FIRST AMENDMENT TO LEASE AGREEMENT
THIS FIRST AMENDMENT TO LEASE AGREEMENT entered into as of the day of
August, 2000, by and between XX Xxxxxxxx Co., LLC, successor in interest to
Xxxxxx X. Xxxxxxxx and Xxxxxxx Xxxxxxxx, with a mailing address of 0000 Xxxxxx
Xxx Xxxxx, Xxxxxx, Xxxxxxx 00000 ("Landlord");
and
ARC Communications, Inc., (formerly known as Arc Slide Technologies,
Inc.) a New Jersey corporation, with offices located at 000 Xxxxxxxxxx Xxxxxx,
Xxxxxx Xxxxx, Xxx Xxxxxx ("Tenant").
WHEREAS, Landlord and ARC Slide Technologies, Inc entered into a lease
agreement dated September 24, 1996 (the "Lease") for the use of certain premises
now containing approximately 7,209 square feet of rentable square feet (the
"Existing Premises") as more particularly described in the Lease; and
WHEREAS, the Tenant desires to lease additional space from the
Landlord, consisting of 1949 square feet of office space, outside dimensions
(inclusive of a proportionate share of core and common areas) as more
particularly shown on Exhibit "B" attached hereto (the "First Expansion Space");
and
WHEREAS, the Tenant and Landlord desire to amend the Lease in order to
provide for the terms of leasing the First Expansion Space and to memorialize
other changes they have agreed to concerning the Lease by entering into this
First Amendment to Lease.
NOW, THEREFORE, in consideration of terms and conditions hereof, and
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the Landlord and Tenant agree as follows:
1. Certain Definitions. Unless specifically defined herein or the
context clearly requires a different meaning, the words and phrases used herein
that are defined in the Lease and not otherwise defined in this Amendment shall
have the meanings ascribed to them in the Lease. The term "First Effective Date"
as used herein means the date that Landlord delivers the First Expansion Space
to Tenant. The term of the Lease is hereby confirmed as presently ending on
November 30, 2001.
2. First expansion space. Effective as of the First Effective Date,
Landlord leases to Tenant and Tenant hereby leases from Landlord the First
Expansion Space. As of the First Effective Date, the Premises and all references
thereto throughout the Lease shall include the First Expansion Space and the
total square footage of the Premises shall contain 9,158 rentable square feet
(hereinafter
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referred to as the "Total Leased Space"). The term hereof shall be conterminous
with the term of the Lease, as extended by virtue of the exercise of the
Tenant's Option to Renew as more specifically provided below.
3. Rent. Tenant covenants and agrees to pay to Landlord, at such place
as Landlord may designate, without deduction or setoff, except as otherwise
expressly provided in the Lease, over and above the Rent payable under the Lease
for the Existing Premises, additional rent for the First Expansion Space as
follows:
(a) During the period beginning on the First
Effective Date through the term of the Lease, the sum of $3
7,031.04 per annum, in equal monthly installments of $3,085.92
each, in advance on the first day of each and every calendar
month during said period. Upon execution hereof, Tenant will pay
to Landlord the amount which will be due for the first months
rent beginning on the First Effective Date. In the event the
First Effective Date falls on a day other than the first day of
a month, then the payment due on the first day of the first
month following the First Effective Date will be adjusted
proportionally to reflect the portion of the prior month for
which possession had not been delivered to Tenant.
4. First Expansion Space. Tenant acknowledges that the First Expansion
Space is being delivered to Tenant in a strictly "AS IS" condition. Any
modifications of the First Expansion Space shall be at the sole cost and expense
of Tenant, and subject to the applicable provisions of the Lease.
5. First Effective Date. Landlord and Tenant anticipate that the First
Expansion Space will be turned over to Tenant, and hence the First Effective
Date will be, on October 1,2000. In the event the Landlord is unable to deliver
the First Expansion Space on such date by reason of the holding over or
retention of possession by any tenant or occupant, this First Amendment shall
nevertheless continue in full force and effect, and no liability shall arise
against Landlord out of any such delay beyond the abatement of rent for the
First Expansion Space until the Landlord is able to deliver possession of the
First Expansion Space to Tenant; provided, however, in the event Landlord has
not delivered possession of the First Expansion Space to Tenant on or before
November 1,2000, Tenant may terminate this First Amendment, in which event this
First Amendment will be deemed null and void and of no further force or effect.
6. Utilities. As of the First Effective Date, it is expressly
understood and agreed that Tenant, at its sole cost and expense, shall be
responsible for the full payment of the following items of service applicable to
its use and occupancy of the First Expansion Space without any claim for
contribution or reimbursement by Landlord:
(a) Electricity separately metered for the First Expansion Space;
(b) Janitorial and cleaning service for the First Expansion
Space, including general building supplies and lavatory
supplies;
(c) Exterminating costs for the First Expansion Space;
(d) Gas separately metered for the First Expansion Space;
(e) Any other utilities actually used directly by Tenant.
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7. Brokerage. Landlord and Tenant represent to each other that they
have dealt with no real estate broker or salesperson in connection with this
Firs Amendment to Lease Agreement. Landlord and Tenant further agree to
indemnify, defend and hold harmless the other party form and against all loss,
cost, expense and damage, including attorneys fees, arising out fo a breach of
the foregoing representation. Landlord shall be solely responsible for any and
all brokerage commissions which may be due to any broker or salesperson arising
out of the Lease or any brokerage commission agreement executed by Landlord in
connection with the Lease.
8. Security Deposit. Upon execution hereof. Tenant will deposit with
Landlord $3,085.92 as additional security under the Lease, to be held by
Landlord in accordance with the provisions of paragraph 38 of the Lease and
representing the security deposit for the First Expansion Space.
9. Tenant. Tenant hereby represents that Tenant hereunder was formerly
known as ARC Slide Technologies, Inc.
10. Amendments to Lease. Upon execution hereof, the following
amendments to the Lease shall simultaneously be effective:
A. By execution of this First Amendment, Tenant hereby exercises its
option to renew the Lease pursuant to Paragraph 39 thereof. Effective December
1,2001, the parties hereby agree that the annual Renewal Base Rent on the
Existing Premises will be $136,971.00, payable in monthly installment of$
11,414.25 each. Accordingly, effective December 1,2001 the Base Rent due and
payable on a monthly basis for the Total Leased Space will be $14,500.17.
B. Effective December 1, 2001, Tenant at its sole cost and expense,
shall be responsible for the full payment of the following items of service
applicable to its use and occupancy of the Existing Premises without any claim
for contribution or reimbursement by Landlord:
(a) Electricity separately metered for the Existing Premises;
(b) Janitorial and cleaning service for the Existing Premises,
including general building supplies and lavatory supplies;
(c) Exterminating costs for the Existing Premises;
(d) Gas separately metered for the Existing Premises;
(e) Any other utilities actually used directly by Tenant.
C. Simultaneous with the payment of the rent due December 1,2001,
Tenant will pay to Landlord an additional $3,003.75 representing the additional
security deposit due for the Existing Premises, bringing the total security
deposit held on the Existing Premises to $11,414.25.
D. Upon execution hereof, as a result of the exercise of the Tenant's
Option to Renew, the term of the Lease is hereby extended to November 30, 2006.
E. At any time following execution hereof. Landlord agrees to
reimburse Tenant up to $15,000.00 towards the cost of tenant improvements to be
completed by Tenant in the First Expansion Space. Reimbursement by Landlord to
the extent of such tenant improvements shall be made within thirty (30) days of
delivery to Landlord by Tenant of invoices evidencing such tenant improvements
along with proof of payment of the same by Tenant.
F. Furthermore, Landlord agrees to pay to Tenant the amount of
$10,000.00 to be
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used by Tenant towards the cost of refurbishing the Existing Space.
Reimbursement by Landlord to the extent of such refurbishment of the Existing
Space shall be made within thirty (30) days of delivery to Landlord by Tenant
of invoices evidencing such refurbishment along with proof of payment of the
same by Tenant.
G. On or about December 1, 2001, Landlord agrees to reimburse Tenant
up to an additional $15,000.00 towards the cost of tenant improvements to be
completed by Tenant in the Existing Premises. Reimbursement by Landlord to the
extent of such tenant improvements shall be made within thirty (30) days of
delivery to Landlord by Tenant of invoices evidencing such tenant improvements
along with proof of payment of the same by Tenant.
H. Tenant hereby agrees that to the extent Tenant makes any
modifications, improvements, repairs, or the like to any of the mechanical,
electrical, plumbing, or similar services in the Total Leased Space, Tenant will
utilize subcontractors specifically approved in advance by Landlord, which
consent will not be unreasonably withheld.
11. Xxxxxx Capital and Other Contiguous Space. In the event during the
term of the Lease, the area presently rented by Xxxxxx Capital (the "Xxxxxx
Capital Space") becomes vacant, and available for rent, due to the termination
of the Xxxxxx Capital lease or tenancy, and if at said time, Tenant shall not be
in default in the performance of any of the material terms, covenants and
conditions of this Lease and this Lease shall not have been terminated and shall
be in full force and effect. Landlord shall not lease said space to a third
party without first giving Tenant notice of the availability ("Notice of
Availability") of said space. Tenant may then notify Landlord (which
notification must be given within two weeks of receipt of Landlord's Notice of
Availability) in the event Tenant wishes to lease all of said space (Tenant
shall not have the right to exercise its right to lease only a portion of said
space). In the event Tenant so notifies Landlord, Landlord and Tenant shall
enter into a Lease Amendment agreement, incorporating the said space into the
Total Leased Space, on the same terms and conditions as provided herein, except
that the rent to be payable for the Xxxxxx Capital space will be at the monthly
rate of $5,750.00, plus utilities, plus any escalations otherwise provided in
the Lease, and the term of which shall be conterminous with the term hereunder.
Tenant will accept such space in its AS IS condition. In the event Tenant fails
to exercise its right to incorporate said space into its Total Leased Space as
provided herein. Landlord may rent the said space to any third party or parties
on such terms as are acceptable to Landlord. Upon incorporation of the Xxxxxx
Capital space into the Total Leased Space, Tenant will pay an additional
Security Deposit to Landlord in the amount of $5,750.00, representing the amount
of the monthly Base Rent due for the Xxxxxx Capital space. In the event other
space contiguous (the "Other Contiguous Space") to the Tenant's space becomes
vacant and available for rent. Landlord will endeavor to notify Tenant of the
availability of the Other Contiguous Space so that Tenant will have the
opportunity to offer to lease said space. Failure of the Landlord to notify
Tenant, however, shall not constitute a default by Landlord, nor give Tenant's
any rights against Landlord by virtue of such failure.
12. Amendment to Paragraph 3.2 of Lease Paragraph 3.2 of the Lease is
hereby amended by changing the ten (10) days within which any payment due
Landlord must be paid to seven (7)
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days. Accordingly, if any payment due Landlord from Tenant shall not be received
by Landlord, or Landlord's designee, within seven (7) days after such amount
shall be due, Tenant shall pay to Landlord a late charge equal to five (5)
percent of such overdue amount.
13. Reaffirmation and conflicts. All of the terms, covenants and
conditions of the Lease shall continue in full force and effect, and the same
are hereby reaffirmed, remade and rewritten, except to the extent that any such
terms, covenants or conditions have been nullified hereby or conflict or are
inconsistent with the terms of this Amendment, in which event the terms of this
Amendment shall, in all respects, govern and prevail. Tenant acknowledges that
to the best of its knowledge, it has no claims, defenses, or offsets regarding
the performance of any of its obligations under the Lease, nor any claims
against Landlord or its agents.
14. Binding effect. This Amendment shall be binding upon and shall
inure to the benefit of the parties hereto and their respective successors and
assigns. No reference in the preceding sentence to assigns shall be deemed to
authorize any assignment or other transfer, in whole or in part, of the interest
of Tenant in violation of any of the provisions of the Lease.
IN WITNESS WHEREOF, Landlord and Tenant have executed this Amendment as of the
date first above written.
WITNESS: LANDLORD:
XX Xxxxxxxx Co., LLC
/s/ Xxx Cusiak By: /s/ Xxxxxx Xxxxxxxx
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Xxx Cusiak Xxxxxx Xxxxxxxx, Member
WITNESS: TENANT:
Arc Communications, Inc.
/s/ Xxxxx Gialenella By: /s/ Xxxxx Xxxxx
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Xxxxx Gialenella Xxxxx Xxxxx, President
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