Exhibit 10.14
LEASE AGREEMENT
BY AND BETWEEN
STELLAR CONTINENTAL LLC, LESSOR
- AND -
GOAMERICA COMMUNICATIONS CORP., LESSEE
DATED: AUGUST 1, 2004
1249-0751042501.DOC ii
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TABLE OF CONTENTS
BASIC LEASE PROVISIONS AND DEFINITIONS.........................................1
1. DESCRIPTION 2
2. TERM.....................................................................3
3. BASIC RENT .............................................................3
4. USE AND OCCUPANCY........................................................3
5. CARE AND REPAIR OF PREMISES/ENVIRONMENTAL................................3
6. ALTERATIONS, ADDITIONS OR IMPROVEMENTS...................................6
7. ACTIVITIES INCREASING FIRE INSURANCE RATES...............................6
8. ASSIGNMENT AND SUBLEASE..................................................7
9. COMPLIANCE WITH RULES AND REGULATIONS...................................10
10. DAMAGES TO BUILDING.....................................................10
11. WAIVER OF SUBROGATION...................................................11
12. EMINENT DOMAIN..........................................................11
13. INSOLVENCY OF LESSEE....................................................12
14. LESSOR'S REMEDIES ON DEFAULT............................................12
15. DEFICIENCY ............................................................12
16. SUBORDINATION OF LEASE..................................................13
17. SECURITY DEPOSIT........................................................14
18. RIGHT TO CURE LESSEE'S BREACH...........................................16
19. LIENS ..................................................................16
20. RIGHT TO INSPECT AND REPAIR.............................................16
21. SERVICES TO BE PROVIDED BY LESSOR.......................................16
22. AFTER-HOURS USE.........................................................17
23. INTERRUPTION OF SERVICES OR USE.........................................17
24. ELECTRICITY 18
25. ADDITIONAL RENT.........................................................20
(A) Operating Cost Escalation.........................................20
(B) Fuel, Utilities and Electric Cost Escalation......................21
(C) Tax Escalation....................................................21
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(D) Lease Year........................................................22
(E) Payment...........................................................22
(F) Books and Records.................................................23
(G) Right of Review...................................................23
(H) Occupancy Adjustment..............................................23
26. LESSEE'S ESTOPPEL.......................................................24
27. HOLDOVER TENANCY........................................................24
28. RIGHT TO SHOW PREMISES..................................................25
29. "AS IS" CONDITION.......................................................25
30. WAIVER OF TRIAL BY JURY.................................................25
31. LATE CHARGE 25
32. INSURANCE...............................................................25
(A) Lessee's Insurance................................................25
(B) Lessor's Insurance................................................27
(C) Waiver of Subrogation.............................................28
33. NO OTHER REPRESENTATIONS................................................28
34. QUIET ENJOYMENT.........................................................28
35. INDEMNITY...............................................................28
36. RULES OF CONSTRUCTION/APPLICABLE LAW....................................28
37. APPLICABILITY TO HEIRS AND ASSIGNS......................................29
38. PARKING.................................................................29
39. LESSOR'S EXCULPATION....................................................30
40. INTENTIONALLY OMITTED...................................................30
41. RECORDATION.............................................................30
42. NO OPTION...............................................................30
43. DEFINITIONS.............................................................30
(A) Affiliate.........................................................30
(B) Business Days and Building Hours..................................30
(C) Common Facilities.................................................31
(D) Force Majeure.....................................................31
(E) Lessee's Percentage...............................................31
44. LEASE COMMENCEMENT......................................................32
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45. NOTICES.................................................................32
46. ACCORD AND SATISFACTION.................................................32
47 EFFECT OF WAIVERS.......................................................32
48. LESSOR'S RESERVED RIGHT.................................................32
49. RELOCATION BY LESSEE....................................................33
50. CORPORATE AUTHORITY.....................................................33
51. NUMBER AND GENDER.......................................................33
52. LESSEE RESTRICTION......................................................33
53. GOVERNMENT REQUIREMENTS.................................................33
54. LIMITATION OF LESSOR'S LIABILITY........................................34
55. 24-HOUR ACCESS..........................................................34
56. RENT CONCESSION.........................................................34
The following Exhibits attached to this Lease are incorporated herein and
made a part hereof:
Exhibit A Premises
Exhibit B Rules and Regulations
Exhibit C Cleaning Specifications
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LEASE, dated August 1, 2004 between STELLAR CONTINENTAL LLC, a Delaware
limited liability company with an office at 156 William Street, New York, New
York 10038 (hereinafter called "LESSOR"), and GOAMERICA COMMUNICATIONS CORP., a
Delaware corporation, whose address is 433 Hackensack Avenue, Hackensack, New
Jersey (hereinafter called "LESSEE").
REFERENCE PAGE
CONTINENTAL PLAZA
BASIC LEASE PROVISIONS AND DEFINITIONS
In addition to other terms elsewhere defined in this Lease, the following
terms whenever used in this Lease shall have only the meanings set forth in this
Section, unless such meanings are expressly modified, limited or expanded
elsewhere herein.
(1) DEMISED PREMISES OR PREMISES: Approximately 10,825 gross rentable
square feet on the third (3rd) floor of the Building as shown on Exhibit A
hereto, which includes an allocable share of the Common Facilities as defined in
Subsection 43(C).
(2) BUILDING: 433 Hackensack Avenue, Hackensack, New Jersey.
(3) TERM FIXED BASIC RENT: $26.00 per square foot per year, payable in
monthly installments of $23,454.17. All exclusive of ERIF and subject to further
adjustment as provided in Section 24.
(4) MONTHLY FIXED BASIC RENT: $23,454.17. All exclusive of ERIF and
subject to further adjustment as provided in Section 24.
(5) ELECTRIC RENT INCLUSION FACTOR ("ERIF"): One and 50/100 ($1.50)
Dollars per gross rentable square foot; One Thousand Three Hundred Fifty Three
and 13/100 ($1,353.13) per month.
(6) ESCALATORS: Additional Rent adjustments and Base Year adjustments for
the Operating Cost Escalation, Tax Escalation, and Fuel, Utilities and Electric
Cost Escalations.
(7) COMMENCEMENT DATE: The latter of (i) August 1, 2004, or (ii) the date
Lessor gives notice to Lessee that Lessor has completed the demise of the
Premises, subject to Sections 29 and 44.
(8) TERM: Three (3) years.
(9) TERMINATION DATE: July 31, 2007.
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(10) SECURITY DEPOSIT: Forty Six Thousand Nine Hundred Eight and 34/100
($46,908.34).
(11) BASE PERIOD COSTS: As to the following:
(A) Base Operating Costs: Those costs incurred for the Building,
Complex and Parcel during Calendar Year 2004.
(B) Base Real Estate Taxes: Those Real Estate Taxes assessed
against the Building, Complex and Parcel applicable to
Calendar Year 2004.
(C) Base Utility and Energy Costs: Those costs determined by
multiplying the Base Utility Rate (as hereinafter defined) by
the usage incurred for the Building, Complex and Parcel during
Calendar Year 2004.
(12) BASE UTILITY RATE: The rate in effect (including fuel
surcharges and/or adjustments) on January 1, 2004.
(13) LESSEE'S PERCENTAGE: One and Eight Hundredths (1.8%) percent
subject to adjustment as in Subsection 43(E) provided.
(14) PARKING SPACES: A total of thirty (30) spaces, of which ten
(10) shall be in the covered parking area described in Section 38, below.
(15) BROKER: None.
(16) PARCEL: Lot 5.A, Block 512.A, Lot 1, Block 514 on the tax map
of the City of Hackensack; Lot 3, Block 98 on the tax map of the Borough of
River Edge.
(17) PERMITTED USE: General office for executive and administrative
purposes and network operations.
(18) ADDITIONAL RENT: All sums in addition to Term Fixed Basic Rent
payable by Lessee to Lessor pursuant to the provisions of this Lease for the
collection of which Lessor shall have all the remedies as are permitted for the
collection of Fixed Basic Rent.
W I T N E S S E T H:
For and in consideration of the covenants herein contained, and upon the
terms and conditions herein set forth, Lessor and Lessee agree as follows:
1. DESCRIPTION. Lessor hereby leases to Lessee, and Lessee hereby hires
from Lessor, the Demised Premises as defined on the Reference Page (hereinafter
called "DEMISED PREMISES" or "PREMISES"), as shown on the plan or plans,
initialed by the parties hereto, marked EXHIBIT A attached hereto and made part
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of this Lease in the Building as defined on the Reference Page (hereinafter
called the "BUILDING") which is situated as part of that Complex of Buildings
known as 401, 407, 411 and 433 Hackensack Avenue, Hackensack, New Jersey, also
known as Continental Plaza (hereinafter called the "Complex"), all located on
that certain Parcel as defined in Section (15) on the Reference Page
(hereinafter called the "PARCEL").
2. TERM. The Premises are leased for the Term to commence on the
Commencement Date, and to end at 12:00 midnight on the Termination Date, all as
defined on the Reference Page.
3. BASIC RENT. The Lessee shall pay to the Lessor during the Term
commencing on the Commencement Date, the Term Fixed Basic Rent as defined on the
Reference Page (hereinafter called the "TERM FIXED 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 Term Fixed
Basic Rent shall accrue at the Term Fixed Basic Rent as defined on the Reference
Page and shall be payable in advance on the first day of each calendar month
during the Term in installments of Monthly Fixed Basic Rent as defined on the
Reference Page, except that a proportionately lesser sum may be paid for the
first and last months of the Term of this Lease if the Term commences on a day
other than the first day of the month, in accordance with the provisions of this
Lease herein set forth. Lessor acknowledges receipt from Lessee of the first
installment of Monthly Fixed Basic Rent for the Term, by check, subject to
collection. Lessee shall pay Fixed Basic Rent and any Additional Rent as
hereinafter provided, to Lessor at Lessor's above stated address, or at such
other place as Lessor may designate in writing, without demand and without
counterclaim, deduction or setoff. The aforesaid Fixed Basic Rent shall be
subject to adjustment as in Section 24 provided. As used in this Lease, Fixed
Basic Rent shall mean either Term Fixed Basic Rent, Annual Fixed Basic Rent or
Monthly Fixed Basic Rent, as appropriate.
4. USE AND OCCUPANCY. Lessee shall use and occupy the Premises for the
Permitted Use as defined on the Reference Page and for no other purpose.
Notwithstanding anything to the contrary contained in this Lease, Lessee, in the
use and occupancy of the Premises and in the prosecution and conduct of any
business thereon, shall comply with all requirements of all laws, orders,
ordinances, rules and regulations of the Federal, State, county and municipal
authorities and with any direction or certificate of occupancy issued pursuant
to any law of or by any public officer or officers. Lessee covenants that it
will not use or permit to be used any part of the Premises for any unlawful
purpose or for any dangerous, noxious or offensive trade or business and will
not cause or maintain any nuisance in, at or on the Premises.
5. CARE AND REPAIR OF PREMISES/ENVIRONMENTAL.
(A) Lessee covenants to commit no act of waste and to take good care of
the Premises and the fixtures and appurtenances thereon, and shall, in the use
and occupancy of the Premises, comply with all present and future 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
shall survive the expiration or sooner termination of the Lease. Lessee shall
make all necessary non-structural repairs to the Premises, and Lessee shall pay
to Lessor, as Additional Rent, immediately upon demand, the cost for any such
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necessary repairs. Lessor shall make all necessary repairs to the Common
Facilities, the parking areas, if any, the Building systems and the Building
structure, the same to be included as an Operating Cost pursuant to Section 25
herein, except where the repair has been made necessary by misuse, overuse or
neglect by Lessee or Lessee's agents, servants, visitors or licensees, in which
event Lessor shall nevertheless make the repair but Lessee shall pay to Lessor,
as Additional Rent, immediately upon demand, the costs therefor (net of any
insurance proceeds which Lessor may receive on account of such repair). Lessor
shall comply with all present and future laws, orders and regulations of the
federal, state and municipal governments or any of their departments affecting
the Common Facilities, the same to be included as an Operating Cost, except
where the need for such compliance has been made necessary by the specific
manner of Lessee's use, in which case Lessor shall effect the compliance but
Lessee shall pay to Lessor, as Additional Rent, immediately upon demand, the
costs thereof. All improvements made by Lessee to the Premises, which are so
attached to the Premises that they cannot be removed without material injury to
the Premises, shall become the property of Lessor upon installation. Not later
than the last day of the Term, Lessee shall, at Lessee's expense, remove all
Lessee's personal property and those improvements made by Lessee which have not
become the property of Lessor, including trade fixtures (other than built-in
cabinetwork), movable paneling partitions; repair all injury done by or in
connection with the installation or removal of said property and improvements;
cap or terminate all electrical and telephone connections at service entry
panels as required by law; 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 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. Notwithstanding the provisions in
this Section, Lessee shall be responsible for installing and maintaining any
additional HVAC systems that may be required due to Lessee's use of the
Premises, as further provided for in Section 24(C).
(B) Lessee agrees that it will not suffer, allow or permit any vibration,
radiation, noise or odor to emanate from Premises, or any machine or other
installation therein, or otherwise suffer, allow or permit the same to
constitute a nuisance or otherwise unreasonably interfere with (i) the safety,
comfort or convenience of Lessor or any of the other occupants of the Building
of which the Premises forms a part; (ii) their customers, agents or invitees or
others lawfully in or upon said premises. Upon notice by Lessor to Lessee that
any of the aforesaid is occurring, Lessee shall forthwith (but in all events
within five (5) days) install sound proofing and take such other steps,
including, without limitation, the installation of filters, vents, vibration
eliminators, false ceilings and noise barriers, as are required to prevent
vibration, noise and odors from annoying the other tenants of the Building.
Lessee shall submit to Lessor a plan of the steps to be taken to prevent such
conditions for Lessor' approval, and shall complete all work in accordance with
such plan, if approved, prior to commencement of business. If the steps taken to
eliminate such conditions, whether or not previously approved by Lessor, shall
be deemed unsatisfactory to Lessor, Lessor may give notice specifying changes,
alterations or repairs to be made at Lessee's sole cost and expense. If such
changes, alterations or repairs are not completed within thirty (30) days of
such notice as specified by Lessor, Lessor may, at its sole discretion, either
(i) cure such condition and thereafter add the cost and expenses incurred by
Lessor therefore as Additional Rent to the next monthly installment of Fixed
Rent to become due; or (ii) treat such failure to eliminate such conditions as a
material default hereunder.
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(C) 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 ISRA with respect to Lessee's operations at the Premises,
as that term is hereinafter defined. Lessee shall bear all costs and expenses
incurred by Lessor associated with any required ISRA 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, ISRA compliance shall include applications for
determinations of non-applicability 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 ISRA 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 ("NJDEP")
under ISRA as they are issued or received by the Lessee.
(D) Lessee agrees not to generate, store, manufacture, refine, transport,
treat, dispose of, or otherwise permit to be present on or about the Demised
Premises, 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. 9.0l et seq.), the New Jersey Environmental
Cleanup Responsibility Act, as amended, N.J.S.A. 13:IK-6 et seq. and/or the
Industrial Site Recovery Act ("ISRA"), the New Jersey Spill Compensation and
Control Act, as amended, N.J.S.A. 58:l0-23.llb, 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.
(E) In the event Lessee fails to comply with ISRA as stated in this
Section or any other governmental law as of the termination or sooner expiration
of the Lease and as a consequence thereof Lessor is unable to rent the Demised
Premises, then the Lessor shall treat the Lessee as one who has not removed at
the end of its Term, and thereupon be entitled to all remedies against the
Lessee provided by law in that situation including a monthly rental of one
hundred fifty (150%) percent of the installment of Monthly Fixed Basic Rent for
the last month of the Term of this Lease or any renewal term, payable in advance
on the first day of each month, until such time as Lessee provides Lessor with a
negative declaration or confirmation that any required clean-up plan has been
successfully completed.
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(F) Lessee agrees that Lessee, its agents and contractors, licensees, or
invitees shall not handle, use, manufacture, store or dispose of any Hazardous
Substances on, under, or about the Premises, without Lessor's prior written
consent (which consent may be given or withheld in Lessor's sole discretion),
provided that Lessee may handle, store, use or dispose of products containing
small quantities of Hazardous Substances, which products are of a type
customarily found in offices and households (such as aerosol cans containing
insecticides, toner for copies, paints, paint remover, and the like) , and
provided further that Lessee shall handle, store, use and dispose of any such
Hazardous Substances in a safe and lawful manner and shall not allow such
Hazardous Substances to contaminate the Premises or the environment.
(G) Without limiting the above, Lessee agrees to reimburse, defend,
indemnify and hold harmless the Lessor and each mortgagee of the Demised
Premises from and against any and all liabilities, damages, claims, losses,
judgments, causes of action, costs and expenses, including without limitation,
loss of rental income, loss due to business interruption, and 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, arising out of or
in any way connected with the use, manufacture, storage or disposal of Hazardous
Substances by Lessee, its agents or contractors on, under or about the Premises
including, without limitation, the costs of any required or necessary
investigation, repair, cleanup or detoxification, and the preparation of any
closure or other required plans in connection herewith, whether voluntary or
compelled by governmental authority, or any breach by Lessee of the undertakings
set forth in this Section. The indemnity obligations of Lessee under this clause
shall survive any termination or expiration of the Lease.
(H) Notwithstanding anything set forth in this Lease, Lessee shall only be
responsible for contamination of Hazardous Substances or any cleanup resulting
directly therefrom, resulting directly from matters occurring or Hazardous
Substances deposited (other than by contractors, agents or representatives
controlled by Lessor) during the Lease Term, and any other period of time during
which Lessee is in actual or constructive occupancy of the Premises. Lessee
shall take reasonable precautions to prevent the contamination of the Premises
with Hazardous Substances by third parties.
(I) It shall not be unreasonable for Lessor to withhold its consent to any
proposed assignment or sublease if (i) the proposed assignee's or sublessee's
anticipated use of the Premises involves the generation, storage, use, treatment
or disposal of Hazardous Substances; (ii) the proposed assignee or sublessee has
been required by any prior landlord, lender or governmental authority to take
remedial action in connection with Hazardous Substances contaminating a property
if the contamination resulted from such assignee's or sublessee's actions or use
of the property in question; or (iii) the proposed assignee or sublessee is
subject to an enforcement order issued by any governmental authority in
connection with the use, disposal, or storage of a Hazardous Substance.
6. ALTERATIONS, ADDITIONS OR IMPROVEMENTS. Lessee shall not, without first
obtaining the written consent of Lessor, which consent shall not unreasonably be
withheld, conditioned or delayed, make any alterations, additions or
improvements in, to or about the Premises. Lessee shall promptly reimburse
Lessor for all costs and expenses incurred by Lessor for any work performed by
Lessor or Lessor's servants, agents or employees in or to the Premises at the
request of Lessee. Notwithstanding the forgoing, Lessee may ask Lessor to remove
three (3) interior walls located in three (3) perimeter offices in order to
expand Lessee's mail room at any time after the Commencement Date, such work to
be done at Lessor's sole cost and expense and at Lessor's sole discretion.
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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. ASSIGNMENT AND SUBLEASE. Lessee may not mortgage, pledge, hypothecate,
assign, transfer, sublet or otherwise deal with this Lease or the Premises in
any manner except as specifically provided for in this Section 8:
(A) In the event that the Lessee desires to assign this Lease or sublease
all or any portion of the Premises to any other party, the terms and conditions
of such sublease or assignment and the identity of the sublessee or assignee,
provided all by means of an executed agreement conditioned on Lessor's approval,
shall be communicated to the Lessor in writing not less than thirty (30) days
prior to the effective date of any such sublease or assignment, and, prior to
such effective date, the Lessor shall have the option, exercisable in writing to
the Lessee within fifteen (15) Business Days following Lessor's receipt of the
above-referenced agreement, to terminate the within Lease and recapture Premises
(or the part thereof relating to the assignment or sublease) so that such
prospective sublessee or assignee shall then become the direct lessee of Lessor
hereunder, or alternatively to recapture said Premises and cancel this Lease
whereupon Lessee shall be fully released from any and all obligations hereunder.
(B) In the event that the Lessor elects not to recapture the Premises or
cancel this Lease or part thereof as the case may be in accordance with (A)
above, the Lessee may nevertheless assign this Lease or sublet the whole or any
portion of the Premises so offered to Lessor, subject to the Lessor's prior
written consent, and subject to the consent of any mortgagee, trust deed holder
or ground lessor, on the basis of the terms and conditions enumerated herein in
this Subsection 8 (B). Lessor shall not consent, and shall not be deemed
unreasonable for failure to consent, to any proposed sublease or an assignment
of the Lease to a tenant, subtenant or other occupant of the Building or Complex
(or to a subsidiary or affiliate thereof), or if, in the judgment of Lessor, the
business of such proposed subtenant or assignee is not compatible with the type
of occupancy of the Building, violates any exclusive granted to any other tenant
in the Building, or such business will create increased use of the Common
Facilities of the Parcel and/or Building or if the proposed sublease or
assignment is to any State, Federal or municipal agency or bureau or if such
mortgagee, trust deed holder or ground lessor does not consent thereto. The
provisions of Section 5(I) also shall apply hereto.
In connection with any request for Lessor to consent to an assignment or
subletting:
(1) The Lessee shall provide to the Lessor the name and address of
the assignee or sublessee, and copies of financial reports certified by an
officer of the transferee and other relevant financial information of the
assignee or sublessee reasonably required by Lessor.
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(2) The assignee or sublessee shall assume, by written instrument,
all of the obligations of Lessee under this Lease, and a copy of such assumption
agreement shall be furnished to the 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 and any sublease
shall expressly acknowledge that Lessor and sublessee are not in privity of
contract.
(3) The Lessee and each assignee or subtenant 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 Term Fixed Basic Rent and
Additional Rent reserved herein as and when required to be paid, through the
entire Term of this Lease, as the same may be renewed, extended or otherwise
modified.
(4) The Lessee and any assignee or subtenant shall promptly pay to
Lessor any consideration received for any assignment or all of the rent (Fixed
Basic Rent and Additional Rent), and any other consideration payable by the
subtenant to Lessee under or in connection with the sublease, as and when
received, in excess of the Term Fixed Basic Rent and Additional Rent required to
be paid by Lessee for the period affected by said assignment or sublease for the
area sublet, computed on the basis of an average square foot rent for the gross
square footage Lessee has leased.
(5) In any event, the acceptance by the Lessor of any rent (Fixed
Basic Rent and Additional Rent) from the assignee or from any of the subtenants
or the failure of the Lessor to insist upon a strict performance of any of the
terms, conditions and covenants herein shall not release the Lessee herein, nor
any assignee assuming this Lease, from any and all of the obligations herein
during and for the entire Term of this Lease nor, without express written
consent to any assignment or sublease, operate as Lessor's consent to an
assignment or sublease.
(6) Lessor shall require a Five Hundred and 00/100 ($500.00)
Dollar payment to cover its handling charges for each request for consent to any
sublet or assignment prior to its consideration of the same.
(7) Lessee shall have no claim, and hereby waives the right to any
claim, against Lessor for money damages by reason of any refusal, withholding or
delaying by Lessor of any consent, and in such event, Lessee's only remedies
therefor (if any) shall be an action for specific performance, injunction or
declaratory judgment to enforce any such requirement.
(C) 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
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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 Lessor hereunder.
(D) Without limiting any of the provisions of Sections 13 and 14, if
pursuant to the Federal Bankruptcy Code (or any similar law hereafter enacted
having the same general purpose), or if pursuant to any State insolvency or
bankruptcy law, 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 or law shall be deemed to
mean the deposit of cash security in an amount equal to the sum of one (1)
year's Term Fixed Basic Rent and Additional Rent for the next succeeding twelve
(12) months (which Additional Rent shall be reasonably estimated by Lessor) ,
which deposit shall be held by Lessor for the balance of the Term, without
interest, as Additional Security Deposit, as hereinafter defined, for the full
performance of all of Lessee's obligations under this Lease, to be held and
applied in the manner specified for the Security Deposit in Section 17 hereof.
(E) The sale, issuance or transfer of equity interests or change in
control of Lessee or any Affiliate shall be deemed an assignment of this Lease
unless: (a) it involves the sale or issuance of securities registered under the
Securities Act of 1933, as amended, (b) it is made amongst the existing
principals of Lessee or any Affiliate, or (c) it results from the death of a
principal of Lessee or any Affiliate.
(F) Except as specifically set forth above, no portion of, or any right to
use or occupy all or any of, the Demised Premises or of Lessee's interest in
this Lease may be acquired by any other person or entity, directly or
indirectly, 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.
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(G) If Lessee is a corporation other than a corporation whose stock is
listed and traded on a nationally recognized stock exchange, the provisions of
this Section 8 shall apply to a transfer (however accomplished, whether in a
single transaction or in a series of related or unrelated transactions) of stock
or any other mechanism such as, by way of example, the issuance of additional
stock, a stock voting agreement or change in class(es) of stock which results in
a change of control of Lessee as if such transfer of stock (or other mechanism)
which results in a change of control of Lessee were an assignment of this Lease,
and if Lessee is a trust, partnership, limited liability company, limited
liability partnership or joint venture (an "ENTITY"), said provisions shall
apply with respect to a transfer (by one or more transfers) of an interest in
the distributions of profits and losses of such Entity (or other mechanism, such
as, by way of example, the creation of additional general partnership or limited
partnership or membership interests) which results in a change of control of
such Entity as if such transfer of an interest in the distributions of profits
and losses of such Entity which results in a change of control of such Entity
were an assignment of this Lease; but said provisions shall not apply to
transactions with a corporation into or with which Lessee is merged or
consolidated or to which all or substantially all of Lessee's assets are
transferred or to any corporation which controls or is controlled by Lessee or
is under common control with Lessee, provided that in the event of such merger,
consolidation or transfer of all or substantially all of Lessee's assets, (i)
the successor to Lessee has a net worth computed in accordance with generally
accepted accounting principles at least equal to the greater of (a) the net
worth of Lessee immediately prior to such merger, consolidation or transfer or
(b) the net worth of Lessee herein named on the date of this Lease, and (ii)
proof satisfactory to Lessor of such net worth shall have been delivered to
Lessor at least ten (10) days prior to the effective date of any such
transaction.
9. 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 as Lessor may prescribe, on notice to the Lessee, for the safety,
care and cleanliness of the Building and the comfort, quiet and convenience of
other occupants of the Building.
10. DAMAGES TO BUILDING. If the Building is damaged by fire or any other
cause to such extent that the cost of restoration, as reasonably estimated by
Lessor, will equal or exceed twenty-five (25%) percent of the replacement value
of the Building (exclusive of foundations) just prior to the occurrence of the
damage, then Lessor may, no later than the sixtieth (60th) day following the
damage, give Lessee a notice of election to terminate this Lease, or if the cost
of restoration will equal or exceed fifty (50%) percent of such replacement
value or if the estimated repair time (as determined by Lessor) is more than one
hundred fifty (150) days, and if the Premises shall not be reasonably usable for
the purpose for which they are leased hereunder, then Lessee may, no later than
the sixtieth (60th) 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 Term Fixed Basic Rent and any Additional Rent shall be
apportioned as of the date of said surrender, and any Term Fixed Basic Rent or
Additional Rent paid for any period beyond the latter of the thirtieth (30th)
day after said notice, or the date Lessee surrenders possession, 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.
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Except as provided in Section 5 hereof, notwithstanding the
provisions of this Section or any other provision of this Lease, Lessor shall
not have any obligation whatsoever to repair, reconstruct, or restore the
Premises when the damages resulting from any casualty covered by the provisions
of this Section occur during the last twelve (12) months of the Term or any
extension thereof. 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 Term Fixed Basic Rent and an equitable reduction in the Base Period
Costs as established in Section 25 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 10 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 Term Fixed Basic Rent or Additional
Rent, except to the extent of any rent insurance received by Lessor.
11. WAIVER OF SUBROGATION. Except as provided in Section 5 hereof,
notwithstanding the provisions of this Section or any other provision of this
Lease, in the event of any loss or damage to the Building, the Premises and/or
any contents (herein "PROPERTY DAMAGE"), each party waives all claims against
the other for any such loss or damage and each party shall look only to any
insurance which it has obtained to protect against such loss (or in the case of
Lessee, waives all claims against any tenant of the Building that has similarly
waived claims against such Lessee), and each party shall obtain, for each policy
of such insurance, provisions waiving any claim against the other party and
against any other tenant(s) in the Building that has waived subrogation against
the Lessee for loss or damage within the scope of such insurance.
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 Term Fixed Basic Rent and any Additional Rent shall be apportioned
as of said termination date and any Term Fixed Basic Rent or Additional Rent
paid for any period beyond said date shall be repaid to Lessee. Lessee shall not
be entitled to any part of the award 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 Term Fixed Basic Rent, and an equitable adjustment reducing the Base
Period Costs 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.
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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 14
hereof.
14. LESSOR'S REMEDIES ON DEFAULT. If Lessee defaults in the payment of
Term Fixed 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, or defaults in the performance of any
other Lease held by Lessee or its Affiliates from Lessor or from any landlord in
which Lessor's principals have at least a twenty-five (25%) percent interest,
Lessor may give Lessee notice of such default, and if Lessee does not cure any
Term Fixed Basic Rent or Additional Rent default within five (5) days of the
giving of such notice or other default within fifteen (15) 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 fifteen (15) 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 Term Fixed Basic Rent and Additional Rent therefor. Term Fixed Basic
Rent or Additional 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 Term Fixed Basic Rent and Additional 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 Term Fixed Basic Rent
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
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the balance of the Term as originally fixed or since extended, there shall be
allowed against Lessee's obligation for Term Fixed Basic Rent and Additional
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 Term Fixed
Basic Rent 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 Term Fixed Basic Rent
and the Additional Rent reserved in this Lease from the date of such default to
the date of expiration of the original Term demised and the then fair and
reasonable rental value (inclusive of Additional Rent and Term Fixed Basic Rent)
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 is terminated,
without regard to the manner in which it is terminated. In the computation of
such damages, the difference between any installments of rent (Fixed Basic and
Additional) thereafter becoming due, and fair and reasonable rental value of the
Premises (inclusive of the same rent components) 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. In
addition, in the event of a default which results in the Lessor recovering
possession of the Premises, Lessor shall be under no duty to mitigate Lessor's
damages as provided for in this Section 15. Lessor's remedies hereunder are in
addition to any remedy allowed by law.
Lessee agrees to pay, as Additional Rent, all 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 and any option contained herein
shall be subject and subordinate to any such underlying leases and to any such
first mortgage and/or first trust deed which may now or hereafter affect 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 and first trust deed. Although no instrument or act on the
part of Lessee shall be necessary to effectuate such subordination, Lessee will,
nevertheless, execute and deliver such further instruments confirming such
subordination of this Lease as may be desired by the holders of said first
mortgage and first trust deed or by any of the lessors under such underlying
leases. Lessee hereby appoints Lessor attorney-in-fact, irrevocably, to execute
and deliver any such instrument for Lessee. If any underlying lease to which
this Lease is subject terminates, Lessee shall, on timely request, attorn to the
owner of the reversion.
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17. SECURITY DEPOSIT. Lessee shall deposit with Lessor on the signing of
this Lease the Security Deposit as defined on the Reference Page for the full
and faithful 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 Deposit to the vendee and Lessor
shall be considered released by Lessee from all liability for the return of such
Security Deposit; and Lessee agrees to look solely to the new lessor for the
return of the said Security Deposit, and it is agreed that this shall apply to
every transfer or assignment made of the Security Deposit to a new lessor.
Accrued interest on the Security Deposit (less any portions thereof used,
applied or retained by Lessor in accordance with the provisions of this Section
17), shall be paid to Lessee on an annual basis. The Security Deposit (less any
portions thereof used, applied or retained by Lessor in accordance with the
provisions of this Section 17), shall be returned to Lessee promptly after the
expiration or sooner termination of this Lease without the fault of the Lessee
and after delivery of the entire Premises to Lessor in accordance with the
provisions of this Lease. Lessee covenants that it will not assign or encumber
or attempt to assign or encumber the Security Deposit and Lessor shall not be
bound by any such assignment, encumbrance or attempt thereof.
In the event of the insolvency of Lessee or in the event of the entry of a
judgment declaring Lessee insolvent or bankrupt in any court which is not
discharged within sixty (60) days after entry, or in the event a petition is
filed by or against Lessee under any chapter of the bankruptcy laws of the State
of New Jersey or the United States of America, then and in such event Lessor may
require the Lessee to deposit additional security in the amount specified in
Subsection 8(E) (hereinafter called the "ADDITIONAL SECURITY DEPOSIT") to
adequately assure Lessee's performance of all of its obligations under this
Lease including all payments subsequently accruing. Failure of Lessee to deposit
the Additional Security Deposit pursuant thereto within ten (10) days after
Lessor's written demand shall constitute a default by Lessee.
In lieu of a cash deposit, upon signing this Lease, Lessor agrees that
Lessee may deliver to Lessor a clean, irrevocable and unconditional Letter of
Credit (the "L/C") issued by and drawn upon any commercial bank chartered by the
State of New York, the State of New Jersey or the United Stated Government (the
"ISSUING BANK") with offices for banking purposes in the City of Hackensack or
the City of New York, and having a new worth of not less than $500 million,
which L/C shall have a term of not less than one year, be in form and content
reasonably satisfactory in all respects to Lessor, be for the account of Lessor
and be in the amount of the Security Deposit. The L/C shall provide that:
(i) The Issuing Bank shall pay to Lessor, or its duly authorized
representative, an amount up to the face amount of the L/C upon presentation of
the L/C and a sight draft in the amount to be drawn;
(ii) The L/C shall be deemed to be automatically renewed, without
amendment, for consecutive periods of one year each during the Term of this
Lease, unless the Issuing Bank sends written notice (the "NON-RENEWAL NOTICE")
to Lessor by certified or registered mail, return receipt requested, not less
than thirty (30) days next preceding the then expiration date of the L/C, that
it elects not to have such L/C renewed;
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(iii) Lessor, within twenty (20) days of its receipt of the
Non-Renewal Notice, shall have the right, exercisable by a sight draft, to
receive the monies represented by the L/C (which moneys shall be held by Lessor
as a cash deposit pursuant to the terms of this Article pending the placement of
such L/C or Lessee's default hereunder; and
(iv) Upon Lessor's sale of Lessor's interest in the Building, the
L/C shall be transferable by Lessor as provided for herein.
In the event of a sale of Lessor's interest in or net lease of the
Building, Lessor shall have the right to transfer the cash security or L/C, as
the case may be, deposited hereunder to the vendee, lessee or transferee,
without cost to Lessor, and Lessor shall thereupon be released by Lessee from
all liability for the return of such cash security or L/C. In such event, Lessee
agrees to obtain a new L/C naming the purchaser or net lessee (as the case may
be) as the beneficiary and to look solely to the new landlord for the return of
said cash security or L/C. It is agreed that the provisions hereof shall apply
to every transfer or assignment made of said case security of L/C.
In the event that any time during the Term of this Lease Lessor, in
Lessor's opinion, believes (a) that the net worth of the Issuing Bank shall be
less than the minimum amount specified above or (b) that circumstances have
occurred indicating that the Issuing Bank may be incapable of, unable to, or
prohibited from honoring the then existing L/C (hereinafter referred to as the
"EXISTING L/C" in accordance with the terms thereof, then, upon the happening of
either of the foregoing, Lessor may send written notice to Lessee (hereinafter
referred to as the "REPLACEMENT NOTICE") requiring Lessee within ten (10) days
to replace the Existing L/C with a new letter or credit (hereinafter referred to
as the "REPLACEMENT L/C") from an Issuing Bank meeting the qualifications
described in this Section 17. Upon receipt of the Replacement L/C meeting the
qualifications of this Section 17, Lessor shall forthwith return the Existing
L/C to Lessee. In the event that (i) a Replacement L/C meeting the
qualifications of this Section 17 is not received by Lessor within the time
specified or (ii) Lessor believes an emergency exists, then in either event, the
Existing L/C may be presented for payment by Lessor and the proceeds thereof
shall be held by Lessor in accordance with this Section 17 subject, however, to
Lessee's right, at any time thereafter prior to a Lessee's default hereunder, to
replace such cash security with a Replacement L/C meeting the qualifications of
this Section 17.
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 attorneys' fees,
incurred by Lessor in so doing (whether paid by Lessor or not) shall be deemed
Additional Rent payable on demand, with interest at two (2%) percent per annum
over the prime lending rate announced as such by JPMorgan Chase Bank to its most
creditworthy customers or the highest rate permitted by law, whichever is lower.
19. LIENS. Lessee shall not do any act, or make any contract, which may
create or be the foundation for any lien or other encumbrance upon any interest
of Lessor or any ground or underlying lessor in any portion of the Premises. If,
because of any act or omission (or alleged act or omission) of Lessee, any
Construction Lien Claim or other lien (collectively "LIEN") charge,
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or order for the payment of money or other encumbrance shall be filed against
Lessor and/or any ground or underlying lessor and/or any portion of the Premises
(whether or not such Lien, charge, order, or encumbrance is valid or enforceable
as such), Lessee shall, at its own cost and expense, cause same to be discharged
of record or bonded within fifteen (15) days after the filing thereof; and
Lessee shall indemnify and save harmless Lessor and all ground and underlying
lessor(s) against and from all costs, liabilities, suits, penalties, claims, and
demands, including reasonable counsel fees, resulting therefrom. If Lessee fails
to comply with the foregoing provisions, Lessor shall have the option of
discharging or bonding any such Lien, charge, order, or encumbrance, and Lessee
agrees to reimburse Lessor for all costs, expenses and other sums of money in
connection therewith (as additional rental) with interest at the maximum rate
permitted by law promptly upon demand. All materialmen, contractors, artisans,
mechanics, laborers, and any other persons now or hereafter contracting with
Lessee or any contractor or subcontractor of Lessee for the furnishing of any
labor services, materials, supplies, or equipment with respect to any portion of
the Premises, at any time from the date hereof until the end of the Lease Term,
are hereby charged with notice that they look exclusively to Lessee to obtain
payment for same.
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 on reasonable notice 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. During the
last twelve (12) months of the Term, Lessor may immediately enter, alter,
renovate or redecorate the Premises if Lessee shall have removed all or
substantially all of Lessee's property from the Premises. Such actions by Lessor
shall have no effect on this Lease or Lessee's obligations hereunder, and Lessee
shall have no claims or cause of action against Lessor by reason thereof.
21. SERVICES TO BE PROVIDED BY LESSOR. Subject to intervening laws,
ordinances, regulations and executive orders, while Lessee is not in default
under any of the provisions of this Lease, Lessor agrees to furnish, on
"BUSINESS DAYS," as defined in Section 43, below:
(a) Janitorial services to be performed in accordance with Building
standards and practices, to include restroom supplies, as set forth in Exhibit C
attached hereto and made a part hereof.
(b) Heating, ventilating and air conditioning (herein "HVAC"), as
appropriate for the season, together with Common Facilities lighting and
electric energy all during "BUILDING HOURS," as defined in Section 43, below.
Notwithstanding the provisions in this Section, Lessee shall be responsible for
installing and maintaining any additional HVAC systems that may be required due
to Lessee's use of the Premises, as further provided for in Section 24(C).
(c) Cold and hot water for drinking and lavatory purposes.
(d) Elevator service during Building Hours.
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Notwithstanding 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. AFTER-HOURS USE. Lessee shall be entitled to make use of HVAC beyond
Building Hours, at Lessee's sole cost and expense, provided Lessee shall notify
the Lessor twenty-four (24) hours prior to such desired overtime use, except if
such use is desired for a weekend, in which event Lessee shall notify Lessor no
later than 5:00 p.m. on the Thursday immediately preceding said weekend. It is
understood and agreed that Lessee shall pay the sum of Eighty-five and 00/100
($85.00) Dollars per hour, plus such additional percentage increase of the
aforesaid hourly sum computed by measuring the percentage increase of the rate
in effect (including fuel surcharges or adjustments) during the month for which
such overtime use is requested against the Base Utility Rate, as defined on the
Reference Page. In no event shall the Lessee pay less than the sum of
Eighty-five and 00/100 ($85.00) Dollars per hour for such aforesaid overtime
use.
23. INTERRUPTION OF SERVICES OR USE. Interruption or curtailment of any
service maintained in the Building or the Complex or at the Parcel, if caused by
Force Majeure, as hereinafter defined, shall not entitle Lessee to any claim
against Lessor or to any abatement in Term Fixed Basic Rent or Additional 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. If Lessor fails to take such measures as may be reasonable under the
circumstances to restore the curtailed service, Lessee's remedies shall be
limited to an equitable abatement of Term Fixed Basic Rent and Additional Rent
for the duration of the curtailment beyond said reasonable period, to the extent
such Premises are not reasonably usable by Lessee or to a claim of constructive
eviction. If the Premises are rendered untenantable in whole or in part, for a
period of fifteen (15) 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 Term Fixed Basic Rent and
Additional Rent from and after said tenth (10th) 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. The remedies provided for in
this Section 23 shall be Lessee's sole remedies for any interruption of services
or use as described above.
24. ELECTRICITY. (A) Lessor, subject to the provisions of this Section 24,
shall furnish electrical energy to or for the use of Lessee in the Premises in
accordance with this Section 24.
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(B) Throughout the Term, Lessor shall redistribute electrical energy to
the Premises during Building Hours upon the following terms and conditions: (i)
Lessee shall pay for such electrical energy as provided by this Section 24; (ii)
Lessor will redistribute electricity to Lessee through presently installed
electrical facilities for Lessee's reasonable use of normal office equipment and
such lighting, electrical appliances and equipment as Lessor may permit to be
installed in the Premises, all consistent with that wiring capacity that has
been installed in the Premises; (iii) Lessee agrees that an independent
electrical engineering consultant selected by Lessor shall from time to time
make a survey of the electric power demand of the electric lighting fixtures and
the electric equipment of Lessee used in the Premises to determine the average
monthly electric consumption thereof, said survey to be at Lessee's expense.
Lessor reserves the right to estimate Lessee's electric consumption until such a
survey is made. The estimate will be based on One and 50/100 ($1.50) Dollars per
gross rentable square foot per year of the rentable area of the Premises and
Lessee agrees that Lessee shall pay the estimate Electric Rent Inclusion Factor
as defined on the Reference Page, in addition to the Term Fixed Basic Rent, as
defined in the Reference Page, in order to compensate Lessor for supplying
Lessee with electric current by an estimated Electric Rent Inclusion Factor as
defined on the Reference Page. The aforesaid survey shall take into account,
among other things, any special electrical requirements of Lessee and use by
Lessee of electrical energy at times other than during Building Hours on
Business Days. The findings of such engineering consultant as to the proper
Electric Rent Inclusion Factor based on such average monthly electric
consumption shall be conclusive and binding upon the parties and the amount
thereof, less the Electric Rent Inclusion Factor, if in excess of the Electric
Rent Inclusion Factor, shall be paid by Lessee, in addition to the Term Fixed
Basic Rent which shall be payable in installments of Monthly Fixed Basic Rent,
payable for each month from the Commencement Date or if the amount thereof shall
be lower than the Electric Rent Inclusion Factor, the difference therein shall
be subtracted from the annualized Term Fixed Basic Rent and the resulting sum
shall be the revised annualized Term Fixed Basic Rent which shall be payable in
installments of Monthly Fixed Basic Rent (except that if the amount of such rent
increase or decrease shall not have been determined on the Commencement Date,
then, upon such subsequent determination, Lessee shall pay or receive a credit,
as the case may be, for the retroactive determination from the Commencement Date
to the date of such determination); (iv) If the Electric Rates (as hereinafter
defined) on which the initial determination of said consultant was based shall
be increased or decreased, then the Term Fixed Basic Rent shall be increased or
decreased in the amount equal to the change in Lessor's cost of supplying
electrical current to the Premises resulting from such rate change, retroactive
if necessary to the date of such increase or decrease in such Electric Rates.
The Term Fixed Basic Rent, as defined on the Reference Page, shall be deemed
modified accordingly by any of the aforesaid modifications. Lessee hereby
acknowledges that Lessee will be responsible for any additional costs for
increased electrical usage and related expenses associated with Lessee's network
operations center.
(C) If Lessee installs additional or substituted electrical
equipment or appliances or otherwise increases its use of current, then the
Electric Rent Inclusion Factor shall be redetermined by Lessor's electrical
engineer or consultant, at Lessee's expense, and such determination shall be
conclusive and binding upon Lessor and Lessee. Lessee shall make no alterations
or additions to the electrical equipment or appliances without first obtaining
written consent from Lessor in each instance. Lessee may at any time it believes
any change in its electrical equipment or appliances or fixtures has reduced its
electrical consumption request a resurvey of the Premises by Lessor's electrical
engineer or consultant, at Lessee's expense. Any change in the Electric Rent
Inclusion Factor resulting from a change in Lessee's consumption shall be
effective as of the date of such change, and the Term Fixed Basic Rent
enumerated herein shall be deemed modified accordingly, retroactive if
necessary. Lessor hereby acknowledges that Lessee will operate certain computers
and equipment in connection with Lessee's network operations center, provided,
throughout the Term, Lessee, at Lessor's approval, which shall not be
unreasonably withheld, conditioned or delayed, and Lessee's sole cost and
expense, provides and maintains adequate HVAC equipment such as will keep the
Premises at a consistent cool temperature as reasonably determined by Lessor.
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(D) 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 the supply, and Lessee agrees that such supply may be interrupted for
inspection, repairs and replacement and in emergencies. In any event, the full
measure of Lessor's liability for any interruption in the supply due to Lessor's
acts or omissions shall be an abatement of Term Fixed Basic Rent and Additional
Rent. In no event shall Lessor be liable for any business interruption suffered
by Lessee. Lessee covenants and agrees that at all times its use of electric
current shall never exceed the capacity of existing feeders to the Building or
the risers or wiring installation. Any riser or risers to supply Lessee's
electrical requirements, upon written request of Lessee, shall be installed by
Lessor, at the sole cost and expense of Lessee, if, in Lessor's sole judgment,
the same are necessary and will not cause or create a dangerous or hazardous
condition or entail excessive or unreasonable alterations, repairs or expense or
interfere with or disturb other tenants or occupants. In addition to the
installation of such riser or risers, Lessor shall also, at the sole cost and
expense of Lessee, install all other equipment proper and necessary in
connection therewith subject to the aforesaid terms and conditions.
(E) Lessor reserves the right to terminate the redistribution of
electricity to the Premises at any time, upon thirty (30) days' written notice
to Lessee, in which event Lessee may make application directly to the utility
company servicing the Building for Lessee's entire separate supply of
electricity. Lessor, upon the expiration of the aforesaid thirty (30) day
period, may discontinue furnishing the electric current. The term "ELECTRIC
RATES" shall be deemed to mean the rates for the comparable usage charged by the
public utility company furnishing electrical energy to the Building, including
but not limited to any charges or surcharges incurred or taxes payable by Lessor
in connection therewith or increase or decrease thereof by reason of fuel
adjustment or any substitutions for such Electric Rates or additions thereto.
(F) If Lessor discontinues the furnishing of electricity, as provided in
this Section 24, then, and in such event, Lessor shall permit Lessee to receive
electrical service directly from the public utility supplying electrical service
to the Building and shall permit the existing feeders, risers, wiring and other
electrical facilities serving the Premises to be used by Lessee for such purpose
to the extent that they are available, suitable and safe. Lessee shall, at its
own expense, install any necessary electrical meter equipment, panel boards,
feeders, risers, wiring and other conductor and equipment which may be required
to obtain electrical energy directly from the public utility supplying the same.
Lessor shall have no liability whatsoever to Lessee by reason of Lessor's
discontinuance of electrical service.
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(G) Lessor, at Lessee's expense, shall furnish and install all lamps
(including incandescent and fluorescent) starters and ballasts used in the
Premises.
(H) Following a determination of an increase or decrease in the Electric
Rent Inclusion Factor attributable to the furnishing of electrical energy to the
Premises by Lessor as set forth in this Section 24, Lessor and Lessee shall,
upon request of either party, execute, acknowledge and deliver to each other a
supplemental agreement in form satisfactory to Lessor reflecting such change in
the annualized Term Fixed Basic Rent and Monthly Installment of Term Fixed Basic
Rent, but any such change shall be effective whether or not such agreement is
entered into.
(I) In addition to payments of the Electric Rent Inclusion Factor, if
Lessee makes use of electric current on non-Business Days or after Building
Hours, then Lessee shall pay to Lessor, as Additional Rent, Lessor's cost of
supplying electrical current to the Premises at all such times when electrical
current is so used. Such charge shall be made on a per hour (or any portion
thereof) basis determined by the hourly cost of supplying electrical current to
the Premises or such portions of the Building as must be supplied to provide
electric current to the Premises; provided, however, that Lessee shall not be
required under this Section to pay for use of electrical current which shall
have previously been included in a survey of Lessee's use of electrical current
pursuant to Subsection 24(B) above.
(J) Notwithstanding anything contained herein to the contrary, Lessor
reserves the right, at Lessor's cost and expense, to install a separate meter to
measure electrical consumption to the Premises for lighting and equipment
purposes, in which event Lessee shall pay 107% of the meter charges based upon
the Electric Rates for said consumption in lieu of the amount determined
pursuant to Subsection 24(B) hereof, in which event Lessee's Term Fixed Basic
Rent shall be decreased by the charge for Electric Rent Inclusion Factor as of
the date of installation of the meter.
25. ADDITIONAL RENT. It is expressly agreed that Lessee will pay in
addition to the Term Fixed Basic Rent provided in Section 3 above, an Additional
Rent to cover Lessee's Percentage, as defined on the Reference Page, of the
increased cost to Lessor, for each of the categories enumerated herein, over the
"BASE PERIOD COSTS," as defined on the Reference Page, for 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,
Complex and Parcel, 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, Lessee's Percentage of all such excess
Operating Costs. Operating Costs shall include, by way of illustration and not
of limitation: personal property taxes; management fees; labor, including all
wages and salaries; social security taxes, and other taxes which may be levied
against Lessor upon such wages and salaries; employee benefits and payroll
taxes; accounting and legal fees; any sales, use or service taxes incurred in
connection with the operation of the Complex or Parcel; supplies; repairs and
maintenance; maintenance and service contracts; the cost of security and alarm
20
services; license permits and inspection fees; painting; wall and window
washing; laundry and towel service; tools and equipment (which are not required
to be capitalized for Federal income tax purposes); fire and other insurance;
the cost of any loss which is the responsibility of Lessor because of the
existence of commercially reasonable deductibles; trash removal; lawn care; snow
removal and all other items properly constituting direct operating costs
according to standard accounting practices (hereinafter collectively referred to
as the "OPERATING COSTS"). Lessor shall be entitled to amortize and include in
Operating Costs an allocable portion of the cost of capital improvement items,
including life safety systems, which are reasonably calculated to reduce
operating expenses or which are required under any governmental laws,
regulations or ordinances which were not applicable to the Building or Complex
or Parcel at the time it was constructed. All such costs shall be amortized over
the reasonable life of such improvements with interest at two (2%) percent over
the prime lending rate announced as such by Chase Manhattan Bank to its most
creditworthy borrowers on the unamortized amount in accordance with such
reasonable life and amortization schedules as shall be determined by Lessor in
accordance with generally accepted accounting principles. As used in this
Subsection 25(A), the Base Period Costs for Operating Costs shall be as defined
on the Reference Page. Any Operating Costs which under generally accepted
accounting principles are to be capitalized shall be capitalized by Lessor
hereunder and amortized over their useful lives.
(B) Fuel, Utilities and Electric Cost Escalation. If during the Lease Term
the utility and energy costs, including any fuel surcharges or adjustments with
respect thereto, incurred for water, sewer, other utilities and heating,
ventilating and air conditioning for the Building, Complex and Parcel to include
all leased and leasable areas (not separately billed or metered within the
Building) and Common Facilities electric, lighting, water, sewer and other
utilities for the Building, the Complex and Parcel (hereinafter "UTILITY AND
ENERGY COSTS") 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, Lessee's
Percentage of all such excess Utility and Energy Costs. Common Facilities
electric consumption shall be charged at the bulk rate at which Lessor purchases
electrical energy from the public utility supplying electrical service to the
Building. As used in this Subsection 25(B), the Base Utility and Energy Costs
shall be as defined on the Reference Page.
(C) Tax Escalation. If during the Lease Term the Real Estate Taxes for the
Building, the Complex and Parcel 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, Lessee's Percentage of all such excess
Real Estate Taxes.
As used in this Subsection 25(C), the words and terms which follow mean
and include the following:
(i) The Base Period Costs for "REAL ESTATE TAXES" shall be as
defined on the Reference Page.
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(ii) "REAL ESTATE TAXES" shall mean the property taxes and
assessments imposed upon the Building, the Complex and Parcel, or upon the Term
Fixed Basic Rent and Additional Rent, as such, payable by the 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 Complex 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, or in addition to, any tax
which would otherwise constitute a Real Estate Tax, such franchise, income or
profit tax shall be deemed to be a Real Estate Tax for the purposes hereof;
conversely, any additional real estate tax hereafter imposed in substitution
for, or in lieu of, any franchise, income or profit tax (which is not in
substitution for, or in lieu of, or in addition to, a Real Estate Tax as
hereinbefore provided) shall not be deemed a Real Estate Tax for the purposes
hereof.
Notwithstanding anything contained herein to the contrary, Lessee shall
assume and pay to Lessor in full at the time of paying the Term Fixed Basic
Rent, any excise, sales, use, gross receipts or other taxes (other than a net
income or excess profits tax) which may be imposed on or measured by such Term
Fixed Basic Rent or Additional Rent or may be imposed on Lessor or on account of
the letting or which Lessor may be required to pay or collect under any law now
in effect or hereafter enacted.
(D) Lease Year. As used in this Lease, Lease Year shall mean the twelve
(12) month period commencing on the Commencement Date and each twelve (12) month
period thereafter. Once the base 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 Percentage of the excess for
said period over the adjusted base with respect to each of the aforesaid
categories. Notwithstanding, anything contained herein to the contrary, once the
base costs are established, Lessor reserves the right to calendarize billing and
payment in order to establish operating consistency.
(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 the Lessee in writing of Lessee's Percentage, as defined on the
Reference Page, 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 Lease is Term is for less than twelve (12) months, and thereafter
the Lessee shall pay as Additional Rent, Lessee's Percentage 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 installments of
Monthly Fixed Basic Rent 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 installment of Monthly Fixed Basic Rent, all
subject to final adjustment at the expiration of each Lease Year as defined in
Subsection 25(D) hereof or proportionate part thereof, if the last period prior
to the Lease's termination is less than 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 said period shall be proportionately reduced to
correspond to the duration of said final period.
22
(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
reasonable times and upon prior written notice, 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, the
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 six (6) months after such
charge is finally established, and Lessee specifically waives any right to
dispute any such charge at the expiration of said six (6) month period.
(H) Occupancy Adjustment. If, with respect to Operating Cost Escalation,
as established in Subsection 25(A) hereof, and Utility and Energy Cost
Escalation, as established in Subsection 25(B) hereof, the Building is not
ninety-five (95%) percent occupied during the establishment of the respective
Base Period Costs, then the Base Period Costs incurred with respect to said
Operating Cost or Utility and Energy Cost shall be adjusted during any such
period so as to reflect ninety-five (95%) percent occupancy. Similarly, if,
during any Lease Year or proportionate part thereof subsequent to the
establishment of the respective Base Period Costs the Building is less than
ninety-five (95%) percent occupied, then the actual costs incurred for Operating
Cost and Utility and Energy Cost shall be increased during any such period to
reflect ninety-five (95%) percent occupancy so that at all times after the
establishment of the aforesaid Base Period Costs, the Utility and Energy Cost
and Operating Cost shall be actual costs, but in the event less than ninety-five
(95%) percent of the Building is occupied during all or part of the Lease Year
involved, the Utility and Energy Cost and Operating Cost shall not be less than
that which would have been incurred had ninety-five (95%) percent of the
Building been occupied. The aforesaid adjustment shall only be made with respect
to those items that are in fact affected by variations in occupancy levels. To
the extent any Operating Cost or Utility and Energy Cost is separately billed or
metered or paid for directly by any Building tenant, to include but not be
limited to Lessee, or for which Lessor receives reimbursements, said space shall
be considered vacant space for purposes of the aforesaid adjustment.
26. LESSEE'S ESTOPPEL. (A) 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
23
listing the instruments of modification; the dates to which the Monthly Fixed
Basic Rent and Additional Rent and charges have been paid; and, 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 26 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. Lessee hereby irrevocably appoints Lessor or if Lessor is
a trust, Lessor's beneficiary or agent, as attorney-in-fact for the Lessee with
full powers and authority to execute and deliver in the name of Lessee such
estoppel certificate if Lessee fails to deliver the same within such ten (10)
day period and such certificate as signed by Lessor, Lessor's beneficiary or
agent, as the case may be, shall be fully binding on Lessee, if Lessee fails to
deliver a contrary certificate within five (5) days after receipt by Lessee of a
copy of the certificate executed by Lessor, Lessor's beneficiary or agent, as
the case may be, on behalf of Lessee.
(B) Lessee's failure to deliver such statement within such time shall be
conclusive upon Lessee that: (i) this Lease is in full force and effect and not
modified except as Lessor may represent; (ii) not more than one (1) installment
of Monthly Fixed Basic Rent has been paid in advance; (iii) there are no such
defaults; and (iv) notices to Lessee shall be sent to Lessee's mailing address
as set forth in this Lease. Notwithstanding the presumptions of this Section,
Lessee shall not be relieved of its obligation to deliver said statement.
27. HOLDOVER TENANCY. If Lessee holds possession of the Premises after the
Term of this Lease, Lessee, at Lessor's option, shall become a tenant from month
to month under the provisions herein provided, but at a Monthly Fixed Basic Rent
of one hundred and fifty (150%) percent of the prior month's Monthly Fixed Basic
Rent, 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 by notice to Lessee given at least thirty (30) days prior to the intended
date of termination, 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. Lessee shall pay Term Fixed Basic Rent and Additional Rent until
such alterations and corrections as are required to be made by Lessee are made,
and until such additions and improvements as Lessee is entitled to remove have
been removed. Lessee shall also pay all damages sustained by Lessor from any
loss or liability resulting from such holding over and delay in surrender. The
time limitations described in this Section 27 shall not be subject to extension
for Force Majeure.
28. RIGHT TO SHOW PREMISES. Lessor may show the Premises to prospective
purchasers and mortgagees; and, during the twelve (12) months prior to
termination of this Lease, to prospective tenants, during Building Hours on
reasonable notice to Lessee.
29. "AS IS" CONDITION. Lessee has inspected the Premises, Building and
Complex, and is thoroughly acquainted with their respective conditions and
agrees to take same "AS IS". Lessee acknowledges that the taking of the Premises
by Lessee shall be conclusive evidence that the Premises, Building and Complex
were in good and satisfactory condition at the time possession of the Premises
was so taken.
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30. WAIVER OF TRIAL BY JURY. To the extent such waiver is permitted by
law, the parties waive trial by jury in any action or proceeding brought in
connection with this Lease or the Premises.
31. LATE CHARGE. Lessee recognizes that late payment of any Term Fixed
Basic Rent or Additional Rent or other sum due hereunder will result in
administrative expense to Lessor, the extent of which additional expense is
extremely difficult and economically impractical to ascertain. Lessee therefore
agrees that if Monthly Fixed Basic Rent or Additional Rent or any other sum is
due and payable pursuant to this Lease, and such amount remains due and unpaid
five (5) days after said amount is due, such amount shall be increased by a late
charge in an amount equal to the greater of: (a) Fifty and 00/100 ($50.00)
Dollars; or (b) a sum equal to five (5%) percent of the unpaid Monthly Fixed
Basic Rent or Additional Rent or other payment. The amount of the late charge to
be paid by Lessee shall be reassessed and added to Lessee's obligation for each
successive monthly period until paid. The provisions of this Section 31 in no
way relieve Lessee of the obligation to pay Term Fixed Basic Rent or Additional
Rent or other payment on or before the date on which they are due nor do the
terms of this Section 31 in any way affect Lessor's remedies pursuant to Section
14 in the event said Term Fixed Basic Rent or Additional Rent or other payment
is unpaid after date due.
32. INSURANCE.
(A) Lessee's Insurance.
(1) Lessee covenants and represents, said representation being
specifically designed to induce Lessor to execute this Lease, that during the
entire Term hereof, at its sole cost and expense, Lessee shall obtain, maintain
and keep in full force and effect the following insurance:
(a)"ALL RISK" property insurance against fire, theft,
vandalism, malicious mischief, sprinkler, leakage and such additional perils as
are now, or hereafter may be, included in a standard extended coverage
endorsement from time to time in general use in the State of New Jersey upon
property of every description and kind owned by Lessee or under Lessee's care,
custody or control and located in the Building, Complex or Parcel or for which
Lessee is legally liable or installed by or on behalf of Lessee, including by
way of example and not by way of limitation, furniture, fixtures, fittings,
installations and any other personal property in an amount equal to the full
replacement cost thereof.
(b) Commercial General Liability Insurance coverage to include
personal injury, bodily injury, broad form property damage, operations hazard,
owner's protective coverage, contractual liability, products and completed
operations liability naming Lessor and Lessor's mortgagee or trust deed holder
and ground lessors (if any) as additional named insureds in limits of not less
than One Million and 00/100 ($1,000,000.00) Dollars.
25
(c)Business interruption insurance in such amounts as will
reimburse Lessee for direct or indirect loss of earnings attributable to all
perils commonly insured against by prudent tenants or assumed by Lessee pursuant
to this Lease or attributable to prevention or denial of access to the Premises,
Building, Complex or Parcel as a result of such perils.
(d)Workers' Compensation insurance in form and amount as
required by law.
(e) Business auto liability covering owned, non-owned and
hired vehicles with a limit of not less than One Million and 00/100
($l,000,000.00) Dollars per accident.
(f) Any other form or forms of insurance or any increase in
the limits of any of the aforesaid enumerated coverages or other forms of
insurance as Lessor or the mortgagees or ground lessors (if any) of Lessor may
reasonably require from time to time if in the reasonable opinion of Lessor or
said mortgagees or ground lessors said coverage and/or limits become inadequate
or less than that commonly maintained by prudent tenants in similar buildings in
the area by tenants making similar uses.
(2) All insurance policies required pursuant to this Section 32
shall be taken out with insurers rated at least A7 by A.M. Best Company,
Oldwick, New Jersey, who are licensed to do business in the State and shall be
in form satisfactory from time to time to Lessor. A policy or certificate
evidencing such insurance together with a paid bill shall be delivered to Lessor
not less than fifteen (15) days prior to the commencement of the Term hereof.
Such insurance policy or certificate will provide an undertaking by the insurers
to notify Lessor and the mortgagees or ground lessors (if any) of Lessor in
writing not less than thirty (30) days prior to any material change, reduction
in coverage, cancellation, or other termination thereof. Should a certificate of
insurance initially be provided a policy shall be furnished by Lessee within
thirty (30) days of the Term's commencement.
(3) In the event of damage to or destruction of the Building and/or
Premises entitling Lessor or Lessee to terminate this Lease pursuant to Section
10 hereof, and if this Lease be so terminated, Lessee will immediately pay to
Lessor all of its insurance proceeds, if any, relating to the leasehold
improvements and alterations (but not Lessee's trade fixtures, equipment,
furniture or other personal property of Lessee in the Premises) which have
become Lessor's property on installation or would have become Lessor's property
at the Term's expiration or sooner termination. If the termination of the Lease,
at Lessor's election, is due to damage to the Building, and if the Premises have
not been so damaged, Lessee will deliver to Lessor, in accordance with the
provisions of this Lease, the improvements and alterations to the Premises which
have become an installation or would have become, at the Term's natural
expiration, Lessor's property.
(4) Lessee agrees that it will not keep or use or offer for sale (if
sales of goods is a permitted use pursuant to Section 4 hereof) in or upon the
Premises or within the Building, Complex or Parcel, any article which may be
prohibited by any insurance policy in force from time to time covering the
26
Building, Complex or Parcel. In the event Lessee's occupancy or conduct of
business in or on the Premises, Building, Complex or Parcel, whether or not
Lessor has consented to the same, results in any increase in premiums for
insurance carried from time to time by Lessor with respect to the Building,
Complex or Parcel, Lessee shall pay such increase in premiums as Additional Rent
within ten (10) days after being billed therefor by Lessor. In determining
whether increased premiums are a result of Lessee's use and occupancy, a
schedule issued by the organization computing the insurance rate on the
Building, Complex or Parcel showing the components of such rate shall be
conclusive evidence of the items and charges making up such rate. Lessee shall
promptly comply with all reasonable requirements of the insurance authority or
of any insurer now or hereafter in effect relating to the Premises Building,
Complex or Parcel.
(5) If any insurance policy carried by either party as required by
this Section 32 shall be cancelled or cancellation shall be threatened or the
coverage thereunder reduced or threatened to be reduced in any way by reason of
the use or occupation of the Premises, Building, Complex or Parcel or any part
thereof by Lessee or any assignee or sublessee of Lessee or anyone permitted by
Lessee to be upon the Premises, and if Lessee fails to remedy the conditions
giving rise to said cancellation or threatened cancellation or reduction in
coverage on or before the earlier of (i) forty-eight (48) hours after notice
thereof from Lessor, or (ii) prior to said cancellation or reduction becoming
effective, Lessee shall be in default hereunder and Lessor shall have all of the
remedies available to Lessor pursuant to this Lease.
(B) Lessor's Insurance. Lessor covenants and agrees that throughout
the Term it will insure the Building, excluding any property with respect to
which Lessee is obligated to insure pursuant to Subsection 32(A) (1) (a) above,
against damage by fire and standard extended coverage perils and public
liability insurance in such reasonable amounts with such reasonable deductibles
as required by any mortgagee or ground lessor, or if none, as would be carried
by a prudent owner of a similar building in the area. In addition, Lessor shall
maintain and keep in force and effect during the Term, rental income insurance
insuring Lessor against abatement or loss of Term Fixed Basic Rent, including
items of Additional Rent, in case of fire or other casualty similarly insured
against, in an amount at least equal to the Term Fixed Basic Rent and Additional
Rent during, at the minimum, one (1) Lease Year hereunder. Lessor may, but shall
not be obligated to, take out and carry any other forms of insurance as it or
the mortgagee or ground lessor (if any) of Lessor may require or reasonably
determine available. All insurance carried by Lessor on the Building, Complex or
Parcel shall be included as an Operating Cost pursuant to Subsection 25(A).
Notwithstanding its inclusion as an Operating Cost or any contribution by Lessee
to the cost of insurance premiums by Lessee as provided herein, Lessee
acknowledges that it has no right to receive any proceeds from any such
insurance policies carried by Lessor. Lessee further acknowledges that the
exculpatory provisions of this Lease as set forth in Section 39 and the
provisions of this Section 32 as to Lessee's insurance are designed to insure
adequate coverage as to Lessee's property and business without regard to fault
and avoid Lessor obtaining similar coverage for said loss for its negligence or
that of its agents, servants or employees which could result in additional costs
includable as part of Operating Costs which are payable by Lessee. Lessor will
not carry insurance of any kind on Lessee's furniture or furnishings, or on any
fixtures, equipment, appurtenances or improvements of Lessee under this Lease
and Lessor shall not be obligated to repair any damage thereto or replace the
same.
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(C) Waiver of Subrogation. All policies of fire, extended coverage or
similar casualty insurance, which either party obtains in connection with the
Premises, Building, Complex or Parcel shall include a clause or endorsement
denying the insurer any rights of subrogation against the other party (i.e.
Lessor or Lessee) for all perils covered by said policy. Should such waiver not
be available, then the policy for which the waiver is not available must name
the other party as an additional named insured affording it the same coverage as
that provided the party obtaining said coverage.
33. 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).
34. QUIET ENJOYMENT. Lessor covenants that if, and so long as, Lessee pays
the Term Fixed Basic Rent and any Additional Rent as herein provided, and
performs the covenants hereof, Lessor shall do nothing to affect Lessee's right
to peaceably and quietly have, hold and enjoy the Premises for the Term herein
mentioned, subject to the provisions of this Lease and to any ground lease,
mortgage or deed of trust to which this Lease shall be subordinate.
35. INDEMNITY. Lessee shall indemnify and save harmless Lessor and its
agents against and from (a) any and all claims (i) arising from (x) the conduct
or management by Lessee, its subtenants, licensees, its or their employees,
agents, contractors or invitees on the Demised Premises or of any business
therein, or (y) any work or thing whatsoever done, or any condition created
(other than by Lessor for Lessor's or Lessee's account) in or about the Demised
Premises during the Term of this Lease or during the period of time, if any,
prior to the Commencement Date that Lessee may have been given access to the
Demised Premises, or (ii) arising from any negligent or otherwise wrongful act
or omission of Lessee or any of its subtenants or licensees or its or their
employees, agents, contractors or invitees, and (b) all costs, expenses and
liabilities incurred in or in connection with each such claim or action or
proceeding brought thereon. In case any action or proceeding be brought against
Lessor by reason of any such claim, Lessee, upon notice from Lessor, shall
resist and defend such action or proceeding. The provisions of this Section 35
shall survive the expiration or sooner termination of this Lease.
36. RULES OF CONSTRUCTION/APPLICABLE LAW. Any table of contents, captions,
headings and titles in this Lease are solely for convenience of reference and
shall not affect its interpretation. This Lease shall be construed without
regard to any presumption or other rule requiring construction against the party
causing this Lease to be drafted. If any words or phrases in this Lease shall
have been stricken out or otherwise eliminated, whether or not any other words
or phrases have been added, this Lease shall be construed as if the words or
phrases so stricken out or otherwise eliminated were never included in this
Lease no implication or inference shall be drawn from the fact that said words
or phrases were so stricken out or otherwise eliminated. Each covenant,
agreement, obligation or other provision of this Lease on Lessee's part to be
performed, shall be deemed and construed as a separate and independent covenant
of Lessee, not dependent on any other provision of this Lease. All terms and
words used in this Lease, regardless of the number or gender in which they are
used, shall be deemed to include any other number and any other gender as the
context may require. This Lease shall be governed and construed in accordance
with the laws of the State of New Jersey (excluding New Jersey conflict of laws)
and by the State courts of New Jersey. If any of the provisions of this Lease,
or the application thereof to any person or circumstances, shall to any extent
be invalid or unenforceable, the remainder of this Lease, or the application of
such provision or provisions to persons or circumstances other than those as to
whom or which it is held invalid or unenforceable, shall not be affected
thereby, and every provision of this Lease shall be valid and enforceable to the
fullest extent permitted by law.
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37. 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, the Lessor named herein shall be and hereby is
entirely freed and relieved of all covenants and obligations of Lessor hereunder
accruing thereafter, and it shall be deemed without further agreement that the
purchaser, the term lessee of the Building, or the mortgagee in possession has
assumed and agreed to carry out any and all covenants and obligations of Lessor
hereunder.
38. PARKING. Lessor agrees that Lessee, its employees, agents, permitted
subtenants, customers and invitees shall be entitled, in the aggregate, to the
use of those parking spaces as enumerated on the Reference Page, from time to
time, as, when and where available in the parking areas appurtenant to the
Building. Lessor hereby expressly reserves the right, from time to time, to
change the area, level, location and arrangement of the parking areas; to build
multi-story parking facilities; to restrict parking by tenants and to the
occupants of the Building and their employees, agents, permitted subtenants,
customers and invitees; to enforce parking charges (by operation of meters or
otherwise) and to close temporarily all or any portion of the parking areas or
other common areas for the purpose of making repairs or changes thereto and to
discourage non-customer parking. If any vehicle of Lessee, or of any subtenant,
licensee, or concessionaire, or of their respective officers, agents or
employees, is parked in any part of the Common Facilities other than the
employee parking area(s) designated therefor by Lessor, Lessee shall pay to
Lessor such reasonable penalty as may be fixed by Lessor from time to time. All
amounts due under the provisions of this Section shall be deemed to be
Additional Rent. Lessee agrees promptly to execute Lessor's standard parking
agreement if, as and when promulgated by Lessor for use in connection with the
Building, provided that Lessee shall have been provided with a copy of such
agreement. Notwithstanding anything contained herein to the contrary, it is
understood and agreed that a gate-controlled area is utilized for covered
parking spaces. The spaces within said covered area shall not be specifically
assigned on an individual basis and those spaces enumerated on the Reference
Page as being covered shall be undercover but not specifically earmarked for
Lessee, said spaces to be available on a first come first serve basis to all
those entitled to covered spaces who have been assigned spaces within said area.
The total spaces available within said area shall equal the total number of
people with access to said area. Nothing contained herein shall be deemed to
impose any obligation on Lessor to police the parking area.
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39. LESSOR'S EXCULPATION. Lessor shall not be liable to Lessee for any
loss suffered by Lessee under any circumstances, including, but not limited to
(i) that arising from the negligence of Lessor, its agents, servants, invitees,
contractors or subcontractors, or from defects, errors or omissions in the
construction or design of the Premises and/or the Building and/or the Complex
and/or the Parcel including the structural and nonstructural portions thereof;
or (ii) for loss of or injury to Lessee or to Lessee's property or that for
which Lessee is legally liable from any cause whatsoever, including but not
limited to theft or burglary; or (iii) for that which results from or is
incidental to the furnishing of or failure to furnish or the interruption in
connection with the furnishing of any service which Lessor is obligated to
furnish pursuant to this Lease; or (iv) for that which results from any
inspection, repair, alteration or addition or the failure thereof undertaken or
failed to be undertaken by Lessor; or (v) for any interruption to Lessee's
business, however occurring. The aforesaid exculpatory Section is to induce the
Lessor, in its judgment, to avoid or minimize covering risks which are better
quantified and covered by Lessee either through insurance (or self-insurance or
combinations thereof if specifically permitted pursuant to this Lease), thereby
permitting potential cost savings in connection with the Operating Costs borne
by Lessee pursuant to Section 25.
40. COMMISSION. Lessee represents and warrants that no broker was involved
in negotiating and bringing about this Lease and Lessee further represents and
warrants to the Lessor that no broker brought about this transaction, and Lessee
agrees to indemnify and hold Lessor harmless from any and all claims of any
brokers arising out of or in connection with the negotiations of or the entering
into this Lease by Lessee and Lessor. In no event shall Lessor's mortgagee(s)
have any obligation to any broker involved in this transaction.
41. RECORDATION. Lessee shall not record this Lease or a short form
memorandum hereof without the prior written consent of Lessor. If Lessee does
record this Lease or a short form memorandum without the prior written consent
of Lessor, it shall be considered an incurable default under the Lease entitling
the Lessor to terminate the Lessee's occupancy. Lessee hereby irrevocably
appoints Lessor as Lessee's attorney-in-fact to execute and file a termination
of any such memorandum.
42. 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.
43. DEFINITIONS. (A) Affiliate. Affiliate shall mean any corporation
related to Lessee as a parent, subsidiary or brother-sister corporation so that
such corporation and such party or such corporation and such party and other
corporations constitute a controlled group as determined under Section 1563 of
the Internal Revenue Code of 1986, as amended and as elaborated by the Treasury
Regulations promulgated thereunder or any business entity in which Lessee has
more than a fifty (50%) percent interest.
(B) Business Days and Building Hours. As used in this Lease, the "BUSINESS
DAYS" and the "BUILDING HOURS" shall be Monday through Friday, 8:00 a.m. to 6:00
p.m., and on Saturdays from 8:00 a.m. to 1:00 p.m., excluding those Federal
and/or State holidays observed by the employees of Lessor, except that Common
Facilities, lighting in the Building, the Complex and Parcel shall be maintained
for such additional hours as, in Lessor's sole judgment, is necessary or
desirable to insure proper operation of the Building, the Complex and Parcel.
Notwithstanding the foregoing, Lessee shall be permitted access to the Building
and Premises twenty-four (24) hours a day, three hundred sixty-five (365) days a
year.
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(C) Common Facilities. Common Facilities shall include, by way of example
and not by way of limitation, the parking areas; ingress and egress areas to the
Complex; lobby; elevator(s); public hallways; public lavatories, all other
general Building or Complex 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. Lessee's use of those Common
Facilities not open to all tenants is subject to Lessor's consent which may be
denied for any reason. Lessor may at any time close temporarily any of the
Common Facilities to make repairs or changes therein or to effect construction,
repairs or changes within the Building, Complex or Parcel, or to discourage
non-tenant parking or to prevent the dedication of the same, and may do such
other acts in and to any of 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.
(D) Force Majeure. Force Majeure shall mean and include those situations
beyond either party's control, including by way of example and not by way of
limitation, acts of God; accidents; repairs; strikes; shortages of labor,
supplies or materials; inclement weather; or, where applicable, the passage of
time while waiting for an adjustment of insurance proceeds. 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 Term Fixed Basic
Rent or Additional Rent and except as to the time periods set forth in Section
27, 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.
(E) Lessee's Percentage. The parties agree that Lessee's Percentage, as
defined on the Reference Page, 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, as 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 Complex (or additional buildings that may be constructed within the
Parcel), as the denominator, measured outside wall to outside wall less five
(5%) percent vacancy allowance of the Complex. Lessor shall have the right to
make changes or revisions in the Common Facilities of the Building or Complex so
as to provide additional leasing area. Lessor shall also have the right to
construct additional buildings in the Parcel for such purposes as Lessor may
deem appropriate and subdivide the lands for that purpose if necessary, and upon
so doing, the Parcel shall become the subdivided lot on which the Building in
which the Demised Premises is located. If any service provided for in Subsection
25(A) or any utility provided for in Subsection 25(B) is separately billed or
separately metered within the Building or within the Complex, then the square
footage so billed or metered shall be deemed vacant and if applicable subject to
the Occupancy Adjustment set forth in Subsection 25(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 tenant Building proportionate
shares or complex proportionate shares may be equal to, less than or greater
than one hundred (100%) percent.
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44. LEASE COMMENCEMENT. Notwithstanding anything contained herein to the
contrary, if Lessor, for any reason whatsoever, including Lessor's negligence,
cannot deliver possession of the Premises to Lessee at the commencement of the
agreed Term as set forth in Section 2, this Lease shall not be void or voidable,
nor shall Lessor be liable to Lessee for any loss or damage resulting therefrom,
but in that event, the Lease Term shall be for the full Term as specified above
to commence from and after the date Lessor shall have delivered possession of
the Premises to Lessee (herein the "COMMENCEMENT DATE") and to terminate
midnight of the Termination Date, and if requested by Lessor, Lessor and Lessee
shall, by a writing signed by the parties, ratify and confirm said commencement
and termination dates. Nothing contained herein shall be deemed to modify the
commencement of the Lease Term as set forth in Section 2 and Lessee's
obligations hereunder if Lessor is unable to deliver the Demised Premises on the
Commencement Date by reason of Lessee's failure to comply with the requirements
of Subsection 29(B).
45. NOTICES. Any notice by either party to the other shall be in writing
and shall be deemed to have been duly given only if (a) delivered personally or
(b) sent by registered mail or certified mail in a postpaid envelope or by
regulated carrier service with return receipt or (c) sent by nationally
recognized overnight courier service such as Federal Express, addressed if to
Lessee, at the above-described Building; if to Lessor, at Lessor's address as
set forth above, with copy to Meister Seelig & Fein LLP, Two Grand Central
Tower, 140 East 45th Street, 19th Floor, New York, New York 10017, Attention:
Stephen B. Meister, Esq.; 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 upon its receipt or rejection as evidenced by a bill of lading
or return receipt or upon delivery if personally served.
46. ACCORD AND SATISFACTION. No payment by Lessee or receipt by Lessor of
a lesser amount than the Monthly Fixed Basic Rent and Additional Rent payable
hereunder shall be deemed to be other than payment on account of the earliest
stipulated Monthly Fixed Basic Rent and Additional Rent, nor shall any
endorsement or statement on any check or any letter accompanying any check or
payment for Fixed Basic Rent or Additional Rent be deemed an accord and
satisfaction, and Lessor may accept such check or payment without prejudice to
Lessors s right to recover the balance of such Fixed Basic Rent and Additional
Rent or pursue any other remedy provided herein or by law.
47. EFFECT OF WAIVERS. No failure by Lessor to insist upon the strict
performance of any covenant, agreement, term or condition of this Lease, or to
exercise any right or remedy consequent upon a breach thereof, and no acceptance
of full or partial Monthly Fixed Basic Rent or Additional Rent during the
continuance of any such breach, shall constitute a waiver of any such breach or
of such covenant, agreement, term or condition. No consent or waiver, express or
implied, by Lessor to or of any breach of any covenant, condition or duty of
Lessee shall be construed as a consent or waiver to or of any other breach of
the same or any other covenant, condition or duty, unless in writing signed by
Lessor.
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48. LESSOR'S RESERVED RIGHT. Lessor and Lessee acknowledge that the
Premises are in a Building and Complex which are not open to the general public.
Access to the Building or Complex 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 Complex or make any
other change in operating conditions to restrict pedestrian, vehicular or
delivery ingress and egress to a particular location.
49. RELOCATION BY LESSEE. Lessor hereby reserves the right, at its sole
expense and on at least ninety (90) days' prior written notice, to require
Lessee to move from the Premises to other space within the Complex of comparable
size and decor in order to permit Lessor to consolidate the space leased to
Lessee with any other space leased or to be leased provided, however, that in
the event of receipt of any such notice, Lessee, by written notice to Lessor,
may elect not to move to the other space and in lieu thereof terminate this
Lease effective sixty (60) days after the date of the original notice of
relocation by Lessor. In the event Lessee elects to terminate as aforesaid,
Lessor shall have the option to withdraw its exercise of the relocation option.
In the event of any such relocation, Lessor will pay all expenses of preparing
and decorating the new premises so that they will be substantially similar to
the Premises from which Lessee is moving and Lessor will also pay the expense of
moving Lessee's furniture and equipment to the new premises. In such event, this
Lease and each and all of the terms, covenants and conditions hereof, shall
remain in full force and effect and thereupon be deemed applicable to such new
space except that the description of the Premises shall be revised and if
applicable Lessee's Percentage shall likewise be revised.
50. 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 and irrevocably 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.
51. NUMBER AND GENDER. The terms "LESSOR" and "LESSEE" or any pronoun used
in place thereof shall indicate and include Landlord and Tenant, the masculine
or feminine, the singular or plural number, individuals, firms or corporations,
and their and each of their respective successors, executors, administrators and
permitted assigns, according to the context hereof. In any case, where this
Lease is signed by more than one person, the obligations hereunder shall be
joint and several.
52. LESSEE RESTRICTION. Lessee acknowledges that it has been advised by
Lessor that Lessor shall be precluded from permitting leases in the Building or
Complex to any cafeteria/restaurant operation including take-out service, coffee
wagon service, delivery service and/or catering service, and Lessee agrees that
it shall not use or suffer the use of all or any of the Premises for any such
restricted uses.
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53. GOVERNMENT REQUIREMENTS. In the event of the imposition of Federal,
State, or local governmental control, rules, regulations, or restrictions on the
use or consumption of energy or other utilities or with respect to any other
aspect of this Lease during the Term, both Lessor and Lessee shall be bound
thereby. In the event of a difference in interpretation of any governmental
control, rule, regulation or restriction between Lessor and Lessee, the
interpretation of Lessor shall prevail, and Lessor shall have the right to
enforce compliance, including the right of entry into the Premises to effect
compliance.
54. LIMITATION OF LESSOR'S LIABILITY. Notwithstanding anything to the
contrary provided in this Lease, it 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. A deficit capital account of any portion in
Lessor shall not be deemed an asset or property of Lessor. The foregoing
limitation of liability shall be noted in any judgment secured against Lessor
and in the judgment index.
55. 24-HOUR ACCESS. Lessee shall be entitled to 24-hour, seven (7) day a
week access to the Premises, but this shall not be construed as authorization to
make use of the Building services beyond the Building Hours without reimbursing
Lessor for the cost thereof, and shall be subject to any governmental or
municipal laws and regulations with respect to said 24-hour, seven (7) day a
week access. Lessee shall obtain access by means of a key or other similar means
to be provided by Lessor to afford access to the Building.
56. RENT CONCESSION. Provided Lessee is not in default and notwithstanding
anything contained herein to the contrary, Lessee shall be entitled to a Term
Fixed Basic Rent abatement in the amount of Twenty Three Thousand Four Hundred
Fifty Four and 17/100 ($23,454.17) Dollars per month, or a proportionate part
thereof in the event the Lease commences on a day other than the first day of
the month, up to an aggregate amount of Seventy Thousand Three Hundred Sixty Two
and 51/100 ($70,362.51) Dollars, said concession to be applied against the
installments of Monthly Fixed Basic Rent due pursuant to this Lease for the
second (2nd), third (3rd) and fourth (4th ) months of the Term (herein the
"Concession Period"). The entire Fixed Basic Rent otherwise due and payable
during the Concession Period shall become immediately due and payable to the
Lessor upon the occurrence of an event of default by Lessee under the Lease.
[SIGNATURE PAGE TO FOLLOW]
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IN WITNESS WHEREOF, the parties hereto have hereunto set forth their hands
and seals the day and year first above written.
LESSEE: LESSOR:
GOAMERICA COMMUNICATIONS CORP. STELLAR CONTINENTAL LLC
By: Stellar Capital Investors, LLC
Its Manager
By: By:
------------------------------- -------------------------------
Name: Name:
Its: Its:
35
EXHIBIT A
PREMISES
[TO BE SUPPLIED BY LESSOR]
EXHIBIT B
RULES AND REGULATIONS
EXHIBIT B TO LEASE DATED THE ____ DAY OF JULY, 2004 BETWEEN STELLAR
CONTINENTAL LLC, a Delaware limited liability company with an office at 156
William Street, New York, New York 10038 (hereinafter called "LESSOR"), and
GOAMERICA COMMUNICATIONS CORP., a corporation whose address is 401 Hackensack
Avenue, Hackensack, New Jersey 07601 (hereinafter called "LESSEE").
1. No sign, placard, picture, advertisement, name or notice shall be
installed or displayed in any part of the outside or inside of the Building if
visible from a public area without prior written consent of the Lessor. Lessor
shall have the right to remove, at Lessee's expense and without notice, any sign
installed or displayed in violation of this rule. All approved signs or
lettering in public corridors shall be inscribed or affixed at the expense of
Lessee by a person or vendor chosen by Lessor and in conformance with the
Building standard signage program. In addition, Lessor reserves the right to
change from time to time the format of the signs or lettering and to require
previously approved signs or lettering to be appropriately altered. Lessor
agrees to install, at Lessee's sole cost and expense, Building standard signage
identifying (i) Lessee's name on or adjacent to the door to Lessee's Premises,
and (ii) Lessee's location on the Building floor occupied by Lessee.
2. Lessee shall use and keep in place the Building standard window
covering. Lessee shall not place anything or allow anything to be placed against
or near any doors or windows which may appear unsightly, in the opinion of the
Lessor, from outside the Premises.
3. Lessee shall not obstruct any sidewalks, halls, passages, exits,
entrances, elevators, escalators or stairways of the Building. The halls,
passages, exits, entrances, shopping malls, elevators, escalators and stairways
are not for the general public, and Lessor shall in all cases retain the right
to control and prevent access thereto of all persons whose presence in the
judgment of Lessor would be prejudicial to the safety, character, reputation and
interests of the Building and its tenants. However, nothing herein contained
shall be construed to prevent such access to persons with whom any tenant
normally deals in the ordinary course of its business, unless such persons are
engaged in illegal activities. No tenant and no employee or invitee of any
tenant shall go upon the roof of the Building.
4. The directory of the Building will be provided exclusively for the
display of the name and location of tenants only and Lessor reserves the right
to exclude any other names therefrom. No more than two entries on the directory
located in the Building lobby and no more than one entry on the directory
located in the Building lower lobby designating Lessee shall be installed, at
Lessee's sole cost and expense.
5. All cleaning services for the Premises shall be arranged exclusively
through the Lessor. Lessee shall not cause any unnecessary labor or service by
carelessness or indifference to the good order and cleanliness of the Premises,
however occurring
6. Lessor will furnish Lessee free of charge with two keys to each door
lock in the Premises. Lessor may make a reasonable charge for any additional
keys. Lessee shall not make or have made additional keys, and Lessee shall not
alter any lock or install a new or additional locks or bolt on any door of its
Premises. Lessee, upon the termination of its tenancy, shall deliver to Lessor
the keys of all doors which have been furnished to Lessee, and in the event of
loss of any keys so furnished, shall pay Lessor therefor.
7. If Lessee requires telegraphic, telephonic, burglar alarm or similar
services, it shall first obtain, and comply with, Lessor's instructions for
their installation.
8. No equipment, materials, furniture, packages, supplies, or other
property will be received in the Building or carried in the elevators except
between such hours and in such elevators as may be designated by Lessor.
Furniture, equipment or supplies shall be moved in and out of the Building only
during such hours, and in such manner, and by vendors designated by Lessor.
9. Lessee shall not place a load upon any floor which exceeds the load per
square foot which such floor was designed to carry and which is allowed by law.
Lessor through Lessor's structural engineer, whose fee shall be paid for by
Lessor, shall have the right to prescribe the weight, size and position of all
equipment, materials, furniture or other property brought into the Building.
Heavy objects shall stand on such platforms as determined by Lessor to be
necessary to properly distribute weight. Business machines and mechanical
equipment belonging to Lessee which cause noise or vibration that may be
transmitted to the structure of the Building or to any space therein to such a
degree as to be objectionable to Lessor or to any tenants shall be placed and
maintained by Lessee, at Lessee's expense, on vibration eliminators or other
devices sufficient to eliminate noise or vibration. The persons employed to move
such equipment in or out of the Building must be acceptable to Lessor. Lessee
will be responsible for loss of, or damage done to the Building by maintaining
or moving such equipment or other property.
10. Lessee shall not use any method of heating or air conditioning such as
space heaters or fans other than that supplied by Lessor. Lessee shall not waste
electricity, water or air conditioning. Lessee shall keep corridor doors closed.
11. Lessor reserves the right to exclude from the Building during
non-Building Hours as defined by Lessor any person unless that person has a
Building pass issued by Lessor at Lessee's written request. Lessee shall be
responsible for all persons for who it requests passes and shall be liable to
Lessor for all acts of such persons. Lessor shall not be liable for damages for
any error with regard to the admission to or exclusion from the Building of any
person.
12. Lessee shall close and lock the doors of its Premises and entirely
shut all water faucets or other water apparatus before Lessee and its employees
leave the Premises. Lessee shall be responsible for any damage or injuries
sustained by other tenants or occupants of the Building or by Lessor for
noncompliance with this rule.
13. The toilet rooms, toilets, urinals, wash bowls and other apparatus
shall not be used for any purpose other than that for which they were
constructed. No foreign substance of any kind whatsoever shall be thrown
therein, and the expense of any breakage, stoppage or damage resulting from the
violation of this rule shall be borne by Lessee who, or whose employees or
invitees, shall have caused it.
14. Lessee shall not install any radio or television antenna, loudspeaker
or other device on the roof or exterior walls of the Building. Lessee shall not
interfere with radio or television broadcasting or reception from or in the
Building elsewhere.
15. Except as approved by Lessor, Lessee shall not mark, drive nails,
screw or drill into partitions, woodwork or plaster or in any way deface the
Premises. Lessee shall not cut or bore holes for wires. Lessee shall not affix
any floor covering to the floor of the Premises in any manner except as approved
by Lessor. Lessee shall repair any damage resulting from noncompliance with this
rule.
16. Lessee shall not install, maintain or operate upon the Premises any
vending machines or video game machines.
17. Lessee shall store all its trash and garbage within its Premises.
Lessee shall not place in any trash box or receptacle any material which cannot
be disposed of in the ordinary and customary manner of trash and garbage
disposal. All garbage and refuse disposal shall be made in accordance with
directions issued from time to time by Lessor.
18. No cooking shall be done or permitted by any Lessee in the Premises, except
that use of Underwriters' Laboratory approved equipment for brewing coffee, tea,
hot chocolate and similar beverages shall be permitted, provided that such
equipment and use is in accordance with all applicable federal, state and city
laws, codes, ordinances, rules and regulations.
19. Lessee shall not use in the Building any hand trucks except those
equipped with the rubber tires and side guards or such other material-handling
equipment as Lessor may approve. Lessee shall not bring any other vehicles of
any kind into the Building.
20. Lessee shall not use the name of the Building in connection with or in
promoting or advertising the business of Lessee except as Lessee's address, or
in any way impair the Building's reputation.
21. Lessee shall pay on demand the cost of replacement of any glass doors
broken in or on the perimeter of the Premises during the continuance of the
Lease, unless the glass shall be broken by Lessor, its employees or agents.
22. The requirements of Lessee will be attended to only upon appropriate
application to the office of the Building by an authorized individual. Employees
of Lessor shall not perform any work or do anything outside of their duties
unless under instructions from Lessor.
23. Lessor may waive any one or more of these Rules and Regulations for
the benefit of any particular tenant or tenants, but no such waiver by Lessor
shall be construed as a waiver of such Rules and Regulations in favor of any
other tenant or tenants, nor prevent Lessor from thereafter enforcing any such
Rules and Regulations.
24. No animals, vehicles or bicycles shall be allowed in the Building,
except animals such as seeing-eye dogs, etc., as may be reasonably required to
accommodate the needs of individuals with disabilities.
25. The use of oil, gas or flammable liquids for heating, lighting or
cleaning or any other purpose is expressly prohibited. Explosives or other
articles deemed hazardous shall not be brought into the Building.
26. Canvassing, soliciting and peddling in or about the Building is
expressly prohibited.
27. Lessee shall not permit any portion of the Premises to be used as an
office for public stenographer or typist, or as a barber or manicure shop, or as
an employment bureau. Lessee shall not advertise for laborers giving an address
at the Building.
28. Lessee shall not purchase or permit the purchase of spring water, ice,
food, beverage, cleaning towels or other like services, from any person not
approved by Lessor.
29. No space shall be used for banking, lodging, manufacturing, storage of
or sale of merchandise, goods or property of any kind or any other business that
involves patronage from the general public.
30. For the benefit of all tenants, Lessor shall have the right to
reasonably limit elevator use during peak use hours.
31. The Rules and Regulations are in addition to, and shall not be
construed to in any way modify or amend, in whole or in part, the terms,
covenants, agreements and conditions of any lease of any premises in the
Building.
EXHIBIT C
CLEANING SPECIFICATIONS
I. GENERAL
a. All cleaning personnel must enter and exit the complex through the
security command post, sign-in and be issued a Continental Plaza
property badge (in addition to a picture ID badge, which will be
issued by the cleaning company).
b. The day porters must wear uniforms and ID badges at all times.
c. The night supervisors should keep track of all items that are
malfunctioning, such as soap dispensers, sanitary napkin dispensers,
clogged toilet bowls, etc. and notice the Management Office the next
day.
d. The night supervisor should be at Continental Plaza by 4:30 PM to
pick-up all messages from the Management Office for that particular
day.
e. All equipment should be in good working order and kept in a
designated area.
f. There should be adequate supplies on-site at all times.
g. The day porters and supervisor must be able to understand English
and able to communicate in a respectable fashion.
h. Clean all areas of the building interior, including entrance
lobbies, corridors, loading docks, garages, stairwells, lavatories
and elevators. Not included are a stand-alone restaurant (407
Hackensack Avenue) and elevator shafts.
i. Employees assigned to the building shall be carefully interviewed,
screened and bonded. They shall be neat and clean in appearance
wearing a uniform and properly identified with a picture ID badge.
j. Every week, a copy of each employee's time card will be given to
Stellar Capital Management.
k. Employees shall abide by all building regulations and safety rules.
l. Employees shall not eat, drink or smoke on duty. They shall not
disturb paper on desks, open drawers or cabinets, use telephones,
televisions, walkmans or radios.
m. Competent supervisory personnel shall be employed and they will, at
a minimum, have completed a supervisory training course.
n. The supervisor will report to Stellar Capital Management any
maintenance conditions such as leaky faucets, stopped toilets and
drains, broken fixtures, etc. The supervisor will also report any
unusual happenings in the building, which are noticed or called to
his/her attention by the contractor's employees.
o. Necessary, appropriate tested and approved machinery and cleaning
supplies, for the satisfactory performance of services will be
provided. Products and equipment shall be in compliance with OSHA
regulations.
p. Stellar Capital Management shall assign sufficient space on the
premises for storage of cleaning materials and machinery. Utilities
will be provided without charge.
q. A logbook will be maintained in the building in which a record shall
be made of any events requiring Stellar Capital Management or the
Contractor's attention. The supervisor will check the logbook daily;
any clarifications will be cleared up at that time.
r. All cleaning in a tenant's demised premises will be performed behind
locked doors.
s. Stellar Capital Management may require the immediate dismissal of
any Contractor's employee who is objectionable.
t. Upon completion of work, the Contractor will leave all slop sinks
and equipment storage areas in neat and orderly condition, with all
unnecessary lights out and all doors locked.
u. Monthly inspections of the building shall be performed by a
representative of the Contractor's management staff with Stellar
Capital Management's representative. This is in addition to the
regular nightly inspection to be performed by the supervisor.
v. Contractor shall report all mechanical deficiencies and/or damage to
a Stellar Capital Management representative on-site.
w. Place and maintain doormats during hazardous conditions.
x. Carpets will be spot cleaned as deemed necessary by Stellar Capital
Management.
y. The building workweek is Monday through Friday, normally between
5:30 PM and 10:30 PM. Four hours on Saturday and four hours on
Sunday will also be required. Please breakout weekend hours separate
from normal Monday through Friday cleaning.
II. ENTRANCE AND LOBBY -- DAILY
a. Entrance lobbies will be thoroughly cleaned.
b. Lobby glass will be cleaned and dusted.
c. Directory glass will be damp cleaned and wiped. d. Lobby walls will
be dusted and kept free from finger marks and smudges.
e. Floors and entrances are to be vacuumed, dusted, mopped and damp
mopped daily. Floors and entrances are to be buffed and refinished
to maintain a clean and glossy appearance at all times.
III. ELEVATORS -- DAILY
a. All elevators will be vacuumed. b. All stainless steel and metal
will be cleaned. c. All elevator tracks will be vacuumed. d.
Elevator button panels and elevator doors will be cleaned. e.
Ceiling, overhead Plexiglas and/or special light fixtures will be
cleaned.
IV. OFFICES -- DAILY
a. DUSTING - All furniture, office equipment and appliances,
windowsills, etc., will be dusted with a treated cloth or static
duster. This shall include all horizontal surfaces up to 7 feet
high. Desks and tables not cleared of paper or work materials will
only be dusted where desk is exposed. Telephones will be damp wiped.
b. DUST MOPPING - After furniture dusting is completed, all
non-carpeted floor areas will be dust mopped with a treated dust mop
with special attention being given to areas under desks and
furniture to prevent accumulation of dust and dirt.
c. VACUUMING - All rugs and carpets in office areas, as well as
corridors, are to be vacuumed daily in all traffic areas.
d. WASTE CANS and ASHTRAYS - Waste cans and ashtrays will be emptied
and wiped daily. Plastic liners, where used, will be changed as
needed. Waste not in the cans will not be removed unless clearly
marked TRASH.
e. SPOT CLEANING CARPETS - All carpets will be inspected daily for
spots and stains. All spots and stains will be removed as soon as
possible. Where difficult spots are encountered, the customer or his
agent will be notified.
f. NON-CARPETED AREAS - All non-carpeted areas shall be swept and damp
mopped with the proper solution for specific floor areas on a daily
basis. Extreme care will be used in all mopping to avoid splashing
the walls and furniture. Moving water and other liquids over
carpeted areas will be done in a manner to avoid spillage. These
areas will also be buffed and kept in scuff/spot free condition at
all times. Care shall be taken in applying finish to keep it off of
furniture, baseboards and walls. Floor machines will be used in a
manner to avoid damage to the walls, baseboards and furniture.
g. DRINKING FOUNTAINS - Drinking fountains will be cleaned, polished
and sanitized daily.
FIRST AMENDMENT TO LEASE
FIRST AMENDMENT TO LEASE made as of August 1, 2004 (the "First Amendment")
by and between STELLAR CONTINENTAL LLC, a Delaware limited liability company,
with an office at 156 William Street, New York, New York 10038 ("Lessor"), and
GOAMERICA COMMUNICATIONS CORP., a Delaware corporation, whose address is 433
Hackensack Avenue, Hackensack, New Jersey ("Lessee").
W I T N E S S E T H:
WHEREAS, Lessee never took possession of the approximately 4,130 gross
rentable square feet of space Tenant was entitled to occupy on the sixth (6th)
floor of the Building (the "Surrendered Space") pursuant to a lease dated as of
November 14, 2003 by and between Lessor and Lesser (herein referred to as the
"Lease");
WHEREAS, Lessee is currently occupying approximately 10,000 rentable
square feet of space on the third (3rd) Floor of the building located at 433
Hackensack Avenue, Hackensack, New Jersey (the "Building");
WHEREAS, Lessor and Lessee wish to amend the Lease only upon and subject
to the provisions of this First Amendment.
NOW, THEREFORE, in consideration of the sum of Ten ($10.00) Dollars and
other good and valuable consideration exchanged by Lessor and Lessee, the
receipt and sufficiency of which hereby expressly are acknowledged; it is
AGREED:
1. For the purposes of this First Amendment, capitalized terms used herein and
not otherwise defined herein shall have the respective meanings ascribed to them
in the Lease.
2. Lessor and Lessee hereby desire to redefine the term Demised Premises as set
forth in the Lease as approximately 10,000 rentable square feet on the third
(3rd) floor of the Building.
3. Lessee represents and warrants to Lessor that Lessee dealt with no broker(s)
in bringing about this First Amendment. Lessee and Lessor each agrees to hold
the other harmless and indemnify and defend the other from and against any and
all loss, cost, liability, damage and expense arising out of the inaccuracy of
the representation contained in the preceding sentence and each party represents
to the other that it has not engaged and is not responsible for the payment of a
fee, commission or other compensation to any other person in connection with
this First Amendment.
4. Lessee and Lessor each represents, warrants and covenants that the other is
not in default under any of its obligations under the Lease and that, to the
best of its knowledge, the other is not in default of its obligations under the
Lease, and no event has occurred nor do any circumstances exist which, with
lapse of time or notice or both, would constitute a default by Lessor or Lessee
under the Lease as modified by this First Amendment.
5. Except as modified by this First Amendment, the Lease and all of the
covenants, agreements, terms, provisions and conditions thereof shall remain in
full force and effect and are hereby ratified and affirmed. The covenants,
agreements, terms, provisions and conditions contained in this First Amendment
shall bind the parties hereto and their respective successor and assigns and
shall inure to the benefit of the parties hereto and their respective permitted
successors and assigns. In the event of any conflict between the provisions of
this First Amendment and the Lease, the provisions contained in this First
Amendment shall prevail and be paramount.
IN WITNESS WHEREOF, Lessor and Lessee have entered into this Amendment as
of the day and year first written above, and acknowledge one to the other that
they possess the requisite authority to enter into this transaction and to sign
this Amendment.
GOAMERICA COMMUNICATIONS CORP STELLAR CONTINENTAL LLC
By: Stellar Capital Investors, LLC
Its Manager
By: By:
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Name: Name:
Its: Its: