EXHIBIT 10.25
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LEASE AGREEMENT
BY AND BETWEEN
680-690 KINDERKAMACK ROAD, L.P.
- and -
AMERICAN CONFERENCING COMPANY, INC.
- for -
690 KINDERKAMACK ROAD
ORADELL, NEW JERSEY
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TABLE OF CONTENTS
1. DESCRIPTION.............................................................................. 1
2. TERM..................................................................................... 1
3. BASIC RENT............................................................................... 1
4. USE AND OCCUPANCY........................................................................ 2
5. CARE AND REPAIR OF PREMISES/ENVIRONMENTAL................................................ 2
6. ALTERATIONS, ADDITIONS OR IMPROVEMENTS................................................... 3
7. ACTIVITIES INCREASING FIRE INSURANCE RATES............................................... 3
8. ABANDONMENT.............................................................................. 3
9. ASSIGNMENT AND SUBLEASE.................................................................. 3
10. COMPLIANCE WITH RULES AND REGULATIONS.................................................... 6
11. DAMAGES TO BUILDING/WAIVER OF SUBROGATION................................................ 6
12. EMINENT DOMAIN........................................................................... 7
13. INSOLVENCY OF LESSEE..................................................................... 7
14. LESSOR'S REMEDIES ON DEFAULT............................................................. 7
15. DEFICIENCY............................................................................... 7
16. SUBORDINATION OF LEASE................................................................... 8
17. SECURITY DEPOSIT......................................................................... 9
18. RIGHT TO CURE LESSEE'S BREACH............................................................ 10
19. MECHANIC'S LIENS......................................................................... 10
20. RIGHT TO INSPECT AND REPAIR.............................................................. 10
21. SERVICES TO BE PROVIDED BY LESSOR/LESSOR'S EXCULPATION................................... 11
22. BUILDING STANDARD OFFICE ELECTRICAL SERVICES............................................. 11
23. ADDITIONAL RENT - ESCALATIONS............................................................ 14
(A) Operating Cost Escalation......................................................... 14
(B) Fuel, Utilities and Electric Cost Escalation...................................... 15
(C) Tax Escalation.................................................................... 15
(D) Lease Year........................................................................ 16
(E) Payment........................................................................... 16
(F) Books and Records................................................................. 16
(G) Right of Review................................................................... 17
24. INTERRUPTION OF SERVICES OR USE.......................................................... 17
25. LESSEE'S ESTOPPEL........................................................................ 17
26. HOLDOVER TENANCY......................................................................... 17
27. RIGHT TO SHOW PREMISES................................................................... 18
28. WAIVER OF TRIAL BY JURY.................................................................. 18
29. LATE CHARGE.............................................................................. 18
30. NO OTHER REPRESENTATIONS................................................................. 18
31. QUIET ENJOYMENT.......................................................................... 18
32. LESSEE'S INSURANCE....................................................................... 18
33. SECTION HEADINGS......................................................................... 19
34. APPLICABILITY TO HEIRS AND ASSIGNS....................................................... 19
35. PARKING SPACES........................................................................... 19
36. LESSOR'S LIABILITY FOR LOSS OF PROPERTY.................................................. 19
37. BROKER................................................................................... 19
38. PERSONAL LIABILITY....................................................................... 19
39. NO OPTION................................................................................ 20
40. DEFINITIONS.............................................................................. 20
(A) Proportionate Share............................................................... 20
(B) Common Facilities................................................................. 20
(C) Force Majeure..................................................................... 20
(D) Building Hours.................................................................... 21
(E) Additional Rent................................................................... 21
(F) Commencement Date................................................................. 21
41. RENEWAL OPTION........................................................................... 21
42. NOTICES.................................................................................. 22
43. MORTGAGEE'S NOTICE AND OPPORTUNITY TO CURE............................................... 22
44. ACCORD AND SATISFACTION.................................................................. 22
45. EFFECT OF WAIVERS........................................................................ 23
46. NUMBER AND GENDER........................................................................ 23
47. LESSOR'S RESERVED RIGHT.................................................................. 23
48. CORPORATE AUTHORITY...................................................................... 23
49. RELOCATION............................................................................... 23
LEASE, made the __________ day of June 1997 between 680-690 KINDERKAMACK
ROAD, L.P., a New Jersey Limited Partnership, whose address is 690 Kinderkamack
Road, Oradell, New Jersey 07649 (hereinafter referred to as "Lessor") and
AMERICAN CONFERENCING COMPANY, INC., a New Jersey Corporation, whose address is
67 East Ridgewood Avenue, Ridgewood, New Jersey 07450 (hereinafter referred to
as "Lessee").
1. DESCRIPTION. Lessor hereby leases to Lessee and Lessee hereby hires
from Lessor, the following space: Approximately 11,088 gross rentable square
feet in suite 400 on the third floor (hereinafter referred to as "Demised
Premises" or "Premises") approximately as shown on the plan or plans, initialed
by the parties hereto, marked as "Exhibit A" and made a part of this Lease,
which includes an allocable share of the Common Facilities, in the building of
55,318 square feet known as and located at 690 Kinderkamack Road, Oradell, New
Jersey 07649 (hereinafter referred to as "Building"), which is situated on that
certain parcel of land (hereinafter referred to as "Office Building Area"), as
described on Exhibit A-1 attached hereto and made a part of this Lease, 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. Provided Lessee shall not be in default in accordance
with the terms and provisions of this Lease, Lessor agrees to provide to Lessee
first notice to lease office space available for lease by Lessor in the Building
upon the same terms and conditions as such space is offered at such time. In the
event that the Lessee fails to lease such space within fifteen (15) days of
receipt of the first written notice thereof, the Lessee's right to lease any
space in the Building shall expire and be of no further force and effect.
2. TERM. The Premises are leased for a term of ten (10) years and nine
(9) months to commence on the first day of September, 1997, and to end at 12:00
midnight on May 31, 2008, unless extended pursuant to any options contained
herein.
3. BASIC RENT. The Lessee shall pay to the Lessor during the term basic
rent in the amount of Two Million One Hundred Forty Four Thousand Six Hundred
Fifty One and 33/100 ($2,144,651.33) Dollars (hereinafter referred to as "rent"
or "basic rent") payable in such coin or currency of the United States of
America as at the time of payment shall be legal tender for the payment of
public and private debts. The basic rent during the term shall accrue at the
yearly rate set forth below and shall be payable in advance on the first day of
each calendar month in equal monthly installments as indicated below. Lessee
shall pay basic rent, and any Additional Rent as hereinafter provided, to John
M. Mavroudis & Co., Inc., as agent for Lessor, at Lessor's above-stated address,
or to such other agent as Lessor may designate in writing, without demand and
without counterclaim, deduction or setoff.
The basic rent payable during the aforesaid period of time, yearly rate and
monthly installment, respectively, shall be as follows:
Period from to Yearly Rate Monthly Installment
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09/01/97 12/31/97 n/a $ 7,395.83
01/01/98 12/31/98 $150,875.00 12,572.92
01/01/99 05/31/03 196,812.00 16,401.00
06/01/03 05/31/08 218,988.00 18,249.00
4. USE AND OCCUPANCY. Lessee shall use and occupy the premises as
general offices, audio, video and data conferencing center and other uses
incidental thereto and for no other purpose. Lessees use of the premises shall
require an equipment room and the extension of commercial and fiber wiring to
the Building.
5. CARE AND REPAIR OF PREMISES/ENVIRONMENTAL. Lessee covenants to
commit no act of waste and to take good care of the Premises and the fixtures
and appurtenances therein, and shall, in the use and occupancy of the Premises,
comply with all laws, orders and regulations of the federal, state and municipal
governments or any of their departments affecting the premises and with any and
all environmental requirements resulting from the Lessee's use of the Premises,
this covenant to survive the expiration or sooner termination of the Lease.
Lessor shall make all necessary repairs to the Premises. Lessor shall make all
necessary repairs to the Common Facilities and to the parking areas, if any, the
same to be included as an Operating Cost, except where the repair has been made
necessary by misuse or neglect by Lessee, in which event Lessor shall
nevertheless make the repair but Lessee shall pay to Lessor, as Additional Rent,
upon thirty (30) day demand the reasonable costs therefor. 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 excluding the audio, video and data conferencing equipment of
the Lessee which shall be removed by Lessee at the end of the term. Not later
than ten (10) days following 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,
cabinetwork, movable paneling, partitions and the like; repair all injury done
by or in connection with the 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, servants, visitors or licensees excepted. All other property of Lessee
remaining on the Premises ten (10) days 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 cost of such removal. Lessor may have any
such property stored at Lessee's risk and expense.
Lessee acknowledges the existence of environmental laws, rules and
regulations (the "Environmental Laws").
Lessee hereby agrees to execute such documents as Lessor reasonably deems
necessary and to make such applications as Lessor reasonably requires to assure
compliance with all Environmental Laws. Lessee shall bear all costs and
expenses incurred by Lessor associated with any required Environmental Laws
compliance resulting from Lessee's use of the Demised Premises including but not
limited to state agency fees, engineering fees, clean-up costs, filing fees and
suretyship expenses. As used in this Lease, such compliance shall include
applications for determinations of nonapplicability by the appropriate
governmental authority. The foregoing undertaking shall survive the termination
or sooner expiration of the Lease and surrender of the Demised Premises and
shall also survive sale, or lease or assignment of the Demised Premises by
Lessor. Lessee agrees to indemnify and hold Lessor harmless from any violation
of Environmental Laws occasioned by Lessee's use of the Demised Premises. The
Lessee shall immediately provide the Lessor with copies of all correspondence,
reports, notices, orders, findings, declarations and other materials pertinent
to the Lessee's compliance and the requirements of the New Jersey Department of
Environmental Protection and Energy ("NJDEPE") under any Environmental Laws as
they are issued or received by the Lessee.
Lessee agrees not to generate, store, manufacture, refine, transport,
treat, dispose of, any Hazardous Substances. As used herein, Hazardous
Substances shall be defined as any "hazardous chemical," "hazardous substance"
or similar term as defined in the Comprehensive Environmental Responsibility
Compensation and Liability Act, as amended (42 U.S.C.9601, et seq., the New
-- ---
Jersey Spill Compensation and Control Act, as amended, N.J.S.A.58:10-23.11b, et
--
seq., any rules or regulations promulgated thereunder, or in any other
- ----
applicable federal, state or local law, rule or regulation dealing with
environmental protection. It is understood and agreed that the provisions
contained in this Section shall be applicable notwithstanding the fact that any
substance shall not be deemed to be a Hazardous Substance at the time of its use
by the Lessee but shall thereafter be deemed to be a Hazardous Substance.
Lessee agrees to indemnify and hold harmless the Lessor and each mortgagee
of the Premises from and against any and all liabilities, damages, claims
losses, judgments, causes of action, costs and expenses (including the
reasonable fees and expenses of counsel) which may be incurred by the Lessor or
any such mortgagee or threatened against the Lessor or such mortgagee, relating
to or arising out of any breach by Lessee of the undertakings set forth in this
Section, said indemnity to survive the Lease expiration or sooner termination.
Lessor represents that there are no current violations of Environmental Laws.
6. ALTERATIONS, ADDITIONS OR IMPROVEMENTS. Lessee shall not, without
first obtaining the written consent of Lessor, make any alterations, additions
or improvements in, to or about the Premises. The written consent of Lessor to
any such nonstructural alterations, additions or improvements shall not be
unreasonably withheld, conditioned or delayed.
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.
8. ABANDONMENT. Lessee shall not, without first obtaining the written
consent of Lessor, which shall not be unreasonably withheld, conditioned, or
delayed, abandon the Premises or allow the Premises to become vacant or
deserted.
9. ASSIGNMENT AND SUBLEASE. Lessee may assign or sublease the within
Lease to any party subject to the following:
(A) In the event that Lessee desires to sublease the entire premise
or assign the within lease to any other party, the terms and conditions of
such sublease or assignment shall be communicated to Lessor in writing
prior to the effective date of any such sublease or assignment, and, prior
to such effective date, Lessor shall have the option, exercisable in
writing to Lessee, to recapture the within Lease so that such prospective
sublessee or assignee shall then become the sole lessee of Lessor hereunder
or alternatively to recapture said space and the within Lessee shall be
fully released from any and all obligations hereunder.
(B) In the event that Lessor elects not to recapture the Lease as
hereinabove provided, Lessee may nevertheless assign this Lease or sublet
the Premises, or Lessee may sublet a portion of the Premises, subject to
Lessor's prior written consent, which consent shall not be unreasonably
withheld, conditioned or delayed, and subject to the consent of any
mortgagee, trust deed holder or ground lessor, on the basis of the
following terms and conditions:
(1) The Lessee shall provide to Lessor the name and address
of the assignee or sublessee.
(2) The assignee or sublessee shall assume, by written
instrument, all of the obligations of this Lease, and a copy of such
assumption agreement shall be furnished to Lessor within ten (10)
days of its execution. Any sublease shall expressly acknowledge that
said sublessee's rights against the Lessor shall be no greater than
those of the Lessee.
(3) The Lessee and each assignee 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.
(4) The Lessee and any assignee shall promptly pay to Lessor
fifty (50%) percent of any consideration received for any assignment
or fifty (50%) percent of 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 an average square foot
rent for the gross square footage Lessee has leased, less brokerage
commissions, buildout costs and reasonable attorney fees.
(5) In any event, the acceptance by Lessor of any rent from
the assignee or from any of the subtenants or the failure of Lessor
to insist upon a strict performance of any of the terms, conditions
and covenants herein shall not release 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.
(C) Any sublet or assignment to an affiliated company shall not be
subject to the provisions of Subsections 9(A), 9(B)(4) or 9(B)(6) hereof
and shall not require Lessor's prior written consent, but all other
provisions of this Section shall apply.
(D) In the event that any or all of Lessee's interest in the
Premises and/or this Lease is transferred by operation of law to any
trustee, receiver, or other representative or agent of Lessee, or to Lessee
as a debtor in possession, and subsequently any or all of Lessee's interest
in the Premises and/or this Lease is offered or to be offered by Lessee or
any trustee, receiver, or other representative or agent of Lessee as to its
estate or property (such person, firm or entity being hereinafter referred
to as the "Grantor"), for assignment, conveyance, lease, or other
disposition to a person, firm or entity other than Lessor (each such
transaction being hereinafter referred to as a "Disposition"), it is agreed
that Lessor has and shall have a right of first refusal to purchase, take,
or otherwise acquire, the same upon the same terms and conditions as the
grantor thereof shall accept upon such Disposition to such other person,
firm, or entity; and as to each such Disposition the Grantor shall give
written notice to Lessor in reasonable detail of all of the terms and
conditions of such Disposition within twenty (20) days next following its
determination to accept the same but prior to accepting the same, and
Grantor shall not make the Disposition until and unless Lessor has failed
or refused to accept such right of first refusal as to the Disposition, as
set forth herein.
Lessor shall have sixty (60) days next following its receipt of the
written notice as to such Disposition in which to exercise the option to
acquire Lessee's interest by such Disposition, and the exercise of the
option by Lessor shall be effected by notice to that effect sent to the
Grantor; but nothing herein shall require Lessor to accept a particular
disposition or any Disposition, nor does the rejection of any one such
offer of first refusal constitute a waiver or release of the obligation of
the Grantor to submit other offers hereunder to Lessor. In the event
Lessor accepts such offer of first refusal, the transaction shall be
consummated pursuant to the terms and conditions of the Disposition
described in the notice to Lessor. In the event Lessor rejects such offer
of first refusal, Grantor may consummate the Disposition with such other
person, firm, or entity; but any decrease in price of more than two (2%)
percent of the price sought from Lessor or any change in the terms of
payment for such Disposition shall constitute a new transaction requiring a
further option of first refusal to be given to Lessee hereunder.
(E) Without limiting any of the provisions of Sections 13 and 14,
if pursuant to the Federal Bankruptcy Code (herein the "Code") or any
similar law hereafter enacted having the same general purpose, Lessee is
permitted to assign this Lease notwithstanding the restrictions contained
in this Lease, adequate assurance of future performance by an assignee
expressly permitted under such Code shall be deemed to mean the deposit of
case security in an amount equal to the sum of one (1) year's basic rent
plus an amount equal to the Additional Rent for the calendar year preceding
the year in which such assignment is intended to become effective, which
deposit shall be held by Lessor for the balance of the term, without
interest, as security for the full performance of all of Lessee's
obligations under this Lease, to be held and applied in the manner
specified for security in Section 17.
(F) Except as specifically set forth above, no portion of the
Demised Premises or of Lessee's interest in this Lease may be acquired by
any other person or entity, whether by assignment, mortgage, sublease,
transfer, operation of law or act of the Lessee, nor shall Lessee pledge
its interest in this Lease or in any security deposit required hereunder.
10. COMPLIANCE WITH RULES AND REGULATIONS. Lessee shall observe and
comply with the rules and regulations hereinafter set forth in Exhibit B
attached hereto and made a part hereof and with such further reasonable rules
and regulations (the "changes") as Lessor may prescribe, on written notice to
Lessee, for the safety, care and cleanliness of the Building and the comfort,
quiet and convenience of other occupants of the Building provided that any
changes made by Lessor shall not materially alter the terms and conditions of
the Lease. Lessee shall not place a load upon any floor of the Demised Premises
exceeding the floor load per square foot area which it was designed to carry and
which is allowed by law. Lessor reserves the right to prescribe the weight and
position of all safes, heavy machines and equipment. Such installations shall be
placed and maintained by Lessee, at Lessee's expense, in settings sufficient, in
Lessor's judgment, to absorb and prevent vibration, noise and annoyance.
11. DAMAGES TO BUILDING/WAIVER OF SUBROGATION. 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, then Lessor may, no later than the
thirtieth (30th) day following the damage, give Lessee a notice of election to
terminate this Lease; or if the cost of restoration of the Building will equal
or exceed fifty (50%) percent of such replacement value or if the Premises shall
not be reasonably usable for the purpose for which they are leased hereunder,
then Lessee may, no later than the fifteenth (15) day following the damage, give
Lessor 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. If the cost of restoration shall not entitle Lessor to terminate this
Lease, or if despite the cost, Lessor does not elect to terminate this Lease,
Lessor shall restore the Building and the Premises with reasonable promptness,
subject to Force Majeure, as hereinafter defined,
and except as stated above, 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 damage to the
Building, there shall be either an abatement or an equitable reduction in basic
rent and an equitable reduction in the Base Period Costs as established in
Section 23 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" as used in this Section 11
shall include repairs. If the damage results from the fault of the Lessee, or
Lessee's agents, servants, visitors or licensees, Lessee shall not be entitled
to any abatement or reduction in basic rent, except to the extent of any rent
insurance received by Lessor.
12. 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 and any basic and 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 for such taking or any payment in lieu thereof, but 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 affect or diminish Lessor's award. In the
event of a 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 Period Costs as hereinafter defined
depending on the period for which and the extent to which the Premises so taken
are not reasonably usable for the purpose for which they are leased hereunder.
13. 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 creditors, 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 in
Section 15 hereof.
14. 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 Lessee does not cure any basic rent or Additional Rent default within
five (5) days of the giving of such notice or other default within thirty (30)
days after giving of such notice [or if such other default is of such nature
that it cannot be completely cured within such period, if Lessee does not
commence such curing within such thirty (30) days and thereafter 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 Sections 13 or 14 hereof, Lessor may at any time thereafter resume
possession of the Premises by any lawful means and remove Lessee or other
occupants and their effects.
15. 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 as agent of Lessee or
otherwise, 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 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 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, as and when due, less the net proceeds of the
reletting, if any, as ascertained from time to time, as of the due date, 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, nor shall any surplus be applied to offset the damages referred to in
the preceding sentence. 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.
Alternatively, in any case where Lessor has recovered possession of the
Premises by reason of Lessee's default, Lessor may at Lessor's option, and at
any time thereafter, and without notice or other action by Lessor, and without
prejudice to any other rights or remedies it might have hereunder or at law or
equity, become entitled to recover from Lessee, as damages for such breach, in
addition to such other sums herein agreed to be paid by Lessee, to the date of
re-entry, expiration and/or dispossess, an amount equal to the difference
between the rent and Additional Rent reserved in this Lease from the date of
such default to the date of expiration of the term demised and the then fair and
reasonable rental value of the Premises for the same period. Said damages shall
become due and payable to Lessor immediately upon such breach of this Lease and
without regard to whether this Lease be terminated or not, and if this Lease be
terminated, without regard to the manner in which it is terminated. In the
computation of such damages, the difference between any installments of rent
(basic and Additional) thereafter becoming due and the fair and reasonable
rental value of the Premises for the period for which such installment was
payable shall be discounted to the date of such default at the rate of not more
than four (4%) percent per annum.
Lessee hereby waives all right of redemption to which Lessee or any person
under Lessee might be entitled by any law now or hereafter in force.
Lessor's remedies hereunder are in addition to any remedy allowed by law.
Lessee agrees to pay, as Additional Rent, all reasonable attorney's fees
and other expenses incurred by the Lessor in enforcing any of the obligations
under this Lease, this covenant to survive the expiration or sooner termination
of this Lease.
16. SUBORDINATION OF LEASE. This Lease shall, at Lessor's option, or at
the option of any holder of any underlying lease or holder of any first mortgage
or deed of trust, be subject and subordinate to any such underlying leases and
to any such first mortgage and/or trust deed which now affects the real property
of which the Premises form a part, and also to all renewals, modifications,
consolidations and replacements of said underlying leases and said first
mortgage or trust deed. With respect to future underlying leases, mortgages or
trust deeds, this Lease shall only be subordinate thereto if the underlying
lessor, mortgagee or beneficiary named in such lease, mortgage or deed of trust
shall first agree in writing:
(a) that the lessor under any such lease or the holder of any such
mortgage or trust deed shall not be entitled to terminate this Lease, including
such amendments as may be entered into from time to time hereafter by the
parties hereto, by foreclosure or other means, so long as Tenant or its
successors or assigns are not in default under any obligation hereunder beyond
any period herein given to Tenant to cure such default;
(b) that the lien of such mortgage or trust deed shall not encumber
any of Tenant's equipment, fixtures, alterations, improvements or other property
which, by the terms of this Lease, Tenant is permitted to remove from the
Premises; and
(c) that in the event of a termination of such lease by the lessor
or a foreclosure of such mortgage or trust deed, the lessor, mortgagee or any
purchaser at a foreclosure sale, or their respective successors and assigns,
shall recognize and be bound by the terms of this Lease, but not bound by any
earlier defaults of Landlord;
and the Tenant covenants and agrees that each holder of any said instrument and
each lessor under any said lease, provided such holder or lessor shall have
delivered such an agreement to Tenant, and anyone claiming by, through or under
such holder or lessor, shall not:
(i) be liable for any act or omission of any prior landlord
(including Landlord) under the Lease; or
(ii) be subject to any offsets or defenses which Tenant might have
against any prior landlord (including Landlord) under the Lease; or
(iii) be bound by any prepayment of fixed rent or additional rent or
other charges under the Lease which Tenant might have paid more than one month
in advance; or
(iv) be bound by any amendment, modification, surrender or
cancellation of the Lease made without the consent of said holder or lessors.
Upon delivery of the aforesaid agreement from any holder of said instruments or
any lessor under said underlying leases, Tenant agrees to attorn to said holder
or lessor and recognize this Lease as a direct lease between Tenant and said
holder or lessor in the event that said holder should become the owner of the
Premises or said lessor should terminate said underlying lease. Although no
instrument or act on the part of Tenant shall be necessary to effectuate such
subordination, Tenant shall, nevertheless, execute and deliver such further
instruments confirming such subordination of this Lease as may be desired by the
holders of said mortgage or trust deeds or by any lessor under such underlying
lease.
Landlord shall obtain within thirty (30) days, on behalf of Tenant, from
the holders of any mortgage or trust deeds which, as of the date hereof,
encumber the Building or the real property of which it forms a part, a non-
disturbance and attornment agreement containing language similar to that
contained in clauses (a), (b) and (c) above.
17. SECURITY DEPOSIT. Lessee shall deposit with Lessor on the signing of
this Lease the sum of Forty Nine Thousand Two Hundred Three and 00/100
------------------------------------------------
($49,203.00) Dollars as security for the performance of Lessee's obligations
- ------------
under this Lease, including without limitation, the surrender of possession of
the Premises to Lessor as herein provided. If Lessor applies any part of said
deposit to cure any default of Lessee, Lessee shall on demand deposit with
Lessor the amount so applied so that Lessor shall have the full deposit on hand
at all times during the term of this Lease. In the event of a bona fide sale,
subject to this Lease, Lessor shall have the right to transfer the security to
the vendee, and Lessor shall be considered released by Lessee from all liability
for the return of such security; and Lessee agrees to look solely to the new
lessor for the return of the said security, and it is agreed that this shall
apply to every transfer or assignment made of the security to a new lessor. The
security deposited as provided for herein shall not be mortgaged, assigned or
encumbered by Lessee without the written consent of Lessor. Provided the lessee
shall not be in default under the terms of the Lease, Lessee shall have the
right to apply such security deposit to the basic rent and additional rent
payable for the last remaining months of the terms of the Lease, including the
months remaining in the event of an election by Lessee to terminate the Lease in
accordance with Paragraph 42 hereof.
In the event of the insolvency of Lessee, or in the event of the entry of a
judgment in bankruptcy in any court against Lessee which is not discharged
within thirty days (30) days after entry, or in the event a petition is filed by
or against Lessee or under any chapter of the bankruptcy laws of the State of
New Jersey or the United States of America, then in such event, Lessor may
require the Lessee to deposit additional security in an amount equal to twelve
(12) months rent to assure Lessee's performance of all of its obligations under
this Lease including all payments subsequently accruing. Failure of Lessee to
deposit the security required by this Section within ten (10) days after
Lessor's written demand shall constitute a material breach of this Lease by
Lessee.
Provided Lessee shall not be in default under the terms of the Lease, the
security paid to the Lessor under this Lease shall be (i) refunded to Lessee one
hundred twenty (120) days
following the assignment and assumption of this Lease by Vialog Corporation
("Vialog") and the initial public offering of common stock of Vialog
substantially in accordance with Form S-1 as filed with the Securities Exchange
Commission on February 28, 1997, or (ii) refunded to Lessee in three (3) equal
annual installments commencing September 1, 1999 and annually thereafter on the
first day of January until the entire security is repaid to the Lessee.
18. RIGHT TO CURE LESSEE'S BREACH. If Lessee breaches any covenant or
condition of this Lease, Lessor may, on reasonable notice to Lessee (except that
no notice need be given in case of emergency), cure such breach at the expense
of Lessee and the reasonable amount of all expenses, including reasonable
attorney's fees, incurred by Lessor in so doing (whether paid by Lessor or not)
shall be deemed Additional Rent payable on demand.
19. MECHANIC'S LIENS. Lessee shall, within thirty (30) days after notice
from Lessor, discharge or satisfy by bonding or otherwise any mechanic's liens
for materials or labor claimed to have been furnished to the Premises on
Lessee's behalf. Lessee shall not permit any Notice of Intentions to be filed
against the Premises or Building or Office Building Area as a result of Lessee's
acts and shall cause any such filings to be terminated within three (3) days.
The provision shall not apply to any mechanics liens for materials or labor
furnished to the Lessor.
20. 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, provided reasonable notice is given to Lessee
(except that no notice need be given in case of emergency), for the 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 necessary or desirable.
Lessee shall have no claims or cause of action against Lessor by reason thereof.
In no event shall Lessee have any claim against Lessor for interruption to
Lessee's business, however occurring, except interruptions arising from the
gross negligence or intentional acts of Lessor, its agents, servants or
invitees, or from defects, errors or omissions in the construction or design of
the Demised Premises and/or the Building, including the structural and
nonstructural portions thereof.
21. SERVICES TO BE PROVIDED BY LESSOR/LESSOR'S EXCULPATION. While Lessee
is not in default under any of the provisions of this Lease, Lessor agrees to
furnish, except on holidays as set forth on Exhibit E attached hereto and made a
part hereof:
(A) The cleaning services, as set forth on Exhibit D attached
hereto and made a part hereof, and subject to the conditions therein
stated. Except as set forth on Exhibit D, Lessee shall pay the cost of all
other cleaning services required by Lessee.
(B) Heating, ventilating and air conditioning (herein "HVAC"),
meeting minimum standards for a first class office building as appropriate
for the season and as set forth on Exhibit C attached hereto and made a
part hereof. Lessor shall further provide Common Facilities lighting and
electric energy all during "Building Hours," as hereinafter defined,
subject to the provisions of paragraph 22 of this Lease.
(C) Notwithstanding the requirements of Exhibit C or D (as to HVAC)
or any other provision of this Lease, Lessor shall not be liable for
failure to furnish any of the aforesaid services when such failure is due
to Force Majeure, as hereinafter defined.
22. BUILDING STANDARD OFFICE ELECTRICAL SERVICES.
(A) For so long as Lessee is not in default with respect to this
Lease, Lessor agrees to redistribute Building Standard Office Electrical
Service (as hereinafter defined), to the Premises in accordance with the
present electrical capacity at the Premises upon the following terms and
condition:
(i) Lessor shall furnish "Building Standard Office Electrical
Service" to the Lessor and Lessee shall, within ten (10) days of
receipt of Lessor's bill, pay to Lessor the amount so consumed as
determined in accordance with the provisions of this paragraph. The
Lessor and Lessee agree that there shall be no separate charge to
Lessee for such Building Standard Office Electrical Service by way of
measuring the same on a meter, but the value of such electric energy
shall be billed to and paid by the Lessee as additional basic rent as
hereinafter provided. Upon the commencement of this lease the
additional basic rent to be charged for Building Standard Office
Electrical Service shall be computed on the basis of One and 25/100
($1.25) Dollar per annum per gross rental square feet of the Demised
Premises except that an adjustment of the gross rental square feet
shall be made during the first two (2) months of the Term to reflect
the space actually occupied by the Tenant. Such amount shall be
billed monthly in equal monthly installments. The said amount shall
be subject to redetermination as provided in parts (ii) and (iii)
below.
(ii) Upon the request of the Lessee, Lessor shall cause an
inspection, survey, and evaluation to be made of Lessee's electrical
equipment and installations in the Demised Premises by a reputable
independent electrical engineer or consultant (hereinafter the
"Engineer") selected by Lessor and to be paid equally by Lessor and
Lessee. The Engineer's report of his inspection, survey and
evaluation (the "Engineers Report") shall contain a determination of
the value, on an annual basis, of the Building Standard Office
Electrical Service (hereinafter sometimes the "electric service") to
be furnished to the Demised Premises. Such value shall be calculated
in accordance with B.O.M.A. standards by applying to the electrical
demand and consumption indicated in the Engineer's Report for the
Demised Premises, the public utility basic rate schedule applicable
to Lessor for purchase of electricity for the Building but without
regard for the electricity used in the rest of the Building. The
amount of the value so determined by the Engineer shall be
substituted for and incorporated in the basic rent reserved hereunder
with respect to the Demised Premises, in place of the amount provided
for in Part (i) above, effective as of the Commencement Date. Any
resulting overpayment for the period between the Commencement Date
and the date of determination shall be refunded by the Lessor or paid
by Lessee, as the case may be, on demand.
(iii) If at any time or times after the determination of the
value of the electric service to the Demised Premises, described in
Part (ii) above, Lessee shall wish to connect any additional
fixtures, appliances or equipment (other than ordinary lamps
typewriters and other small office machines) to the Building electric
distribution system or otherwise to substantially increase its use of
electricity in the Demised Premises, Lessee shall first request
Lessors consent therefor, which consent shall not be unreasonably
withheld, and shall not proceed without such consent. However, as a
condition to such consent Lessor may require Lessee to agree to an
increase in the fixed rent by an amount which will reflect the value
of such additional electricity to be furnished by Lessor. If the
parties cannot agree on the amount of such rent increase within 10
days after Lessor shall have granted such consent, such amount shall
be determined by Engineer, selected by Lessor and to be paid equally
by both parties who shall determine the value of the additional
electric service in the same manner as provided in part (ii) above
for determination of the original electric service, and said amount
shall be added to an incorporated in the basic rent reserved
hereunder, effective from the date such additional risers or other
electrical conductors or equipment required to provide any increase
in electric service to the Demised Premises shall be provided by
Lessor and the cost thereof shall be paid by Lessee on Lessor's
demand.
(iv) Lessor shall not be liable in any way to Lessee for any
loss, damage or expense which Lessee may sustain or incur as a result
of any failure, defect or change in the quantity or character of
electrical energy available for redistribution to the Premises
pursuant to this Section nor for any interruption in supply, and
Lessee agrees that such supply may be interrupted for inspection,
repairs and replacement and in emergencies. In any event, the full
interruption in the supply due to Lessor's acts or omissions shall be
an abatement of rent. In no event shall Lessor by liable for any
business interruption suffered by Lessee except interruptions arising
from the gross negligence or intentional acts of Lessor.
(v) Lessee shall make no alteration to the existing
electrical risers, wiring and other conductors or outlets, without
Lessor's consent. Should Lessor consent, all such alterations shall
be provided by Lessor and the cost therefore paid for by Lessee upon
demand as additional rent.
(vi) Lessee shall have the right to install a generator on the
Office Building Area as a source of secondary power provided that (i)
Lessee shall first obtain the written consent of the Lessor to the
size, location and screening of the generator, which shall not be
unreasonably withheld, conditioned or delayed, (iii) the generator
shall be located at a location which shall not unreasonably interfere
with the use and occupancy of the Building, and (iii) Lessee shall
obtain all necessary municipal approvals for the installation and
maintenance and pay all annual fees in connection therewith, (iv) the
cost of purchase, installation, electrical wiring and screening of
the generator and all related equipment shall be at the Lessee's sole
cost and expense, (v) the generator shall be removed at the end
of the Term and the premises restored to the existing condition at
the time of this Lease.
(B) In the event the public utility company that furnishes electric
energy to Lessor for redistribution to Lessee, declines, without fault on
the part of the Lessor, to continue furnishing electric energy for that
purpose, Lessor reserves the right to discontinue distributing Building
Standard Office Electric Service to Lessee at any time upon reasonable
notice to Lessee. If Lessor exercises such right to termination, this Lease
shall continue in full force and effect and shall be unaffected thereby,
except only that, from and after the effective date of such termination,
Lessee shall not be obligated to pay Lessor for said Building Standard
Office Electrical Service.
(C) For purposes of this Section 22, "Building Standard Office
Electrical Service" shall mean all of the electrical energy and like
utilities furnished to the Demised Premises by Public Service Electric and
Gas Company, its successors or assigns, used or consumed in, upon or about
the Demised Premises to provide the lighting and operate office equipment
such as typewriters, computers, calculators, copiers, any computer
installation or data processing equipment, or any other equipment or use,
which energy shall be provided at all times during the term of this Lease.
23. ADDITIONAL RENT - ESCALATIONS. It is expressly agreed that Lessee
will pay in addition to the basic rent, provided in Section 3 above, an
additional rental to cover Lessee's Proportionate Share, as hereinafter defined,
of the increased cost to Lessor, for each of the categories enumerated herein,
over the "Base Period Costs" (as hereinafter defined) for each of said
categories.
(A) Operating Cost Escalation. If during the Lease term the
Operating Costs incurred for the Building in which the Demised Premises are
located and Office Building Area for any Lease Year or proportionate part
thereof if the Lease term expires prior to the expiration of a Lease Year
(herein the "Comparison Period") shall be greater than the Base Operating
Costs (adjusted proportionately if the Comparison Period is less than a
Lease Year), then Lessee shall pay to Lessor, as Additional Rent, its
Proportionate Share, as hereinafter defined, of all such excess Operating
Costs. Operating Costs shall include, by way of illustration and not of
limitation: personal property taxes; management fees not in excess of 5% of
the gross rental income; labor including all wages and salaries, social
security taxes, and other taxes which may be levied against Lessor upon
such wages and salaries; supplies; repairs and maintenance; maintenance and
service contracts; painting; wall and window washing; laundry and towel
service; tools and equipment; fire and other insurance; trash removal; lawn
care; snow removal and all other items properly constituting direct
operating costs according to standard accounting practices whether or not
the same shall be enumerated as part of the services or obligations of
Lessor hereunder (hereinafter collectively referred to as the "Operating
Costs", but not including: depreciation of Building or equipment; interest;
income or excess profits taxes; costs of maintaining the Lessor's corporate
existence; franchise taxes and not including the items set forth in Exhibit
C-1 attached hereto and made a part hereof. As used in this Subsection 23,
the Base Period Costs for Operating Costs, herein the Base Operating
Costs, shall be those costs incurred during the Lease Year commencing
September 1, 1997.
(B) Fuel, Utilities and Electric Cost Escalation (hereinafter
"Utility and Energy Costs"). If during the Lease term the Utility and
Energy Costs, including any fuel surcharges or adjustments with respect
thereto, incurred for water, sewer, and other utilities for the Building to
include all leased and leasable areas (not constituting Basic Rent pursuant
to paragraph 22 of this Lease which are separately billed or metered within
the Building) and Common Facilities electric, lighting, water, sewer and
other utilities for the Building and Office Building Area, for any
Comparison Period shall be greater than the Base Utility and Energy Costs
(adjusted proportionately if the Comparison Period is less than a Lease
Year), then Lessee shall pay to Lessor as Additional Rent and without
regard to the fact that Lessor has agreed to provide said service, its
Proportionate Share, as hereinafter defined, of all such excess Utility and
Energy Costs. As used in this Subsection 23(B), the Base Period Costs for
Fuel, Utilities and Electric, herein the Base Utility and Energy Costs,
shall be those costs determined by multiplying the usage incurred for the
Building and Office Building Area during the Lease Year commencing
September 1, 1997 by the average of the rates in effect (including
surcharges and/or adjustments) during the period from September 1, 1997
through August 31, 1998 (herein "Base Utility Rate").
(C) Tax Escalation. If during the Lease term the Real Estate Taxes
for the Building and Office Building Area at which the Demised Premises are
located for any Comparison Period shall be greater than the Base Real
Estate Taxes (adjusted proportionately if the Comparison Period is less
than a Lease Year), then Lessee shall pay to Lessor as Additional Rent, its
Proportionate Share, as hereinafter defined, of all such excess Real Estate
Taxes.
As used in this Subsection 23(C), the words and terms
which follow mean and include the following:
(i) The Base Period Costs for Real Estate Taxes, herein the
"Base Real Estate Taxes," shall be those costs assessed against the
Building and Office Building Area during the Lease Year commencing
September 1, 1997 which shall be inclusive of any additional
assessments for improvements proposed by Lessor to the common areas
of the Building.
(ii) "Real Estate Taxes" shall mean the property taxes and
assessments imposed upon the Building and Office Building Area, or
upon the rent, as such, payable to Lessor, including, but not limited
to, real estate, city, county, village, school and transit taxes, or
taxes, assessments or charges levied, imposed or assessed against the
Building and Office Building Area by any other taxing authority,
whether general or specific, ordinary or extraordinary, foreseen or
unforeseen. 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, 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; 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, a Real
Estate Tax as hereinbefore provided) shall not be deemed a Real
Estate Tax for the purposes hereof.
(D) Lease Year. As used in this Lease, Lease Year shall mean the
twelve (12) month period commencing on September 1, 1997 and each twelve
(12) month period thereafter. Once the Base Period Costs are established,
in the event any lease period is less than twelve (12) months, then the
Base Period Costs for the categories listed above shall be adjusted to
equal the proportion that said period bears to twelve (12) months, and
Lessee shall pay to Lessor as Additional Rent for such period, an amount
equal to Lessee's Proportionate Share, as hereinafter defined, of the
excess for said period over the adjusted base with respect to each of the
aforesaid categories.
(E) Payment. At any time, and from time to time, after the
establishment of the Base Period Costs for each of the categories referred
to above, Lessor shall advise Lessee in writing of Lessee's Proportionate
Share with respect to each of the categories as estimated for the current
Lease Year [and for each succeeding Lease Year or proportionate part
thereof if the last period prior to the Lease's termination is less than
twelve (12) months] as then known to Lessor, and thereafter, Lessee shall
pay as Additional Rent, its Proportionate Share, as hereinafter defined, of
the excess of these costs over the Base Period 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 on
the first day of each month, such new rates being applied to any months for
which the rental shall have already been paid which are affected by the
Operating Cost Escalation and/or Utility and Energy Cost Escalation, and/or
Tax Escalation 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 final
adjustment at the expiration of each Lease Year as defined in Subsection
23(D) hereof [or proportionate part thereof, if the last period prior to
the Lease's termination is less then twelve (12) months].
In the event the last period prior to the Lease's termination
is less than twelve (12) months, the Base Period Costs during such said
period shall be proportionately reduced to correspond to the duration of
said final period.
(F) Books and Records. For the protection of Lessee, Lessor shall
maintain books of account which shall be open to Lessee and its
representatives, at all reasonable times so that Lessee can determine that
such Operating, Utility, Energy and Tax Costs have, in fact, been paid or
incurred. Any disagreement with respect to any one or more of said charges
if not satisfactorily settled between Lessor and Lessee shall be referred
by either party to an independent certified public accountant to be
mutually agreed upon, and if such an accountant cannot be agreed upon, the
American Arbitration Association may be asked by either party to select an
arbitrator, whose decision on the dispute will be final and binding upon
both parties, who shall jointly share any cost of such arbitration.
Pending resolution of said dispute, Lessee shall pay to Lessor the sum so
billed by Lessor subject to its ultimate resolution as aforesaid.
(G) Right of Review. Once Lessor shall have finally determined said
Operating, Utility and Energy or Tax Costs at the expiration of a Lease
Year, then as to the item so established, Lessee shall only be entitled to
dispute said charge as finally established for a period of nine (9) months
after such charge is finally established, and Lessee specifically waives
any right to dispute any such charge at the expiration of said nine (9)
month period.
24. INTERRUPTION OF SERVICES OR USE. Interruption or curtailment of any
service maintained in the Building or at the Office Building Area, 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 a
constructive or partial eviction, unless Lessor fails to take measures as may be
reasonable under the circumstances to restore the service without undue delay.
If the Premises are rendered untenantable by the interruption of use or services
in whole or in part, for a period of five (5) consecutive business 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,
servants, visitors or licensees, there shall be a proportionate abatement of
rent from and after said five (5) consecutive business 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 a
reasonable time 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.
25. LESSEE'S ESTOPPEL. Lessee shall, from time to time, within ten (10)
days of Lessor's written request, execute, acknowledge and deliver to Lessor 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; to the best of lessee's knowledge, whether or not Lessor is in
default hereunder, and, if so, specifying the nature of the default; and any
other information which Lessor shall reasonably request. It is intended that any
such statement delivered pursuant to this Section 25 may be relied on by a
prospective purchaser of Lessor's interest or mortgagee of Lessor's interest or
assignee of any mortgage of Lessor's interest.
26. HOLDOVER TENANCY. If Lessee holds possession of the Premises after
the term of this Lease, Lessee shall become a tenant from month to month under
the provisions herein provided, but at a monthly basic rental equal to one-
hundred fifty (150%) percent of the basic rent then in effect and without the
requirement for demand or notice by Lessor to Lessee demanding delivery of
possession of said Premises (but Additional Rent shall continue as provided in
this Lease), which sum shall be payable in advance on the first day of each
month, and such tenancy shall continue until terminated by Lessor, or until
Lessee shall have given to Lessor, at least sixty (60) days prior to the
intended date of termination, a written notice of intent to terminate such
tenancy, which termination date must be as of the end of a calendar month. This
paragraph shall
not apply in the event the term of the lease is extended in accordance with the
options to renew set forth in the Lease or other written agreement of the Lessor
and Lessee.
27. RIGHT TO SHOW PREMISES. Lessor may show the Premises to prospective
purchasers and mortgagees; and, during the six (6) months prior to termination
of this Lease, to prospective tenants, during business hours on reasonable
notice to Lessee.
28. WAIVER OF TRIAL BY JURY. It is mutually agreed by and between Lessor
and Lessee that the respective parties hereto shall and they hereby do waive
trial by jury in any action or proceeding brought by either of the parties
hereto against the other in any matters whatsoever arising out of or in any way
connected with this Lease, the relationship of Lessor and Lessee, Lessee's use
or occupancy of the Demised Premises, and/or any claim of injury or damage, and
any emergency statutory or any other statutory remedy. Should Lessor or Lessee
seek recourse to equity to enforce any of its rights under this Lease, the other
party agrees to waive any defense which it might otherwise have that such party
has any adequate remedy at law. In the event of a trial of a dispute between the
Lessor and Lessee, the losing party shall pay reasonable attorney's fees to the
winning party.
29. LATE CHARGE. Anything in this Lease to the contrary notwithstanding,
at Lessor's option, Lessee shall pay a "Late Charge" of five (5%) percent of any
installment of rent or Additional Rent paid more than five (5) days after the
due date thereof, to cover the extra expense involved in handling delinquent
payments provided five (5) days written notice of such delinquent payment is
given to Lessee prior to the imposition of such late charge.
30. NO OTHER REPRESENTATIONS. 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).
31. 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, Lessee may peaceably and quietly have, hold and enjoy the
Premises for the term herein mentioned, subject to the provisions of this Lease.
32. LESSEE'S INSURANCE.
(A) Lessee covenants to provide on or before the Commencement Date
a comprehensive policy of general liability insurance naming Lessor as an
additional named insured, insuring Lessee and Lessor against any liability
commonly insured against and occasioned by accident resulting from any act
or omission on or about the Premises and any appurtenances thereto. Such
policy is to be written by an insurance company qualified to do business in
the State of New Jersey reasonably satisfactory to Lessor. The policy shall
be with limits not less than One Million and 00/100 ($1,000,000.00) Dollars
in respect of any one person, in respect of any one accident, and in
respect of property damage. Said limits shall be subject to periodic review
and Lessor reserves the right to increase said coverage limits, if in the
reasonable opinion of Lessor, said coverage becomes inadequate and is less
than that commonly maintained by tenants in similar
buildings in the area by tenants making similar uses. At least fifteen (15)
days prior to the expiration or termination date of any policy, Lessee
shall deliver a renewal or replacement policy with proof of the payment of
the premium therefor.
(B) Lessee covenants and represents, said representation being
specifically designed to induce Lessor to execute this Lease, that Lessee's
personal property and fixtures and any other items which Lessee may bring
to the Premises or which may be under Lessee's care, custody and control
which may be subject to any claim for damages or destruction due to
Lessor's negligence shall be fully insured by a policy of insurance
covering all risks which policy shall specifically provide for a waiver of
subrogation for Lessor and all Building tenants without regard to whether
or not same shall cost an additional premium and notwithstanding anything
to the contrary contained in this Lease. Should Lessee fail to maintain
said all risk insurance with the required waiver of subrogation, or fail to
maintain the liability insurance, naming Lessor as an additional named
insured, then lessee shall be in default hereunder and shall be deemed to
have breached its covenants as set forth herein.
33. SECTION HEADINGS. The Section 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.
34. 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, 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, 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.
35. PARKING SPACES. Lessee's occupancy of the Demised Premises shall
include the use of forty-four (44) parking spaces only Eleven (11) of these
parking spaces shall be specifically reserved by Lessor in a location reasonably
convenient to the entry lobby of the Building, and thirty-three (33) shall be
unassigned. Lessor reserves the right to reassign assigned parking to comparable
facilities in connection with any modification to the Building or Office
Building Area permitted pursuant to this Lease.
36. 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, except only any such loss arising
from the gross negligence or intentional acts of Lessor, its agents, servants or
invitees, or from defects, errors or omissions in the construction or design of
the Demised Premises and/or the Building including the structural and
nonstructural portions thereof.
37. BROKER. Each party represents and warrants to the other that it has
not dealt with any broker in negotiation and bringing about this Lease except
Associated Realty and Edward S. Gordon of New Jersey, Inc. and each party agrees
to indemnify and hold harmless the other party from any and all claims of any
other brokers and expenses in connection therewith arising out of or in
connection with the negotiation of or the entering into this Lease by such
party. Lessor agrees to pay the fees and commissions of the aforesaid brokers
pursuant to a separate agreement.
38. PERSONAL LIABILITY. Notwithstanding anything to the contrary provided
in this Lease, its is specifically understood and agreed, such agreement being a
primary consideration for the execution of this Lease by Lessor, that there
shall be absolutely no personal liability on the part of Lessor, its constituent
members, (to include but not be limited to officers, directors, partners and
trustees), their respective successors, assigns or any mortgagee in possession
(for the purposes of this Section, collectively referred to as "Lessor"), with
respect to any of the terms, covenants and conditions of this Lease, and that
Lessee shall look solely to the equity of Lessor in the building for the
satisfaction of each and every remedy of Lessee in the event of any breach by
Lessor of any of the terms, covenants and conditions of this Lease to be
performed by Lessor, such exculpation of liability to be absolute and without
any exceptions whatsoever. All of the provisions provided in Paragraph 38 herein
shall apply to the Lessee as well and no representative of the Lessee shall bear
any personal responsibility or liability with respect to any of the terms and
conditions of this Lease.
39. 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.
40. DEFINITIONS.
(A) Proportionate Share. Lessee's Proportionate Share, wherever
that phrase is used, shall be 20.0441 percent, which the parties agree
reflects and will be continually adjusted to reflect the sum arrived at by
dividing the gross square feet of the area rented to Lessee (including an
allocable share of all Common Facilities) as set forth in Section 1[the
numerator], plus any additional gross square footage leased from time to
time pursuant to this Lease, by the total number of gross square feet of
the entire Building (or additional buildings that may be constructed within
the Office Building Area), [the denominator], measured outside wall to
outside wall but excluding therefrom any storage areas. Lessor shall have
the right to make changes or revisions in the Common Facilities of the
Building so as to provide additional leasing area. Lessor shall also have
the right to construct additional buildings in the Office Building Area for
such purposes as Lessor may deem appropriate and subdivide the lands for
that purpose if necessary, and upon doing so, the Office Building Area
shall become the subdivided lot on which the Building in which the Demised
Premises is located. If any service provided for in Subsection 23(A) or any
utility provided for in Subsection 23(B) is separately billed or separately
metered within the Building, then the square footage so billed or metered
shall be deemed vacant and if applicable subject to the Occupancy
Adjustment set forth in Subsection 23(H). Lessee understands that as a
result of changes in the layout of the Common Facilities from time to
time occurring due to, by way of example and not by way of limitation, the
rearrangement of corridors, the aggregate of all Building tenant
proportionate shares may be equal to, less than or greater than one hundred
(100%) percent.
(B) Common Facilities. Common Facilities shall mean the nonassigned
parking areas; lobby; elevators(s); fire stairs; public hallways; public
lavatories; and all other general Building facilities that service all
Building tenants; air conditioning rooms; fan rooms; janitors' closets;
electrical closets; telephone closets; elevator shafts and machine rooms;
flues; stacks; pipe shafts and vertical ducts with their enclosing walls.
Lessor may at any time close temporarily, any Common Facilities to make
repairs or changes therein or to effect construction, repairs or changes
within the Building or Office Building Area, or to discourage non-tenant
parking, and may do such other acts in and to the Common Facilities as in
its judgment may be desirable to improve the convenience thereof but shall
always in connection therewith endeavor to minimize any inconvenience to
Lessee.
(C) Force Majeure. Force Majeure shall mean and include those
situations beyond Lessor'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. Any
time limits required to be met by either party hereunder, whether
specifically made subject to Force Majeure or not, except those related to
the payment of rent or Additional Rent, shall, unless specifically stated
to the contrary elsewhere in this Lease, be automatically extended by the
number of days by which any performance called for is delayed due to Force
Majeure.
(D) Building Hours. As used in this Lease the Building Hours shall
be Monday through Friday, 8:00 a.m. to 6:00 p.m., and Saturday, 8:00 a.m.
to 1:00 p.m., excluding those holidays as set forth on Exhibit E attached
hereto and made a part hereof, except that Common Facilities lighting in
the Building and Office Building Area shall be maintained for such
additional hours as, in Lessor's sole judgment, is necessary or desirable
to insure proper operation of the Building and Office Building Area.
Notwithstanding the Building Hours established by Lessor, Lessee shall have
access to the Demised Premises during all reasonable business hours.
(E) Additional Rent. As used in this Lease, Additional Rent shall
mean all sums in addition to basic rent payable by Lessee to Lessor
pursuant to the provisions of this Lease.
(F) Commencement Date. As used in this Lease, Commencement Date
shall mean September 1, 1997.
41. RENEWAL OPTIONS. Lessee is hereby granted two (2) successive options
to renew this Lease upon the following terms and conditions:
(A) At the time of the exercise of the option to renew and at the
time of the said renewal, the Lessee shall not be in monetary or other
substantial non-monetary
default in accordance with the terms and provisions of this Lease, for
which non-monetary default Lessor has provided notice to Lessee, and shall
be in possession of the Premises pursuant to this Lease.
(B) Notice of the exercise of the option shall be sent to the
Lessor in writing at least nine (9) months before the expiration of the
original term of this Lease.
(C) Each renewal term shall be for the previous term of Five (5)
years, to commence at the expiration of the term of this Lease, and all of
the terms and conditions of this Lease, other than the rent, shall apply
during the renewal term.
(D) The annual basic rent to be paid during each renewal term shall
not be less than that paid for the Demised Premises during the last year of
the original term of the Lease or the previous term, respectively. However,
if the fair rental value per square foot at the commencement of each
renewal term shall exceed the rent as established in the preceding
sentence, the Lessee shall pay rent equal to ninety-five percent (95%) of
the fair rental value. For purposes of Additional Rent during the renewal
term pursuant to paragraph 23 of the Lease, the Base Year for Operating
Cost Escalations, fuel, Utilities and Electric Cost Escalation and Tax
Escalation shall be the cost incurred during the Lease Year commencing on
June 1, 2008 and June 1, 2013, respectively. In determining the fair rental
value, the Lessor shall notify Lessee of the fair rental value as
established by Lessor. Lessor shall furnish Lessee with a copy of the
appraisal rendered to the Lessor. Should Lessee dispute Lessor's
determination, then the Lessee shall be free to, at the Lessee's sole cost
and expense, employ the services of an appraiser familiar with office
buildings located within the Oradell, New Jersey area comparable to the
Building, who shall be a member of MAI and who shall render an appraisal.
If the Lessor and the Lessee's appraiser cannot agree on the fair rental
value, or in such case, on an independent appraiser acceptable to both,
either party may request the American Arbitration Association of Bergen,
New Jersey to appoint such independent appraiser who shall be a member of
MAI familiar with office buildings in the area of the Building and in such
event the judgment of a majority of the three appraisers shall be final and
binding upon the parties. The parties shall share equally in the cost of
any such independent appraiser. Pending resolution of the issue of fair
rental value, the Lessee shall pay Lessor as of commencement of the first
renewal term, the basic rent as established by Lessor, subject to
retroactive adjustment upon final determination of this issue.
42. 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
fifth (5th) day after the mailing thereof.
43. MORTGAGEE'S NOTICE AND OPPORTUNITY TO CURE. Lessee agrees to give any
mortgagees and/or trust deed holders, by registered mail, a copy of any notice
of default served upon Lessor, provided that, prior to such notice, lessee has
been notified in writing (by way of notice of assignment of rents and leases or
otherwise) of the address of such mortgagees and/or trust deed holders. Lessee
further agrees that, if Lessor shall have failed to cure such default within the
time provided for in this Lease, then the mortgagees and/or trust deed holders
shall have an additional thirty (30) days within which to cure such default, or
if such default cannot be cured within that time, then such additional time as
may be necessary, if within such thirty (30) days, any mortgagee and/or trust
deed holder has commenced and is diligently pursuing the remedies necessary to
cure such default (including but not limited to commencement of foreclosure
proceedings if necessary to effect such cure), in which event this Lease shall
not be terminated while such remedies are being so diligently pursued.
44. 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.
45. EFFECT OF WAIVERS. No failure by Lessor or Lessee 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 or
Lessee to or of any breach of any covenant, condition or duty under this Lease
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 or
Lessee, respectively.
46. NUMBER AND GENDER. The terms "Lessor" and "Lessee" wherever used
herein shall be applicable to one or more persons, as the case may be, and the
singular shall include the plural and neuter shall include the masculine and/or
feminine, and if there be more than one, the obligations hereof shall be joint
and several.
47. LESSOR'S RESERVED RIGHT. Lessor and Lessee acknowledge that the
Premises are in a Building which is not open to the general public. Access to
the Building is restricted to Lessor, Lessee, their agents, employees and
contractors and to their invited visitors. In the event of a labor dispute
including a strike, picketing, informational or associational activities
directed at Lessee or any other tenant, Lessor reserves the right unilaterally
to alter Lessee's ingress and egress to the Building or make any other change in
operating conditions to restrict pedestrian, vehicular or delivery ingress and
egress to a particular location.
48. CORPORATE AUTHORITY. If Lessee is a corporation, Lessee represents
and warrants that this Lease and the undersigned's execution of this Lease has
been duly authorized
and approved by the corporation's Board of Directors. The undersigned officers
and representatives of the corporation executing this Lease on behalf of the
corporation represent and warrant that they are officers of the corporation with
authority to execute this Lease on behalf of the corporation, and within fifteen
(15) days of execution hereof, Lessee will provide Lessor with a corporate
resolution confirming the aforesaid.
49. RELOCATION. At any time during the Term hereof, Lessor shall have the
right, with ninety (90) days written notice, to move Lessee to substitute
premises located within the Building provided that the substitute premises:
(i) contain approximately the same square footage as the Premises; (ii) contain
comparable tenant improvements, (iii) contain comparable HVAC equipment and
abilities; (iv) contain the same views as the current space; and (v) are made
available to Lessee at the same rental rate for such space (per rentable square
foot) as the rental rate specified herein. Lessor hereby agrees to pay all
expenses resulting from such relocation of Lessee including, but not limited to,
movers and moving equipment, cabling and installation for computers and
telephones and stationery replacement. In keeping with Paragraph 19 of the
Building Rules and Regulations (included as Exhibit B of this Lease), Lessor
will conduct such a move on a Saturday between the hours of 9:00 a.m. and
3:00 p.m.
IN WITNESS WHEREOF, the parties hereto have hereunto set their hands and
seals the day and year first above written.
680-690 KINDERKAMACK ROAD, L.P.
Lessor
BY: 680-690 CORP.
General Partner
By: /s/ John M. Mavroudis
----------------------------
JOHN M. MAVROUDIS, PRESIDENT
AMERICAN CONFERENCING
COMPANY, INC.
Lessee
By: /s/ David Lipsky
----------------------------
DAVID LIPSKY, PRESIDENT
EXHIBIT A
PLANS OF DEMISED PREMISES
-------------------------
EXHIBIT A-1
PLAN OF OFFICE BUILDING AREA
----------------------------
EXHIBIT "C"
"TO FOLLOW"
EXHIBIT B
---------
RULES AND REGULATIONS
---------------------
1. OBSTRUCTION OF PASSAGEWAYS: The sidewalks, entrances, passages, courts,
elevators, vestibules, stairways, corridors and public parts of the building
shall not be obstructed or encumbered by Lessee, its visitors, agents, servants,
employees, customers, contractors, licensees or used by Lessee for any purpose
other than egress and egress to and from the premises.
2. WINDOWS: Windows in the premises shall not be covered or obstructed by
Lessee. No bottles, parcels, or other articles shall be placed on the
windowsills, in the halls, or in any other part of the building other than the
leased premises. No article shall be thrown out of the doors or windows of the
premises.
3. PROJECTIONS FROM BUILDING: No awnings, air conditioning units, or other
fixtures shall be attached to the outside walls or the windowsills of the
building or otherwise affixed so as to project from the building, without the
prior written consent of Lessor.
4. SIGNS: No sign or lettering shall be affixed by Lessee to any part of the
outside of the premises, or any part of the inside of the premises so as to be
clearly visible from the outside of the premises, without the prior written
consent of the Lessor. However, Lessee shall have the right to place its name
on any door leading into the premises, the size, color and style thereof to be
subject to the Lessor's approval.
Lessor shall place Lessee's name on the directory in the lobby of the building.
Lessee shall not have the right to have additional names placed on the directory
without Lessor's prior written consent.
5. FLOOR COVERING: Lessee shall not lay any hard surface flooring so that the
same shall come in direct contact with the floor of the premises. If linoleum
or other similar floor covering is desired to be used, an interlining of
builder's deadening felt first shall be fixed to the floor by a paste or other
similar adhesive material being expressly prohibited. Lessee shall reimburse
Lessor for the cost of any sound insulation required in the premises below the
hard surface flooring area.
6. INTERFERENCE WITH OCCUPANTS OF BUILDING. Lessee shall not make, or permit
to be made, any unseemly or disturbing noises and shall not interfere with other
tenants or those having business with them. Lessee will keep all mechanical
apparatus in the premises free of vibration and noise which may be transmitted
beyond the limits of the leased premises.
7. LOCKS, KEYS: No additional locks or bolts of any kind shall be placed on
any of the doors or windows by Lessee nor shall any changes be made in existing
locks or the mechanism thereof. Lessee shall, on the termination of Lessee's
tenancy, deliver to Lessor, all keys to any
space within the building, either furnished to or otherwise, procured by Lessee,
and in the event of the loss of any keys furnished, Lessee shall pay to Lessor
the cost thereof. Lessee, before closing and leaving the premises, shall ensure
that all windows are closed and entrance doors locked.
8. CONTRACTORS: No contract of any kind with any supplier of towels, water,
ice, toilet articles, waxing, rug shampooing, venetian blind washing, furniture
polishing, lamp servicing, cleaning of electrical fixtures, removal of waste
papers, rubbish or garbage, or other like, service shall be entered into by
Lessee, nor shall any vending machine of any kind be installed in Office
Building or the Office Building Area without the prior written consent of
Lessor. Lessee shall not employ any person or persons other than Lessor's
janitors for the purpose of cleaning the premises, without prior written consent
of Lessor. Lessor shall not be responsible to Lessee for any loss of property
from the premises, however occurring, or for any damage done to the effects of
Lessee by such janitors or any of its employees, or by any other person or any
other cause.
9. PROHIBITED ON PREMISES: Lessee shall not conduct, or permit any other
person to conduct, any auction upon the premises, manufacture or store goods,
wares or merchandise upon the premises, without the prior written approval of
Lessor, except the storage of usual supplies and inventory to be used for
gambling; make any unusual noises in the building, permit to be played any
musical instrument on the premises, permit to be played any radio, television,
recorded or wired music in such a loud manner as to disturb or annoy other
tenants, or permit any unusual odors to be produced upon the premises. Lessee
shall not permit any portion of the premises to be occupied as an office for a
public stenographer or typewriter, or for the storage, manufacture, or sale of
intoxicating beverages, narcotics, tobacco in any form, or as barber or manicure
shop. Canvassing, soliciting and peddling in the Office Building and the Office
Building Area are prohibited, and Lessee shall cooperate to prevent the same.
No bicycles, vehicles or animals of any kind shall be brought into or kept in or
about the premises.
10. MECHANICAL, PLUMBING, ELECTRIC, LIFE SAFETY OR TELEPHONE WORK: Lessee
shall at no time perform any alteration, additions, or repairs to the air
conditioning, heating, ventilating, plumbing, fire protection, or electrical
systems servicing the premises or the building, without obtaining the prior
written consent of Lessor. Lessor reserves the right through the use of its own
contractors, to perform all work on these above-referenced systems through the
use of Lessor's approved contractors. All telephone work shall be performed by
Lessee in accordance with all applicable building codes and regulations and
shall be installed so as not to interfere with the operation of any fire
dampers, or fire separation systems. All penetrations shall be sealed to
maintain the integrity of the fire separation walls. Lessee shall remove all
telephone wiring at the termination of the lease. Lessor shall backcharge
Lessee for all restoration work required that is not performed by Lessee as
outlined above. The location of all plumbing, electrical, HVAC and telephone
work which is to be installed shall be subject to the Lessor's approval which
shall include a review of the number of appliances and their location. Plumbing
facilities shall not be used for any purpose other than those for which they
were constructed; and no sweepings, rubbish, ashes, newspaper or other
substances of any kind shall be thrown into them. Waste and excessive or
unusual amounts of electricity or water is prohibited. When electric wiring of
any kind is introduced, it must be connected as directed by Lessor, and no
stringing or cutting of wires will be allowed, except by prior written consent
of Lessor, and shall
be done by contractors approved by Lessor. The number and locations of
telephones, telegraph instruments, electrical appliances, call boxes, etc.,
shall be subject to Lessor's approval.
11. MOVEMENT OF FURNITURE, FREIGHT, OF BULKY MATTER: The carrying in or out of
safes, freight, furniture, or bulky matter of any description must take place
during such hours as Lessor may from time to time reasonably determine and only
after advance notice to the superintendent of the building. The persons
employed by Lessee for such work must be reasonably acceptable to the Lessor.
Lessee may, subject to Lessor's prior approval, move freight, furniture, bulky
matter, and other material into or out of the premises on Saturdays between the
hours of 9:00 a.m., and 3:00 p.m., provided Lessee pays additional costs, if
any, incurred by Lessor for elevator operators or security guards, and for any
other expenses occasioned by such activity of Lessee. If, at least three days
prior to such activity, Lessor requests that Lessee deposit with lessor, as
security for Lessee's obligation to pay such additional cost, a sum of which
Lessor reasonably estimates to be the amount of such additional cost, the Lessee
shall deposit such sum with Lessor as security for such cost. There shall not
be used in the Office Building or premises, either by Lessee or by others in the
delivery or receipt of merchandise, any hand trucks except those equipped with
rubber tires and side guards, and no hand trucks will be allowed in the
elevators without the consent of the superintendent of the building. Lessee
shall be responsible for the cost of removal of all boxes, garbage and debris
caused by the movement of the furniture, freight or delivery of materials.
Lessee shall notify the superintendent of the building at least 24 hours in
advance of any anticipated deliveries which will require the removal of debris.
12. SAFES AND OTHER HEAVY EQUIPMENT: Lessor reserves the right to prescribe
the maximum weight and position of all safes and other heavy equipment so as to
distribute properly the weight thereof and to prevent any unsafe condition from
arising. The cost of additional reinforcing, if required, shall be the
responsibility of the Lessee.
13. ADVERTISING: Lessor shall have he right to prohibit any advertising by
Lessee which in Lessor's reasonable opinion tends to impair the reputation of
the Office Building or its desirability as a building for offices, and upon
written notice from Lessor, Lessee shall refrain from or discontinue such
advertising.
14. NON-OBSERVANCE OR VIOLATION OF RULES BY OTHER TENANTS: Lessor shall not be
liable to Lessee for any violation or non-observance of the rules and
regulations by any other Lessee, its servants, employees, agents, visitors,
invitees, sublessees, or licensees, nor is Lessor obligated to enforce the rules
and regulations or the terms, covenants, or conditions in any other lease
against any other Lessee.
15. AFTER HOURS USE: Lessor reserves the right to exclude from the building
between the hours of 6:00 p.m., and 8:00 a.m., on Monday to Friday inclusive,
and between the hours of 1:00 p.m., on Saturday and 8:00 a.m., on the following
Monday, as well as legal holidays any visitor not authorized by tenant to have
access. Each Lessee shall be responsible for any after-hours utilization of the
premises by its personnel and visitor not authorized by tenant to have access.
Each Lessee shall be responsible for any after-hours utilization of the premises
by its personnel and visitors and shall be liable to the Lessor for the acts of
such persons.
16. PARKING: Lessee and its employees shall park their cars only in those
portions of the parking area not designated for use by other tenants or
visitors.
17. Lessor hereby reserves to itself any and all rights not granted to Lessee
hereunder, including, but not limited to, the following rights which are
reserved to a Lessor for its purposes in operating the Office Building:
(a) the exclusive right to the use of the name of the Office
Building for all purposes, except that Lessee may use the
name as its business address and for no other purposes;
(b) the right to change the name or address of the Office
Building, without incurring any liability to Lessee for
doing so;
(c) the right to install and maintain a sign on the exterior of
the Office Building;
(d) the exclusive right to use or dispose of the use of the roof
of the Office Building;
(e) the right to limit the space on the directory of the Office
Building to be allotted to Lessee although Lessee shall have
at least three line spaces on directory at all times;
(f) the right to grant to anyone the right to conduct any
particular business or undertaking in the Office Building.
EXHIBIT C
---------
LANDLORD'S HVAC SERVICES
------------------------
The proposed AMERICAN CONFERENCING COMPANY, INC., located on the Third
Floor and will occupy approximately 11,088 square feet. The space would be
served by three separate multi-zone units the roof, which are equipped with hot
air furnaces fired by natural gas. The three units shall be new units of equal
or better quality to the units installed on the balance of the Third Floor of
the Building and shall be zoned into five zones covering the Demised Premises.
Subject to the provisions of paragraph 22 of this Lease, the HVAC services shall
be provided to Premises with controls by the Lessee for use during all business
hours of the Lessee.
The ratio of watts/square feet of cooling energy available is estimated to
be approximately 3.5 watts per square foot which is adequate for office
buildings.
Lessor shall provide heating, ventilating and air conditioning to the
Premises through a system designed to maintain temperatures within tolerances
normal in first class office buildings but in any case capable of maintaining
interior space conditions of 70 degrees F dry bulb, when the outside temperature
is 91 degrees F dry bulb provided that:
(1) In any given room or area of the premises the occupancy does
not exceed 1 person for each 100 square feet; and
(2) The total connected electrical load in the premises for all
purposes including equipment and lighting does not exceed 4
watts per square foot. During the heating season the system
will be capable of maintaining a minimal temperature of 70
degrees F dry bulb when the outside temperature is 13
degrees F dry bulb.
EXHIBIT C-1
-----------
ITEMS EXCLUDED FROM
OPERATING COST ESCALATIONS
1. Costs of alterations in connection with the original construction of the
Building or in connection with any major change in the Building, such as
adding or deleting floors;
2. Cost of alterations or improvements, other that maintenance items, to the
Leased Premises or the Leased Premises of other tenants;
3. Interest and principal payments on mortgages, and other debt costs, if any;
4. Costs of correcting defects in or inadequacy of the initial design or
construction of the Building;
5. Expenses directly resulting from the negligence of the Landlord, its
agents, servants or employees or another tenant;
6. Legal fees, space planners' fees, real estate brokers' leasing commissions,
and advertising expenses incurred in connection with the original
development or original leasing of the Building or future leasing of the
Building;
7. Costs which are reimbursable by any tenant or occupant of the Building or
by insurance by its carrier or any tenant's carrier or by anyone else;
8. Any bad debt loss, rent loss, or reserves for bad debt or rent loss;
9. The expenses of extraordinary services provided to other tenants in the
Building which are made available to Tenant at cost or for which Tenant is
separately charged;
10. Cost associated with the operation of the business of the partnership or
entity which constitutes the landlord, as the same are distinguished from
the costs of operation of the Building, including partnership accounting
and legal matters, cost of defending any lawsuits with any mortgage, cost
of selling, syndicating, financing, mortgaging or hypothecating any of the
Landlord's interest in the Building, costs (including attorney fees and
costs of settlement judgments and payments in lieu thereof) arising from
claims, disputes or potential disputes in connection with potential or
actual claims, litigation or arbitrations pertaining to Landlord and/or the
building and/or the site upon which the Building is situated;
11. The wages and benefits of any employee who does not devote substantially
---------------------------------
all of his or her time to the Building;
---
12. Fines, penalties and interest;
13. Any amounts paid as ground rental by Landlord;
14. Any Operating Cost in connection with the ground floor or any other floor
in the Building devoted to retail operation unless such square footage is
included in the computation of tenant's proportionate share;
15. Any recalculation of or additional Operating Costs actually incurred more
than one (1) year prior to the year in which Landlord proposes that such
costs be included;
16. Handicap or other subsequent government code regulations;
17. Capital expenditures to comply with applicable laws including costs arising
from the presence of hazardous materials or substances in or about the
Building, or the site upon which the Building is situated;
18. Costs incurred by Landlord with respect to goods and services (including
utilities sold and supplied to tenants and occupants of the Building) to
the extent that Landlord would be entitled to reimbursements for such costs
if incurred by Tenant pursuant to this Lease;
19. Costs, including permits, license and inspection costs, incurred with
respect to the installation of tenant improvements made for new tenants in
the Building or incurred in renovating or otherwise improving, decorating,
painting or redecorating vacant space for tenants or other occupants of the
Building;
20. Cost incurred by Landlord for alterations which are considered capital
improvements and replacements under generally accepted accounting
principals, consistently applied;
21. Cost of capital nature, including, without limitation, capital improvements
and replacements under generally accepted accounting principles,
consistently applied;
22. Expenses in connection with services or other benefits which are not
provided to Tenant or for which Tenant is charged directly but which are
provided to another Tenant or occupant of the Building without a separate
charge;
23. Amounts paid to Landlord or to subsidiaries or affiliates of Landlord for
services rendered by unaffiliated third parties on a competitive basis;
24. Any compensation paid to clerks, attendants or other persons in commercial
concessions operated by Landlord;
25. Rentals and other related expenses incurred in leasing air conditioning
systems, elevators or other equipment ordinarily considered to be of a
capital nature if purchased;
26. All items and services for which Tenant or any other Tenant in the Building
reimburses Landlord for which Landlord provides selectively to one or more
Tenants (other than Tenant) without reimbursement;
27. Electric power costs for which any Tenant directly contracts with the local
public service company;
28. Costs arising from Landlord's political or charitable contributions;
29. Costs arising from latent defects in the Base Building, or shell or core of
the Building or improvements installed by Landlord or repair thereof;
30. Costs, other than those incurred in ordinary maintenance, for sculpture,
paintings or other objects of art;
31. Costs for which Landlord has been compensated by management fee, including
property manager and property management office and all expenses relating
thereto;
32. Tax penalties or interest incurred as a result of Landlord's negligence,
inability or unwillingness to make payments when due;
33. Costs arising from the negligence of Landlord or its agents, or any
vendors, contractors, or providers of material or services selected, hired
or engaged by Landlord or its agents including, without limitation, the
selection of building material;
34. Costs incurred by Landlord due to the violation by Landlord or any tenant
of the terms and conditions of any lease of space in the Building.
EXHIBIT D
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GENERAL CLEANING SPECIFICATION
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NIGHTLY
- -------
Between the hours of 6:00 p.m. and 6:00 a.m., Monday through Friday (legal
holidays excepted).
PUBLIC AREAS
------------
LOBBIES, CORRIDORS & VESTIBULES
-------------------------------
SERVICE INTERVAL
------- --------
Glass Doors and Partitions Remove spots Nightly
Flooring (hard surface) Damp mop Twice Weekly
Damp mop and spray buff Twice Weekly
Strip and refinish As Necessary
Carpet Vacuum Nightly
Spot cleaned As Necessary
Shampoo Annually
Light Fixtures on Multiple Dust and/or wash As Necessary
Tenancy Public Corridors
ENTRANCE LOBBIES
- ----------------
Flooring
- --------
Stone Wash Nightly
Marble Damp mop Twice Weekly
Quarry Tile Damp mop and spray buff As Necessary
Strip and refinish
Carpet Vacuum Nightly
Spot clean As Necessary
Shampoo As Necessary
Walls, Light, Globes and Clean As Necessary
Fixtures
ELEVATORS
- ---------
Rugs Vacuum and spot clean As Necessary
Shampoo Monthly
Walls, Ceilings, Paneled Damp wipe Nightly
Surfaces
Metal Finishes, Saddles Clean Nightly
Light Fixtures:
- --------------
Reflectors Damp wipe As Necessary
Diffusers Dust/Vacuum As Necessary
TENANT AREAS
- ------------
Carpet Vacuum all carpets Nightly
Shampoo Annually
Resilient Flooring Dust mop, using chemically Nightly
treated dust system-spot clean
spills
Doors and Frames Remove all finger marks and Nightly
smudges from doors,
partitions, woodwork, window
ledges, window mullions and
light switches
Door Saddles (Metal) Polish Monthly
Glass Tops Damp wipe Nightly
Bookcases, Filing Cabinets, Dust As Necessary
Chairs, Furniture, Shelves,
and Other Dust-Collecting
Surfaces
Window Sills/Ledges Dust As Necessary
Ash Trays Empty and damp wipe Nightly
Smoking Stands Remove refuse, damp wipe dry Nightly
polish exterior
Replace sand
Drinking Fountains Damp wipe, clean and polish Nightly
with disinfectant and water
Umbrella Racks Dust Nightly
Waste Paper Baskets Empty and damp wipe Nightly
Partition Glass and Glass Spot Clean Nightly
Doors
Ceiling Air Distribution, Vacuum clean Monthly
Return Air Grills &
Surrounding Areas
Fabric Partitions Brush Monthly
Light Fixtures: Lenses Damp Wipe Annually
Interior and Exterior
Fire Extinguisher Cabinets Dust and wipe glass As Necessary
Refuse Remove to designated area Nightly
dumpster or compactor
High Dusting Pictures, frames, charts, and Monthly
similar wall hangings not
reached in nightly cleaning,
exterior of light fixtures,
overhead pipes, venetian
blinds, window frames, files,
shelves, bookcases, and
vertical surfaces - such as
partitions, ventilating
louvers, etc. not reached in
nightly cleaning.
TOILETS, LOCKER ROOMS, SHOWER ROOMS AND POWDER ROOMS
----------------------------------------------------
Tile Floor Sweep Nightly
Wash with germicidal detergent Nightly
Machine scrub
Metal Partitions, Doors, Spot clean As Necessary
Horizontal Surfaces Damp wash with germicidal Monthly
detergent and water
Tile Walls Spot clean As Necessary
Wash with germicidal solution Monthly
in water
Basins, Toilet Bowls, Urinals Wash with germicidal solution Nightly
and Toilet Seats Nightly
Mirrors and Frames Wash and polish mirrors, Nightly
powder shelves, bright work,
including flushometers, piping
and toilet seat hinges
Soap Dispensers Refill As Required
Sanitary Product Dispensers Refill As Required
Handsoap, toilet tissues, hand
towels
Wastepaper Baskets Empty Nightly
Towel and Sanitary Damp wash with germicidal Weekly
Disposal Receptacles solution
Light Fixtures: Lenses Wash Semi-Annually
CAFETERIA, VENDING AREAS, LUNCH ROOMS
-------------------------------------
Basic Cleaning specifications shall apply to all walls, floors and ceilings.
In buildings where there are kitchens and serving areas, the contractor shall be
responsible only for the areas in front of the serving counter.
WINDOWS
- -------
All perimeter windows including atriums will be washed inside and outside two
(2) times per year.
All exterior metal will be wiped clean and polished, if necessary, at the same
time windows are washed.
SNOW REMOVAL AND LANDSCAPING
- ----------------------------
Keep sidewalks and parking areas clean and free of snow and rubbish.
Remove snow during day of ingress and egress, if necessary.
Keep lawn and landscaping properly maintained, if applicable.
SERVICES EXCLUDED
- -----------------
The following services are not included for building standard cleaning but can
be provided at additional costs.
Additional service by way of illustration and not limitation:
1. Furniture polishing
2. Furniture waxing
3. All cleaning pertaining to the computer room shall be charged
directly to the tenant as an extra. Computer room is defined as
space with a "Raised" or "Floating" floor.
EXHIBIT E
---------
HOLIDAY SCHEDULE
----------------
New Years Day
Washington's Birthday
Good Friday
Memorial Day
Fourth of July
Labor Day
Election Day (Presidential Only)
Thanksgiving Day
Christmas Day
SUPPLEMENTAL AGREEMENT
AGREEMENT made this 5th day of June, 1997, by and between 680-690
Kinderkamack Road, L.P., a New Jersey Limited Partnership, located at 690
Kinderkamack Road, Oradell, New Jersey 07649 (hereinafter "Lessor") and The
American Conferencing Company, Inc. located at 67 East Ridgewood Avenue,
Ridgewood, Paramus, New Jersey 07652 (hereinafter "Lessee").
WHEREAS, the Lessor and Lessee desire to execute a lease for approximately
11,088 square feet on the third floor, suite 400, in the building owned by
Lessor located at 690 Kinderkamack Road, Oradell, New Jersey; and
WHEREAS, in consideration of Lessee executing such lease the Lessor has
agreed to make certain alterations, and improvements to the portion of the
premises to be occupied by Lessee, subject to the terms and conditions herein.
NOW, THEREFORE, the parties agree as follows:
1. Alterations by Lessor. Lessor at its own cost and expense shall make
the alterations, improvements, installations and renovations to the Demised
Premises (hereinafter "alterations") shown on the plan annexed hereto as
Schedule "A" in accordance with the building standard and other specifications
annexed hereto as Schedule "A". Lessor shall provide three new air conditioning
units with a cooling capacity of 42.5 tons identical to the units already
installed by Lessor covering the remaining portion of the third floor, suite
300. Lessor will comply at its own expense with all present and future
governmental requirements arising out of, in connection with, or necessitated by
such alterations.
2. Completion of Work. Lessor shall commence construction of the
alterations not later than twenty (20) days after receipt of written approval of
the plans by the Lessee. The alterations shall be complete and a certificate of
continued occupancy of the Demised Premises shall be issued by the Borough of
Oradell prior to September 1, 1997. All work shall be done in a good and
workmanlike manner. All manners, equipment and other items furnished in
connection with the alterations shall be free from any defects. Lessor will
furnish and install a dedicated 200 amp service panel in telephone room of the
demised premises to be used exclusively for Lessee's requirements.
3. Approval of Plans. Prior to commencing such alterations, Lessor shall
submit to Lessee or its agent for written approval (such approval shall not be
unreasonably withheld or delayed) the plans and specifications for such
alterations. No work shall be commenced thereunder without such written
approval and all work to be done by Lessor shall be performed in strict
accordance with said approved plans and specifications without any deviation
therefrom, unless first approved in writing be Lessee.
4. Preconditions. Prior to the commencement of any work or installing
any equipment, the parties agree that each shall respectively:
(A) Permits. Lessor shall obtain the necessary consents,
authorizations, and licenses from authorities having jurisdiction over the
work to be done.
(B) Subcontracts. Lessor shall enter into a contract with their
respective contractors and/or persons who will do the work and install the
equipment or improvements referred to, which contract will provide that the
contractor will look solely to the Lessor for payment and will hold the
other party hereto and the Demised Premises free from all liens and claims
of all persons furnishing labor or materials therefor, or both.
(C) Indemnification. Lessor shall indemnify and save harmless Lessee
against any and all bills for labor performed and equipment, fixtures and
materials furnished to Lessor in connection with said work and any liens,
bills or claims therefor or against the Demised Premised or the Buildings,
and from and against all loss, damages, costs, expenses, suits, claims and
demands whatsoever except as provided in this Agreement.
(D) Laws, Insurance. Lessor or any contractors employed by Lessor or
any other person who will do work or install the equipment as aforesaid
shall be fully covered by workman's compensation insurance and the
certificate therefore shall be furnished to the parties hereto before
commencement of any work by any contractor or persons. Lessor agrees to
indemnify and hold harmless the Lessee from any and all claims for personal
injury, death, or property damage occasioned during the progress or as a
result of any or all of the work done as aforesaid in, or about the Demised
Premises or Buildings.
(E) Lessors Payment. Lessor shall cause to be paid the entire cost of
such alterations in accordance with the plans and specifications. Any
upgrades, additional work or special finished, shall be at the sole cost of
the Lessee unless otherwise agreed to by the parties in writing. Lessee
shall keep, maintain and operate, full, true and accurate books of account
and full, true and complete records with respect to such alterations.
Lessee or its representatives shall have the right of access at any and all
times during regular business hours to inspect the progress of the
alterations.
5. Ownership. Any such alterations, additions and improvements to the
demised Premises and the Building shall immediately become the property of the
Lessor.
6. Maintenance. Lessee and Lessor shall not permit the accumulation of
building supplies, equipment, waste material or rubbish outside the Demised
Premises and during construction. Upon completion, Lessor shall cause all
rubbish, implements, materials, and equipment to be removed from the demised
Premises and the Office Building Area. At no time, shall the sidewalks,
adjacent office entrances, or public areas be blocked or interfered with, and
Lessee shall maintain continuous protection of the Demised Premises. Should any
damage be done to any other portions of the Buildings, Lessor, at its own cost
and expense, shall repair and/or replace same, in a manner reasonably
satisfactory to the Lessor, to the condition existing prior to the commencement
of the work.
7. Rent Concessions. Provided Lessee is not in default under any of the
terms and provisions of the Lease, Lessor agrees to modify the rent payable by
Lessee in accordance Alternative "A" set forth in a letter dated May 8, 1997
annexed hereto as Schedule "B".
8. Possession. Lessor agrees to expedite the construction of a portion
of the Premises shown on Schedule "B" for immediate occupancy by Lessee. In
addition, Lessor shall make available for temporary use two (2) offices and
secretarial areas in Lessor's suite immediately adjoining the premises. Lessees
shall occupy the same rent free until a Certificate of Continued Occupancy is
issued for the Premises.
Upon issuance of such certificate the Lease shall govern the occupancy
of the premises by the Lessee.
9. Miscellaneous.
(A) Plans. Lessor shall at its own expense arrange for spare planning
and construction drawings by architects designated by the Lessor for the
Demised Premises.
10. Structural. No alterations of any kind shall be made which would
change the general design, character, or structure of the building, or
materially reduce or impair the value, rental, rental value, rentability, or
usefulness of the Demised Premises or any part thereof.
11. Terms. The terms used herein shall have the same meanings as set
forth in the leases of even date between the parties hereto.
12. Binding. This Agreement shall be binding upon and inure to the
benefit of the parties hereto, their respective successors and assigns.
IN WITNESS WHEREOF, the parties hereto have hereunto set their hands and
seals the day and year first above written.
680-690 KINDERKAMACK ROAD, L.P.
Lessor
BY: 680-690 CORP.
General Partner
By:/s/ John M. Mavroudis
---------------------
JOHN M. MAVROUDIS, President
AMERICAN CONFERENCING COMPANY, INC
Lessee
By:/s/ David Lipsky
----------------
DAVID LIPSKY, President