EXECUTION ORIGINAL
SECOND AMENDMENT OF LEASE
THIS SECOND AMENDMENT OF LEASE (this "Amendment") dated as of the 15th
day of May, 2000 between POLESTAR FIFTH PROPERTY ASSOCIATES LLC, a Delaware
limited liability company having an office c/o Emmes Realty Services LLC, 420
Lexington Avenue, New York, New York 10170 ("Landlord") and PREDICTIVE SYSTEMS,
INC., a Delaware corporation having an office at 417 Fifth Avenue, New York, New
York 10016 ("Tenant").
W I T N E S S E T H:
WHEREAS, Landlord and Tenant have heretofore entered into a certain
agreement of lease dated as of June 25, 1999 (the "Original Lease"), as amended
by that certain First Amendment of Lease dated as of September 15, 1999 (the
"First Amendment", and together with the Original Lease, collectively, the
"Lease") with respect to the entire tenth (10th) and eleventh (11th) floors (the
"Premises") in the building known as 417 Fifth Avenue, New York, New York (the
"Building"), upon and subject to all of the terms, conditions and provisions as
set forth in the Lease; and
WHEREAS, the parties hereto desire to modify the Lease in certain
respects to provide for the cleaning of the Premises by Tenant at Tenant's
expense and a corresponding reduction in the base rent to reflect such decrease
in services provided by Landlord, as more particularly set forth herein.
NOW, THEREFORE, in consideration of the promises and the mutual
covenants hereinafter contained, the parties hereto agree as follows:
1. RECITALS, DEFINED TERMS. The recitals set forth above are true
and correct and by this reference are incorporated herein in their entirety. All
capitalized terms contained in this Amendment which are not otherwise defined
herein shall, for the purposes hereof, have the same meanings ascribed to them
in the Lease.
2. CLEANING BY TENANT. Effective as of May 15, 2000 (the
"Adjustment Date"), subsection E of Article 29 of the Lease shall be deleted in
its entirety and the following provision inserted in lieu thereof:
E. Cleaning. Tenant, at Tenant's sole cost and
expanse, shall cause the Premises to be kept clean in
a manner reasonably satisfactory to Landlord and no
one other than persons approved by Landlord shall be
permitted to enter the Premises or the Building for
such purpose. Notwithstanding the foregoing, Landlord
hereby approves Atlantic Building Maintenance Company
to enter the Premises and the Building to perform
cleaning services in the Premises and Landlord agrees
that it shall
not unreasonably withhold or delay its consent to any
other cleaning company proposed by Tenant provided:
(i) that, in Landlord's reasonable judgment, such
cleaning company is reasonably sound financially and has a
confirmed reputation for providing quality professional
services appropriate for a first-class office building and
that the cleaning specifications contracted for by Tenant with
respect to the Premises are, at a minimum, comparable to the
specifications annexed to this Lease as Exhibit 4;
(ii) such cleaning company maintains insurance naming
Landlord, Landlord's managing agent and other entities
designated by Landlord from time to time as additional
insureds with coverage for liability, workers compensation and
fidelity at limits reasonably approved by Landlord and such
other coverages as reasonably required by Landlord in amounts
reasonably required by Landlord; and
(iii) that, in Landlord's reasonable judgment, such
cleaning company shall use only such employees and other
workers as shall be compatible with all other employees and
workers employed in connection with the Building and any work
being performed in the Building; and no such employee or
worker employed or retained by or on behalf of such cleaning
company shall be the cause of any labor disturbance, strike,
picketing, jurisdictional union dispute or work slowdown. If
any such disturbance, strike, picketing, dispute or slowdown
shall occur due to the persons employed by or on behalf of
such cleaning company, then upon Landlord's notice to Tenant,
Tenant shall cause such cleaning company to immediately either
cease performance of work in the Premises or prohibit such
persons from performing work in the Premises and/or the
Building. In the event Tenant is unable to use its cleaning
company to perform cleaning services in the Premises as a
result of the operation of this Article 29, subsection E(iii),
Landlord shall use commercially reasonable efforts to cause
the Building's cleaning company to provide such services to
Tenant at its then customary charges therefor. Tenant's
failure to comply with provisions of this clause (iii) shall
be deemed to be a material default under this Lease without
the giving of any further notice thereof.
Tenant shall have the cleaning company promptly bag and remove
all garbage, rubbish and waste arising out of or in connection
with the conduct of its business at the Premises to the
freight elevator area on the tenth (10th) and eleventh (11th)
floors of the Building or any other designated disposal area,
under such conditions and at such times as reasonably approved
by Landlord and in such manner so as to avoid any obnoxious or
offensive smells or odors therefrom or otherwise unreasonably
interfering with the comfort and quiet enjoyment of the other
occupants of the Building or pedestrians. Landlord shall have
the Building porters remove the garbage, rubbish and waste
from the tenth (10th) and eleventh (11th) floors to the
designated disposal area on the ground floor of the Building,
and Tenant shall pay Landlord's customary charge therefor as
additional rent hereunder within twenty (20) days after being
billed therefor
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(which charge shall initially be in the amount of Ninety and
00/100 ($90.00) Dollars per week, subject to increase from
time to time during the Term hereof, provided such increase is
uniformly applicable to the tenants in the Building). Tenant
shall, at its sole cost and expense, engage a carting company
reasonably approved by Landlord for the removal and disposal
of Tenant's rubbish and trash from the designated disposal
area on the ground floor of the Building. The disposal of
garbage, rubbish and waste shall be made subject to and in
accordance with the reasonable rules and regulations from time
to time promulgated by Landlord, which shall not be enforced
against Tenant in a discriminatory manner, and Tenant shall
not permit accumulations of garbage, rubbish or waste except
at locations designated by Owner for all Building tenants on a
non-discriminatory basis. Tenant shall not permit the
discharge of odors or humidity into any other portions of the
Building or adjacent areas. If, as a result of Tenant's
activities, any governmental agency or quasi-governmental
agency, board or other body having jurisdiction over the
Building or the Premises has issued a summons or other notice
of violation of any health or safety laws or regulations,
Tenant shall immediately cease and desist from the activity
which gave rise to such summons or other notice of violation.
3. REDUCTION IN RENT. In consideration of the performance of the
cleaning of the Premises by Tenant's approved contractors at Tenant's expense,
effective as of the Adjustment Date, the Rent payable under the Lease shall be
reduced by $1.15 per rentable square foot. Accordingly, effective as of the
Adjustment Date, the Lease shall be deemed modified as follows:
A. 11th Floor Rent. Clause (xv) of subsection A of
Article 1 of the Original Lease shall be deleted in its entirety and the
following provision inserted in lieu thereof:
(xv) "Rent" shall mean:
(a) for the period commencing on the
Commencement Date through and
including May 14, 2000, Nine
Hundred Forty-Two Thousand Seven
Hundred Twenty and 00/100
($942,720.00) Dollars per annum,
payable in equal monthly
installments of Seventy-Eight
Thousand Five Hundred Sixty and
00/100 ($78,560.00) Dollars each;
(b) for the period commencing on the
May 15, 2000 through and including
the day immediately preceding the
date on which the third (3rd)
anniversary of the Commencement
Date shall occur, Nine Hundred
Eight Thousand Eight Hundred
Forty-One and 00/100 ($908,841.00)
Dollars per annum, payable in equal
monthly installments of
Seventy-Five Thousand Seven Hundred
Thirty-Six and 75/100 ($75,736.75)
Dollars each;
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(c) for the period commencing on the
date on which the third (3rd)
anniversary of the Commencement
Date shall occur through and
including the day immediately
preceding the date on which the
seventh (7th) anniversary of the
Commencement Date shall occur, One
Million Twenty-Six Thousand Six
Hundred Eighty-One and 00/100
($1,026,681.00) Dollars per annum,
payable in equal monthly
installments of Eighty-Five
Thousand Five Hundred Fifty-Six and
75/100 ($85,556.75) Dollars each;
and
(d) for the period commencing on the
date on which the seventh (7th)
anniversary of the Commencement
Date shall occur through and
including the Expiration Date, One
Million One Hundred Twenty-Nine
Thousand Seven Hundred Ninety-One
and 00/100 ($1,129,791.00) Dollars
per annum, payable in equal monthly
installments of Ninety-Four
Thousand One Hundred Forty-Nine and
25/100 ($94,149.25) Dollars each.
B. Penthouse Space Rent. Subsection B(ii) of Article 42
of the Original Lease shall be deleted and the following provision inserted in
lieu thereof:
(ii) the "Rent," as defined in clause (iii) of
subparagraph A of Article 1, shall be deemed
increased by the amount of Forty-Six Thousand Six
Hundred Twenty and 00/100 ($46,620.00) Dollars per
annum through the Term of this Lease (provided,
however, if this Lease remains in full force and
effect and Tenant is not in default hereunder after
receipt of notice thereof and the expiration of any
applicable cure period, the Rent payable with respect
to the Penthouse Space only shall be abated for the
one hundred eighty (180) day period immediately
following the Penthouse Space Commencement Date);
C. Space A Rent. Subparagraph 3(B)(1) of the First
Amendment shall be deleted in its entirety and the following provision inserted
in lieu thereof:
(1) Rent: The Rent set forth in subsection A
(xv) of Article 1 of the Original Lease shall be
increased by, and "Rent" with respect to Space A only
shall mean:
(a) for the period commencing on the
Space A Commencement Date through
and including May 14, 2000, One
Hundred Thirty-Nine Thousand Five
Hundred Twenty and 00/100
($139,520.00) Dollars per annum,
payable in equal monthly
installments of Eleven Thousand Six
Hundred Twenty-Six and 67/100
($11,626.67) Dollars each;
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(b) for the period commencing on the
May 15, 2000 through and including
September 14, 2002, One Hundred
Thirty-Four Thousand Five Hundred
Six and 00/100 ($134,506.00)
Dollars per annum, payable in equal
monthly installments of Eleven
Thousand Two Hundred Eight and
83/100 ($11,208.83) Dollars each;
(c) for the period commencing on
September 15, 2002 through and
including September 14, 2006, One
Hundred Fifty-One Thousand Nine
Hundred Forty-Six and 00/100
($151,946.00) Dollars per annum,
payable in equal monthly
installments of Twelve Thousand Six
Hundred Sixty-Two and 17/100
($12,662.17) Dollars each; and
(d) for the period commencing on
September 15, 2006 through and
including the Expiration Date, One
Hundred Sixty-Seven Thousand Two
Hundred Six and 00/100
($167,206.00) Dollars per annum,
payable in equal monthly
installments of Thirteen Thousand
Nine Hundred Thirty-Three and
83/100 ($13,933.83) Dollars each.
D. Space B Rent. Subparagraph 4(C)(1) of the First
Amendment shall be deleted in its entirety and the following provision inserted
in lieu thereof;
(1) Rent: The Rent set forth in subsection A
(xv) of Article 1 of the Original Lease shall be
increased by, and "Rent" with respect to Space B only
shall mean:
(a) for the period commencing on the
Space B Commencement Date through
and including September 14, 2002,
Four Hundred Ninety-Six Thousand
Thirty-Seven and 15/100
($496,037.15) Dollars per annum,
payable in equal monthly
installments of Forty-One Thousand
Three Hundred Thirty-Six and 43/100
($41,336.43) Dollars each (the
foregoing rental rate being
hereinafter referred to as the "New
Space B Rental"). Notwithstanding
the foregoing however, if
possession of a portion of Space B
only is delivered to Tenant on or
prior to the Anticipated Space B
Delivery Date, then, for the period
from the Space B Commencement Date
through and including the date
Landlord delivers possession of the
balance of Space B, the Rent
payable with respect to such
portion of Space B then delivered
shall be the lesser of (i) the New
Space B Rental and (ii) the then
escalated rent that was payable by
the prior tenant thereof
immediately prior to the expiration
or earlier termination of such
tenant's lease (the "Prior Space B
Rental"); provided, however, if
Landlord arranges for such
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early possession at the request of
Tenant, then Tenant shall pay the
aforesaid New Space B Rental.
However, if possession of all of
Space B is delivered to Tenant
prior to the Anticipated Space B
Delivery Date then the Rent payable
with respect to all of Space B from
the Space B Commencement Date
through and including the date
occurring six (6) months prior to
the Anticipated Space B
Commencement Date shall be the
lesser of (x) the New Space B
Rental and (y) at the Prior Space B
Rental. Thereafter, Tenant shall
pay the New Space B Rental
hereinabove stipulated; provided,
however, if Landlord arranges for
such early possession at the
request of Tenant, then Tenant
shall pay the New Space B Rental
commencing on the Space B
Commencement Date. In the event
part of Space B is delivered to
Tenant prior to delivery of all of
Space B, the New Space B Rental or
Prior Space B Rental, as
applicable, shall be appropriately
prorated;
(b) for the period commencing on
September 15, 2002 through and
including September 14, 2006, Five
Hundred Sixty Thousand Three
Hundred Fifty-Three and 15/100
($560,353.15) Dollars per annum,
payable in equal monthly
installments of Forty-Six Thousand
Six Hundred Ninety-Six and 10/100
($46,696.10) Dollars each; and
(c) for the period commencing on
September 15, 2006 through and
including the Expiration Date, Six
Hundred Sixteen Thousand Six
Hundred Twenty Nine and 65/100
($616,629.65) Dollars per annum,
payable in equal monthly
installments of Fifty-One Thousand
Three Hundred Eight-Five and 80/100
($51,385.80) Dollars each.
E. Space B Rent Credit. Subsection 4(D) of the First
Amendment shall be deleted in its entirety and the following provision inserted
in lieu thereof:
D. SPACE B RENT CREDIT. Notwithstanding
anything to the contrary hereinabove set forth,
provided the Lease is in full force and effect and
Tenant is not in default thereunder beyond the
expiration of any applicable grace or cure period,
Tenant shall be entitled to a credit against the Rent
payable with respect to Space B only for the one
hundred eighty (180) day period commencing on the
date Landlord delivers all of Space B to Tenant,
which rent credit shall be in the aggregate amount of
$248,018.58.
F. Space C Rent. Subparagraph 5(C)(1) of the First
Amendment shall be deleted in its entirety and the following provision inserted
in lieu thereof:
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(1) Rent: The Rent set forth in subsection A
(xv) of Article 1 of the Original Lease shall be
increased by, and "Rent" with respect to Space C
shall mean:
(a) for the period commencing on the
Space C Commencement Date through
and including September 14, 2002,
Three Hundred Fifty-Seven Thousand
Six Hundred Forty-Four and 05/100
($357,644.05) Dollars per annum,
payable in equal monthly
installments of Twenty-Nine
Thousand Eight Hundred Three and
67/100 ($29,803.67) Dollars each
(such rental rate being hereinafter
referred to as the "New Space C
Rental"). Notwithstanding the
foregoing however, if possession of
all or any portion of Space C is
delivered to Tenant on or prior to
the Anticipated Space C Delivery
Date, then the Rent payable with
respect to Space C during period
from the Space C Commencement Date
through and including the day
immediately preceding the
Anticipated Space C Delivery Date
shall be the lesser of (i) the New
Space C Rental and (ii) the then
escalated rent that would otherwise
have been payable by the prior
tenant thereof during such period
(the "Prior Space C Rental");
provided, however, if Landlord
arranges for such early possession
at the request of Tenant, then
Tenant shall pay the New Space C
Rental as hereinabove set forth. In
the event any part of Space C is
delivered to Tenant prior to
delivery of all of Space C, the New
Space C Rental, or Prior Space C
Rental, as applicable, shall be
appropriately prorated;
(b) for the period commencing on
September 15, 2002 through and
including September 14, 2006, Four
Hundred Four Thousand Sixteen and
05/100 ($404,016.05) Dollars per
annum, payable in equal monthly
installments of Thirty-Three
Thousand Six Hundred Sixty-Eight
and 00/100 ($33,668.00) Dollars
each; and
(c) for the period commencing on the
date on September 15, 2006 through
and including the Expiration Date,
Four Hundred Forty-Four Thousand
Five Hundred Ninety-One and 55/100
($444,591.55) Dollars per annum,
payable in equal monthly
installments of Thirty-Seven
Thousand Forty-Nine and 30/100
($37,049.30) Dollars each.
G. Space C Rent Credit. Subparagraph 5(D) of the First
Amendment shall be deleted in its entirety and the following provision inserted
in lieu thereof:
D. SPACE C RENT CREDIT. Notwithstanding
anything to the contrary hereinabove set forth,
provided the Lease is in full force and
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effect and Tenant is not in default thereunder beyond
the expiration of any applicable grace or cure
period, Tenant shall be entitled to a credit against
the Rent payable with respect to Space C only for the
one hundred twenty (120) day period commencing on the
date Landlord delivers all of Space C to Tenant,
which rent credit shall be in the aggregate amount of
$119,214.68.
4. BROKERAGE. Each party hereto covenants, represents and
warrants to the other that such party neither consulted nor has had any dealings
or communications with any broker or agent with regard to this Amendment, other
than Emmes Realty Services LLC, Cushman & Wakefield, Inc. and Newmark & Company
Real Estate, Inc. (collectively, the "Broker"). Each party hereto agrees to
indemnify, defend and save the other party harmless from and against all cost,
expense (including attorney's fees and disbursements) or liability for any
compensation, commissions or charges claimed by any other broker or agent with
whom the indemnifying party has dealt in connection with this Amendment.
5. MISCELLANEOUS.
A. 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. Tenant
hereby confirms that, to the best of its actual knowledge, without duty of
inquiry, Landlord is not in default under any provisions of the Lease beyond the
giving of notice and the expiration of applicable cure periods. Landlord hereby
confirms that, to the best of its actual knowledge, without duty of inquiry,
Tenant is not in default under any provisions of the Lease beyond the giving of
notice and the expiration of applicable cure periods.
B. The covenants, agreements, terms and conditions
contained in this Amendment shall bind and inure to the benefit of the parties
hereto and, except as otherwise provided in the Lease as hereby supplemented,
their respective legal successors and assigns.
C. This Amendment may not be changed orally but only by
an agreement in writing signed by the party against whom enforcement of any
waiver, change, modification or discharge is sought.
D. Tenant acknowledges that this Amendment shall not be
binding on Landlord until Landlord shall have executed this Amendment and a
counterpart thereof shall have been unconditionally delivered to Tenant.
E. This Amendment may be executed in one (1) or more
counterparts, each of which counterpart shall be an original.
F. If any of the provisions of the Lease (as amended
hereof), or the application thereof to any person or circumstance, shall, to any
extent, be invalid or unenforceable, the remainder of the Lease (as amended
hereof), or the application of such provision or provisions to persons or
circumstances other than those as to whom or which it is held invalid or
unenforceable shall not be affected thereby, and every provision of the Lease
(as amended hereof), shall be valid and enforceable to the fullest extent
permitted by law.
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G. The persons executing this Amendment on behalf of
Landlord and Tenant represent and warrant that they do so with full authority to
bind the parties hereto to the terms, conditions and provisions hereinabove set
forth.
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IN WITNESS WHEREOF, the parties hereto have executed this Amendment as
of the day and year first above written.
POLESTAR FIFTH PROPERTY ASSOCIATES LLC, Landlord
By: Emmes Realty Services LLC, its authorized agent
By:
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Gary M Tischler, Vice President
PREDICTIVE SYSTEMS, INC., Tenant
By:
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Name:
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Title:
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