Exhibit 10.11.1
AMENDMENT TO LEASE
THIS AMENDMENT TO LEASE ("Amendment") is made as of the 1st day of
April, 2007, by and between SOFTWARE HOUSE INTERNATIONAL, INC. ("Landlord"), a
New Jersey corporation, having an office at 0 Xxxxxxxxx Xxxxx, Xxxxxxxx, Xxx
Xxxxxx 00000, and EASYLINK SERVICES CORPORATION ("Tenant"), a Delaware
corporation, having an address at 00 Xxxxxxxxxxxxx Xxxx, Xxxxx 000, Xxxxxxxxxx,
Xxx Xxxxxx 00000.
WITNESSETH:
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WHEREAS, pursuant to a certain New Jersey Lease dated as of July 23,
2002 (the "Lease") between BT Piscataway, LLC, Landlord's predecessor, and
Tenant, Landlord leases to Tenant, and Tenant leases from Landlord, a total of
approximately 67,201 rentable square feet of office space (the "Original
Premises") located on the first, second and third floors of the building
commonly known as 00 Xxxxxxxxxxxxx Xxxx, Xxxxxxxxxx, Xxx Xxxxxx (the
"Building"); and
WHEREAS, the term of the Lease commenced on March 1, 2003, and expires
on June 30, 2013; and
WHEREAS, Tenant desires to surrender the third floor portion of the
Original Premises, consisting of approximately 11,964 rentable square feet of
floor area (the "Surrendered Space"); and
WHEREAS, Landlord is willing to accept the surrender of the third floor
portion of the Original Premises consisting of approximately 11,964 rentable
square feet and to terminate the Lease with regard to the Surrendered Space,
subject, however, to the terms and conditions set forth herein;
NOW, THEREFORE, in consideration of the mutual covenants contained
herein and other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto agree as follows:
1. (a) Provided that no event of default occurs under the Lease which
is not cured prior to the Surrender Date (defined below), Tenant agrees to
surrender to Landlord, and Landlord agrees to accept, as of May 30, 2007 (the
"Surrender Date"), the surrender of the Surrendered Space, on the terms and
conditions set forth in this Amendment to the Lease dated July 23, 2002. After
the Surrender Date, Tenant shall have no further obligations or liabilities of
any kind or nature under the Lease with respect to the Surrendered Space, except
as expressly provided in this Amendment.
(b) As of the Surrender Date, (i) the term "Premises", as set forth
in the Lease shall mean the portion of the Original Premises located on the
first and second floors, (ii) the "Rentable Area" of the Premises shall be
deemed to be approximately 55,201 rentable square feet of floor area, (iii)
"Tenant's Allocated Share" shall be deemed to be 36.02%, and (iv) Exhibit A of
the Original Lease shall be amended to remove the Surrendered Space therefrom.
2. In consideration for Landlord's acceptance of surrender of the
Surrendered Space, Tenant agrees to pay termination rent in the amount of seven
(7) months' rental of the Surrendered Space. Landlord agrees to accept such
termination rent in monthly installments, at the rate set forth in Section 1(e)
of the Lease, commencing on the first monthly installment of rent payable after
the Surrender Date and continuing through December 31, 2008. Such termination
rent shall be deemed Fixed Rent for all purposes of this Lease. Accordingly, as
of the Surrender Date, Section 1(e) of the Lease is hereby amended to read as
follows:
1ST + 2ND FLOOR ANNUAL RENT MONTHLY TERMINATION
LEASE YEAR PER RSF (55,201 rsf) INSTALLMENTS FIXED RENT RENT/MONTH
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Months 52-58 $17.50 plus utilities $966,017.50 $80,501.46 $18,444.50
(June 2007-December 2007)
Months 59-64 $17.50 plus utilities $966,017.50 $80,501.46 $ - 0 -
Months 65-124 $18.50 plus utilities $1,021,218.50 $85,101.54 $ - 0 -
3. On or before the Surrender Date, Tenant shall remove from the
Surrendered Space all trade fixtures, furniture, equipment, machinery and
personal property belonging to Tenant, shall repair all damage to the
Surrendered Space and/or the Building caused by such removal, and shall deliver
the Surrendered Space to Landlord broom clean condition subject to ordinary wear
and tear, in the condition that same is required to be delivered as if the
Surrender Date were the expiration of the term of the Lease. The failure of
Tenant to surrender the Surrendered Space in the manner required by the Lease as
of the Surrender Date shall be deemed a holdover under the Lease with respect to
the Surrendered Space.
4. Tenant shall continue to comply with and/or perform all of its
obligations under the Lease (including, without limitation, the payment of Fixed
Rent and Additional Rent) with respect to the Surrendered Space to and including
the Surrender Date. Tenant agrees to pay promptly any and all Additional Rent,
and charges for utility services furnished to the Surrendered Space through the
Surrender Date, regardless of when billed, and Landlord shall be responsible for
refunding any overpayments of Additional Rent with respect to the Surrendered
Space when and if same are determined. In addition, Tenant shall reimburse
Landlord for Landlord's reasonable cost incurred to remove the Surrendered Space
from any dedicated utility meters serving the Original Premises. Landlord hereby
agrees to use commercially reasonable efforts to remove the Surrendered Space
from the dedicated utility meters serving the Original Premises by May 31, 2007.
The provisions of this Paragraph 4 shall survive the termination of the Lease
with respect to the Surrendered Space.
5. Tenant hereby represents and warrants to Landlord that Tenant used
the Premises solely for administrative and executive offices, and for no other
use or purpose, and that Tenant's use of the Premises is not subject to the
Industrial Site Recovery Act.
6. Tenant shall not have any legal or equitable right or interest in or
to the Surrendered Space after the Surrender Date. Tenant hereby expressly
covenants and warrants to Landlord that Tenant has not subleased, assigned, or
encumbered the Surrendered Space.
7. Landlord and Tenant each represents and warrants to the other that
such party has not dealt with any broker, agent or finder in connection with
this Amendment to the Lease dated
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July 23, 2002. Landlord and Tenant shall
indemnify and hold the other party harmless from and against any claim or claims
for brokerage or other commissions or fees asserted by any broker, agent or
finder claiming to have dealt with such party. This provision shall survive the
termination of the Lease with respect to the Surrendered Space.
8. (a) Effective as of the Surrender Date, Tenant hereby releases
Landlord from and against all claims, demands, liabilities, costs and expenses
arising out of or in connection with the Surrendered Space which Tenant ever
had, now has or shall hereafter have against Landlord, except with respect to
(i) any third party claims against Landlord and/or Tenant for bodily injury
which occur prior to the Surrender Date, and (ii) the express obligations of
Landlord under Paragraph 4 hereof.
(b) Provided (x) Tenant surrenders possession of the Surrendered
Space to Landlord in accordance with this Amendment, (y) Tenant has paid to
Landlord all Fixed Rent and Additional Rent with respect to the Surrendered
Space for the period preceding the Surrender Date, and (z) Tenant is not
otherwise in default under the terms and conditions of the Lease as of the
Surrender Date, then, effective as of the Surrender Date, Landlord hereby
releases Tenant from and against all claims, demands, liabilities, costs and
expenses arising out of or in connection with the Surrendered Space which
Landlord ever had, now has or shall hereafter have against Tenant, except with
respect to (i) any third party claims against Landlord and/or Tenant for bodily
injury which occur prior to the Surrender Date, and (ii) the express obligations
of Tenant under this Amendment.
9. Nothing contained in this Amendment shall affect, limit or modify
any of Landlord's rights and remedies under the Lease in the event of a default
(beyond applicable notice and cure period) by Tenant under the Lease on or
before the Surrender Date.
10. All prior oral or written understandings and agreements between the
parties with respect to the subject matter of this Amendment are merged into
this Amendment, which alone fully and completely expresses the agreement of the
parties.
11. Any capitalized term used in this Amendment to the Lease dated July
23, 2002, but not defined herein, shall have the meaning ascribed to said term
in the Lease.
12. This Amendment shall be governed by and construed in accordance
with the laws of the State of
New Jersey.
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IN WITNESS WHEREOF, the parties hereto have signed and executed this
Amendment as of the date first above written.
SOFTWARE HOUSE INTERNATIONAL, INC.
BY: /s/ Thai Xxx
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Name: Thai Xxx
Title: President
EASYLINK SERVICES CORPORATION
BY: /s/ Xxxxxx X. Xxxxxxxx
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Name: Xxxxxx X. Xxxxxxxx
Title: Chairman, President and CEO
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