EXHIBIT 10.9
SIXTH AMENDMENT TO LEASE AGREEMENT PRIVATE
This Sixth Amendment to Lease Agreement ("Agreement") is made and entered
into as of this 1st day of October, 1997, by and between The Mutual Life
Insurance Company of New York with offices at 0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx
00000 (the "Landlord"), and Dialogic Corporation, a New Jersey corporation, with
offices and a principal place of business located at 0000 Xxxxx 00, Xxxxxxxxxx,
Xxx Xxxxxx 00000 (the "Tenant").
W I T N E S S E T H
WHEREAS, Landlord is the owner of the real property and all the
improvements thereon located at 0000 Xxxxx 00, Xxxxxxxxxx, Xxx Xxxxxx (the
"Building"); and,
WHEREAS, Tenant desired to lease from Landlord and Landlord desired to
lease to Tenant approximately 115,000 square feet of office space on the first
and second floors of the Building and 10,000 square feet of storage space on the
basement level (the "Original Premises"); and,
WHEREAS, on or about September 1, 1993 Landlord and Tenant entered into a
written Lease Agreement (the "Original Lease") for the Premises; and,
WHEREAS, during January 1994 a first amendment to the Original Lease (the
"First Amendment") was proposed, but never agreed upon or effective; and,
WHEREAS, as of January 20, 1994 Landlord and Tenant entered into a Second
Amendment to Lease Agreement (the "Second Amendment"); and,
WHEREAS, as of July 19, 1994 (notwithstanding that the Fourth Amendment, as
defined below, references the date of the Third Amendment as of March 10, 1994)
Landlord and Tenant entered into a Third Amendment to Lease Agreement (the
"Third Amendment"); and,
WHEREAS, as of December 20, 1994 Landlord and Tenant entered into a Fourth
Amendment to Lease Agreement (the "Fourth Amendment"); and,
WHEREAS, as of April 15, 1996, Landlord and Tenant entered into a Fifth
Amendment to Lease Agreement (the "Fifth Amendment", the Second Amendment, Third
Amendment, Fourth Amendment and Fifth Amendment are collectively referred to as
the "Amendments"; and the Original Lease, as modified by the Amendments, is
referred to as the "Lease"); and,
WHEREAS, Landlord and Tenant do now hereby desire to amend and modify
certain terms of the Lease as more particularly set forth below.
NOW, THEREFORE, it is hereby agreed that in consideration of the mutual
covenants contained herein, and for such other good and valuable consideration,
the sufficiency of which are hereby mutually acknowledged by the parties hereto,
Landlord and Tenant agree as follows:
1. Capitalized terms used but not otherwise defined herein shall have their
meanings described to them in the Lease. Furthermore, in addition to the terms
elsewhere defined herein, the following terms shall have the following meanings:
(a) "Seventh Expansion Space" shall mean approximately 19,630 square feet on the
third floor of the Building, as shown on the floor plan annexed hereto as
Exhibit A and made a part hereof. (b) "Eighth Expansion Space" shall mean
approximately 8,053 square feet on the first floor of the Building, as shown on
the floor plan annexed hereto as Exhibit B and made a part hereof. (c) "Basement
Expansion Space" shall mean approximately 8,000 square feet of the basement of
the Building as shown on the floor plan annexed hereto as Exhibit C and made a
part hereof. (d) "Seventh Rental Commencement Date" shall mean the earlier of
(i) the date upon which Landlord's Work (as defined below) in connection with
the Seventh Expansion Space has been substantially completed, or (ii) the date
Tenant shall occupy any of the Seventh Expansion Space. (e) "Eighth Rental
Commencement Date" shall mean the earlier of (i) the date upon which Landlord's
Work in connection with the Eighth Expansion Space has been substantially
completed, or (ii) the date Tenant shall occupy any of the Eighth Expansion
Space.
2. Tenant warrants, covenants and acknowledges that as of the date hereof,
to the best of its knowledge: a) Landlord is not in default under the Lease and
no event has occurred which, with the giving of notice or the passage of time or
both, would constitute a default under the Lease as modified by this Agreement
on the part of the Landlord; b) Tenant does not contest the validity or
enforceability of the Lease and this Agreement, and Tenant has no claims or
defenses as to obligations under the Lease and this Agreement and is not
entitled to any offset or abatement with respect thereto, except for Landlord's
obligation under Section 12 of this Agreement; c) Landlord has performed all of
its obligations of an executory nature (including all construction required
under the Lease) pursuant to the terms and provisions of the Lease (including
Landlord's obligations with respect to the Fourth Expansion Space, Fifth
Expansion Space and Sixth Expansion Space [as such terms are defined below]); d)
the Commencement D ate, as such term is defined in the Lease was June 13, 1994,
and the Expiration Date, as defined in the Lease (without giving effect to any
renewal options, but giving effect to paragraphs 10 and 22 of the Fourth
Amendment) is June 14, 2005; e) the Lease is in full force and effect and has
not been amended or modified except by this Agreement; f) Tenant is not in
default in the performance of the Lease and has not committed any breach of the
Lease and Tenant is not the subject of any federal or state, bankruptcy,
insolvency or liquidation proceeding; and g) Except for the Seventh Expansion
Space, and the Eighth Expansion Space, Tenant has accepted and is in full
possession of the Premises (as defined below), including all improvements,
additions, and alterations thereto required to be made by Landlord under the
Lease.
3. (a) In addition to those premises that Landlord has previously leased to
Tenant and Tenant has previously leased from Landlord pursuant to the Original
Lease and the Amendments, Landlord hereby leases to Tenant and Tenant hereby
leases from Landlord the following additional premises: (i) the Seventh
Expansion Space, (ii) the Eighth Expansion Space, and (iii) the Basement
Expansion Space. Within thirty (30) days of the signing of this Agreement,
Landlord shall cause the Seventh Expansion Space, the Eighth Expansion Space and
the Basement Expansion Space to be measured pursuant to the BOMA method and the
exact square footage shall be deemed fixed. Promptly thereafter, landlord shall
deliver tenant the measured dimensions.
(b) It is the intent of the parties hereto that the "Premises", as such
term is defined in the Original Lease and which has been redefined and increased
pursuant to certain of the Amendments, shall be further redefined and increased
and shall now incorporate the Seventh Expansion Space, the Eighth Expansion
Space and the Basement Expansion Space as well as all of the space previously
demised to the Tenant, including the following: the Original Premises, the First
Expansion Space (as such term is defined in the Third Amendment), the Second
Expansion Space and Third Expansion Space (as such terms are defined in the
Fourth Amendment), the Fourth Expansion Space, Fifth Expansion Space and Sixth
Expansion Space (as such terms are defined in the Fifth Amendment). All
references to the Premises in the Lease as modified herein, shall refer to the
Premises as defined in this Agreement, unless the context clearly requires
otherwise.
4 (a) In addition to the Fixed Rent previously reserved by the Original
Lease and certain of the Amendments, Tenant shall pay to Landlord, without any
prior notice or demand therefore and without any abatement, deduction or setoff
whatsoever, in lawful money of the United States of America, by check, at
Landlord's office or such other place Landlord may designate, additional annual
base rent, (such additional annual base rent shall be incorporated into the
defined term "Fixed Rent") payable in equal monthly installments in advance on
the first day of each and every month during the term of this lease as follows:
(i) Fixed Rent for the Seventh Expansion Space ("Seventh Expansion
Space Rent") shall be payable:
(1) from the Seventh Rental Commencement Date through and
including May 31, 1999, at the annual rate of $304,265.00, payable in
equal monthly installments each in the amount of $25,355.42;
(2) from June 1, 1999, through and including May 31, 2004, at the
annual rate of $343,525.00, payable in equal monthly installments each
in the amount of $28,627.08; and
(3) from June 1, 2004, through and including June 14, 2005, at
the annual rate of $395,151.90, payable in equal monthly installments
each in the amount $32,929.33;
(ii) Fixed Rent for the Basement Expansion Space ("Basement Expansion
Space Rent") shall be payable from the date hereof through and including
June 14, 2005, at the annual rate of $32,000.00, payable in equal monthly
installments each in the amount $2,666.67;
(iii) Fixed Rent for the Eighth Expansion Space ("Eighth Expansion
Space Rent") shall be payable:
(1) from the Eighth Rental Commencement Date through and
including May 31, 1999, at the annual rate of $136,901.00, payable in
equal monthly installments each in the amount of $11,408.42;
(2) from June 1, 1999, through and including May 31, 2004, at the
annual rate of $140,927.50, payable in equal monthly installments each
in the amount of $11,743.96; and (3) from June 1, 2004, through and
including June 14, 2005, at the annual rate of $162,106.89, payable in
equal monthly installments each in the amount $13,508.91.
(b) Tenant shall be obligated to pay its electrical costs in
accordance with the terms of the Lease, as amended herein.
(c) Notwithstanding anything else contained in this Agreement, the
parties acknowledge that the Seventh Expansion Space and Eighth Expansion Space,
might not be substantially completed simultaneously. Should such completion
dates not be simultaneous, the obligation of the Tenant to pay Fixed Rent and
Additional Rent, respectively, in accordance with Section 4(a) above and Section
9 below for the space that is substantially completed is independent of its
obligations regarding the space not yet substantially completed. Tenant shall be
obligated to accept such substantially completed premises and to pay Fixed Rent
and Additional Rent in accordance with this Agreement for the space that is then
substantially completed. (By way of example and not of limitation, should the
Seventh Expansion Space be substantially completed prior to the Eighth Expansion
Space, commencing on the Seventh Rental Commencement Date, Tenant shall pay the
Seventh Expansion Space Rent, in addition to the Fixed Rent otherwise required
pursuant to the terms of the Lease, as amended herein, and Tenant's
Proportionate Share shall increase by 9%).
(d) Intentionally Omitted.
(e) If the Seventh Rental Commencement Date and/or the Eighth Rental
Commencement Date is a date other than the first date of the calendar month,
then the Seventh Expansion Space Rent and/or the Eighth Expansion Space Rent, as
the case may be, shall be prorated on a per diem basis for the calendar month in
which the respective commencement date occurs. A similar credit shall be granted
against the Fixed Rent installment due during the month which is the month of
the Expiration Date.
5. (a) Within ten (10) days from the date Tenant executes this
Agreement, Tenant shall (i) prepare and deliver to Landlord line drawings and
any and all related plans and specifications (collectively the "Seventh
Expansion Plans and Specifications") for the Seventh Expansion Space, and (ii)
prepare and deliver to Landlord line drawings and any and all related plans and
specifications, including Tenant's selection of paint color and carpet color
(collectively the "Eighth Expansion Plans and Specifications") for the Eighth
Expansion Space, provided, however, the Eighth Expansion Plans and
Specifications shall not include any demolition plans. Landlord will prepare and
deliver to Tenant construction drawings ("Construction Drawings") for the
Seventh Expansion Space and Eighth Expansion Space consistent with the Seventh
Expansion Plans and Specifications and the Eighth Expansion Plans and
Specifications (the cost of such Construction Drawings shall be the
responsibility of the parties as stated in Section 5(c) below). Within five (5)
business days (the fifth business day shall be referred to as the "Outside
Construction Drawing Approval Date") of receipt of the Construction Drawings
from Landlord, Tenant will deliver to Landlord written notice that it has
approved or disapproved the Construction Drawings, provided, however, that
Tenant's disapproval must be in Tenant's reasonable discretion, and, if it
disapproves of the Construction Drawings, Tenant shall specify in writing and in
reasonable detail, any objections to the Construction Drawings. In the event
that Tenant disapproves of the Construction Drawings, Landlord and Tenant shall
promptly meet and use good faith efforts to resolve such disagreement. That
period of time from the day following the Outside Construction Drawing Approval
Date through the date that the Tenant approves the Construction Drawings, but
only to the extent that such period is not the result of the Construction
Drawings being materially inconsistent with the Seventh Expansion Plans an d
Specifications and the Eighth Expansion Plans and Specifications, shall be
referred to as "Approval Delay". Landlord shall not proceed with Landlord's Work
(as defined below) until Tenant has provided written approval of the
Construction Drawings.
(b) Landlord shall perform the following work ("Landlord's Work"): (i)
prepare the Seventh Expansion Space (including the demolition thereof) in
accordance with the Seventh Expansion Plans and Specifications and the
Construction Drawings, and (ii) prepare the Eighth Expansion Space in accordance
with the Eighth Expansion Plans and Specifications and the Construction
Drawings. Except as provided in this Subsection (b), Landlord shall have no
obligation to perform any work with respect to the balance of the Premises,
including, but not limited to, the Basement Expansion Space.
(c) Landlord shall, in connection with Landlord's Work, be solely
responsible for the following: (i) up to but no more than $39,260.00 of the
costs and expenses ("Design Allowance") associated with architectural and
engineering design and plans and Construction Drawings with respect to the
Seventh Expansion Space; (ii) up to but no more than $392,600.00 of the costs
and expenses ("Seventh Construction Allowance") associated with substantially
completing the Seventh Expansion Space in accordance with the Seventh Expansion
Plans and Specifications and the Construction Drawings (provided, however, that
none of the Seventh Construction Allowance shall be allocated for demolition of
the Seventh Expansion Space); (iii) all costs and expenses in excess of
$21,593.00 with respect to the demolition of the Seventh Expansion Space,
provided, however Landlord's liability shall not exceed $25,000; and (iv) up to
but no more than $40,265.00 of the costs and expenses ("Eighth Construction
Allowance") associated with subs tantially completing the Eighth Expansion Space
in accordance with the Eighth Expansion Plans and Specifications and the
Construction Drawings, (the amounts which Landlord has agreed to incur in order
to perform Landlord's Work shall be referred to as "Landlord's Allowance"). The
Design Allowance, Seventh Construction Allowance and Eighth Construction
Allowance may not be used for any purpose other than for the purpose
specifically provided for herein, and to the extent the costs and expenses
associated with the work to be done thereunder are less than the respective
allowance, the excess of each, if any, shall accrue for the benefit of Landlord,
and Tenant shall have no claim to same. Tenant shall be solely responsible for
all costs and expenses which exceed Landlord's Allowance; it being the intent of
the parties that Tenant pay said excess as Additional Rent and such sum(s) shall
be payable by Tenant within thirty (30) days after receipt of an invoice from
Landlord, provided, however, such payment date shall in no event be earlier than
thirty(30) days from the substantial completion of the space for which the
particular payment applies. Except as provided in this Subsection (c) and except
in accordance with Section 12, Landlord shall have no obligation to pay for any
work with respect to the Premises, including, but not limited to, any work for
the Basement Expansion Space and any costs and expenses associated with
architectural and engineering design and plans and Construction Drawings with
respect to the Eighth Expansion Space.
(d) Landlord shall use reasonable efforts, including the solicitation
of at least three (3) competitive bids where appropriate from reputable
contractors to obtain the construction of Landlord's Work at a reasonable cost.
Landlord agrees to solicit bids from March Associates, DDB Interior Contracting
and Xxxxxx Construction Company. Landlord shall promptly deliver to Tenant
copies of all bids that Landlord receives with respect to the foregoing. Tenant
shall, within seven (7) business days of receipt of said information, select the
winning bidder ("Winning Bidder") from the bids delivered to Landlord and
Landlord shall award the contract to such bidder. If the Winning Bidder is not
March Associates, Tenant shall pay to Landlord, as Additional Rent, on demand
upon substantial completion of Landlord's Work, an oversight and plan review fee
of three (3%) percent of the contract price entered into with Winning Bidder in
effecting Landlord's Work.
(e) If Tenant requests to amend, modify or change the Construction
Drawings, after such Construction Drawings have been approved by Landlord and
Tenant ("Change Order"), Tenant shall submit to Landlord for its approval (which
shall not be unreasonably withheld) a reasonably detailed description of the
proposed Change Order in writing. Within seven (7) business days after receipt,
Landlord shall notify Tenant whether it approves or disapproves the Change
Order. If Landlord approves the Change Order, Landlord shall evidence its
approval of such Change Order by executing the Change Order or a memorandum
thereof. Failure by Landlord to notify Tenant within seven (7) business days of
its approval or disapproval of the Change Order shall be deemed to mean that
Landlord has disapproved the Change Order. Landlord may require changes to the
Construction Drawings if necessary as a result of any Change Order or to comply
with changes, revisions or additions to applicable building codes and other laws
(collectively, ("Landlord Change Orders"). Within five(5) business days after
receipt, Tenant shall notify Landlord in writing of its approval (which approval
will not be unreasonably withheld) or disapproval of all Landlord Change Orders;
Landlord shall not proceed with such Landlord Change Orders without Tenant's
approval. If Tenant shall so notify Landlord of its disapproval of any Landlord
Change Order, such written notice shall include reasonable detail as to the
reason for such disapproval. Landlord shall, within seven (7) business days
after receipt thereof, make the necessary revisions requested by Tenant
(provided, however, that such revisions are in full compliance with law and
otherwise reasonably acceptable to Landlord) and resubmit the same for Tenant's
approval ("Revised Landlord Change Order"). Upon receipt of the Revised Landlord
Change Order, Tenant shall within three (3) business days, notify Landlord in
writing of its approval or disapproval of the Revised Landlord Change Order. In
the event Tenant disapproves of the Revised Landlord Change Order, Landlord and
Tenant shall promptly meet and use good faith efforts to resolve any
disagreement. The period of time from the day following Tenant's disapproval of
the Revised Landlord Change Order through the day that Tenant shall approve the
Landlord Change Order shall be deemed an Approval Delay.
(f) Subject to Unavoidable Delays (as defined in Section 38.2 of the
Original Lease) and Tenant Delays, (as defined herein), Landlord shall
substantially complete Landlord's Work (i) in connection with the Seventh
Expansion Space, on or before May 1, 1998, and (ii) in connection with the
Eighth Expansion Space, on or before May 1, 1998, provided, however, that the
Lease, as modified herein, and the obligations of the Landlord and Tenant
hereunder shall nevertheless continue in full force and effect. Notwithstanding
the foregoing, if the Eighth Expansion Plans and Specifications provide that
only painting and carpeting of the Eighth expansion Space be performed then,
subject to Unavoidable Delays and Tenant Delays Landlord shall substantially
complete painting and carpeting the Eighth Expansion Space on or before March 1,
1998. Except as provided below, Landlord shall have no liability to Tenant for
any delay in delivering the Seventh Expansion Space and/or the Eighth Expansion
Space. Notwithstanding the f oregoing, (x) if delivery of the Seventh Expansion
Space is delayed by the acts or omissions of Landlord beyond June 1, 1998, (or,
if the Winning Bidder is March Associates, May 1, 1998) as such date has each
been extended by the number of days attributable to a Tenant Delay and/or an
Unavoidable Delay ("Seventh Outside Date"), then the Tenant shall receive one
day of free Seventh Expansion Space Rent for each two days during the period
from the Seventh Outside Date to the substantial completion of the Seventh
Expansion Space, and (y) if delivery of the Eighth Expansion Space is delayed by
the acts or omissions of Landlord beyond June 1, 1998, (or, if the Winning
Bidder is March Associates, May 1, 1998) as such date has each been extended by
the number of days attributable to a Tenant Delay and/or an Unavoidable Delay
("Eighth Outside Date"), then the Tenant shall receive one day of free Eighth
Expansion Space Rent for each two days during the period from the Eighth Outside
Date to the substantial completion of the Eighth Expansion Space.
(g) Landlord's Work shall be deemed substantially completed,
notwithstanding the fact that minor details of construction, mechanical
adjustments or decoration remain to be performed that do not materially
interfere with Tenant's use of the Seventh Expansion Space and/or the Eighth
Expansion Space, as the case may be, or its business, provided that a
Certificate of Occupancy (whether permanent or temporary) has been issued (if
required). Notwithstanding the foregoing, to the extent that the Seventh
Expansion Space is not ready for occupancy by Tenant on May 1, 1998 and/or the
Eighth Expansion Space is not ready for occupancy by Tenant on May 1, 1998 (or
on March 1, 1998, if the Eighth Expansion Plans and Specifications provide that
only painting and carpeting of the Eighth expansion Space be performed), solely
due to one or more Tenant Delays (as defined below), then the Seventh Expansion
Space and/or the Eighth Expansion Space (as the case may be) shall be deemed
substantially completed on the date when s aid space would otherwise have been
substantially completed but for such Tenant Delay. Landlord shall be responsible
for obtaining the initial permanent Certificate of Occupancy, if required, even
if Tenant assumes occupancy under a temporary Certificate of Occupancy;
provided, however, if a permanent Certificate of Occupancy is conditioned upon
the performance of additional work to the Seventh Expansion Space and/or the
Eighth Expansion Space, as the case may be, said work shall be performed by
Tenant at its sole cost and expense (to the extent Landlord's Allowance has been
exceeded, and if Landlord's Allowance has not been exceeded, if said work is not
within the scope of Landlord's Work), subject to Section 7 of the Original
Lease, as amended.
(h) The term "Tenant Delay" shall mean any delay in substantially
completing Landlord's Work and/or any delay in the date that the Seventh
Expansion Space and/or the Eighth Expansion Space shall be available for
Tenant's occupancy, which is solely due to any act or omission of Tenant, its
agents, employees, contractors or anyone acting under or for Tenant. Tenant
Delay shall also include the following, (but only to the extent that any such
delays are the cause of Landlord's inability to substantially complete
Landlord's Work and/or are the cause of the any delay in the date that the
Seventh Expansion Space and/or the Eighth Expansion Space shall be available for
Tenant's occupancy): (i) delays by Tenant in delivering the Seventh Expansion
Plans and Specifications and/or the Eighth Expansion Plans and Specifications;
(ii) delays arising solely from changes by Tenant to the Seventh Expansion Plans
and Specifications and/or the Eighth Expansion Plans and Specifications; (iii)
delays resulting from Tenant's direction to Landlord to suspend Landlord's Work;
(iv) delays by Tenant in delivering approval or disapproval to the Construction
Drawings; (v) any Approval Delay; (vi) delays arising as result of a Change
Order requested by Tenant; (vii) delays by Tenant in approving any Landlord
Change Orders; and (viii) delays by Tenant in selecting the Winning Bidder.
(i) Notwithstanding anything to the contrary contained herein, if (i)
the Seventh Rental Commencement Date does not occur on or before September 1,
1998, as such date is extended by the number of days attributable to a Tenant
Delay and/or Unavoidable Delay, (such date, as extended is referred to as
"Seventh Tenant Outside Date") then the Tenant may, as its sole and exclusive
remedy, terminate the portion of this Agreement relating to the Seventh
Expansion Space by giving written notice to Landlord no later than twenty-one
(21) days from such Seventh Tenant Outside Date and the portion of this
Agreement relating only to the Seventh Expansion Space shall terminate on the
date which is fifteen (15) days after Landlord's receipt of such notice, unless
prior to such date the Seventh Rental Commencement Date occurs, in which case
Tenant's termination notice shall be null and void and this Agreement shall
continue in full force and effect; and/or (ii) the Eighth Rental Commencement
Date does not occur on or befor e September 1, 1998, as such date is extended by
the number of days attributable to a Tenant Delay and/or Unavoidable Delay,
(such date, as extended is referred to as "Eighth Tenant Outside Date") then the
Tenant may, as its sole and exclusive remedy, terminate the portion of this
Agreement relating to the Eighth Expansion Space by giving written notice to
Landlord no later than twenty-one (21) days from such Eighth Tenant Outside Date
and the portion of this Agreement relating only to the Eighth Expansion Space
shall terminate on the date which is fifteen (15) days after Landlord's receipt
of such notice, unless prior to such date the Eighth Rental Commencement Date
occurs, in which case Tenant's termination notice shall be null and void and
this Agreement shall continue in full force and effect. If Landlord is unable to
deliver the Seventh Expansion Space and/or the Eighth Expansion Space, as the
case may be, in accordance with the terms of this Agreement, and Tenant
terminates the portion of this Agreeme nt relating to the Seventh Expansion
Space and/or the Eighth Expansion Space, in accordance with the terms of this
Section, then, Landlord shall reimburse Tenant for Tenant's actual and
reasonable costs and expenses incurred with respect to the demolition, design
and construction of the space so terminated. 6. Notwithstanding anything
contained in the Lease, including Section 6.1 of the Original Lease as such
section may have been modified, Tenant agrees that Landlord shall have no
obligation to provide any additional funds with respect to Landlord's Work,
except as specifically provided in Section 5(c) above and in Section 12 below.
7. Landlord will, at its own cost and expense separately meter the
Seventh Expansion Space and Eighth Expansion Space for electric usage. Tenant
will, at its own cost and expense, continue to have all electrical uses for the
Basement Expansion Space and the portion of the basement demised under the
Original Lease (the "Original Basement Space") connected to Tenant's separate
electrical meter.
8. Notwithstanding anything else contained in the Original Lease or
any of the Amendments, or herein, should Tenant exercise its option(s) to renew
the term of the leased premises, as provided for in Section 2.5 of the Original
Lease, said renewal term(s) shall be operative for the entire Premises (as such
term is defined herein).
9. Tenant's obligation to pay Tenant's Proportionate Share (as such
share shall be increased giving effect to the transaction contemplated herein)
of Operating Expenses and Taxes, as such obligations are expressed in the Lease,
shall commence, (a) with respect to the Seventh Expansion Space, on the Seventh
Rental Commencement Date, and (b) with respect to the Eighth Expansion Space, on
the Eighth Rental Commencement Date. Tenant and Landlord agree that Tenant's
Proportionate Share with respect to the Seventh Expansion Space is 9%, and
Tenant's Proportionate Share with respect to the Eighth Expansion Space is 4%.
Notwithstanding anything to the contrary contained in the Lease or in this
Agreement, after both the Seventh Rental Commencement Date and the Eighth Rental
Commencement Date, Tenant's Proportionate Share with respect to the Premises
shall equal 100%. All other items of Additional Rent shall be payable in
accordance with the terms of the Lease as modified herein. The Base Tax Year and
the Base Oper ating Expense Year, as defined in the Lease, shall remain
unchanged for the purpose of calculating any and all charges to Tenant.
10. Tenant has inspected the Premises, including, but not limited to,
the Seventh Expansion Space, Eighth Expansion Space and the Basement Expansion
Space and accepts the same "As Is" in its present condition subject to
Landlord's Work. Acceptance of possession by Tenant of the Seventh Expansion
Space and/or the Eighth Expansion Space shall be the conclusive evidence that
Landlord's obligation to construct said accepted premises has been fully
performed in accordance with the requirements of this Agreement, except for
normal punch list items and except if within thirty (30) days after such
acceptance date Tenant shall give written notice to Landlord specifying the
respects in which the same was not in such condition.
11. All tenant improvements constructed in the Seventh Expansion
Space, Eighth Expansion Space and the Basement Expansion Space, whether by
Landlord or by (or on behalf of) Tenant, and whether at Landlord's or Tenant's
expense, shall be subject to Section 7.4 of the Original Lease, as it may have
been amended. Notwithstanding the foregoing, all of Landlord's Work and other
tenant improvements which are a part of this Agreement shall become the property
of the Landlord and shall remain upon and be surrendered with the Premises upon
the Expiration Date and need not be removed.
12. Notwithstanding anything to the contrary contained in this
Agreement, Landlord has consented to the erection of a certain chain link fence
and to the installation of lighting in the Basement Expansion Space which is of
the same nature and quality as such items were previously supplied to Tenant for
the Original Basement Space. Tenant represents that all such work was performed
by Tenant in a good and workmanlike manner, in compliance with all federal,
state, municipal and other statutes, laws, ordinances, regulations, rules and
requirements relating to the Building, in accordance with all standards
established by Landlord and otherwise in compliance with the terms and
conditions of the Lease, as modified hereby. Within thirty (30) days after (a)
submission to Landlord of a complete and final release and lien waiver with
respect to the Building executed by all parties with legal standing to file a
lien, and (b) submission to Landlord of all invoices for the work so performed
and other items reasonably r equested, Landlord shall reimburse Tenant for the
actual costs and expenses Tenant has incurred in performing the work described
in this Section 12 in an amount not to exceed $21,825.00.
13. Tenant shall use the Basement Expansion Space exclusively for
storage and otherwise in compliance with the terms and conditions of the Lease,
as modified herein.
14. (a) The address set forth for Landlord (including the those
parties to receive copies of notices, consents, approvals, requests, and other
communications delivered to Landlord) in Section 28.1 of the Original Lease is
hereby modified and amended as follows:
To Landlord:
MONY REAL ESTATE INVESTMENT MANAGEMENT
c/o The Mutual Life Insurance Company of New York
0000 Xxxxxxxx
Xxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn.: Real Estate Asset Management
with a copy to:
The Mutual Life Insurance Company of New York
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Real Estate Counsel
(b) The address set forth for Tenant in Section 28.1 of the Original
Lease is hereby modified and amended as follows: To Tenant: Dialogic Corporation
0000 Xxxxx Xxx Xxxxxxxxxx, Xxx Xxxxxx 00000-0000 Attn: Real Estate Facilities
Manager
Copies to Tenant shall be delivered as specified in the Original
Lease.
15. Tenant and Landlord, each respectively warrants and represents
that it has not dealt with any broker or real estate agent in connection with
this Sixth Amendment to Lease Agreement or its negotiation, other than Xxxxxx X.
Xxxxxx of New Jersey and Xxxxxxx & Wakefield of New Jersey (collectively
"Broker"), and Landlord agrees to pay the Broker pursuant to a separate
agreement. Each party shall indemnify and hold the other harmless from any cost,
expense or liability (including costs of suit and reasonable attorneys' fees)
for any compensation, commission or fees claimed by any real estate broker or
agent or other intermediary, other than Broker, in connection with this
Agreement or its negotiation by reason of any act of the indemnifying party.
16. Tenant agrees, confirms and acknowledges that (a) there is no
remaining expansion space square footage that Tenant has the option to lease as
such right was specifically set forth in Section 2.6 of the Original Lease, as
such section was modified by the Second Amendment, and (b) Landlord has fully
complied with the provisions of Section 2.7 (which provides for Tenant to have a
right of first refusal) and Tenant agrees that it has no further right of first
refusal with respect to any space in the Building other than that right of first
refusal (as said right is more accurately described in Section 2.7 of the
Original Lease "Right of First Refusal") for space that is currently unleased in
the basement of the Building ("Remaining Basement Space"), provided, however,
that with respect to the Right of First Refusal for the Remaining Basement
Space, (i) the last two sentences of Section 2.7 of the Original Lease are
deleted in their entirety, (ii) Tenant, at its sole cost and expense shall cause
to have all electrical uses for any of the Remaining Basement Space it so
leases, connected to Tenant's separate electrical meter, (iii) Tenant agrees to
accept the Remaining Basement Space in its condition and state of repair as of
the date of the commencement of the lease for the Remaining Basement Space and
Tenant agrees that Landlord shall not be required to perform any work, supply
any materials or incur any expense to prepare such space for Tenant's occupancy,
(iv) the term of the lease for the Remaining Basement Space shall be co-terminus
with the Lease, as modified herein, and (v) Tenant shall use the Remaining
Basement Space exclusively for storage and otherwise in compliance with the
terms and conditions of the Lease, as modified herein. Time shall be of the
essence with respect to Tenant's notice in response to the Refusal Notice (as
defined in Section 21 below) with respect to the Right of First Refusal, and
Tenant's failure to give any such notice within the ten (10) business day period
shall be deemed a re jection of Landlord's offer, any principles of law or
equity to the contrary notwithstanding. A Refusal Notice may only be accepted in
whole, not in part. If Tenant rejects, or is deemed to have rejected, Landlord's
offer with respect to the Right of First refusal, Landlord shall be free to
lease the Remaining Basement Space to any party upon any terms and conditions
that Landlord may determine from time to time during the Term, with no further
obligation to Tenant under this Section with respect to the Remaining Basement
Space.
17. Section 4.8 of the original Lease is modified as of the date of
this Sixth Amendment to Lease Agreement to provide Tenant with ninety (90) days
following Tenant's receipt of Landlord's Statement in which to dispute the
correctness of such Statement. Within ten (10) business days of request
therefore (such tenth day is referred to herein as "Document Delivery Date"),
Landlord shall furnish supporting documentation reasonably requested by Tenant
in respect of the information reflected on Landlord's Statement. Landlord shall
have no liability for failing to timely deliver the supporting documentation by
the Document Delivery Date, except that upon such failure, Tenant's time in
which to dispute Landlord's Statement shall be extended by one (1) day for each
day during the period between the Document Delivery Date and the delivery of the
supporting documentation.
18. The covenants, agreements, terms and conditions contained in this
Agreement shall bind and inure to the benefit of the parties hereto and their
respective legal successors and assigns.
19. This Amendment may not be changed orally, but only by writing
signed by the party against which the enforcement thereof is sought.
20. Except as expressly modified by this Agreement, the Lease and all
the covenants, agreements, terms and conditions thereof shall remain in full
force and effect and are hereby in all respects ratified and confirmed.
21. (a) Tenant shall have the option to include as part of the
Premises, the Remaining Basement Space pursuant to the terms of the Lease, as
amended hereby.
(b) Any such option shall be exercised by a written notice
(hereinafter called the "Expansion Notice") from Tenant to Landlord given at any
time prior to the date Landlord delivers to Tenant the notification required in
Section 2.7 of the Original Lease with respect to the Right of First Refusal
(such notification hereinafter referred to as "Refusal Notice").
(c) In the event that Tenant shall give Landlord the Expansion Notice,
Tenant shall be deemed to have irrevocably agreed to have the Remaining Basement
Space added to and included in the Premises effective as of the thirtieth (30th)
day after the delivery of the Expansion Notice (the "Inclusion Date").
(d) In the even that Tenant shall properly exercise its option in
accordance with the provisions hereof, then in such event, effective as of the
Inclusion Date:
(i) The Remaining Basement Space shall be deemed added to and
included in the Premises for the period commencing on the Inclusion Date
and ending on the Expiration Date (as such date may be extended pursuant to
the terms of the Lease, as amended hereby). The inclusion of such space
shall be on all the terms and subject to the conditions of the Lease, as
amended hereby (other than Section 6 of the Original Lease, as amended) and
on such additional terms and conditions as is hereinafter set forth in this
Section 21. Tenant shall use the Remaining Basement Space exclusively for
storage and otherwise in compliance with the terms and conditions of the
Lease, as modified herein;
(ii) Fixed Rent for the Remaining Basement Space shall be at the
annual rate of $4.00 per square foot, payable in equal monthly
installments.
(iii) Tenant, at its sole cost and expense, shall cause to have
all electrical uses of the Remaining Basement Space connected to Tenant's
separate electrical meter;
(iv) Landlord and Tenant shall execute an amendment to the Lease
setting forth without limitation the exercise of the expansion option, the
inclusion of the Remaining Basement Space in the Premises, the Inclusion
Date and other appropriate items.
(e) Tenant agrees to accept the Remaining Basement Space in its
condition and state of repair existing as of the Inclusion Date and understands
and agrees that Landlord shall not be required to perform any work, supply any
materials or incur any expense to prepare such space for Tenant occupancy.
Notwithstanding the foregoing, in the event that Tenant exercises its expansion
right as contemplated by this Section and as of the date of such Expansion
Notice is given, the remaining Term of the Lease is not less than three (3)
years (including all renewal options which have been exercised), Landlord shall
provide an allowance ("Expansion Basement Allowance") in an amount not to exceed
the lesser of (1) $2.58 per square foot calculated for the Remaining Basement
Space so leased by Tenant pursuant to this Section ("Leased Expansion Space"),
or (2) Tenant's actual costs in performing certain work ("Expansion Basement
Work"). The Expansion Basement Work shall consist solely of: (i) erecting a
chain link fence ar ound the portion of the Leased Expansion Space, and (ii)
installing lighting in the Leased Expansion Space. The Expansion Basement Work
shall be of like nature and quality of such items currently existing in the
basement. All Expansion Basement Work shall be performed by Tenant in a good and
workmanlike manner, in compliance with all federal, sate, municipal and other
statutes, laws, ordinances, regulations, rules and requirements relating to the
Building, in accordance with all standards established by Landlord and otherwise
in compliance with the terms and conditions of the Lease, as modified hereby.
Provided Tenant is not in default of the Lease, as amended hereby at the time
payment is due by Landlord, Landlord shall pay to Tenant the Expansion Basement
Allowance within thirty (30) days after Landlord's receipt of (x) notice that
the Expansion Basement work has been completed, (y) submission to Landlord of a
complete and final release and lien waiver with respect to the Building executed
by all partie s with legal standing to file a lien, and (z) submission to
Landlord of all invoices for the work so performed and other items reasonably
requested.
(f) Tenant's expansion option pursuant to this Section 21 shall expire
and be of no further force and effect as of the date Landlord delivers to Tenant
the Refusal Notice, but only as to the basement space identified in said Refusal
Notice.
(g) The termination of the Lease, as amended hereby shall also
terminate Tenant's option pursuant to this Section 21 whether or not the same
shall have been exercised. Nothing contained in this Section shall prevent
Landlord from exercising any right or action granted to or reserved by Landlord
in the Lease, as amended hereby to terminate the Lease, as amended hereby.
Tenant's option set forth in this Section 21 may not be severed from the Lease
or separately sold, assigned or transferred and is only exercisable by Dialogic
Corporation or a successor corporation.
(h) Tenant shall have no right to exercise the expansion option
pursuant to this Section 21 if: (i) the named Tenant has assigned the Lease or
has at any time subleased, in the aggregate, more than fifty percent (25%) of
the Premises, or (ii) Tenant shall be in default hereunder and such default
shall not have been cured at the time of the exercise of its option or, if such
default occurs after Tenant's attempted leasing, as of the Inclusion Date.
IN WITNESS WHEREOF, the parties hereto have here onto set their hands
and seals or caused their presence to be signed by its proper corporate officers
and caused its proper corporate seal to be here onto affixed, the day and the
year first above written.
THE MUTUAL LIFE INSURANCE
WITNESS: COMPANY OF NEW YORK
/s/
___________________ By: /s/_________________________
Name: Xxxxx Xxxxxx, Vice President
WITNESS: DIALOGIC CORPORATION
/s/
___________________ By: /s/__________________________________
Name: _____________________________________
Its: _____________________________________
