable by the Subtenant pursuant
to the Sublease, and, shall simultaneously herewith, deliver to Landlord
a check in the amount of $300.00 to defray Landlord's legal expenses in
connection with the granting of such security interest.
10. Confirming the provisions of Article Seventeen (f)(4) of the Lease, if
Landlord notifies Subtenant that Tenant is in default in the payment of
rent or in the performance of its other obligations under the Lease
beyond the expiration of applicable notice and cure periods, Subtenant
shall, if requested by Landlord, pay all rent and other sums due under
the Sublease directly to Landlord and Subtenant will not be liable to
Tenant for the payment of such amounts.
11. Landlord agrees that Subtenant shall be entitled to its Proportionate
Share (as defined in the Sublease) of listings in the electronic
building directory located in the lobby of the building.
12. On any floor on which the Subtenant is a full-floor tenant, it shall be
entitled to put a sign in the elevator lobby of such floor, subject to
the Landlord's prior written consent, which consent shall not be
unreasonably withheld or delayed.
13. Landlord agrees that it shall perform the work set forth in Exhibit A
annexed hereto at Landlord's sole cost and expense in accordance with
all applicable laws, on or before the dates set forth in such Exhibit.
14. Landlord and Tenant each hereby consent to the Subtenant's use of the
contractors set forth on Exhibit B hereto for purposes of performing
Subtenant's alterations at the Sublet Premises.
15. Clarifying the provisions of Paragraph 13(B) of the Sublease, in the
event Landlord is entitled to receive any portion of Tenant's Profit in
accordance with the provisions of Article Seventeen (k) of the Lease as
a result of this Sublease or
any permitted sub-sublease or assignment, Landlord shall receive all
payments to which it shall be entitled under the Lease based on the
aggregate consideration received by Tenant.
16. Notwithstanding the provisions of Paragraph 14 of the Sublease,
Subtenant shall indemnify Landlord on the same terms as Tenant is
obligated to indemnify Landlord under the Lease, provided, however, that
Subtenant shall not indemnify Landlord (i) for Tenant's acts nor in
respect of Tenant's premises other than the Sublet Premises, or (ii) for
the matters described in Paragraph 14(A)(iii) of the Sublease.
17. Landlord acknowledges that Tenant has not supplied the financial
information of Subtenant as required by Article Seventeen of the Lease.
For the sole purpose of considering and granting this consent, Landlord
waives this requirement.
18. This Consent may not be changed orally, but only by an agreement in
writing signed by the party against whom enforcement of any change is
sought.
19. In the event of any conflict between the provisions of (i) the Lease or
this Consent and (ii) the Sublease, the provisions of the Lease or this
Consent shall prevail unaffected by the provisions of the Sublease. In
the event of any conflict between the provisions of this Consent and the
provisions of the Lease, the provisions of this Consent shall prevail.
Furthermore, to the extent that any duty, obligation or covenant of the
Subtenant under the Sublease is not as strict, or is less stringent than
any similar corresponding duty, obligation or covenant of the Tenant
under the Lease, the execution and delivery of this Consent by the
Landlord shall not in any way be deemed to modify or amend the duty,
obligation or covenant agreed to by the Tenant under the Lease or to
have waived the Landlord's right to enforce against the Tenant any such
duty, obligation or covenant as set forth in the Lease.
20. Except to the extent expressly modified by the foregoing provisions of
this letter agreement, the Lease and Sublease are each hereby ratified
and confirmed in all respects.
21. Getty Images, Inc. ("Getty") hereby confirms that (a) the Lease Guaranty
Agreement dated April 6, 2000, pursuant to which Getty guaranteed the
obligations of Tenant under the Lease remains in full force and effect,
and (b) Getty consents to Tenant entering into the Sublease.
22. This agreement may be executed in counterparts which, when taken
together shall constitute a single agreement.
Kindly sign, where indicated below to indicate your agreement with these
terms.
Very truly yours,
THE XXXXXX, CHURCH-WARDENS AND
VESTRYMEN OF TRINITY CHURCH IN THE
CITY OF NEW YORK
By:
-------------------------------------
Xxxxxxx X. Xxxxxx
Director of Commercial Real Estate Leasing
Agreed and Accepted:
Tenant:
PhotoDisc, Inc.
By: [Signature Illegible]
--------------------------
Name:
Title:
Subtenant:
Xxxxxx Xxxxxxx X.X. Inc.
By:
--------------------------
Name:
Title:
Guarantor, as to Paragraph 21 only
Getty Images, Inc.
By: [Signature Illegible]
--------------------------
Name:
Title:
22. This agreement may be executed in counterparts which, when taken
together shall constitute a single agreement.
Kindly sign where indicated below to indicate your agreement with these
terms.
Very truly yours,
THE XXXXXX, CHURCH-WARDENS AND
VESTRYMEN OF TRINITY CHURCH IN THE
CITY OF NEW YORK
By:
-------------------------------------
Xxxxxxx X. Xxxxxx
Director of Commercial Real Estate Leasing
Agreed and Accepted:
Tenant:
PhotoDisc, Inc.
By:
--------------------------
Name:
Title:
Subtenant:
Xxxxxx Xxxxxxx X.X. Inc.
By: /s/ XXXX X. XXXXXXX
--------------------------
Name: XXXX X. XXXXXXX
Title: FIRST VICE PRESIDENT
REAL ESTATE DEPARTMENT
Guarantor, as to Paragraph 21 only
Getty Images, Inc.
By:
--------------------------
Name:
Title:
22. This agreement may be executed in counterparts which, when taken
together shall constitute a single agreement.
Kindly sign where indicated below to indicate your agreement with these
terms.
Very truly yours,
THE XXXXXX, CHURCH-WARDENS AND
VESTRYMEN OF TRINITY CHURCH IN THE
CITY OF NEW YORK
By: [Signature Illegible]
-------------------------------------
E.V.P. Real Estate
Agreed and Accepted:
Tenant:
PhotoDisc, Inc.
By:
--------------------------
Name:
Title:
Subtenant:
Xxxxxx Xxxxxxx X.X. Inc.
By:
--------------------------
Name:
Title:
Guarantor, as to Paragraph 21 only
Getty Images, Inc.
By:
--------------------------
Name:
Title:
EXHIBIT A
Work to be done by Landlord, at Landlord's expense, in the Sublet Premises under
the terms of the Lease:
1. Smoke exhaust stubouts and general exhaust stubouts from the building
shafts will be installed by Landlord by November 30, 2001.
2. Supply and return ducts will be installed outside of each mechanical
room by November 30, 2001.
3. ACU 6-5 outside air connection will be completed by Landlord by November
30, 2001.
4. Fourth and sixth floors are on temporary electric feeds (converted 208
feeds) until bus ducts are available. Landlord will be responsible for
transferring Subtenant's electric service from the 208 service to new
building bus ducts, such work to be done by February 1, 2002, subject to
delays by Con Edison in completing any work to be done by the utility in
effecting such transfer. Landlord represents that this temporary service
shall provide a total demand load of 6 xxxxx per rentable square foot to
the Sublet Premises.
EXHIBIT B
APPROVED SUB-CONTRACTORS
Electrical Acoustics
---------- ---------
ADCO Electric National Acoustics
X.X. Xxxxxxxx Xxxxxxxx Contracting
Xxxxxxx & Xxxxx Electric Xxxxxx Interiors
Unity Electric Xxxxxxxxx
Xxxxxxxxxx Electric
H&B Xxxxxxx and Xxxxxx
Amtec/Xxxx
HVAC Paint
---- -----
Penguin A/C Corp. Xxxxxx Hill Paint
Harbour Mechanical Xxxxxx Xxxxx
X.X. Mechanical Cosmopolitan Painting
Xxxxxxxxx Ventilation Newport Painting & Decorating
Plumbing Millwork
-------- --------
Lab Plumbing Xxxxxxxxx Contracting
Xxxxxx Xxxxxxx Plumbing Island Architectural Woodwork
PAP Plumbing Nordic Interiors
Preferred Plumbing Xxxx Woodworking
Hird Blaker
Millright Woodwork
Sprinkler Glazing
--------- -------
Active Sprinkler F&F Glass
Triangle Fire Protection Artisan Glazing
ABCO Peerless Lafayette Glass
Xxxxxxxxx Ventilation
Xxxx Automatic Sprinkler
Drywall
-------
Call Enterprises
Xxxxxx Partition
Xxxxxxxxx Contracting
Xxxxxxxx Contracting
