EXHIBIT 10.10
SEVENTH AMENDMENT TO LEASE AGREEMENT
THIS SEVENTH AMENDMENT TO LEASE AGREEMENT (this "Seventh Amendment")
made as of the 30th day of September, 1998, by and between THE MUTUAL LIFE
INSURANCE COMPANY OF NEW YORK, having an address 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 at 0000 Xxxxx 00, Xxxxxxxxxx, Xxx
Xxxxxx 00000 (the "Tenant").
W I T N E S S E T H:
WHEREAS, pursuant to that certain Lease dated August, 1993, between
Landlord and Tenant, as amended by (i) that certain Second Amendment to Lease
Agreement dated January 20, 1994 (a proposed first amendment was not entered
into), (ii) that certain Third Amendment to Lease Agreement dated July 19, 1994,
(iii) that certain Fourth Amendment to Lease Agreement dated December 20, 1994,
(iv) that certain Fifth Amendment to Lease Agreement dated May 6, 1996, and (v)
that certain Sixth Amendment to Lease Agreement dated November 21, 1997 (such
lease, as amended, being referred to herein as the "Lease"), Tenant leased from
Landlord all of the premises (the "Premises") within the building located at
0000 Xxxxx 00, Xxxxxxxxxx, Xxx Xxxxxx (the "Building");
WHEREAS, the term of the Lease expires on June 14, 2005;
WHEREAS, Landlord and Tenant are entering into a Lease dated the date
hereof (the "New Lease") pursuant to which Landlord will demise to Tenant, and
Tenant will lease from Landlord, certain premises (the "New Premises")
consisting of the entire building to be constructed next to the Building (the
"New Building");
WHEREAS, the term of the New Lease expires at 12:00 Noon on the last
day of the month in which the 10th anniversary of the commencement date of the
New Lease occurs (the "New Lease Expiration Date");
WHEREAS, Landlord and Tenant desire to extend the term of the Lease to
be coterminous with the New Lease, and to amend other provisions of the Lease in
the manner and to the extent hereinafter set forth; and
WHEREAS, capitalized terms used herein but not otherwise defined
herein shall have the meaning given to them in the Lease.
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 do hereby agree that the Lease
is hereby amended as follows:
1. Notwithstanding the provisions of Section 2.2 of the Lease, from
and after the date hereof, the term "Expiration Date" as used in the Lease shall
mean the date the initial term of the New Lease expires pursuant to Section 2.2
thereof, which date is the last day of the month in which the 10th anniversary
of the Commencement Date (as such term is defined in the New Lease) of the New
Lease.
2. (a) Commencing on June 15, 2005, and continuing through the
Expiration Date (as hereinabove amended), the Fixed Rent payable under the Lease
with respect to the Premises shall be $20.13 per rentable square foot per annum
for the portions of the Premises located on the first through third floors of
the Building, and $4.00 per square foot per annum for the portions of the
Premises located within the basement of the Building.
(b) All Rent payable hereunder shall be governed by and paid in
accordance with the provisions of Section 3 of the Lease (excluding Section
3.2).
3. Section 2.5 of the Lease is hereby deleted in its entirety and
replaced with the following:
"2.5 Tenant shall have two (2) options to renew the Term for
the Premises, each for a period of five (5) years. Each option
shall be properly exercised by Tenant only if (a) Tenant
delivers written notice of such exercise prior to the date
which is one year prior to the Expiration Date (as same may be
extended by the first option), time being of the essence with
respect to such exercise, or (b) as of the date Tenant
exercises the option and on the date immediately prior to the
option term, this Lease shall not have been previously
terminated or cancelled nor shall any breach or default by
Tenant of any of its obligations under this Lease be
continuing. The Fixed Rent to be paid during each option
period shall be determined in accordance with Section 4 of the
Seventh Amendment.
4. The Fixed Rent to be paid for the first option period referred to
in Paragraph 3 shall be $23.15 per rentable square foot per annum for the
portions of the Premises located on the first through third floors of the
Building, and $4.60 per square foot per annum for the portions of the Premises
located within the basement of the Building. The Fixed Rent for the second
option period referred to in Section 2.5 shall be the greater of (i) $23.15 per
rentable square foot per annum for the portions of the Premises located on the
first through third floors of the Building, and $4.60 per square foot per annum
for the portions of the Premises located within the basement of the Building,
and (ii) 95% of the fair market rent, as determined in the same manner as such
fair market rent is determined pursuant to Section 3.1(c) of the New Lease.
5. Sections 8.1 and 8.2 of the Lease are hereby deleted in their
entirety and the following is substituted therefor:
"8.1. Landlord, at its expense, shall keep, maintain and
repair in good condition the HVAC, exterior walls (including,
but not limited to, preventing water leaks) and windows, roof,
structural elements and building systems of the Building and
the parking areas and landscaping on the Property. The cost of
performing such maintenance and repairs shall be included in
Operating Expenses to the extent permitted pursuant to Section
4.2 hereof. Notwithstanding anything to the contrary set forth
in this Section 8.1, Tenant (and not Landlord) shall be
responsible for the maintenance of the items listed in this
Section 8.1 to the extent any repairs arise out of the fault
or negligence of Tenant.
8.2. Tenant shall, throughout the Term, take good care of and
maintain the Premises and the fixtures and appurtenances
therein, and shall make all repairs and replacements, as and
when needed to preserve the Premises in good working order and
condition except for those portions of the Premises which are
Landlord's responsibility as set forth in Section 8.1 above.
All damage or injury to the Premises or to any other part of
the Building, or to its grounds, fixtures, equipment, systems
and appurtenances, whether requiring structural or
nonstructural repairs, caused by or resulting from any
carelessness, act, omission, negligent or improper conduct of
Tenant, Tenant's servants, employees, contractors, agents,
invitees or licensees, or by the use or manner of use of the
Premises by Tenant or any such person, shall be repaired
promptly by Tenant at its sole cost and expense, to the
reasonable satisfaction of Landlord. Tenant shall also repair
all damage to the Building and to the Premises caused by the
moving of Tenant's fixtures, furniture, or equipment into or
out of the Premises or the installation thereof. All such
repairs shall be of quality and class equal to the Initial
Tenant Improvements. If Tenant fails after ten (10) days'
notice to proceed with due diligence to make any repairs
required to be made by Tenant (except in an emergency, wherein
Landlord may proceed immediately if Tenant does not
immediately proceed to repair), such repairs may be made by
Landlord at the expense of Tenant and the costs and expenses
thereof incurred by Landlord shall be collectible as
Additional Rent on the date on which the next installment of
Fixed Rent is due hereunder following delivery by Landlord of
an invoice therefor."
6. Section 27.1 of the Lease is hereby deleted in its entirety and
replaced with the following:
"27.1 Tenant will be provided with parking in accordance with
the Plan titled "Site Plan Dialogic, Inc." prepared by Xxxxxxx
X. XxXxxxx, dated February, 1998, (and last revised on August
17, 1998), consisting of 16 pages, and referenced as Project
Number 97041, a copy of which has been delivered to Tenant.
Landlord shall provide Tenant with parking for no less than
3.8 cars per 1,000 rentable square feet of Tenant's office
space. No other tenant of the Building shall have a right to a
greater ratio of parking spaces per rentable square feet."
7. In addition to the Events of Default set forth in Section 13 of the
Lease, it shall be an Event of Default under the Lease if any Event of Default
occurs under the New Lease, subject to any applicable cure periods set forth in
the New Lease.
8. Landlord and Tenant each represent and warrant to each other that
neither of them has employed or dealt with any broker, agent or finder in
carrying on the negotiations relating to this Lease, other than Insignia/ESG
(the "Broker"). Landlord and Tenant shall indemnify and hold each other harmless
from and against any claim or claims for brokerage or other commissions asserted
by any broker, agent or finder engaged by Landlord or Tenant or with whom
Landlord or Tenant has dealt other than the aforesaid Broker. This provision
shall survive the expiration or earlier termination of the Lease, but shall not
be deemed for the benefit of any third party. Landlord agrees to pay any
commission due to the Broker.
9. Except as amended herein, all others terms and provisions of the
Lease shall remain in full force and effect.
10. This Seventh Amendment shall be governed by and construed in
accordance with the laws of the State of New Jersey.
11. This Seventh Amendment embodies and constitutes the entire
understanding between the parties with respect to the subject matter hereof and
all prior agreements, representations and statements oral or written relating to
the subject matter hereof are merged into this Seventh Amendment.
12. Neither this Seventh Amendment nor any provision contained herein
may be amended, modified or extended except by an instrument signed by the party
against whom enforcement of such amendment, modification or extension is sought.
IN WITNESS WHEREOF, this Amendment has been executed by the parties
hereto as of the day and year first written above.
THE MUTUAL LIFE INSURANCE COMPANY OF NEW YORK
By:/s/____________________
Name:
Title:
DIALOGIC CORPORATION
By:/s/_____________________
Name:
Title:
