EXHIBIT 10.18
SECOND ADDITIONAL SPACE AND LEASE MODIFICATION AGREEMENT
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AGREEMENT, dated as of this 15th day of August, 2000 between 75 BROAD,
LLC, a New York limited liability company, having an office at 000 Xxxxxxxx, 0xx
Xxxxx, Xxx Xxxx, Xxx Xxxx 00000 (hereinafter called "Landlord"), and BRIDGEPOINT
INTERNATIONAL (CANADA) INC. a Canadian corporation having an office at 0000
Xxxxxxxxxx, Xxxxx 000, Xxxxxxxx, Xxxxxx, X0X 0X0 (hereinafter called "Tenant").
WITNESSETH:
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WHEREAS:
1. Landlord and Tenant executed that certain lease dated as of January
18, 2000 covering a portion of the 19th and 17th floors in the building known as
67 a/k/a 00 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx (the "Building") for a term to
expire on July 31, 2010 (the "Expiration Date");
2. Landlord and Tenant executed that certain Additional Space and Lease
Modification Agreement (the "First Amendment") dated May 16, 2000 wherein a
portion of the eighteenth (18th) floor was added to the premises demised under
the lease (said lease, as amended by the First Amendment, and by that certain
letter agreement dated April 24, 2000 pertaining to Tenant's collocation rights
pursuant to Article 42 of the Lease, is hereinafter collectively called the
"Lease", and the premises leased thereunder are hereinafter collectively called
the "Demised Premises"); and
3. Landlord and Tenant now desire to further amend the Lease by adding
other space in the Building to the Demised Premises and in certain other
respects as hereinafter provided.
NOW, THEREFORE, in consideration of the mutual covenants herein
contained, it is agreed as follows:
FIRST: Landlord hereby leases to Tenant and Tenant hereby hires from
Landlord, the entire twenty eighth (28th) floor of the Building as shown on the
floor plan annexed hereto and made a part hereof as Exhibit A (the "Second
Additional Space") for a term to commence on the date of execution of this
Second Additional Space and Lease Modification Agreement ("Second Lease
Modification") by Landlord and Tenant (the "Second Additional Space Commencement
Date") and to expire on the Expiration Date, (i.e. to be coterminous with the
term of the Lease) unless sooner terminated, pursuant to any of the terms,
covenants and conditions contained in the Lease, upon all of the terms,
covenants and conditions of the Lease, except as hereinafter expressly provided.
SECOND: Effective from and after the Second Additional Space
Commencement Date, the Lease shall be further amended as follows:
A. All references to the "Lease" now also include the Second Lease
Modification and the terms "demised premises" or "Demised Premises"
as used in the Lease, shall now include the Second Additional Space
for all purposes of the Lease, except as hereinafter expressly
provided;
B. Tenant shall pay Fixed Rent solely with respect to he Second
Additional Space in accordance with the following rent schedule.
Tenant acknowledges that Landlord would not have entered into this
Second Lease Modification without Bridgepoint international
executing and delivering herewith to Landlord, its successors and
assigns, the guaranty ratification attached hereto and made a part
hereof as Exhibit B.
For the first (1st) Lease Year: FOUR HUNDRED TWENTY THOUSAND AND 00/100
($420,000.00) DOLLARS PER ANNUM:
For the second (2nd) Lease Year: FOUR HUNDRED THIRTY-TWO THOUSAND SIX HUNDRED
AND 00/100 ($432,600.00)DOLLARS PER ANNUM:
For the third (3rd) Lease Year: FOUR HUNDRED FORTY-FIVE THOUSAND FIVE HUNDRED
SEVENTY-EIGHT AND 00/100 ($445,578.00)
DOLLARS PER ANNUM:
For the fourth (4th) Lease Year: FOUR HUNDRED FIFTY-EIGHT THOUSAND NINE
HUNDRED FORTY-FIVE AND 00/100 ($458,945.00)
DOLLARS PER ANNUM:
For the fifth (5th) Lease Year: FOUR HUNDRED SEVENTY-TWO THOUSAND SEVEN
HUNDRED THIRTEEN AND 70/100 ($472,713.70)
DOLLARS PER ANNUM:
For the sixth (6th) Lease Year: FIVE HUNDRED SEVENTEEN THOUSAND SEVEN HUNDRED
NINETY-FIVE AND 11/100 ($517,795.11) DOLLARS
PER ANNUM:
For the seventh (7th) Lease Year: FIVE HUNDRED THIRTY-THREE THOUSAND THREE
HUNDRED TWENTY-EIGHT AND 96/100 ($533,328.96)
DOLLARS PER ANNUM:
For the eighth (8th) Lease Year: FIVE HUNDRED FORTY-NINE THOUSAND THREE HUNDRED
TWENTY-EIGHT AND 83/100 ($549,328.83) DOLLARS
PER ANNUM:
For the ninth (9th) Lease Year: FIVE HUNDRED SIXTY-FIVE THOUSAND EIGHT HUNDRED
EIGHT AND 69/100 ($565,808.69) DOLLARS PER
ANNUM: and
For the balance of the term of
the Lease (i.e., through the
Expiration Date): FIVE HUNDRED EIGHTY-TWO THOUSAND SEVEN HUNDRED
EIGHTY-TWO AND 96/100 ($582,782.96) DOLLARS
PER ANNUM.
Solely for purposes of this Second Lease Modification only, the term
"Lease Year" shall mean the twelve (12) month period commencing on the Second
Additional Space Commencement Date and each successive twelve (12) month period
thereafter.
All Fixed Rent shall be payable in equal monthly installments in the
time and manner provided for in the Lease. The first monthly installment of
Fixed Rent shall be paid upon execution of this Second Lease Modification.
C. Article 3 of the Lease is hereby supplemented by adding the
following sentence at the end of the first paragraph thereof:
"Landlord hereby requires Tenant, at Tenant's sole cost and
expense, to restore the Point of Entry (as hereinafter
defined), at the end of the term of the Lease, to the
condition existing prior to the implementation thereof."
Article 3 is further supplemented by adding the following at the end
thereof:
"Tenant shall submit to Landlord a structural inventory (i.e.,
a plan containing the positioning and loading of Tenant's
equipment), upon Landlord's request, but not more than once in
a 12 month period. Landlord shall also have the right, on an
annual basis, to access the Demised Premises, subject to the
provisions of Article 13 of the Lease, in order to review
Tenant's structural loading"
D. The third sentence of Article 4 of the Lease is deleted and replaced
with the following sentence:
"Tenant shall also repair all damage to the Building and the
Demised Premises caused by the moving of Tenant's fixtures,
furniture or equipment or caused in connection with the Point
of Entry."
E. The term "Tenant's Proportionate Share" (as defined in Article
39(A)4 of the Lease) shall be further increased by 1.54% to 3.19%.
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F. 1. Tenant shall upon execution hereof, deposit with Landlord
additional security, in cash or a Letter of Credit (in the form
required by Article 34 of the Lease) in the sum of TWO HUNDRED TEN
THOUSAND AND 00/100 ($210,000.00) DOLLARS (the "Additional
Security").
2. Provided Tenant (a) is not then in default, beyond applicable
notice, grace or cure periods, under the terms, covenants and
conditions of the Lease as amended hereby, and (b) can document to
Landlord's satisfaction that it has spent in excess of $3,000,000.00
on Tenant leasehold improvements and installations in the Second
Additional Space, exclusive of soft costs; provided, however, Tenant
may include the cost of its equipment installed in the Second
Additional Space (which shall be deemed to include equipment owned
by customers or Tenant but not at a value in excess of ONE MILLION
DOLLARS), then, in both or such events, effective on the forty-third
(43rd) month following the Second Additional Space Commencement
Date, the Additional Security shall be reduced to ONE HUNDRED FORTY
THOUSAND AND 00/100 ($140,000.00) DOLLARS which shall remain the
Additional Security for the balance of the term of the Lease.
G. With respect to the Second Additional Space only, the following
changes shall be made to Article 46 of the Lease:
1. The following sentence shall be added after the first sentence
of paragraph B(1):
"During the period beginning on the Second Additional Space
Commencement Date and ending on the date upon which the
Submeter becomes operational, Tenant shall pay to Landlord a
fixed fee for electric energy supplied to the Second
Additional Space in the amount of $2,500.00 per month, payable
monthly on the first day of each month during such period (the
first monthly installment of which shall be payable by Tenant
upon execution thereof), through the care upon which the
Submeter becomes operational Landlord shall refund on a
prorata basis, within 30 days of the end of the month in which
the Submeter becomes operational, any fees paid by Tenant to
Landlord for electric energy for the remaining days of the
month in which the Submeter becomes operational."
2. Paragraph B(3) shall be replaced with the following:
"Tenant's use of electric current in the Second Additional
Space shall not at any time exceed the capacity of any of the
electrical conductors and equipment in or otherwise servicing
the Second Additional Space. Landlord shall, at its sole cost
and expense, make available, at a location in the basement of
the Building, designated by Landlord in its reasonable
judgment, 385 amps, 208 volt, 3 phase electric power ("Basic
Capacity") dedicated to Tenant within sixty (60) days after
Tenant delivers to Landlord a final electrical load letter. At
Tenant's sole cost and expense, Landlord shall make available
additional 208 volt, 3 phase service ("Upgrade") at a location
in the basement of the Building designated by Landlord in its
reasonable judgment, at $350.00 per each additional amp
("Upgrade Charge") as a one time tap in charge, which shall be
paid by Tenant upon request therefore. Prior to the Upgrade
being made available to Tenant, Tenant shall submit to
Landlord, in writing, its electrical power requirements.
Additionally, and in connection with the Upgrade, Tenant shall
pay to Landlord, upon request for the Upgrade, the monetary
difference between making available the Basic Capacity and the
Upgrade. Furthermore, the electric current servicing the
Second Additional Space can be "stepped up" to 480 volt
service at Tenant's sole cost and expense by the installation
of a transformer and other ancillary equipment used in
connection therewith ("Transformer") in the basement or
sub-basement ("Basement") of the Building. Accordingly,
Landlord shall provide space ("Transformer Space") in the
Basement of the Building for the installation of the
Transformer in the event Tenant leases the Transformer Space
during the period commencing on the Second Additional Space
Commencement Date and ending six (6) months thereafter. Tenant
shall pay rent for the Transformer Space based upon the per
square foot rental rate Tenant is presently paying for the
Second Additional Space. In the event Tenant leases the
Transformer Space after the date which is six (6) months after
the Second Additional Space Commencement Date, Tenant shall
payment for the Transformer Space based upon the then
prevailing per square foot rental rate being charged for space
in the Building, which rate shall be subject to one rental
step-up (i.e., an increase in the fixed per square foot rental
rate) in addition to an annual increase of 3% of the per
square foot rental rate, compounded annually, throughout the
balance of the term of the Lease. Furthermore, Tenant's
Proportionate Share shall be increased to reflect the
Transformer Space.
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Moreover, Landlord is in the process of installing a 480 volt
vault in the Building and once said vault becomes operational,
480 volt service, providing a maximum of 1000 amps, will be
available to Tenant after submission of a load letter to
Landlord and payment of a one time tap in charge in the amount
of $500 per amp or 480 volt service. Additionally, Tenant
shall be responsible for the actual cost and expense, at
industry standard rates, of the installation of all risers and
other electrical facilities and equipment required for the
delivery and distribution of the 480 volt service to and
within the Second Additional Space, together with the
applicable conduit charges pursuant to paragraph 48(L) hereof.
Tenant shall not make or perform or permit the making or
performing of, any alterations to wiring, installations or
other electrical facilities in or serving the Second
Additional Space without the prior written consent of Landlord
in each instance (which shall not be unreasonably withheld
conditioned or delayed). Should Landlord grant any such
consent, all additional risers or other equipment required
therefor shall be installed by Landlord and the cost thereof,
based upon industry standard rates, shall be paid by Tenant
within thirty (30) days of Landlord's demand."
H. Article 56 of the Lease shall apply to the leasing of the Second
Additional Space except that reference to Tenant's occupancy of 75%
of the rentable area of the Demised Premises shall mean 75% of the
rentable area of the Demised Premises after giving effect to the
leasing or the Second Additional Space pursuant to the terms of this
Second Lease Modification, and Tenant's rights pursuant to Article
56 of the Lease. If exercised, shall affect the entire Demised
Premises, as modified hereby (i.e., not a portion thereof).
THIRD: Landlord shall not be obligated to make any improvements of
alterations to the Second Additional Space and Tenant agrees to accept
possession of the Second Additional Space in its present "as-is" physical
condition on the Second Additional Space Commencement Date, except that Landlord
shall at Landlord's sole cost and expense promptly after execution of this
Second Lease Modification, perform the following work in and to the Second
Additional Space:
A. Deliver the Second Additional Space demolished and broom clean;
B. Provide means to be into the Building Class E system (for which
Tenant shall reimburse Landlord the cost incurred in connection
therewith), and
C. Deliver an ACP-5 Certificate.
FOURTH: Article 53(B) of the Lease is hereby deleted and replaced with
the following:
"Subject to availability. Tenant shall have the
option, to be exercised within 90 days from the date hereof,
to connect for the term of the Lease, at its sole cost and
expense (as described below), to a Building owned generator
("House Generator") on the seventeenth (17th) floor of the
Building, for use as Tenant's emergency generator backup.
Landlord shall maintain the House Generator at Landlord's sole
cost and expense.
All connections to the House Generator from the
Demised Premises including any transfer switches, conduits,
wiring, etc., shall be at Tenant's sole cost and expense (any
switches, wiring, etc., provided by Landlord shall be at
industry standard rates) and in accordance with all of the
provisions of this Lease including, without limitation,
payment of the House Generator rent, as described below and
conduit charges pursuant to paragraph L of Article 49 hereof.
As consideration for the use of the House Generator,
Tenant shall pay rent to Landlord calculated on the basis of
allocating a minimum of 200 amps at a cost of $250 per amp per
year, with a 3% per annum increase, compounded annually Tenant
shall pay Landlord the first monthly installment of the House
Generator rent upon the exercise of its option and shall
continue to pay rent for the House Generator, as additional
rent, on a monthly basis throughout the term hereof in
accordance with the foregoing rate in the same time and manner
Fixed Rent is paid."
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FIFTH: Provided Tenant is not in default under the terms, covenants
and conditions of the Lease beyond applicable grace, notice and/or cure periods,
Tenant shall have the right to use and occupy the Second Additional Space free
or fixed rent for the first three (3) months following the Second Additional
Space Commencement Date, except that Tenant shall pay to Landlord all additional
rent including but not limited to all sums due under Article 46 of the Lease, as
modified hereby, representing reimbursement to Landlord for the furnishing to
Tenant of electric current during said period. Except for the free fixed rent
allowance as herein provided. Tenant shall use and occupy the Second Additional
Space pursuant to all of the other terms, covenants and conditions of the Lease,
as amended herein.
SIXTH: Landlord and Tenant represent and warrant to each other that
there was on broker responsible for bringing about this Agreement other than
Newmark & Company Real Estate Inc. and Xxxxxxx Xxxxxxx Xxxxxxx LLC
(collectively, "Broker") whose commissions shall be borne by Landlord pursuant
to Landlord's separate agreement with each respective broker. Landlord and
Tenant shall indemnify and hold nameless the other and its successors and
assigns from and against all claims, damages, liabilities, judgments, losses,
costs and expenses (including but not limited to reasonable attorneys' fees and
disbursements) which may arise in connection with any claims for a commission or
other compensation for brokerage, leasing or other services in connection with
this transaction, other than that of Broker, by or through any third-party
outside broker claiming a commission or other compensation in respect of this
transaction.
SEVENTH: There shall be added to the Lease, a new Article 62 as
follows: "Subject to (i) Building standard rules and regulations, (ii) any
applicable legal requirements, (iii) Tenant's delivery of plans, specifications
(including without limitation weight, loading and sidewalk specifications) and
methods (collectively "Plans") to Landlord for the implementation of a Point of
Entry, as defined below, (iv) Landlord's prior approval of Plans (not to be
unreasonably withheld, delayed or conditioned), (v) payment of a one time fee of
$25,000.00 per Point of Entry, which shall be paid by Tenant to Landlord upon
Landlord's approval of Tenant's Plans, and (vi) the terns and provisions of the
Lease (as modified hereby), including without limitation Articles 3 and 4 (as
modified hereby), Tenant shall, upon payment of the fee for each Point of Entry,
have the right of way and access to a location(s) designated by Landlord in its
reasonable judgment for penetration into the Building (each right of way to a
distinct location for penetration into the Building being referred to as a
"Point of Entry") in connection with its own fiber routing to the Demised
Premises. Tenant shall bear the full responsibility and liability with respect
to any and all damage caused to, without limitation, the Building and the land
surrounding and adjacent thereto. Internal and external Building piping,
conduit, wiring, etc. and the Demised Premises, except to the extent such damage
is caused by the negligence or willful misconduct of Landlord, its employees,
contractors and agents. Notwithstanding anything to the contrary contained
herein, Landlord shall bear no responsibility or liability for any damage caused
to Tenant's cables, wires and etc. used in connection with the Point of Entry
resulting from any third party action or inaction, except to the extent such
damage is caused by the negligence or willful misconduct of Landlord, its
employees, contractors and agents.
EIGHTH: Except to the extent modified and amended by the foregoing, the
Lease is hereby ratified and confirmed in all respects.
IN WITNESS WHEREOF, the parties hereto have hereunto set their
hands and seals as of the day and year first above written.
LANDLORD:
75 BROAD, LLC
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By: /s/ Xxxxxxx Xxxxxxx
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Name: Xxxxxxx Xxxxxxx
Title: Partner
TENANT:
BRIDGEPOINT INTERNATIONAL (CANADA) INC.
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By: Yves Grou
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Name: Yves Grou
Title: CFO
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