LEASE AGREEMENT
BETWEEN
JB SQUARED LLC
AND
INTERNET COMMERCE CORPORATION
AT THE LAKEVIEW EXECUTIVE CENTER
45 RESEARCH WAY
EAST SETAUKET, NY 11733
Table of Contents
1. DESCRIPTION
2. TERMS
3. BASIC RENT
4. USE AND OCCUPANCY
5. CARE AND REPAIR OF PREMISES
6. ALTERATIONS, ADDITIONS OR IMPROVEMENTS
7. ACTIVITIES INCREASING FIRE INSURANCE RATES
8. ASSIGNMENT AND SUBLETTING
9. COMPLIANCE WITH RULES AND REGULATIONS
10. DAMAGES TO BUILDING
11. EMINENT DOMAIN
12. INSOLVENCY OF LESSEE
13. LESSOR'S REMEDIES ON DEFAULT
14. DEFICIENCY
15. RIGHT TO CURE BREACH
16. MECHANIC'S LIENS
17. RIGHT TO INSPECT AND REPAIR
18. HAZARDOUS MATERIALS AND WASTE
19. SERVICES TO BE PROVIDED BY LESSOR/LESSOR'S EXCULPATION
20. INTERRUPTION OF SERVICES OR USE
21. ELECTRICITY
22. ADDITIONAL RENT
(A) Operating Costs
(B) Real Estate Taxes
(C) Payment
23. ESTOPPEL STATEMENT
24. SURRENDER
25. RIGHT TO SHOW PREMISES
26. SECURITY
27. NO OTHER REPRESENTATION
28. QUIET ENJOYMENT
29. INDEMNITY
30. PARAGRAPH HEADINGS
31. APPLICABILITY TO HEIRS AND ASSIGNS
32. SUBORDINATION
33. LESSOR'S LIABILITY FOR LOSS OF PROPERTY
34. PARTIAL INVALIDITY
35. BROKER
36. PERSONAL LIABILITY
37. NO OPTION.
38. DEFINITIONS
(A) Proportionate Share
(B) Common Facilities
(C) Force Majeure
39. SIGNS
40. NOTICES
41. ACCORD AND SATISFACTION
42. EFFECT OF WAIVERS
43. WAIVER OF TRIAL BY JURY
EXHIBIT SCHEDULE
Exhibit A Premises Occupied
Exhibit B Description of Lessor s Work at Lessee's Expense
Exhibit C Rules and Regulations
Exhibit D Storage Space Lease Form
Exhibit E Right of First Offer
LEASE, made the day of , 1999, between JB Squared LLC, a New York limited
liability company, having an office located at Suite 100, 45 Research Way, East
Setauket, NY 11733 (hereinafter called "Lessor"); and INTERNET COMMERCE
CORPORATION, a Corporation , having an office at 805 Third Avenue, New York, New
York (hereinafter called "Lessee").
W I T N E S S E T H:
For and in consideration of the covenants herein contained, and upon the
terms and conditions herein set forth, Lessor and Lessee agree as follows:
1. DESCRIPTION. Lessor hereby leases to Lessee, and Lessee hereby hires from
Lessor, the following space: 4,117 gross rentable square feet of office space
(hereinafter called "Demised Premises" or "Premises") all as shown on the plan
or plans, initialed by the parties hereto, marked Exhibit A attached hereto and
made part of this Lease in the Building known as The Lakeview Executive Center,
45 Research Way , East Setauket, New York (hereinafter called the "Building"),
together with the right to use in common with other lessees of the Building,
their invitees, customers and employees, those public areas of the Common
Facilities as hereinafter defined. Lessee shall have the right to have the
Demised Premises remeasured using the BOMA method of measurement. Lessee shall
have the right, subject to availability, to use the common area conference room
in accordance with the enclosed regulations. At other times, subject to
availability, Lessee may use such common area conference room at rates then
being charged by Lessor for such use. The present charges for such use are
$250.00 for four hours' use and $400.00 for eight hours's use, but those figures
are subject to changes without notice. The Building shall be available to Lessee
and its employees seven days a week, 24 hours per day. During the term of this
lease, Lessee may, subject to availability, rent storage space in the basement,
pursuant to Lessor's standard lease for such space, for the sum of Five ($5.00)
Dollars, per square foot of rentable space per annum, payable in equal monthly
installments, in advance, together with each installment of basic rent due
hereunder. A copy of Lessor's standard storage lease form is attached hereto as
Exhibit D. Any rental of storage space shall be "as is" with Lessor not
obligated to perform any work or supply any materials to or for the space or
Lessee in connection therewith.
2. TERM. (A) The Premises are leased for a term of five (5 ) years commencing
June 1, 1999 (the "Commencement Date"), and to end at 12:00 midnight on the day
preceding the sixtieth (60th) monthly anniversary of the Commencement Date. The
Commencement Date shall mean June 1, 1999 . Notwithstanding the foregoing, the
parties acknowledge and agree that Lessor is to perform certain work for Lessee
in accordance with Schedule B and that, therefor , The Commencement Date shall
be the date that the work, if any, described in Schedule B is substantially
completed. At any time thereafter, both parties, at the request of either party,
shall execute and deliver a document stating the Commencement Date. If the
Commencement Date has not occurred by sixty (60) days from Lessor's actual
receipt of an original of this Lease, executed by Lessee , Lessee, as its sole
remedy may terminate this Lease at any time thereafter by written notice
actually received by Lessor prior to the Commencement Date.
(B) Lessor shall complete "Tenant Construction Scope of Work"
as defined in Exhibit B, if any.
3. BASIC RENT (a) The Lessee shall pay to the Lessor basic rent in the amount of
Seventy Eight Thousand Two Hundred Twenty Three and no/100 ($78,223.00) Dollars
(herein "Rent" or "Basic Rent") per annum, increasing three and one half (3
1/2%) percent per annum. Said rent shall be payable in monthly installments, in
advance on the first day of each month during such period without any set off,
counter claim or deduction whatsoever except that the Lessee shall pay the First
Monthly installment on the execution hereof and except that no Basic Rent shall
be payable for the first two (2) months of the lease term. In the event the
Lessee shall fail to pay the Basic Rent and any additional rent reserved and
provided for herein within ten (10) days after the same shall become due, the
Lessee shall pay to the Lessor, as further additional rent, a late fee equal to
five (5%) percent of each rental installment then due and any other payments due
hereunder, as partial payment for Lessor's costs in connection with such late
payments, plus interest on the unpaid amounts at the highest rate permitted by
law, in addition to such installment(s) and other payment(s) then due.
4. USE AND OCCUPANCY. Lessee shall use and occupy the Premises only as Office
space, consistent with any laws and ordinances for such use.
5. CARE AND REPAIR OF PREMISES Provided such requirement has not been caused by
the negligence of Lessor, Lessee, at its sole expense, shall comply with all of
the laws, orders and regulations of federal, state, county and municipal
authorities, and with any direction of any public officer or officers, pursuant
to law, which shall impose any violations, order or duty with respect to demised
premises, or the use or occupation thereof. Lessee shall commit no act of waste
and shall take good care of the Premises and the fixtures and appurtenances
therein, and shall, in the use and occupancy of the Premises, conform to all
laws, orders and regulations of the federal, state and municipal governments or
any of their departments arising out of the Lessee's use and occupancy; Lessor
shall make all necessary repairs to the structural components of the Building,
including the roof (exclusive of any roof maintenance contract which is part of
common area maintenance and to be paid for as part of Operating Costs) and all
plumbing below floor slab, at its sole cost and expense, except where the repair
has been made necessary by misuse or neglect by Lessee or Lessee's agents,
invitees, employees or servants in which event Lessor shall nevertheless make
the repair but Lessee shall pay to Lessor, as additional rent, immediately upon
demand, the costs thereof. All improvements made by Lessee to the Premises,
which are so attached to the Premises that they cannot be removed without
material injury to the Premises, shall become the property of Lessor upon
installation. Not later than the last day of the term, Lessee shall, at Lessee's
expense, remove all Lessee's personal property and those improvements made by
Lessee which have not become the property of Lessor, including trade fixtures,
cabinet work, movable paneling, partitions and the like; repair all injury done
by or in connection with the installation or removal of said property and
improvements; installation or removal of said property and improvements; and
surrender the Premises in as good condition as they were at the beginning of the
term, reasonable wear and damage by fire, the elements, casualty, or other cause
not due to the misuse or neglect by Lessee, Lessee's agents, invitees, employees
or servants
excepted. All other property of Lessee remaining on the Premises after the last
day of the term of this Lease shall be conclusively deemed abandoned and may be
removed by Lessor, and Lessee shall reimburse Lessor for the reasonable cost of
such removal. Lessor may have any such property stored at Lessee's risk and
expense. The provisions of the foregoing sentence shall survive termination of
this Lease.
Lessee shall not install machinery, equipment or fixtures without Lessor's prior
written consent in each instance, which consent shall not be unreasonably
withheld or delayed. Notwithstanding any contrary provision contained herein,
provided Lessee submits plans and specifications to Lessor and receives written
approval of such plans and specifications from Lessor and provided such plans
and specifications comply with all of the laws, orders, rules and regulations of
the governmental authorities and the Fire Insurance Rating Organization having
jurisdiction thereof and the local board of Fire Underwriters, or any other
similar body, Lessee shall have the right, at its own cost and expense, to
install machinery, equipment and fixtures as the Lessee may require from time to
time (sometimes herein referred to as "Lessee's Property"). Subject to the
provisions of this Article, the Lessee's Property shall remain personal
notwithstanding the fact that it may be affixed or attached to the Demised
Premises, and shall, during the term of this Lease or any extension or renewal
thereof, belong to and be removable by the Lessee, provided that the Lessee
shall repair any damage caused by said removal and shall deliver the Demised
Premises to Owner at the end of the term of the Lease in the same condition as
upon the commencement of the term hereof, reasonable wear and tear excepted.
6. ALTERATIONS, ADDITIONS OR IMPROVEMENTS.
(A) The Lessee may not execute such changes, alterations, or improvements
(hereinafter collectively referred to as an "Alteration") in, to or of the
Demised Premises without Lessor's prior written consent in each instance, which
consent will not be unreasonably withheld or delayed. Any consent to structural
changes or changes to the mechanical, electrical or plumbing systems may be
granted or withheld by Lessor in its sole discretion. If Lessor approves any
Alteration in writing, Lessee may execute such approved Alteration provided such
Alteration is executed in accordance with the terms and conditions of this
Lease.
(B) All structural, mechanical, electrical and plumbing Alterations shall be
made in accordance with the detailed plans and specifications prepared by Lessee
s architect and engineer and previously approved in writing by the Lessor.
(C) Any alteration shall be made and paid for by Lessee promptly (unavoidable
delays excepted) and in good and workman-like manner and in compliance with all
applicable permits and authorizations and building and zoning laws and with all
other laws and ordinances.
7. ACTIVITIES INCREASING FIRE INSURANCE RATES. Lessee shall not do or suffer
anything to be done on the Premises which will increase the rate of fire
insurance on the Building. If anything done or suffered by or on behalf of
Lessee causes any increase, such increase shall be paid by Lessee.
8. ASSIGNMENT AND SUBLETTING. Lessee may not assign the within Lease or sublet
all or any portion of the Demised Premises without the prior written consent of
the Lessor in each instance and any attempted assignment or subletting without
any such approval shall be null and void as against Lessor and shall constitute
a default by Lessee hereunder.
(A) In the event that the Lessee desires to sublease the Premises or
assign the Lease to any other party, the name and address of the proposed
assignee or sublessee, relevant financial information as to such proposed
assignee or sublessee, and the terms and conditions of such sublease or
assignment shall be delivered to the Lessor in writing prior to the proposed
effective date of any such sublease or assignment, and, the Lessor shall have
the option, exercisable in writing to the Lessee within thirty (30) days after
submission of all necessary information to Lessor, to recapture the Lease and
the Demised Premises upon the proposed effective date of the sublease or
assignment (but not prior to the expiration of Lessor's thirty (30) day option
period), in which event the Lessee shall be fully released from any and all
obligations hereunder from and after such date (but not from any obligations
existing on such date). Failure of Lessor to respond within such period of time
shall constitute a refusal by Lessor to consent to such assignment or
subletting. Notwithstanding the foregoing, in the event Lessor does not chose to
recapture the Lease and the Demised Premises, Lessor will not unreasonably
withhold or delay consent to such assignment or subletting. It is clearly
understood and agreed that in considering such assignment or subletting Lessor
shall not be limited to considering if the assignee or sublessee has at least
the present net worth of Lessee, the parties recognizing that such net worth is
not adequate for a proposed assignee or sublessee. Additionally, such assignment
or subletting may not to an entity or for a purpose competitive with Lessor's
business or of any then occupant of space in the Building nor for any
questionable, salacious or disreputable type of business or for any type of
business that would, in Lessor's reasonable opinion, adversely affect the
stature or reputation of the Building.
(B) If Lessor does not elect to terminate the Lease and approves the
proposed assignment or subletting:
(1) The assignee shall assume, by written instrument, all of the obligations
of this Lease, and a copy of such assumption agreement (or of the sublease, if
the Premises are sublet) shall be furnished to the Lessor within ten (10) days
of its execution.
(2) The Lessee and each assignee or sublessee shall be and remain liable for
the observance of all the covenants and provisions of this Lease, including, but
not limited to, the payment of rent reserved herein, through the entire term of
this Lease, as the same may be renewed, extended or otherwise modified.
(3) The Lessee and any assignee or sublessee shall promptly pay to Lessor any
consideration received for any assignment or subletting or all of the rent, as
and when received, in excess of the rent required to be paid by Lessee for the
area sublet, computed on the basis of any average square foot rent for the gross
square footage Lessee has leased.
(4) In any event, the acceptance by the Lessor of any rent from the assignee
or from any of the subtenants or the failure of the Lessor to insist upon a
strict performance of any of the terms, conditions and covenants herein shall
not release the Lessee herein, nor any assignee assuming this Lease, from any
and all of the obligations herein, during and for the entire term of this Lease.
(5) Lessee shall pay Lessor the sum of Five Hundred ($500.00) Dollars for
Lessor's reasonable expenses, including reasonable expenses or charges of its
attorneys and/or accountants to cover its handling charges for each request for
consent to any sublet or assignment prior to its approval of the same.
9. COMPLIANCE WITH RULES AND REGULATIONS Lessee shall observe and comply, at its
sole expense, with all applicable laws, orders rules and regulations of federal,
state, county and municipal authorities and with the rules and regulations as
hereinafter set forth in Exhibit C attached hereto and made a part hereof and
with such further reasonable rules and regulations as Lessor may prescribe, on
written notice to the Lessee, for the safety, care and cleanliness of the
Building and the comfort, quiet and convenience of other occupants of the
Building. Lessee shall not place a load upon any floor of the Demised Premises
exceeding the floor load per square foot which it is designed to carry and which
is allowed by law. Lessor reserves the right to prescribe the weight and
position of all safes, business machines and mechanical equipment. Such
installations shall be placed and maintained by Lessee, at Lessee's expense, in
settings sufficient, in Lessor's reasonable judgment, to absorb and prevent
vibration, noise and annoyance.
10. DAMAGES TO BUILDING. If the Building is damaged by fire or any other cause
to such extent that the cost of restoration, as reasonably estimated by Lessor,
will equal or exceed twenty-five (25%) percent of the replacement value of the
Building (exclusive of foundations) just prior to the occurrence of the damage
or if Lessee's use of the Premises is materially affected by such fire or other
cause, and the damage or restoration is not substantially completed within one
hundred eighty days following such damage or destruction, then either party may,
no later than the 180th day following the damage give the other party a notice
of election to terminate this Lease. In either said event of election, this
Lease shall be deemed to terminate on the Thirtieth (30th) day after the giving
of said notice, and Lessee shall surrender possession of the Premises within a
reasonable time thereafter and the basic rent, and any additional rent shall be
apportioned as of the date of said surrender and any basic or additional rent
paid for any period beyond said date shall be repaid to Lessee. Notwithstanding
the foregoing, if Lessee has given such notice ant the repairs or restoration
shall be substantially completed within such thirty (30) day period the lease
shall continue in full force and effect as if such notice to terminate had not
been given. If the cost of restoration as estimated by the Lessor shall amount
to less than Twenty Five (25%) percent of said replacement value of the building
or if, despite the cost, Lessor and Lessee does not elect to terminate this
Lease, Lessor shall restore the Building and the Premises with reasonable
promptness, subject to Force Majeure, and Lessee shall have no right to
terminate this Lease. Lessor need not restore fixtures and improvements owned by
Lessee.
In any case in which use of the Premises is affected by any damages to the
Building, there shall be either an abatement or an equitable reduction in basic
rent and any additional rent depending on the period for which and the extent to
which the Premises are not reasonably usable for the purpose for which they are
leased hereunder. The words "restoration" and "restore" are used in this
Paragraph 10 shall include repairs. If the damage results from the fault of the
Lessee, or Lessee's agents or visitors, Lessee shall not be entitled to any
abatement or reduction in basic rent and additional rent, except to the extent
of any rent insurance maintained by Lessee and received by Lessor, or, subject
to the following sentence, rent insurance maintained by Lessor and received by
Lessor. All insurance policies to be obtained by Lessor or Lessee hereunder
shall, to the extent reasonably available without additional premium, or if with
additional premium the other party pays such additional premium, contain a
waiver of subrogation against the other party.
11. EMINENT DOMAIN. If Lessee's use of the Premises is materially affected due
to the taking by eminent domain of (a) the Premises or any part thereof or any
estate therein; or (b) any other part of the Building; then, in either event,
this Lease shall terminate on the date when title vests pursuant to such taking.
The rent, and any additional rent, shall be apportioned as of said termination
date any basic or additional rent paid for any period beyond said date shall be
repaid to Lessee. Lessee shall not be entitled to any part of the award of such
taking or any payment to any part of the award for such taking or any payment in
lieu thereof, but Lessee may file a separate claim for any taking or any payment
in lieu thereof, and Lessee may file a separate claim for any taking of fixtures
and improvements owned by Lessee which have not become the Lessor's property,
and for moving expenses, provided the same shall in no way diminish Lessor's
award. In the event of partial taking which does not effect a termination of
this Lease but does deprive Lessee of the use of a portion of the Demised
Premises, there shall either be an abatement or an equitable reduction of the
basic rent, and an equitable adjustment reducing the Base Costs as hereinafter
defined depending on the amount of space taken and the period for which the
Premises so taken are not reasonably usable for the purpose for which they are
leased hereunder.
12. INSOLVENCY OF LESSEE. Either (a) the appointment of a receiver to take
possession of all or substantially all of the assets of Lessee, or (b) a general
assignment by Lessee for the benefit of creditor, or (c) any action taken or
suffered by Lessee under any insolvency or bankruptcy act, shall constitute a
default of this Lease by Lessee, and Lessor may terminate this Lease forthwith
and upon notice of such termination Lessee's right to possession of the Demised
Premises shall cease, and Lessee shall then quit and surrender the Premises to
Lessor but Lessee shall remain liable as hereinafter provided.
13. LESSOR'S REMEDIES ON DEFAULT. If Lessee defaults in the payment of basic
rent, or any additional rent, or defaults in the performance of any of the other
covenants and conditions hereof or permits the Premises to become deserted,
abandoned or vacated, Lessor may give Lessee notice of such default, and if,
after receipt of such notice, Lessee does not cure any basic or additional rent
default within fifteen (15) days or other default within thirty (30) days (or if
such other default is of such nature that it cannot be completely cured within
such period, if
Lessee does not cure such default such thirty (30) days and thereafter does not
proceed with reasonable diligence and in good faith to cure such default), then
Lessor may terminate this Lease on not less than ten (10) days notice to Lessee,
and on the date specified in said notice, Lessee's right to possession of the
Demised Premises shall cease, and Lessee shall then quit and surrender the
Premises to Lessor, but Lessee shall remain liable as hereinafter provided. If
this Lease shall have been so terminated by Lessor pursuant to Paragraphs 12 or
13 thereof, Lessor may at any time thereafter resume possession of the Premises
by any lawful means and remove Lessee or other occupants and their effects.
14. DEFICIENCY. In any case where Lessor has recovered possession of the
Premises by reason of Lessee's default, Lessor may, at Lessor's option, occupy
the Premises or cause the Premises to be redecorated, altered, divided,
consolidated with other adjoining premises, or otherwise changed or prepared for
reletting, and may relet the Premises or any part thereof, for a term or terms
to expire prior to, at the same time as, or subsequent to, the original
expiration date of this Lease, at Lessor's option, and receive the rent
therefor. Rent so received shall be applied first to the payment of such
reasonable expenses as Lessor may have incurred in connection with the recovery
of possession, redecorating, altering, dividing, consolidating with other
adjoining premises, or otherwise changing or preparing for reletting, and the
reletting, including reasonable brokerage and reasonable attorney's fees, and
then to the payment of damages in amounts equal to the rent hereunder and to the
costs and expenses of performance of the other covenants of Lessee as herein
provided. Lessee agrees, in any such case, whether or not Lessor has relet, to
pay to Lessor damages equal to the basic and additional rent and other sums
herein agreed to be paid by Lessee, less the net proceeds of the reletting, if
any. If Lessor and Lessee do not agree on the amount of such deficiency then the
amount will be determined and assessed by a court of competent jurisdiction, and
the same shall be payable by Lessee on the several rent days above specified.
Lessee shall not be entitled to any surplus accruing as a result of any such
reletting. In reletting the Premises as aforesaid, Lessor may grant rent
concessions, and Lessee shall not be credited therewith. No such reletting shall
constitute a surrender and acceptance or be deemed evidence thereof. If Lessor
elects, pursuant hereto, actually to occupy and use the Premises or any part
thereof during any part of the balance of the term as originally fixed or since
extended, there shall be allowed against Lessee's obligation for rent or damages
as herein defined, during the period of Lessor's occupancy, the reasonable value
of such occupancy, not to exceed in any event the basic and additional rent
herein reserved and such occupancy shall not be construed as a release of
Lessee's liability hereunder.
In lieu of suing for monthly damages, at any time, Lessor shall be
entitled to liquidated damages for the balance of the term of the lease, plus
any expenses Lessor may reasonably anticipate would be incurred in such
reletting, less the rental value of the demised premises for the balance of the
term of the lease, both discounted back to present value at a 4% rate, or, at
Lessor's option, the difference between the stated rental and additional rental
payable hereunder and the net rental actually received by Lessor shall be paid
in monthly installments by Lessee on the rent days specified in this lease and
any suit brought to collect the amount of the deficiency for any month shall not
prejudice in any way the rights of Lessor to collect the deficiency, nor to
bring a suit for the damages for the remaining balance of the term.
Lessor's remedies hereunder are in addition to any remedy allowed by
law.
15. RIGHT TO CURE BREACH. If Lessee breaches any other covenant or condition of
this Lease beyond any applicable grace period contained herein, the Lessor may,
on reasonable notice to the Lessee (except that no notice need be given in case
of emergency), cure such breach at the expense of the Lessee and the reasonable
amount of all expenses, including attorney's fees, incurred by the Lessor in so
doing shall be deemed additional rent payable on demand.
16. MECHANIC'S LIENS. Lessee shall, within thirty (30) days after notice from
Lessor, discharge or satisfy of record by bonding or otherwise any mechanic's
liens for materials or labor claimed to have been furnished to the Premises on
or for Lessee's behalf.
17. RIGHT TO INSPECT AND REPAIR. Lessor may enter the Premises but shall not be
obligated to do so (except as required by any specific provision of this Lease)
at any reasonable time on reasonable notice to Lessee (except that no notice
need be given in case of emergency) for purpose of inspection or the making of
such repairs, replacement or additions, in, to, on and about the Premises or the
Building, as Lessor deems reasonably necessary or desirable. In connection
therewith, Lessee shall have no claims or cause of action against Lessor by
reason thereof, except for Lessor's, its agents, servants or invitees gross
negligence. In no event shall Lessee have any claim against Lessor for
interruption to Lessee's business, however occurring, or other consequential
damages.
18. HAZARDOUS MATERIALS AND WASTE.
(A) Lessee shall not occupy or use the Lease Premises, or permit any portion of
the Leased Premises to be occupied or used, for any business or purpose which
is, directly or indirectly, forbidden by law, ordinance, or governmental or
municipal regulation or order, or which may be dangerous to life or property, or
permit the maintenance of any public or private nuisance, or do or permit any
act or thing which may disturb the quiet enjoyment of any other lessee of the
Building. In the event Lessee's presence in or use of the Premises in any way
causes an increase in the rate of fire, liability, or any other insurance
coverage on the Property or its contents, Lessee will be responsible for any
such increase on demand, which shall constitute additional rent hereunder.
Lessor represents that, to the best of its knowledge, it has not installed any
products containing asbestos in the Demised Premises.
(B) Lessee shall not (either with or without negligence) cause or permit the
existence, presence, maintenance, use, escape, disposal or release of any
biologically or chemically active or other hazardous, toxic or dangerous
substances or materials in any manner not sanctioned by law or by the highest
standards prevailing in any applicable industry. Lessee shall not allow the
storage or use of such substances or materials in any manner not sanctioned by
law or by the highest standards prevailing in any applicable industry for the
presence, existence, storage, disposal and use of such substances or materials,
nor allow to be brought into the Property any such materials or substances
except to use in the ordinary course of Lessee's business, and then only after
written notice is given to Lessor of the identity of such substances or
materials. In any event, even if sanctioned by law and/or the highest standards
prevailing in any applicable industry, any escape, disposal, release, storage,
or use of any biologically or chemically active or hazardous, toxic or dangerous
substance occurs, any costs, damage, fines, penalties, interest, or other
liability in connection therewith shall be the responsibility of the Lessee
including without limitation any damages, clean-up or remediation costs and loss
of property value. Without limitation, hazardous substances and materials shall
include those described in the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended, 42 U.S.C. Section 9601 ct
seq., the Resource Conservation and Recovery Act, as amended 42 U.S.C., Section
6901 et seq., any applicable state or local laws and the regulations adopted
under these acts. If any lender or governmental agency shall ever require
testing to ascertain whether or not there has been any release of hazardous
materials due to the acts or omissions of Lessee or any of its agents or
employees, then the costs thereof shall be reimbursed by Lessee to Lessor upon
demand as additional charges. In addition, Lessee shall execute affidavits,
representations and the like from time to time at Lessor's request concerning
Lessee's best knowledge and belief regarding the presence of hazardous
substances or materials on the Property. In all events, Lessee shall indemnify
Lessor in the manner elsewhere provided in this lease from any presence,
maintenance, use, release or storage of hazardous, toxic or dangerous materials
in the Demised Premises occurring while Lessee is in possession, or elsewhere in
or about the Property if caused by Lessee or persons acting under Lessee (either
by acts or omissions). These covenants shall survive the expiration or earlier
termination of this lease.
19. SERVICES TO BE PROVIDED BY LESSOR/LESSOR'S EXCULPATION. Subject to
intervening laws, ordinances, regulations and executive orders, while Lessee is
not in default under any of the provisions of this Lease, Lessor agrees to
furnish and Lessee agrees to pay for:
(A) Cold water for drinking and lavatory purposes only.
(B) Exterior window cleaning when reasonable required.
(C) Seasonal Removal of snow and ice from common areas.
The cost of such services shall be paid for by Lessee by its
proportionate share of Operating Costs.
Notwithstanding the requirements of this or any other provision of this
Lease, Lessor shall not be liable to failure to furnish any of the aforesaid
services when such failure is due to force Majeure, as hereinafter defined.
Lessor shall not be liable, for other than the gross negligence or willful or
wanton misconduct of Lessor, its agents, servants, or invitees, or from defects,
errors or omissions in the construction or the design of the Demised Premises or
the Building, including the structural and non-structural portions thereof, for
loss of or injury to Lessee or to property, however occurring, through or in
connection with or incidental to the furnishing of, or failure to furnish, any
of the aforesaid services or for any interruption to Lessee's business however
occurring.
20. INTERRUPTION OF SERVICES OR USE. Interruption or curtailment of any service
maintained in the Building or at the land, if caused by Force Majeure, as
hereinafter defined, shall not entitle Lessee to any claim against Lessor or to
any abatement in rent, and shall not constitute to restore the service without
due delay. Notwithstanding the foregoing, if the interruption or curtailment of
any services in the Building severely interferes with Lessee's ability to
conduct its business and such interruption continues for thirty (30) consecutive
days,
Lessee, at any time prior to resumption of such services, as its sole remedy may
terminate this Lease upon written notice to Lessor. If the Premises are rendered
untenantable in whole or in part, for a period of seven (7) consecutive days by
the making of repairs, replacements or additions, other than those made with
Lessee's consent or caused by misuse or neglect by Lessee, or Lessee's agents or
servants, there shall be a proportionate abatement of rent from and after said
seventh (7th) day and continuing for the period of such untenantability. In no
event shall Lessee be entitled to claim a constructive eviction from the
Premises unless Lessee shall first have notified Lessor in writing of the
condition or conditions giving rise thereto, and, if the complaints be
justified, unless Lessor shall have failed, within ten (10) business days after
receipt of such notice, to remedy, or commence and proceed with due diligence to
remedy, such condition or conditions, all subject to Force Majeure as
hereinafter defined.
21. ELECTRICITY. Lessee, at its sole cost and expense, shall arrange with the
public utility company servicing the Building of which the Demise Premises are a
part for electric service at the Demised Premises (including that necessary for
the providing of heating, ventilation, and air conditioning to the Demised
Premises). Lessor shall arrange with such utility company for the installation
of an electric meter to measure the consumption of electricity solely at the
Demised Premises, and for the supply, but not the payment of, electric service
to each electrical outlet at the Demised Premises. Lessor shall furnish the
electric meter and its installation as part of Lessee's work letter (to be
included in the allowance to be granted Lessee).
22. ADDITIONAL RENT. It is expressly agreed that Lessee will pay monthly, in
advance, in addition to the basic rent, an additional rental to cover Lessee's
Proportionate Share, as hereinafter defined, of the cost to Lessor, for each of
the categories enumerated herein.
(A) Operating Costs. Commencing June 1, 2000, the Lessee shall pay to Lessor, as
additional rent, its proportionate share, as hereinafter defined, of all
Operating Costs over $175,000.00 per annum. For the purposes of this lease,
"Operating Costs" shall mean all expenses, costs and accruals (excluding
therefrom, however, specific costs billed to or otherwise incurred for the
particular benefit of specific tenants of the Building as well as depreciation
of the Building, principal and interest on debt of the Lessor with respect to
mortgages affecting the Building, rents under any ground underlying leases
affecting the Building and costs in connection with the initial construction of
the Building) of every kind and nature, computed on an accrual basis, incurred
or accrued in connection with, or relating to, the ownership, maintenance, or
operation of the Property and said common areas during each calendar year,
including, but not limited to, the following:
(i) management fees of the building manager;
(ii) wages and salaries, including taxes, insurance and benefits, of all on and
off-site employees engaged in operations, maintenance or access control, as
reasonably allocated by Lessor;
(iii) cost of supplies, tools, equipment and materials to the extent used in
operation and maintenance, as reasonably allocated by Lessor;
(iv) cost of all utilities including, but not limited to, the cost of
electricity for the Common Areas, the cost of water and the cost of power for
heating, lighting, air conditioning and ventilating;
(v) cost of all maintenance and service agreements and the equipment therein,
including, but not limited to, access control service, if any, window cleaning,
elevator maintenance, janitorial service and landscaping maintenance and
updating;
(vi) cost of repairs and general maintenance (excluding repairs, alterations and
general maintenance paid by proceeds of insurance);
(vii) amortization of the cost (together with reasonable financing charges and
installation costs) of any system, apparatus, device, or equipment which is
installed for the principal purpose of (i) reducing Operating Expenses, (ii)
promoting safety or (iii) complying with governmental requirements which become
effective after the Commencement Date;
(viii) the cost of all insurance, including, but not limited to, the cost of
casualty, rental abatement and liability insurance, and insurance on Lessor's
personal property, plus the cost of all deductible payments made by Landlord in
connection therewith;
(ix) the cost of reasonable legal and accounting fees (but not in connection
with actions against or work for a particular tenant);
All costs shall be reasonable and usual taking into account the type and
location of the Building, the availability of supplies, suppliers, repairman,
etc., the urgency of the repair and such other factors as a reasonable lessor
would consider before making an expenditure.
Notwithstanding the foregoing, Lessee's cost shall not increase by more than
four percent per annum (exclusive of Common Area utilities).
(B) Real Estate Taxes "Real Estate Taxes" shall mean the property taxes and
assessments imposed upon the Building and the entire parcel of land upon which
the Building sits and the land surrounding it, or upon the rent, as such,
payable to the Lessor, in advance of the date such taxes are due to be paid by
Lessor. If due to a future change in the method of taxation, any franchise,
income or profit tax shall be levied against Lessor in substitution for, or in
lieu of, or in addition to, any tax which would otherwise constitute a Real
Estate Tax, such franchise, income or profit tax shall be deemed to be a Real
Estate Tax for the purposes hereof but shall be calculated as if the Building
were the only building owned by Lessor; conversely, any additional real estate
tax hereafter imposed in substitution for, or in lieu of, any franchise, income
or profit tax (which is not in substitution for, or in lieu of, or in addition
to, a Real Estate Tax as herein before provided) shall not be deemed a Real
Estate Tax for the purposes hereof. In the event there are any special
assessments against either the Building or the land, Lessor shall be deemed for
purposes of this computation (whether or not in fact is has so elected) to elect
to pay those
assessments over the longest period permitted by law, and Lessee should only be
obligated to pay its pro rata share of those installments which may be due
during the term of the Lease. Commencing June 1, 2000, the Lessee shall pay to
Lessor, as additional rent, its proportionate share, as hereinafter defined, of
all Real Estate Taxes over $125,000.00 per annum.
(C) Payment. At any time, and from time to time, Lessor shall advise the Lessee
in writing of Lessee's proportionate share with respect to each of the
categories as estimated for each twelve (12) months period of the lease term,
commencing June 1, 2000, over the respective figures set forth above (except
that, as to Operating Expenses, said figures shall be subject to the maximum
annual adjustment provided for in said section), and thereafter, the Lessee
shall pay as additional rent, those estimated additional costs for the then
current period affected by such advice (as the same may be periodically revised
by Lessor as additional costs are incurred) in equal monthly installments in
advance, on the first days of each month in each year during the lease term,
such new rates being applied to any months for which the rental shall have
already been paid which are so affected by the costs above referred to, as well
as the unexpired months of the current period, the adjustment for the then
expired months to be made at the payment of the next succeeding monthly rental,
all subject to adjustment when the actual costs for the preceding twelve (12)
months are finally determined, as well as being subject to final adjustment at
the expiration of the Lease term, which adjustment shall survive the termination
of the Lease.
23. ESTOPPEL STATEMENT The parties shall, from time to time, on not less than
ten (10) days prior written request by the other, execute, acknowledge and
deliver to the requesting party a written statement certifying that the Lease is
unmodified and in full force and effect, or that the Lease is in full force and
effect as modified and listing the instruments of modification; the dates to
which the rents and charges have been paid; and, to the best of the party's
knowledge, whether or not the other party is in default hereunder, and if so,
specifying the nature of the default. It is intended that any such statement
delivered pursuant of this Paragraph 23 may be relied on by a prospective
purchaser or Lessee of Lessor's interest or mortgagee of Lessor's interest of
assignee of any mortgage of Lessor's interest or assignee of subtenant of
Lessee.
24. SURRENDER
(A) On the expiration date or upon the sooner termination of this Lease or upon
any re-entry by Lessor upon the Premises, Lessee shall, at its sole cost and
expense, quit, surrender, vacate and deliver the Premises to Lessor "broom
clean" and in good order, condition and repair except for the ordinary wear,
tear and damage by fire or other insured casualty, together with all
improvements and fixtures installed by Lessor. Prior to the termination of this
Lease, Lessee shall remove from the Building all of Lessee's property and all
other personal property and personal effects of all persons claiming through or
under Lessee, and shall pay the cost of repairing all damage to the Premises and
the Building and land occasioned by such removal. Any expense incurred by Lessor
in removing or disposing of such Lessee's property or other personal property
shall be reimbursed to Lessor by Lessee as Additional Rent on demand.
(B) If the end of the Lease Term or the date of sooner termination of this Lease
shall fall on a day which is not a business day, then Lessee's obligations under
Paragraph (A) shall be
performed on or prior to the immediately preceding business day.
(C) If the premises are not surrendered upon the termination of this Lease,
Lessee hereby indemnifies and agrees to hold Lessor harmless against liability,
damages, claims, demands, expenses, including the defense thereof, including
attorneys fees and court costs at all levels, resulting from delay by Lessee in
so surrendering the Premises, including any claims made by any succeeding lessee
or prospective lessee founded upon such delay.
(D) In the event Lessee remains in possession of the Premises after the
termination of this Lease without the execution of a new lease or exercise of
its renewal rights, if any, herein, Lessee, at the option of the Lessor, shall
be deemed to be occupying the Premises as a lessee from month to month, at a
rental equal to one and one half (1 1/2) times the last monthly Basic Rent per
month and such additional rental as provided for herein, subject to all of the
other terms of this Lease insofar as the same are applicable to a month-to-month
tenancy.
(E) Lessee's obligations under this Article shall survive the termination of
this Lease.
25. RIGHT TO SHOW PREMISES. Lessor may show the Premises to prospective
purchasers and mortgagees; and, during the six months prior to termination of
this Lease, to prospective tenants, all during Lessee's regular business hours
on reasonable notice to Lessee.
26. SECURITY Lessee shall pay Lessor Thirteen Thousand Thirty Seven and 17/100
($13,037.17) Dollars as a security deposit upon execution of this Lease.
Additionally, within two (2) weeks of the execution herewith, Lessee shall
furnish to Lessor a sight draft letter or credit issued by a bank approved in
advance by Lessor in form as attached hereto in the amount of One Hundred
Thousand ($100,000.00) Dollars. Lessee's failure to deliver such letter of
credit within the time specified shall constitute a default by Lessee hereunder,
and, in addition to any other rights or remedies to which Lessor shall be
entitled, Lessor shall have the right to immediately discontinue any and all
work on the Demised Premises, including preparation therefor and, if Lessee
cures such default within a period of time satisfactory to Lessor, Lessor's time
to complete the work shall be extended for the time of such delay. Such letter
of credit shall be for a term of not less than one year and shall be renewed at
least thirty (30) days prior to the expiration of each letter of credit. If
Lessee is not then in default under this lease each annual renewal of the letter
of credit shall be in amount reducing thirty thousand ($30,000.) Dollars per
year. If not renewed within the time specified, time being of the essence,
Lessor may draw down the full proceeds of the letter of credit and hold the
proceeds as an additional security deposit. Additionally, upon default by
Lessee, Lessor may either draw sufficient funds from the letter of credit to
cover such default or may use the cash security therefor and, upon the
occurrence of any default by Lessee, Lessee may not further reduce the amount of
any further or future letters of credit, all of which shall then be in the
amount outstanding at the time of the default. Upon the occurrence of any event
of default by Lessee, Lessor may, from time to time, without prejudice to any
other remedy, use the security deposit to the extent necessary to make good any
arrears of the Rent or to pay any other sums owed to Lessor, or to pay the cost
of any damage, injury, expense, or liability caused by any event of default by
Lessee hereunder. In the event this
lease is terminated for Lessee's default, Lessor may utilize such security
deposit not only to cover the cost the preceding listed items of damage, but
also to reimburse Lessor for the unamortized cost of improvements furnished by
Lessor for Lessee and the unamortized portion of brokers' commissions paid by
Lessor for this lease. Any remaining balance of the security deposit shall be
returned by Lessor to Lessee within thirty (30) days after the termination or
expiration of this Lease. The security deposit shall not be considered an
advance payment of rental or a measure of Lessor's damages in case of default by
Lessee. Lessee shall not be entitled to receive and shall not receive any
interest on the security deposit, and Lessor may co-mingle the same with other
monies of Lessor. In the event Lessor applies the security deposit or any
portion thereof to the payment of any sum described above and this lease is not
terminated, Lessee shall immediately deposit with Lessor an amount of money
equal to the amount so applied and such amount shall be deemed to be part of the
security deposit.
27. NO OTHER REPRESENTATION. No representations or promises shall be binding on
the parties hereto except those representations and promises contained herein or
in some future writing signed by the party making such representation(s) or
promise(s).
28. QUIET ENJOYMENT. Lessor covenants that if, and so long as, Lessee pays the
rent, and any additional rent as herein provided, and performs the covenants
hereof, Lessor shall do nothing to affect Lessee's right to peaceably and
quietly have, hold and enjoy the Premises for the term herein mentioned, subject
to the provisions of this Lease.
29. INDEMNITY. Lessee hereby indemnifies and saves harmless Lessor and its
agents against and from (a) any and all claims (i) arising from (x) the conduct
or management by Lessee or its employees, agents, invitees or servants, or (y)
any work or thing whatsoever done, or any condition created (other than by
Lessor for Lessor's or Lessee's account) in or about the Demised Premises during
the term of this Lease or during the period of time, if any, prior to the
Commencement Date that Lessee may have been given access to the Demised
Premises, or (ii) arising from any negligent, wilful or otherwise wrongful act
or omission of the Lessee, its agents, employees, invitees or servants, and, (b)
all costs, expenses and liabilities incurred in or in connection with each such
claim or action or proceeding brought thereon, including the defense thereof,
including attorneys fees and court costs at all levels. In case any action or
proceeding be brought against Lessor by reason of any such claim, the Lessee,
upon notice from Lessor, shall resist and defend such action or proceeding at
Lessee's cost. Lessor retains the right, in any such action or proceeding, to be
represented by attorneys of its own choosing, at Lessee's expense. Lessee will
not perform or have performed any work or repair to the Demised Premises without
Lessor's prior written consent. Notwithstanding the foregoing, if Lessor has
approved the counsel to be utilized by Lessor for the defense of Lessor and
Lessee, then, unless Lessor has a conflict of interest with Lessee, Lessor shall
not have the right to utilize separate counsel which will be paid for by Lessee.
30. PARAGRAPH HEADINGS. The paragraph headings in this Lease and position of its
provisions are intended for convenience only and shall not be taken into
consideration in any
construction or interpretation of this Lease or any of its provisions.
31. APPLICABILITY TO HEIRS AND ASSIGNS. The provisions of this Lease shall apply
to, bind and inure to the benefit of Lessor and lessee, and their respective
heirs, successors, legal representatives and assigns. It is understood that the
term "Lessor" as used in this Lease means only the owner, a mortgagee in
possession or a term lessee of the Building, for the period of time for which
they are in ownership or in possession, as the case may be, so that in the event
of any sale of the Building or of any lease thereof, or if a mortgagee shall
take possession of the Premises, the Lessor named herein shall be and hereby is
entirely freed and relieved of all covenants and obligations of Lessor hereunder
accruing thereafter, and it shall be deemed without further agreement that the
purchaser, the term lessee of the building, or the mortgagee in possession has
assumed and agreed to carry out any and all covenants and obligations of Lessor
hereunder.
32. SUBORDINATION This lease and all rights of Lessee therein, and all interest
or estate of Lessee in the Demised Premises, or any portion thereof, shall be
subject and subordinate to all ground or underlying leases ("Superior Leases")
and to all mortgages, ("Superior Mortgages"), which now or at any time hereafter
affect the real property of which the Demised Premises, or any portion thereof,
forms a part and to any replacements, renewals, amendments, modifications,
spreaders, or extensions thereof, and to each and every advance made under any
such mortgage.
33. LESSOR'S LIABILITY FOR LOSS OF PROPERTY. Lessor shall not be liable for any
loss of property from any cause whatsoever, including but not limited to theft
or burglary from the Demised Premises. Lessee agrees not to make the claim for
any such loss at any time unless such loss arises from the negligence of Lessor,
its agents or servants.
34. PARTIAL INVALIDITY. If any of the provisions of this Lease, or the
applications thereof to any person or circumstances, shall to any extent, be
invalid or unenforceable, the remainder of this Lease, 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 this Lease shall be valid and enforceable to the
fullest extent permitted by law.
35. BROKER. Each party hereto warrants and represents to the other that no real
estate broker and/or salesman has been involved in this lease other than CB
Richard Ellis, on behalf of Lessor, and Atlantic Property Services on behalf of
Lessee and each party agrees to indemnify and hold the other harmless from and
against any and all claims of any other real estate broker and/or salesman due
to acts of the indemnifying party or its representatives. Lessor agrees to pay
the commission due the named brokers.
36. PERSONAL LIABILITY Notwithstanding anything to the contrary provided in this
Lease, it is specifically understood and agreed, with respect to any of the
terms, covenants and conditions of this Lease, that Lessee shall look solely to
the equity of the Lessor or the then lessor in the Building for the satisfaction
of each and every remedy of Lessee and if applicable,
the proceeds of insurance or condemnation awards upon the Premises.
37. NO OPTION. The submission of this Lease Agreement for examination does not
constitute a reservation of, or option for, the Premises, and this Lease
Agreement becomes effective as a Lease Agreement only upon execution and
delivery thereof by Lessor and Lessee. This provision does not relate to the
Option contained in Exhibit E of this Lease, which arises after the Lease goes
into effect.
38. DEFINITIONS.
(A) Proportionate Share. Lessee's Proportionate Share wherever
that phrase is used, shall be twelve and 14/100 Percent (12.14 %) percent
(subject to adjustment in accordance with any results of remeasuring as provided
in Paragraph 1. hereof).
((B) Common Facilities. Common Facilities shall means the
parking areas and all general Building facilities that service more than one
Building lessee. Lessor may at any time close temporarily any Common Facility to
make repairs or changes therein or to effect construction, repairs or changes
within the Building, or to discourage non-lessee parking, and may do such other
acts in and to the Common Facility as in its judgment may be desirable to
improve the convenience thereof.
(C) Force Majeure. Force Majeure shall mean and include those
situations beyond either party's control, including by way of example and not by
way of limitation, acts of God; accidents; repairs; strikes; shortages of labor,
supplies or materials; inclement weather; or where applicable, the passage of
time while waiting for an adjustment of insurance proceeds.
39. SIGNS. (A) Lessee may not place or install such signs and/or awnings in, on
or about the Demised Premises (including, without limitation, both the interior
and exterior surfaces of windows and doors) without Lessor s prior written
approval which will not be unreasonably with held or delayed. Subject to
Lessor's reasonable approval, Lessee may place signage on the interior doors of
the Demised Premises. Lessee shall be entitled to listing on the Building
Directory in accordance with Lessor's standard provisions therefor. If so
approved and provided such signs and/or awnings do not violate any laws,
covenants and restrictions, ordinances, rules or regulations promulgated by any
governmental body having jurisdiction, and are maintained at all times in good
condition by Lessee at its own cost and expense and in accordance with the
covenants and restrictions of the Stony Brook Technology Center Association,
Lessee may maintain such approved, non violating signs and/or awnings.
40. NOTICES. Any notice by either party to the other shall be in writing and
shall be deemed to have been duly given only if delivered personally or sent by
registered mail or certified mail in a postpaid envelope addressed, if to
Lessee, at the above described Building; if to Lessor, at Lessor's address as
set forth above; or, to either at such other address as Lessee or Lessor,
respectively, may designate in writing. Notice shall be deemed to have been duly
given, if
delivered personally, on delivery thereof, and if mailed, upon the tenth (10)
day after the mailing thereof.
41. ACCORD AND SATISFACTION. No payment by Lessee or receipt by Lessor of a
lesser amount than the rent and additional charges payable hereunder shall be
deemed to be other than a payment on account of the earliest stipulated basic
rent and additional rent, nor shall any endorsement or statement on any check or
any letter accompanying any check or payment for rent or additional rent be
deemed an accord and satisfaction, and Lessor may accept such check or payment
without prejudice to Lessor's right to recover the balance of such rent and
additional rent or pursue any other remedy provided herein or by law.
42. EFFECT OF WAIVERS. No failure by Lessor to insist upon the strict
performance of any covenant, agreement, term or condition of this Lease, or to
exercise any right or remedy consequent upon a breach thereof, and no acceptance
of full or partial rent during the continuance of any such breach, shall
constitute a waiver of any such breach or of such covenant, agreement, term or
condition. No consent or waiver, express or implied, by Lessor to or of any
breach of any covenant, condition or duty of Lessee shall be construed as a
consent or waiver to or of any other breach of the same or any other covenant,
condition or duty, unless in writing signed by Lessor.
43. WAIVER OF TRIAL BY JURY. Lessor and Lessee shall and do hereby waive trial
by jury in any action, proceeding or counterclaim brought by either of the
parties hereto against the other in any matter arising out of or in any way
connected with this lease, the relationship of lessor and lessee, Lessee's use
and occupancy of the Demised Premises, any claim of injury or damage and any
emergency or any other statutory remedy. Lessee shall not impose any
counterclaim or counterclaims in a summary proceeding or in action based on
non-payment of any sums due to Lessor hereunder.
JB SQUARED LLC , LESSOR INTERNET COMMERCE CORPORATION , LESSEE
By: ____________________________ By:_____________________________________
James Coughlan, a member Donald Gordon, Chief Operating Officer
EXHIBIT SCHEDULE
EXHIBIT A - Premises Occupied
EXHIBIT B - Description of Lessor s Work At Lessee's Expense
EXHIBIT C - Rules and Regulations
EXHIBIT D - Lessor's Form of Standard Storage Lease
EXHIBIT - Right of First Offer
EXHIBIT C
RULES AND REGULATIONS
1. The sidewalks, entrances, passages, courts, elevators, vestibules,
stairways, corridors, or halls, to the extent they exist ,shall not be
obstructed or encumbered by any lessee or used for any purpose other than
ingress and egress to and from the Demised Premises.
2. No awnings or other projections shall be attached to the outside
walls of the Building without the prior written consent of the Lessor. No
curtains, blinds, shades,, or screens shall be attached to or hung in, or used
in connection with , any window or door of the Demised Premises, without written
consent of the Lessor. Such awnings, projections, curtains, blinds, shades,
screens or other such fixtures must be of quality, type , design and color, and
attached in the manner approved by Lessor. All electrical fixtures hung in
offices or spaces along the perimeter of the Demised Premises must be
fluorescent, of a perimeter of the Demised Premises must be fluorescent, of a
quality , type, design and bulb color approved by the Lessor.
3. No sign, advertisement, notice or other lettering shall be
exhibited, inscribed, painted or affixed by any Lessee on any part of the
outside or inside of the Demised Premises or Building without the prior written
consent of the Lessor. In the event of the violation of the foregoing by any
Lessee, Lessor may remove same without any liability, and may charge the expense
incurred by such removal to the Lessee or Lessees violating this rule.
4. No showcases or other articles shall be put in front of or affixed
to any part of the exterior of the Building.
5. The water and wash closets and other plumbing fixtures shall not be
used for any purposes other than those for which they were constructed, and no
sweepings, rubbish, rags, or other substances shall be thrown therein. All
damages resulting from any misuse of the fixtures shall be borne be the Lessee
who, or whose servants, employees, agents, visitors or licensees, shall have
caused the same.
6. No Lessee shall mark, paint, drill into, or in any way deface any
part of the demised Premises or the Building. No boring, cutting or stringing of
wires shall be permitted, except with the prior written consent of the Lessor,
and as the Lessor may direct. No Lessor shall lay linoleum, or other similar
floor covering, so that the same shall come in direct contact with the floor of
the Demised Premises, and, if linoleum or other similar floor covering is
desired to be used as an interlining of builder s deadening, felt shall be
affixed to the floor, by a paste or other material, soluble in water, the use of
cement or other similar adhesive material being expressly prohibited.
7. No Lessee shall make, or permit to be made, any unseemly or
disturbing noises or disturb or interfere with occupants of this or neighboring
buildings or premises or those having business with them whether by the use of
any musical instrument, radio, television set, talking
machine, unmusical noise, whistling, singing, or in any other way. No Lessee
shall throw anything out of the doors, windows or skylights or down the
passageways.
8. No Lessee, or any of Lessee s servants, employees, agents, visitors
or licensees, shall at any time bring or keep upon the Demised Premises any
inflammable, combustible or explosive fluid, chemical or substance.
9. No additional locks or bolts of any kind shall be placed upon any of
the doors or windows by any Lessee, nor shall any changes be made in existing
locks or the mechanism thereof without prior written approval of Lessor. Each
Lessee must, upon the termination of his tenancy, restore to the Lessor all the
keys of stores, offices and toilet rooms, either furnished to, or otherwise
procured by, such Lessee, and in the event of the loss of any keys, so
furnished, such Lessee shall pay to the Lessor the cost thereof.
10. Lessor shall have the right to prohibit any advertising by any
Lessee which, in Lessor s opinion, tends to impair the reputation of the
Building and upon written notice from Lessor, Lessee shall refrain from or
discontinue such advertising.
11. Each Lessee shall , at its expense, provide artificial light for
the employees of the Lessor or its contractor while making repairs or
alterations in the Demised Premises.
12. The requirements of Lessees will be attended to only upon
application of the Lessor. Employees shall not perform any work or do anything
outside of their regular duties, unless under special instructions from the
office of the Lessor.
13. Canvassing, soliciting and peddling in the Building are prohibited
and each Lessee shall cooperate to prevent the same.
14. Lessee shall not do any cooking, conduct any restaurant,
luncheonette or cafeteria for the sale or service of food or beverages to its
employees or to others, or cause or permit any odors of cooking or other
processes or any unusual or objectionable odors to emanate from the Demised
Premises.
EXHIBIT "B"
Tenant Construction at Lessee's Expense
Scope of Work
1996
-----------------------------------
GENERAL NOTES
Total Tenant Construction Cost: ($ , . ) , Dollars, to be
paid by Lessee prior to Lessee taking possession of the Demised Premises but
after substantial completion of the stated work.
EXHIBIT D
THIS LEASE made by and between JB SQUARED, LLC, a New York limited
liability company, with an office at Suite 100, 45 Research Way, East Setauket,
New York 11733, hereinafter designated as Lessor, and ., a , with an
office at , , New York hereinafter designated as LESSEE.
W I T N E S S E T H :
That the Lessor, for and in consideration of the covenants, agreements and
stipulations of the Lessee, hereinafter expressed, does hereby demise and lease
unto the Lessee the basement premises outlined in red on Schedule A-1 attached
hereto comprising approximately square feet and situated in East Setauket, New
York, being commonly known as Lakeview Executive Center
45 Research Way East
Setauket, New York 11733
The premises shall be used for storage only. Notwithstanding the
foregoing, Lessee may not store, nor permit the storage of, any hazardous,
dangerous, toxic, medical or any licensed or regulated materials at the
premises, nor permit same to be brought in or out of the premises. If, despite
the foregoing, any escape, disposal, release, storage, or use of any
biologically or chemically active or hazardous, toxic, medical or dangerous
substance occurs, any costs, damage, fines, penalties, interest, or other
liability in connection therewith shall be the responsibility of the Lessee
including without limitation any damages, clean-up or remediation costs and loss
of property value. Without limitation, hazardous substances and materials shall
include those described in the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended, 42 U.S.C. Section 9601 ct
seq., the
Resource Conservation and Recovery Act, as amended 42 U.S.C., Section 6901 et
seq., any applicable state or local laws and the regulations adopted under these
acts. If any lender or governmental agency shall ever require testing to
ascertain whether or not there has been any release of hazardous materials due
to the acts or omissions of Lessee or any of its agents or employees, then the
costs thereof shall be reimbursed by Lessee to Lessor upon demand as additional
charges. In addition, Lessee shall execute affidavits, representations and the
like from time to time at Lessor's request concerning Lessee's best knowledge
and belief regarding the presence of hazardous substances or materials on the
property of which the premises are a part. In all events, Lessee does hereby
indemnify and agree to hold Lessor harmless from any presence, maintenance, use,
release or storage of hazardous, toxic, medical or dangerous materials in the
premises occurring while Lessee is in possession, or elsewhere in or about the
property of which the premises is a part if caused by Lessee or persons acting
under Lessee (either by acts or omissions). These covenants shall survive the
expiration or earlier termination of this lease. Lessee hereby indemnifies and
saves harmless Lessor and its agents against and from (a) any and all claims (i)
arising from (x) the conduct or management by Lessee or its employees, agents,
invitees or servants, or (y) any work or thing whatsoever done, or any condition
created (other than by Lessor for Lessor's or Lessee's account) in or about the
premises during the term of this Lease or during the period of time, if any,
prior to the Commencement Date that Lessee may have been given access to the
premises, or (ii) arising from any negligent, wilful or otherwise wrongful act
or omission of the Lessee, its agents, employees, invitees or servants, and, (b)
all costs, expenses and liabilities incurred in or in connection with each such
claim or action or proceeding brought thereon, including the defense thereof,
including attorneys fees and court costs at all levels. In case any action or
proceeding be brought against Lessor by reason of any such claim, the Lessee,
upon notice from Lessor, shall resist and defend such action or proceeding at
Lessee's cost. Lessor retains the right, in any such action or proceeding, to be
represented by attorneys of its own choosing, at Lessee's expense. Lessee will
not perform or have performed any work or repair to the premises without
Lessor's prior written consent, which consent shall not be unreasonably
withheld.
1. The Premises are leased for a term of ( ) years commencing on (the
"Commencement Date"), and to end at 12:00 midnight on the day preceding the ( )
of the Commencement Date.
2. (a) The Lessee shall pay to the Lessor basic rent in the amount of
Thousand Hundred and /100 ($ , . ) Dollars (herein "Rent" or "Basic Rent") per
annum. Said rent shall be payable in monthly installments, in advance on the
first day of each month during such period without any set off, counter claim or
deduction whatsoever except that the Lessee shall pay the First Monthly
installment on the execution hereof. In the event the Lessee shall fail to pay
the Basic Rent and any additional rent reserved and provided for herein within
ten (10) days after the same shall become due, the Lessee shall pay to the
Lessor, as further additional rent, a late fee equal to five (5%) percent of
each rental installment then due and any other payments due hereunder, as
partial payment for Lessor's costs in connection with such late payments, plus
interest on the unpaid amounts at the highest rate permitted by law, in addition
to such installment(s) and other payment(s) then due payable as follows:
a. Upon the signing of this lease, Hundred and /100 ($ 00) Dollars,
representing the first month's rent.
b. Thereafter, commencing on the first day of second month of the term,
equal monthly installments of Hundred and /100 ($ .00) Dollars, payable on the
first day of each month, to and including the first day of the last month of the
term.
3. The said Lessor covenants with the Lessee that Lessor has good right to
lease said premises in manner aforesaid, and that Lessor will suffer and permit
said Lessee (Lessee keeping all the covenants on
Lessee's part, as hereinafter contained) to occupy, possess and enjoy said
premises during the term aforesaid, without hindrance or molestation from Lessor
or any person claiming by, from or under Lessor.
4. The said Lessee covenants with the said Lessor, to hire said premises
and to pay the rent therefor as aforesaid, that Lessee will commit no waste, nor
suffer the same to be committed thereon, nor injure nor misuse the same; nor
make alterations therein, nor use the same for any purpose but that hereinbefore
authorized, without written permission from said Lessor but will deliver up the
same at the expiration or sooner termination of the tenancy in as good condition
as they are now in, ordinary wear, damages by the elements or other unavoidable
casualties excepted, and Lessee may not assign or underlet the whole of said
leased premises without the prior written consent of Lessor, at Lessor's sole
discretion. Lessee further agrees to observe and be bound by the Rule and
Regulations attached hereto as Exhibit C and made a part hereof, and to
additions and amendments thereto adopted by Lessor.
5. The said Lessee agrees that the said Lessor and the Lessor's agents or
other representatives shall have the right to enter into and upon said premises,
or any part thereof, in case of an emergency at all hours for the purpose of
making such repairs or alterations therein as may be necessary for the safety
and preservation thereof.
6. It is further agreed that if (i) the said rent shall remain unpaid ten
(10) days after the same shall become payable as aforesaid, or (ii) if the said
Lessee shall assign this lease, or underlet or otherwise dispose of the whole or
any part of said demised premises, without the consent of the Lessor in writing,
or use the same for any purpose but that hereinbefore authorized or make any
alteration therein, without the consent of the Lessor in writing, or shall
commit waste or suffer the same to be committed on said premises, or injure or
misuse the same, or otherwise violate the provisions of this lease then in any
of such cases, at the option of the Lessor, this lease shall thereupon, by
virtue of this express stipulation therein expire and terminate, and the Lessor
may, at any time thereafter, re-enter said premises, and the same have and
possess as of Lessor's former estate, and without such re-entry, may recover
possession
thereof in the manner prescribed by the statute relating to summary process: it
being understood that no demand for rent, and no re-entry for condition broken,
as at common law, shall be necessary to enable the Lessor to recover such
possession pursuant to said statute relating to summary process, but that all
right to any such demand or any such re-entry is hereby expressly waived by the
said Lessee.
7. After default made in any of the covenants herein contained, the
acceptance of rent or failure to re-enter by the Lessor shall not be held to be
a waiver of the Lessor's right to terminate the lease, and the Lessor may
re-enter and take possession of said premises the same as if no rent had been
accepted after such default.
8. Whenever this lease shall terminate either by lapse of time or by virtue
of any of the express stipulations therein, the said Lessee hereby waives all
right to any notice to quit possession, as prescribed by the statute relating to
summary process. The Lessee hereby waives a jury trial in any summary proceeding
brought by the Lessor.
9. In case the said Lessee shall, with the written consent of the said
Lessor endorsed herein, or on the duplicate hereof, at any time hold over the
said premises, beyond the period above specified as the termination of this
lease, then the said Lessee shall hold said premises upon the same terms, and
under the same stipulation and agreements as are in this lease contained, and no
holding over by said Lessee shall operate to renew this lease without such
written consent of said Lessor.
10. Lessee shall comply with, and conform to all the Laws of the State of
New York, and by all applicable by-laws, rules and regulations of any Town or
County, relating to Zoning, Health, Nuisance, Fire, etc., so far as the use of
the premises hereby leased are, or may be concerned; and to save the Lessor
harmless from all fines, penalties and costs for violation of or non-compliance
with the same.
11. It is further agreed that between the parties to these presents, that in
case the building or buildings erected on the premises hereby leased shall be
partially damaged by fire or otherwise, the same shall be repaired as speedily
as possible at the expense of the said Lessor; that in case the damage shall be
so extensive as to render the building or demised premises untenantable for
Lessee's purposes, the rent
shall cease until such time as the demised premises or the building shall be put
in complete repair; but in the case of the total destruction of the premises, by
fire or otherwise, the rent shall be paid up to the time of such destruction and
then and from thenceforth this lease shall cease and come to an end. In the
event of partial damage, in the event the premises are not restored so as to be
untenantable for Lessee's purposes within one hundred twenty (120) days after
said damage, then Lessee may, upon written notice to Lessor, within ten (10)
days of said one hundred twenty (120) days, terminate this lease.
12. Lessee further covenants and agrees that no accumulations of boxes,
barrels, packages, waste paper, or other articles shall be permitted in or upon
the driveways, parking areas, walks, or other common areas and such areas shall
not be obstructed in any manner by Lessee.
13. The Lessee shall carry public liability and property damage insurance in
a company satisfactory to the Lessor covering the premises leased herein in the
following amounts: One Million ($1,000,000.00) Dollars each person and One
Million ($1,000,000.00) Dollars each incident; and the Lessee agrees to pay and
assume any responsibility for personal injury or loss of life or property damage
sustained in or about the premises, in any manner resulting from the occupation
of the Lessee, his agents, servants, employees, licensees or invitees. The
Lessee shall cause the Lessor to be named as a party to the policy of insurance
and furnish the Lessor with a duplicate certificate or memorandum of such
insurance.
14. It is further agreed that this instrument shall not be a lien against
said premises in respect to any mortgages, or any amendments, modifications,
replacements, consolidations, spreaders or extensions thereof, that are now on
or that hereinafter may be placed against said premises, and that the recording
of such mortgage or mortgages, or amendments, modifications replacements,
consolidations, spreaders or extensions thereof shall have preference and
precedence and be superior and prior to the lien of this lease, irrespective of
the date of recording and the Lessee agrees to execute any such instrument
without cost, which may be deemed necessary or desirable to further effect the
subordination of this lease to any such mortgage or mortgages.
15. The Lessor and Lessee agrees to pay the reasonable attorney's fees and
costs incurred by
the other party in the enforcement of any of the terms of this lease as a result
of default by the Lessor or Lessee, as the case may be.
16. Lessor or its agents shall not be liable for any damage to property of
Lessee or of others entrusted to employees of the building, nor for the loss of
or damage to any property of Lessee by theft or otherwise. Lessor or his agents
shall not be liable for any damage to property of Lessee resulting from fire,
explosion, falling plaster, steam, glass, electricity, water, rain or snow or
leaks from any part of said building or from the pipes, appliances or plumbing
works or from the roof, street or subsurface or from any other place or by
dampness or by any other cause of whatsoever nature, nor shall Lessor or his
agents be liable for any such damage caused by other Lessees or persons in said
building or caused by operations in construction of any private, public or
quasi-public work; nor shall Lessor be liable for any latent defect in the
demised premises or in the building of which they form a part.
17. In the event the whole of the demised premises are taken for public or
quasi-public purposes by the government of the United States, the State of New
York, the County of Suffolk, the Town of Brookhaven, or any government, agency
thereof, or power whatsoever, or by any corporation under the right of eminent
domain, or should the whole of the demised premises be condemned by any court,
city, county, state, or governmental authority or office, department or bureau
of any city, county, state, or of the United States, then in any such event this
lease shall terminate as of the date title to the demised premises vests in the
condemning authority. For the purposes hereof, such date of vesting in the
condemnor terminating this lease shall operate as though it were the date
originally intended by the parties for expiration of the tenancy created
hereunder, and the rent reserved herein shall be adjusted in the light of the
condemnation, so that Lessee shall pay rent to Lessor only up to the date of
vesting in the condemnor. Any prepaid or advance rental paid by Lessee to Lessor
for that part of the term extending beyond the date which the title vests in the
condemnor shall be refunded within thirty (30) days after Lessor has received an
award of just compensation from the condemning authority for the taking of the
demised premises, provided Lessee shall have duly performed all the covenants
and conditions of this
lease by it to be performed. In the event that only a portion of the demised
premises is taken as specified above, Lessor shall have the right to terminate
this lease as of the date title thereto vests in the condemnor by giving to
Lessee written notice of such termination; but should Lessor not so terminate
this lease when a portion of the demised premises is so taken, this lease shall
terminate as to the part taken, and the rent reserved herein shall be adjusted
for the remainder of the demised premises so that Lessee shall be required to
pay for the balance of the term that portion of the rent reserved herein which
the value of the portion of the demised premises remaining after condemnation
bears to the value of the demised premises immediately prior to the date of
condemnation. The rental shall be apportioned as aforesaid by agreement between
the parties or by arbitration or legal proceedings, but pending such
determination or adjudication Lessee shall pay at the time and in the manner
above provided the rental herein reserved, and all other charges herein required
to be paid by Lessee, without deduction, and on such determination or legal
adjudication, Lessee shall be entitled to credit for any excess rentals paid. In
the event of a partial taking, Lessee shall have the right to terminate this
lease upon written notice to Lessor if the premises cannot be used for their
intended purpose.
In none of the above events shall Lessee receive any portion of, or
make any claim against, any award made to Lessor by the condemning authority in
respect to the condemnation of the demised premises, the Lessee hereby waives
and relinquishes any and all claims against such award and all other claim or
claims for compensation or damages against Lessor that may be occasioned by the
taking of the demised premises or any part thereto under the power of eminent
domain.
18. All words used in any gender shall extend to and include all genders,
and singular words shall include plural words where appropriate.
19. As a material inducement to the Lessor to execute and deliver this
lease, the Lessee agrees that, except as expressly provided in this Lease, if
any, it will accept the premises in its as is condition, WITH ALL FAULTS. Lessee
acknowledges that neither Lessor nor any of its purported representatives or
agents has made (and Lessor hereby disclaims any and all) representations and
warranties of any kind or character as to the condition of the premises either
express or implied, including without limitation, warranties of fitness for any
purpose or any particular use or commercial habitability.
20. Lessor shall, during the term of this lease, during business days and
business hours, unless precluded from doing so by strikes, war or natural
disaster, provide the premises with heat and electricity and shall keep the
sidewalk in front of the building clear of ice and snow. Lessor shall provide
Lessee with access to the building twenty four hours a day (except for causes
beyond Lessor's control). Lessee shall be liable for any loss or damage caused
by its or its agents, employees, contractors or invitees' negligence or wilful
misconduct.
21. Notices required hereunder shall be sent to Lessor:
JB SQUARED, LLC
Suite 100
45 Research Way
East Setauket, New York 11733
with copy to:
Morton R. Ruden, Esq.
3 Sylvan Road South
Westport, Connecticut 06880
Lessee:
ATTENTION:
Lender:
22. This Agreement shall be binding upon and inure to the benefit of the
successors and assigns
of the parties hereto.
23. The parties recognize that broker negotiated the leasing of the premises
herein described. This lease is consummated by the Lessor in reliance on the
representation of the Lessee that no other broker or agent brought the premises
to the Lessee's attention or was, in any way, a procuring cause of this lease.
The Lessor represents to the Lessee that no other broker or agent has any
exclusive leasing listing on the premises. The Lessee hereby agrees to indemnify
and hold harmless the Lessor against any liability by reason of the claim of any
broker or agent for a commission on account of this lease, provided that it is
adjudged by a court of competent jurisdiction that a commission is due by reason
of such broker or agent calling the premises to Lessee's attention or
interesting Lessee therein, said indemnity to include all costs of defending any
such claims, including reasonable attorney's fees.
IN WITNESS WHEREOF, THE PARTIES HERETO HAVE EXECUTED THIS LEASE THE DAY AND YEAR
FIRST ABOVE WRITTEN.
JB SQUARED, LLC, LESSOR , LESSEE
By: ____________________________ By:____________________________
EXHIBIT SCHEDULE
EXHIBIT A - Premises Occupied
EXHIBIT B - Description of Lessor's Work at Lessee's Expense
EXHIBIT C - Rules and Regulations
EXHIBIT D - Lessor's Form of Standard Storage Lease
EXHIBIT E - Right Of First Offer
EXHIBIT "B"
Tenant Construction at Lessee's Expense
Scope of Work
1999
- -----------------------------------
EXHIBIT C
RULES AND REGULATIONS
1. The sidewalks, entrances, passages, courts, elevators,
vestibules, stairways, corridors, or halls, to the extent they exist ,shall not
be obstructed or encumbered by any lessee or used for any purpose other than
ingress and egress to and from the Demised Premises.
2. No awnings or other projections shall be attached to the
outside walls of the Building without the prior written consent of the Lessor.
No curtains, blinds, shades,, or screens shall be attached to or hung in, or
used in connection with , any window or door of the Demised Premises, without
written consent of the Lessor. Such awnings, projections, curtains, blinds,
shades, screens or other such fixtures must be of quality, type , design and
color, and attached in the manner approved by Lessor. All electrical fixtures
hung in offices or spaces along the perimeter of the Demised Premises must be
fluorescent, of a perimeter of the Demised Premises must be fluorescent, of a
quality , type, design and bulb color approved by the Lessor.
3. No sign, advertisement, notice or other lettering shall be
exhibited, inscribed, painted or affixed by any Lessee on any part of the
outside or inside of the Demised Premises or Building without the prior written
consent of the Lessor. In the event of the violation of the foregoing by any
Lessee, Lessor may remove same without any liability, and may charge the expense
incurred by such removal to the Lessee or Lessees violating this rule.
4. No showcases or other articles shall be put in front of or affixed
to any part of the exterior of the Building.
5. The water and wash closets and other plumbing fixtures shall not be
used for any purposes other
than those for which they were constructed, and no sweepings, rubbish, rags, or
other substances shall be thrown therein. All damages resulting from any misuse
of the fixtures shall be borne be the Lessee who, or whose servants, employees,
agents, visitors or licensees, shall have caused the same.
6. No Lessee shall mark, paint, drill into, or in any way deface any
part of the demised Premises or the Building. No boring, cutting or stringing of
wires shall be permitted, except with the prior written consent of the Lessor,
and as the Lessor may direct. No Lessor shall lay linoleum, or other similar
floor covering, so that the same shall come in direct contact with the floor of
the Demised Premises, and, if linoleum or other similar floor covering is
desired to be used as an interlining of builder's deadening, felt shall be
affixed to the floor, by a paste or other material, soluble in water, the use of
cement or other similar adhesive material being expressly prohibited.
7. No Lessee shall make, or permit to be made, any unseemly or
disturbing noises or disturb or interfere with occupants of this or neighboring
buildings or premises or those having business with them whether by the use of
any musical instrument, radio, television set, talking machine, unmusical noise,
whistling, singing, or in any other way. No Lessee shall throw anything out of
the doors, windows or skylights or down the passageways.
8. No Lessee, or any of Lessee's servants, employees, agents, visitors
or licensees, shall at any time bring or keep upon the Demised Premises any
inflammable, combustible or explosive fluid, chemical or substance.
9. No additional locks or bolts of any kind shall be placed upon any of
the doors or windows by any Lessee, nor shall any changes be made in existing
locks or the mechanism thereof without prior written approval of Lessor. Each
Lessee must, upon the termination of his tenancy, restore to the Lessor all the
keys of stores, offices and toilet rooms, either furnished to, or otherwise
procured by, such Lessee, and in the event of the loss of any keys, so
furnished, such Lessee shall pay to the Lessor the cost thereof.
10. Lessor shall have the right to prohibit any advertising by any
Lessee which, in Lessor's opinion, tends to impair the reputation of the
Building and upon written notice from Lessor, Lessee shall refrain from or
discontinue such advertising.
11. Each Lessee shall , at its expense, provide artificial light for
the employees of the Lessor or its contractor while making repairs or
alterations in the Demised Premises.
12. The requirements of Lessees will be attended to only upon
application of the Lessor. Employees shall not perform any work or do anything
outside of their regular duties, unless under special instructions from the
office of the Lessor.
13. Canvassing, soliciting and peddling in the Building are prohibited
and each Lessee shall cooperate to prevent the same.
14. Lessee shall not do any cooking, conduct any restaurant,
luncheonette or cafeteria for the sale or service of food or beverages to its
employees or to others, or cause or permit any odors of cooking or other
processes or any unusual or objectionable odors to emanate from the Demised
Premises.
EXHIBIT E
---------
SUBORDINATED RIGHT OF FIRST OFFER
---------------------------------
If at any time during the first year of the term of this lease
only, after the Commencement Date the Lessor shall wish to offer for rent any
vacant space in the Building immediately adjacent to the Demised Premises
(excluding however, any offer, arising out of or relating to an expansion
option, renewal option, first right to lease, or other right granted to a Lessee
of the Building or any offer by then current Lessee of such space whether or not
pursuant to a renewal or expansion option), the Lessor shall submit written
notice thereof to the Lessee. Upon receipt of the aforesaid notice from Lessor,
the Lessee shall have the right (the "Right of First Offer"), exercisable at any
time within fifteen (15) calendar days from the date of such notice, to lease
said portion of the said floor that is the subject of the Offer at ninety five
(95%) percent of the then Market Base Rental Rate (and with the right to ninety
five [95%] percent of Lessor's then work letter pro rated for balance of the
term of the lease term for such additional space ) and Lessor's initial notice
to Lessee shall set forth the Market Base Rental Rate and work letter offering
for such space . If the Lessee elects to exercise the Right of First Offer, it
shall, prior to the end of said fifteen (15) calendar day period, deliver
written notice of such exercise to the Lessor, and the leasing of said space
shall commence on the last day of said fifteen (15) calendar day period and
shall be evidenced by a lease modification agreement executed by Lessee
modifying htis lease to reflect the additional space and new terms and the term
shall be for the balance of the term of the lease to which this Rider is
attached.. If the Lessee shall not exercise such Right of First Offer within the
said fifteen (15) calendar day period or shall fail to deliver written notice of
such exercise as provided above, the Lessor shall be free to lease said space,
or any portion thereof to any third
party at any rate and upon any terms and for any period of time acceptable to
Lessor at any time or times thereafter. Lessee shall not have the right to
assign its right of first refusal to any sublessee of the Premises or assignee
of this lease, nor may any such sublessee or assignee exercise such right of
first refusal. With reference to the time periods set forth above for Lessee to
act, time shall be of the essence.
Market Base Rental Rate. Whenever used in this lease, the term
"Market Base Rental Rate" shall mean Lessor's determination of the annual net
rental rate per square foot (exclusive of expense pass-through additions for
Operating Costs and Real Estate Taxes) of rentable space then being asked by
Lessee within the Building.