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U.S. SECURITIES EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10-KSB
(Mark One)
[X] ANNUAL REPORT UNDER SECTION 13 or 15(d) OF THE SECURITIES EXCHANGE
ACT OF 1934
For the fiscal year ended December 31, 1999
[ ] TRANSITION REPORT UNDER SECTION 13 or 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934
For the transition period from ________________to ________________
Commission file number: 000-25641
Teltran International Group, Ltd.
(Exact name of small business issuer in its charter)
Delaware 11-3172507
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(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
One Penn Plaza, Suite 4430, New York, NY 10119
(Address of principal executive offices) (ZipCode)
Issuer's telephone number (212) 643-1600
Securities registered pursuant to Section 12(b) of the Act: None
Securities registered pursuant to Section 12(g) of the Act:
Common Stock, $.001 par value
(Title of Class)
Check whether the issuer (1) filed all reports required to be filed by
Section 13 or 15(d) of the Securities Exchange Act of 1934 during the past 12
months (or for such shorter period that the issuer was required to file such
reports), and (2) has been subject to such filing requirements for the past 90
days.
Yes__X__ No._____
Check if there is no disclosure of delinquent filers in response to
Item 405 of Regulation S-B contained herein, and no disclosure will be
contained, to the best of issuer's knowledge, in definitive proxy or information
statements incorporated by reference in Part III of this Form 10-KSB or any
amendment to this Form 10-KSB. [ ]
Issuer's revenues for the year ended December 31, 1999 were $2,453,189.
The aggregate market value of the common stock held by non-affiliates
of the issuer is $65,590,502, based on $4.844, which was the average of high and
low sales prices on the OTC Bulletin Board on April 10, 2000.
The number of shares outstanding of the issuer's common stock is
18,275,979 as of April 11, 2000.
DOCUMENTS INCORPORATED BY REFERENCE
None.
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Item 1. Description of Business.
General
In July 1983, we were incorporated in Utah as Spectratek Incorporated and we
subsequently incorporated as Teltran International Group Ltd in Delaware on
October 6, 1997. In 1993 we formed a wholly owned subsidiary, Teltran
International, Inc. and we use Teltran International to engage in our
international telecommunications business. Since 1998 our primary business is
acting as a seller of telecommunications time. In 1999 we began operating an
Internet portal. Recently we have acquired entities in the United Kingdom which
are engaged in or were commencing to engage in providing equipment services for
Internet providers. Prior to 1998 we were engaged in attempts to develop our
business and did not receive any significant revenues. References to "we", "us",
or "our" include Teltran International as well.
Telecommunications industry background
During the last fifteen years, international telecommunications has changed
dramatically. Deregulation has resulted in the end of monopolies and a
proliferation of competitors. In addition, international agreements among most
industrial nations have opened telecommunication markets to competition and
foreign ownership. At the same time technology has changed adding to the overall
efficiency of telecommunication services and increasing both call volume
capacity and the quality of sound. These factors have also combined to reduce
costs significantly. With the advent of new technology came the development of
new methods of completing calls and reducing costs. One of the most prominent
methods to achieve this is called refiling, which is the routing of calls from
country A to country B for termination in country C. Because of the above
mentioned changes, the rates charged callers using re-filed calls among the
three countries is less than the rate they would otherwise pay for a connection
directly between country A and country C.
Re-filing is typically achieved through a series of resale arrangements among
carriers often involving the wholesale purchase of services on a per-minute
basis by one long distance provider from another. A single international call
may pass through the facilities of several long distance carriers and resellers
before being terminated to a local telephone user by a carrier in the country of
termination. Re-filing has caused the emergence of alternative international
providers that rely on transmission services acquired on a wholesale basis from
other long distance providers. These international providers include entities
whose business is purely to act as a reseller.
The advent and proliferation of Internet Protocol, the computer language
protocol used to transmit data over the Internet and managed networks, has added
to the options available for the delivery of international telephone service.
Internet telephony uses Internet Protocol and voice messaging equipment, or
gateways, to receive voice messages, convert them into digital data packets,
transmit them over the Internet at high speeds and
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retranslate them back into voice messages with digital clarity at the call
receiver's end. The Internet telephony industry began in 1995, when experienced
Internet users began to transfer voice messages from one personal computer to
another. Subsequently, software was introduced which allowed personal computer
users to place international calls via the Internet to other personal computer
users for the price of a local call. Initially, the growth of Internet telephony
was constrained due to the poor sound quality of the calls and because calls
were mainly limited to those placed from one personal computer to another.
However, as the industry has grown, substantial improvements have been made. New
software has substantially reduced delays and improved voice quality. The use of
private networks or Intranets to transmit calls as an alternative to the public
Internet also helped to alleviate capacity problems. Developments in hardware,
software and networks are expected to continue to improve the quality and
viability of Internet telephony.
Internet telephony provides customers with substantial savings compared to
conventional long distance calls. The total cost of an Internet telephone call
is based only on the local calls to and from the gateways of the respective
Internet providers. As a result the call bypasses the international settlements
process which requires using the more expensive transoceanic fiber networks of
traditional carriers.
HISTORY
Initially we intended to concentrate our efforts on establishing and operating a
global messaging business. By pursuing that strategy we intended to provide our
customers with a universal mailbox and a platform that was capable of generating
multimedia broadcasts of messages and documents received by the client. In other
words, the messages could be faxed or otherwise delivered to various locations
within an enterprise. As an adjunct to our global messaging service we also
intended to provide enhanced fax services including fax broadcasting. We
postponed our efforts to provide global messaging services because of our
inability at the time to obtain financing for equipment and due to the new
telecommunications opportunities presented by Internet telephony. We derived
insignificant revenues from the provision of global messaging services for
clients through April 1998. After April 1998, we focused our efforts on
exploiting opportunities in Internet telephony and derived revenues providing
services as a refile hub for and affiliate of OzEmail Interline Pty, Limited.
OzEmail Interline Pty Limited was a subsidiary of OzEmail Limited, a wholly
owned Australian subsidiary of MCI WorldCom, Inc. On November 30, 1999, ITXC
Corp purchased the intellectual property and contractual rights associated with
the operations of the Internet telephony business of OzEmail Interline Pty
Limited. We are currently operating our Internet telephony business through the
ITXC network. We also are in the process of establishing our own systems for
traffic between different countries. We have also acquired telecommunications
companies in the United Kingdom.
Factors that affect the telecommunications industry
There is a chance technological changes in the telecommunications industry will
make our business obsolete. We cannot guarantee that research and developments
by others
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will not render our operations noncompetitive or obsolete. Our business strategy
is subject to the risks inherent in the marketing of new services using new
technologies and approaches in a rapidly evolving commercial environment. We
cannot assure that unforeseen problems will not develop with these technologies
or applications, or that we will be able to successfully address the
technological challenges we encounter by entering into alternative arrangements
for generating revenues.
Our success in the international telecommunications business may depend on
factors beyond our control including the influence of domestic and foreign
governments on our industry. We believe we will generate a substantial portion
of our revenues by providing international telecommunications services to our
customers on a wholesale basis. The international nature of our operations
involves particular risks. These include changes in foreign government
regulations and telecommunications standards, dependence on foreign partners,
tariffs, taxes and other trade barriers, economic downturns and political
instability in foreign countries. Our business could also be adversely affected
by a reversal in the current trend toward deregulation, or upon a change in the
business affairs of ITXC Corp. In addition, our business is subject to various
U.S. and foreign laws, regulations, agency actions and court decisions. Our U.S.
international telecommunications services are subject to regulation by the FCC.
The FCC requires international carriers to obtain authorizations under Section
214 of the Communications Act of 1934 prior to purchasing or leasing
international facilities, or providing international service to the public. We
have obtained the necessary licensure to conduct our business. We may be
adversely affected by regulations of foreign governments as we seek to establish
local affiliates outside of the United States. Foreign regulations may also
affect affiliates that complete calls on behalf of our clients.
There are several factors unique to the telecommunications industry that may
negatively influence our operating results, including revenues, costs and
margins. Our revenues, costs and expenses may fluctuate in the future as a
result of numerous factors. Our revenues in any given period can vary due to
factors including call volume fluctuations, particularly in regions with
relatively high per minute rates; the addition or loss of major customers,
whether through competition, merger, consolidation or otherwise; financial
difficulties of major customers; and pricing pressure resulting from increased
competition. Technical difficulties or failures of portions of the ITXC system
or other providers may impact our ability to provide service to our customers by
preventing us from delivering call traffic. Additionally, technical difficulties
with the network may cause loss.
INTERNET TELEPHONY
INTERNET TELEPHONY DESCRIPTION
Internet telephony is the use of the worldwide Internet system to transmit
telephone, fax and other communications between two countries. This process
consists of receiving a call or transmission, usually through a local carrier,
to a switch and/or gateway, which contains software, which converts the voice
input from the transmission to digital data,
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which is then routed to another country over the Internet. The basic equipment,
which converts the transmission and routed is called a gateway. The Internet
call is directed to a receiving country. A gateway in the receiving country
performs the reverse process converting the digital data from the Internet to a
voice format. This in turn is transmitted through local telephone providers to
the ultimate destination.
The heart of any Internet telephony system is the gateway. There are several
providers of gateways, including Lucent, Cisco, Clarent and VocalTec. OzEmail
utilized their own gateways, which contained proprietary software. Each gateway,
depending on the manufacturer, is capable of handling twenty-four or more
simultaneous calls. The gateway is also used for billing, rating and
verification purposes in conjunction with a gatekeeper or other external billing
package.
The typical structure of a call placed through the Internet telephony system is
as follows:
o a person originates a domestic telephone call to a facility containing
gateways;
o the call is converted into a digital form and delivered to the
Internet through the gateway and is routed to the country of
destination;
o the Internet transmission connects to a gateway in a foreign country
where it is converted to analog and connected to foreign domestic
local telephone network; and
o the call is received by the person to which it was directed as a
normal telephone call.
INTERNET TELEPHONY SYSTEM
OzEmail, before its sale to ITXC, operated and ITXC operates an Internet
telephony network. The network consists of a consortium of companies in various
countries that act as affiliates of the network for the transmission and receipt
of service worldwide. All systems use gateways located in various parts of the
world tied together by a network for the transmission, routing and connection of
voice, data and fax communications through the Internet. The network may also
utilize other conventional systems to organize and complete calls. OzEmail used
its own proprietary gateways. Each affiliate primarily furnishes origination
services in its area of affiliation but also furnishes termination service in
its territory enabling affiliates in other countries to route calls into its
territory for termination through the local affiliate over conventional public
switched telephone networks. The local affiliate receives a termination fee for
the completion. Each affiliate markets the service in its territory offering
origination-calling services through the network. Each local affiliate is
required to pay a fee to the network for all international services of the
affiliate's customers routed through the network.
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If no affiliate has been appointed in the country of destination, the call will
be routed through an affiliate acting as a refile provider in a third country
for the least expensive routing.
TELTRAN RELATIONS WITH INTERNET TELEPHONY NETWORKS
In 1998 we were appointed as a refile hub for OzEmail in the United States for
calls terminating in countries without OzEmail affiliates. As a refile hub, we
received calls for the OzEmail system and directed them through the least
expensive routing to countries which had no OzEmail Internet termination. We
derived approximately $535,200 in revenues from this activity in 1998 but
revenues in 1999 were not material. The decline resulted from the utilization by
OzEmail of a related party as a refile hub and to a lesser extent from an
increase in affiliates.
In October 1998 we were appointed a non-exclusive OzEmail affiliate in the
United States. This designation enabled us to sell international voice telephone
availability through the OzEmail Internet system utilizing OzEmail technology
and protocols to clients in the United States. In this capacity, we sought to
wholesale Internet telephony capacity from North America to other locations
around the world within the OzEmail network.
In the first quarter of 1999, we entered into agreements to provide call
connection services from the United States to the Netherlands Antilles and South
Africa. Prior to June 1999, we did not derive significant revenues from our
affiliate operations. It took us, or our clients, a substantial period of time
to complete testing, obtain compatible equipment and software and to complete
arrangements with local telephone companies. In June 1999 we began service to
Netherlands Antilles and South Africa for two clients. Through February 2000 we
have completed calls totaling over 4.1 million minutes.
Generally OzEmail only permitted one affiliate in a country. By November 1999 we
obtained affiliate status in the United Kingdom and Ireland through our
ChannelNet subsidiary. We have executed contracts to provide service to an
affiliate in Pakistan. This service has not begun due to, among other things,
local government requirements. Subject to final agreements, we had received
permission to become an affiliate in other countries. In November 1999 OzEmail
disposed of its Internet telephony business to ITXC. ITXC Corporation is a
provider of Internet-based voice and fax services located in Princeton, New
Jersey, whose shares are listed on the NASDAQ National Market under the symbol
"ITXC." It has been operating an Internet telephony network for more than the
last two years, and reported revenues of over $25,000,000 in 1999. Public
filings by ITXC indicate that, in the fall of 1999, ITXC completed its initial
public offering and received over $70,000,000 in proceeds.
After the transfer of OzEmail's Internet telephony business to ITXC, we entered
into a new arrangement with ITXC superceding our past arrangements. We believe
the new arrangement will have substantial benefits as ITXC imposes less
restrictions upon its affiliates than OzEmail did. For example, unlike OzEmail,
ITXC does not limit the number of affiliates in any country. We are now free to
become an affiliate in as many
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countries as we may desire. ITXC also does not require the use of proprietary
gateways. We may use any commercial gateway as long as there exists a similar
gateway in the receiving country. Finally, ITXC will provide the gateway for
calls, originating in a country in which we are an affiliate, that terminate
within the ITXC network. We are required to provide gateways for traffic which
terminates outside of the ITXC network. We are also free to purchase gateways
from third parties and establish our own network between any two countries.
By establishing gateways, either as an ITXC affiliate or directly, in other
countries and sending calls through our own network for specific countries, we
would have the ability to receive revenues from both ends of a call. In most
instances we contemplate entering into arrangements with a local partner to
implement foreign arrangements.
ITXC/OzEMail agreements
Our OzEmail affiliate agreements were in effect replaced by an agreement we
signed with ITXC on November 23, 1999. Under the WWExchange Network Services
agreement signed with ITXC, each company will provide termination services for
calls from Internet telephony or public switched telephone networks. ITXC, at
its own cost, will provide Teltran with five E-1 gateways. The contract runs
through May 19, 2002, but may be terminated on 60 days' notice. The relationship
established by the agreement is non-exclusive, and either company may provide
termination services for other parties. We are authorized to originate calls
that will terminate to worldwide destinations over the ITXC Internet telephony
network and terminate calls that originate from the ITXC network. In effect,
Teltran can become both a vendor (affiliate) and customer for ITXC. The gateways
that we operate in the United States and abroad will transmit calls over the
Internet worldwide through ITXC's or our own interconnected systems. As an
affiliate or vendor for ITXC we must purchase the necessary gateways to provide
that service. ITXC will purchase and install for us, as its customer, the
gateways needed to originate calls that will terminate within the ITXC network.
Affiliates in the ITXC system are also obligated to provide termination services
to other ITXC affiliates in other countries, over ITXC's interconnected systems.
Affiliates providing termination services charge originating affiliates a fee
based on the rate the terminating affiliate has negotiated with the local
carrier to terminate the call in the jurisdiction of its affiliation. ITXC
collects the fees from the originating affiliate and, after deducting a service
charge or mark up, remits the fee to the terminating affiliate.
Equipment
ITXC requires its affiliates to obtain a sufficient number of gateways to
provide their services and to test them over a period of several weeks to
determine the quality of service to the particular destination. We had
previously purchased twelve gateways for an aggregate cost of $108,000 to
service our existing United States clients at present levels through our OzEmail
affiliates. We have replaced our OzEmail gateways with both ITXC-owned and
Teltran-owned equipment. This process has been completed prior to February 2000.
ITXC replaced, without cost to us, the equipment that will be used in
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terminating traffic with ITXC affiliates. We may receive additional gateways
from ITXC at no cost as long as these gateways are used exclusively for sending
calls over the ITXC network. These gateways belong to IXTC and must be returned
to IXTC once we cease service. We also may purchase additional gateways outright
for our own use. In any event, if the volume of calls we handle from our
contracts grows to projected levels, or we initiate call services under
additional contracts, we will need to purchase additional gateways. New gateways
presently cost approximately $9,000 to $17,000 per 24-port unit, depending on
the configuration required by our customers or local telecom regulation. We
presently house all of our gateways at a technical facility operated by an
unaffiliated party located close to our offices in New York City and Manchester,
UK.
We have determined to establish our own network center and for that purpose are
obtaining the equipment necessary for that purpose. We are in the process of
purchasing or leasing equipment, including the lease of a switch from Cisco. We
estimate the network center will be operational by June 30, 2000. It will be
located at the New York colocation facility or technical center in New York
City utilized by the Company. Once the network center is operational the Company
will be able to enter into direct arrangements to provide voice Internet
services directly to other countries without utilizing the services of ITXC. It
may also enable the Company to provide other telecommunication services
including fax broadcasting. As a result of our purchases through Cisco, Cisco
has advised us that we may participate in various programs which provide
customers with various levels of programs established by Cisco which provide us
with various levels of marketing and technical support depending on the amount
of purchase.
Other Telecommunication Arrangements
Teltran regards itself as a telecommunications company and may enter into
arrangements for the resale of telecommunications time not involving the ITXC
network. Future arrangements may involve entirely different providers or a
combination of ITXC and other providers. We intend to establish our own network
facility at our existing co-location site in New York City. This will enable us
to use our own network for Internet telephony, and other telecommunications
services.
The Company has advanced funds to and has an understanding to acquire a start-up
venture engaged in the marketing of casual access long distance services, better
known as "10-10- dial-around". Dial-around is a telecommunications service that
allows consumers to select alternative long distance providers by entering the
particular provider's carrier identification code (CIC) prior to dialing a long
distance telephone call. Charges for these calls generally appear on the
caller's regular telephone bill.
Government regulation
We are licensed as an international reseller under Section 214 of the Federal
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Communication Act. This regulation does not impose significant restrictions on
our daily operations. We however are also affected by foreign regulators or
foreign government-owned telephone systems. We or our affiliates may be required
to obtain permission in connection with our client contracts. We will also be
subject to foreign regulation if we are able to establish affiliates in foreign
countries. For example, some foreign countries may limit the origination or
termination of calls to and from their jurisdictions. The United Kingdom
regulates the award of premium-rate telephone services.
Marketing/Customers
During 1998 our principal customer was OzEmail under the refile arrangement.
During 1998 we received approximately 79.3% of our revenues from OzEmail. We did
not derive significant refile revenues from OzEmail in 1999. we are not
dependent upon OzEmail as a customer. We derived 17.1% of our revenues in 1998
from Telecom 2000 for providing it with domestic long distance capacity. This
arrangement has terminated. No customer accounted for more than 5% of our
revenues in 1999.
We market our service through our executive officers, one of whom is the vice
president of sales and marketing. We have also entered into non-exclusive
arrangements with agents who will receive a commission from the revenues
generated by any of our customers introduced by an agent.
Competition
Currently, we compete with numerous other long distance resellers and providers.
We believe our significant competition will be independent resellers and
providers including providers of competing Internet voice telephony systems.
Other competitors may include large telephone carriers like AT&T, MCI/WorldCom
and Sprint, as well as other providers of international long distance services
like STAR Telecommunications, Inc., and corporate alliances that provide
wholesale carrier services, like "Global One". In addition, we have a
non-exclusive affiliate arrangement with ITXC, therefore ITXC is free to appoint
other affiliates which may result in our facing substantial competition from
within the ITXC system. Many of our competitors are likely to be significantly
larger and have substantially greater market presence, as well as greater
financial, technical, operational, marketing and other resources and experience
than we do. We compete for customers in the telecommunications markets primarily
based on price and, to a lesser extent, the type and quality of service offered.
Increased competition could force us to reduce our prices and profit margins if
our competitors are able to procure rates or enter into service agreements that
are comparable to or better than those we obtain, or are able to offer other
incentives to existing and potential customers.
Employees
We have nine full-time employees in New York, eight of whom are engaged in
executive and technical functions and one of whom is a clerical employee. We
also have five full time employees in the United Kingdom as a result of our
ChannelNet
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acquisition. We also utilize consultants.
Technical facilities
We have an oral arrangement with an unaffiliated party by which our technical
equipment is housed and maintained at this party's colocation facility in New
York City located on the same block as our headquarters. All equipment,
connections and telephone lines between us and our customers and overseas
providers are presently located at this facility. We presently utilize the
owner's equipment to effect these connections. We will locate our new network
system at this facility.
We have recently entered into a lease in Miami, Florida where we intend to keep
additional equipment.
Omnicom
In May 1999 we acquired all the shares of Omni Communications, Inc. Since it was
formed in May 1994, "Omnicom" has been an authorized agent of UniDial
Communications located in New York City. Omnicom had nominal assets and minimal
annual revenues. UniDial is a telecommunications reseller. Resellers buy
wholesale services from major carriers like IXC, Sprint, Internet Service
Networks and local Bell companies to provide a spectrum of services to
customers. We believe that the acquisition of OmniCom complements our line
of telecommunications products and will accelerate our entry into the area of
switched and dedicated phone services. These include 1+ outbound and toll free
inbound calls, networking, frame relay, wireless phones and service, Internet
access, debit cards, billing software, multi-media conferencing and network
marketing services. We also plan to feature UniDial services on our website,
http://www.teltran.com, in order to attract more small to mid-size businesses to
our retail marketplace. Omnicom was acquired for 126,788 shares of our common
stock. Even though the principal shareholder of Omnicom was also an officer of
Teltran, we believe the acquisition was made on arm's length terms. Omnicom
presently utilizes our offices.
United Kingdom Operations
We have determined to form a new United Kingdom subsidiary to hold, manage and
coordinate all our United Kingdom subsidiaries. As of March 16, 2000, we had
three subsidiaries, ChannelNet, Ltd., Internet Protocols, Ltd. and our recently
formed Teltran Web Factory Ltd.
ChannelNet
We acquired all of the outstanding shares of ChannelNet Ltd. common stock on
August 16, 1999, effective as of June 1, 1999, from an unaffiliated third party
in an arm's length transaction. ChannelNet was incorporated in May 1999 under
the laws of England and Wales and is located in Manchester in the United
Kingdom. ChannelNet provides premium rate telecommunications services to
customers in the United Kingdom.
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Premium rate services are the United Kingdom equivalent of "900" number services
in the United States. The dominant services are or will be provided primarily
for Tarot card readings, voice messages, charitable solicitations and other
non-adult services. At the time of acquisition, ChannelNet had insubstantial
assets and liabilities. A primary reason for the acquisition was ChannelNet's
potential as an affiliate of the OzEmail network. ChannelNet was the affiliate
of OzEmail in the United Kingdom and Ireland and had received indication that it
would be appointed an affiliate in additional countries. We entered into an
agreement with the former stockholder of ChannelNet to purchase
telecommunications equipment that is necessary for the operation of the
ChannelNet business. Under that arrangement we will use the equipment in our
operation of the ChannelNet business but will not acquire title to it until we
complete making payments of approximately $535,000 in the aggregate by February
2001.
In consideration of our acquisition of the ChannelNet stock, we issued to the
former shareholder of ChannelNet 94,500 shares of our common stock and we will
be obligated to issue additional shares based upon earnings generated by the
acquired ChannelNet business operations during the period of September 1999
through February 2001. In addition, we entered into an employment agreement with
the key employee of ChannelNet for the operation of the ChannelNet business.
This agreement provides in part that we will issue to that individual shares of
our common stock based on the future earnings of the ChannelNet business.
ChannelNet has entered into an agreement with Norweb Telecom Limited, a national
telecommunications network operator in the United Kingdom, indicating the intent
of the parties to work together to develop opportunities in Internet telephony.
As a result of this relationship, traffic can originate in the United Kingdom
and Ireland for worldwide distribution over Teltran's Internet telephony
network. Furthermore, traffic originating in other parts of the world can also
be terminated in the U.K. Teltran and Norweb are exploring additional ways to
take joint advantage of their geographic reach, technical expertise and
distribution capabilities to offer additional services and to reach additional
customers. In connection with this agreement, Norweb and ChannelNet entered into
an agreement on November 23, 1999. Under the latest agreement with Norweb,
ChannelNet will provide telecommunications services to Norweb, enabling Norweb,
in turn, to provide Voice-over-Internet Protocol services to a customer.
Services under this agreement has not commenced.
We have an understanding with DappaNet plc evidencing the intent of each party
to work together for a two year period. DappaNet is a United Kingdom-based
company engaged in hosting and design services and e-commerce activities, among
other things. DappaNet has provided advice to our joint venture,
RecordsToGo.com, and is providing advisory services in connection with our
United Kingdom subsidiaries.
Internet Protocols Ltd.
In December 1999, we acquired Internet Protocols Ltd. Internet Protocols Ltd.,
which is based in the United Kingdom, commenced operations in 1999 as a provider
of equipment
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and services to Internet service providers. Internet Protocols Ltd. provides
Internet access services and installs wiring permitting customers to connect
their computers to the Internet or to communicate with other computers so that
the customer of the Internet provider can "dial up" and obtain access to the
provider. Its primary activity is seeking revenue-sharing arrangements it can
enter into with its customers for providing the use of equipment to access the
Internet.
Web Factory
On March 15, 2000, our newly formed United Kingdom subsidiary, Teltran Web
Factory Ltd., acquired all the assets of the network business conducted by The
Web Factory Ltd., a U.K. affiliate of Datatec, a South African corporation. We
also acquired certain financial software developed by the seller but not yet
commercially sold. The network assets consists of equipment, including switches
and servers, various customer contracts and the brand name in the United Kingdom
"The Web Factory." The purchase price is (pound)3,000,000 (approximately
$4,800,000) of which we paid (pound)750,000 (approximately $1,200,000). The
balance is due in installments payable through December 31, 2000. The payment of
our indebtedness is secured by the acquired assets. The Company intends to
continue the operations formerly conducted by The Web Factory Ltd. We are
exploring ways to intergrate the operations of this subsidiary and Internet
Protocols.
Antra/Recordstogo.com
In April 1999, we exchanged 2,000,000 of our shares for 2,000,000 shares of
Antra Holding Group Inc. As a result of the transaction Antra may be deemed a
principal stockholder of Teltran. Antra is a company engaged through
subsidiaries in the music business and whose stock is publicly traded. We made
the exchange because we intended to enter into ventures with Antra and because
we thought that their stock was of comparable value. To protect each party, the
parties agreed that there would be an adjustment in the number of shares owned
by an entity if there was a disparity in the relative market value of the two
entities on January 1, 2000. As a result of this adjustment, we received an
additional 800,000 shares of Antra's common stock.
With Antra, we have formed a corporation to establish a website for the sale of
music recordings. The board of directors of this corporation consists of two
members, one nominated by each of Teltran and Antra. Both the website and the
joint venture corporation are named Recordstogo.com. We and Antra have each
contributed at least $75,000 to the joint venture and each now owns 49% of the
joint venture corporation's stock. Each of us have provided services to the
venture, which will be reimbursed from the funds of the joint venture. We and
Antra are each obligated, if requested upon unanimous decision of the board of
directors, to contribute an additional $175,000 to this venture. We and Antra
may also make additional voluntary contributions to the joint venture from time
to time. The remaining two (2%) percent of the shares are owned by one of the
joint venture's suppliers who is not affiliated with either Teltran or Antra.
Recordstogo.com, Inc. has entered into two agreements with distributors of music
recordings for the distribution of records owned by these entities over the
internet and through the website. The records in each case are not being
currently marketed by their original producer or distributor.
11
<PAGE>
The Recordstogo.com website (http://www.recordstogo.com/) has been designed and
completed and may be viewed on the Internet. Recordstogo.com., Inc. has retained
an agency to further develop the joint venture's marketing strategy and has been
actively seeking relationships with a variety of different businesses that can
provide content for or direct potential customers to the Recordstogo.com
website. The joint venture corporation is also in the process of completing the
appropriate databases and fulfillment capabilities at the warehouse of one of
its suppliers. The joint venture contemplates commencing commercial operations
on May 1, 2000.
Internet portal
Because it presented an opportunity that could be accomplished inexpensively, in
February 1999 we instituted a web portal. A portal is a website which enables
the user to access various other web sites without multiple steps, therefore
saving the user time. We believe that maintaining an Internet portal will assist
us in establishing a presence as an Internet service provider. While maintaining
a website is not related to our Internet telephony business, we believe creating
an Internet environment will enhance the brand recognition of the "Teltran" name
and could potentially establish us as a well-regarded Internet brand. Our
Internet portal contains direct links to many commercial sites. We have
affiliate arrangements with retailers under which we will receive a percentage
of revenues generated by consumers accessing the site through our portal.
Teltran now offers unlimited Internet access service for retail customers via
the www.Teltran.com web portal.
We also expect Recordstogo.com, to increase our revenues through the sale of
records, advertisements and music merchandise and to also attract more traffic
to our web portal through cross-linking.
As part of its portal Teltran inaugurated "Chat-over-IP" with LANSource
Technologies on an informal basis. LANSource is now a subsidiary of 3Com
Corporation. The "Chat-over-IP" website (http://chatoverip.com) offers an
opportunity for people interested in technological and business issues relating
to "XoIP" services (e.g., Voice-over-Internet Protocol and Fax-over-Internet
Protocol). Vendors to the XoIP industry contribute to or sponsor the site. Past
sponsors include Microsoft, 3Com, Cisco, Hewlett-Packard, Cardiff Software,
Brooktrout and Dialogic. Teltran has no other relationship with either LANSource
or 3Com. The chatoverip.com website derives revenues from sponsorships and may
also derive revenues from banner advertising on the site and paid listings in
the site's directory of vendors. Chatoverip.com did not have revenues in 1999.
12
<PAGE>
Seasonality
Our Internet telephony business is not subject to seasonal variations in volume
of calls. However, our Internet portal experienced a decline in traffic during
the summer of 1999, as compared to the preceding months. Management believes
that the decline is due largely to the increased amount of time many Internet
users spend outdoors during the warmer weather.
Item 2. Description of Property.
Our executive offices are located at One Penn Plaza, New York, New York 10119,
where, under a new lease, we occupy approximately 4,800 square feet through
March 31, 2010. The annual base rental for this space is approximately $220,000.
Teltran will be responsible for utilities and other charges.
ChannelNet occupies an office at Enterprise House, 15 Whitworth Street West, in
Manchester, U.K. The facility is leased by the former stockholder of ChannelNet,
which is obtaining an assignment of the lease for the premises to ChannelNet.
Internet Protocols Ltd. has a 10-year lease, commencing in early 2000, for the
space where it will house its equipment. The lease covers 1050 square feet at
the London Switch, a facilities-management center. Internet Protocols Ltd. will
have 80 racks for equipment of which it presently contemplates utilizing four to
five racks. Internet Protocols Ltd. is permitted to provide any space it will
not use to its customers for a fee. Internet Protocols Ltd. also maintains
equipment at other locations, either with companies that provide it with
services or under various short-term leases.
Teltran leases approximately 800 square feet in a colocation facility in Miami,
Florida for $6,000.00 per month in base rent. This space is used exclusively for
operating telecommunications equipment and providing telecommunications
services. The lease runs for 3 years, from March 1, 2000 through February 28,
2003. The lease may be extended for an additional 3-year period, at Teltran's
option.
See "Equipment" and "U.K. Subsidiaries," in Item 1 - Description of Business,
for a description of equipment.
Item 3. Legal Proceedings.
In June 1999 an action was commenced against us in the United States District
Court for the Southern District of New York entitled: Silverman et. al. v.
Spectratek, Inc. et. al. The plaintiffs included, Steven Silverman, Joseph P.
Mallon and Scott Broadbent. The defendants included Spectratek, Inc., one of our
predecessors, and Byron Lerner, our chief executive officer.
The plaintiffs claim that Spectratek issued and caused to be issued misleading
statements
13
<PAGE>
concerning the status of various contracts Spectratek was prepared to enter
into. As a result of these statements, the plaintiffs purchased 156,000 shares
of Spectratek's stock and suffered damages of an unspecified amount. Teltran
denies all liability since it had actually entered into arrangements that were
not consummated due to its financial condition at the time. We do not believe we
have any liability to the plaintiffs and will vigorously defend this action. We
made a motion to dismiss this action, which was granted in October 1999.
The plaintiffs have filed an amended complaint which we again moved to
dismiss. This motion was denied in April 2000.
We are not aware of any other legal proceedings, or pending legal proceedings,
to which we are party or to which our property is subject. However, in an
unrelated matter, a claim has been made by a corporation for $304,000
representing amounts advanced on our behalf to a potential reseller of
telecommunications time to us. This amount was to be held in escrow until
commencement of the contract between ourselves and the reseller by an agent
appointed by the potential reseller. The contract was aborted and the escrow
agent failed to return the escrow funds. The claimant has requested the payment
of the amount advanced with interest and alternately a participation in revenues
which it believed arose from the relationship with the reseller.
Item 4. Submission of Matters to a Vote of Security Holders.
None.
14
<PAGE>
PART II
Item 5. Market for Common Equity and Related Stockholder Matters.
Our common stock is currently quoted on the OTC Bulletin Board under the symbol
"TLTG." We have previously filed an application with the American Stock Exchange
to have our stock listed on this Exchange. This application was rejected and we
filed to have our stock traded on the NASDAQ National Market. We must appoint at
least three independent directors to serve an audit and compensation committee
of the board. No assurance can be provided that our stock will be accepted for
trading on NASDAQ.
Set forth below are the high and low closing bid quotations for our common stock
for the periods indicated as reflected on the OTC Bulletin Board. The quotations
reflect interdealer prices without retail mark-up, mark-down or commissions, and
may not reflect actual transactions.
Period High Low
- - - - - - - - - - - ------ ---- ---
December 31, 1999 $11.50 $6.00
September 30, 1999 16.50 6.31
June 30, 1999 9.69 1.75
March 31, 1999 2.60 .60
December 31, 1998 1.19 .43
September 30, 1998 1.00 .75
June 30, 1998 2.94 1.88
March 31, 1998 3.13 .43
December 31, 1997 .13 .13
September 30, 1997 .18 .11
June 30, 1997 .33 .22
March 31, 1997 .65 .40
As of April 11, 2000, there were approximately 293 recordholders of our common
stock, although we believe that there are more than thirty-five hundred
beneficial owners of our common stock.
Dividend policy
We plan to retain most future earnings for use in our business. Nevertheless we
have adopted a semiannual dividend policy commencing in 1999 to make a cash or
stock distribution to holders of record as of a date to be selected in March and
September of each year. We have declared a 5% stock dividend to holders of
record on March 31, 2000 to be distributed April 14, 2000. Payment of dividends
is within the discretion of our board of directors and cash dividends will
depend, among other factors, upon our earnings, financial condition and capital
requirements.
15
<PAGE>
Recent Securities Transactions
The following sets forth information relating to all of our unregistered
securities sold by us since December 31, 1995. All share numbers have been
adjusted retroactively to reflect a 1 for 20 reverse stock split on December 31,
1997.
On May 1, 1996, we issued an aggregate of 500,000 shares of common stock to the
stockholders of Teltran International in exchange for all of the outstanding
capital stock of Teltran International. A total of nine shareholders received
these securities. Of these, three were officers or directors of Teltran
International and the other six were accredited, institutional investors, all of
which Teltran believes are non-United States persons.
In June 1996 we issued 158,333 shares of our common stock in accordance with
Regulation 504 of the Securities Act of 1933 for approximately $950,000.
In September, 1998 we issued 250,000 shares each to an affiliate of Byron Lerner
and to another officer and director in satisfaction of indebtedness of $100,000.
We believe the issuance of these shares is exempt from the registration
requirements under Section 4(2) of the Securities Act.
In May 1998 we issued 6,000,000 shares of our common stock to twenty
unaffiliated entities which collectively had the right to participate in our
future earnings under agreement. These investors acquired the shares for
investment. We believe the issuance of these shares is exempt from the
registration requirements under Section 4(2) of the Securities Act.
In August 1998 and February 1999 we issued convertible notes in the aggregate
principal amount of $850,000 to several foreign investors in a transaction
exempt under Rule 504. We obtained proceeds of $300,000 in the August 1998
offering and $550,000 in February 1999 offering. In connection with the
transaction we issued warrants exercisable at $1.25 per share in August to
purchase 30,000 shares of common stock. In February 1999 we issued warrants
exercisable at $.625 per share to purchase an aggregate of 137,500 shares of
common stock. All of the notes have been converted and the corresponding shares
issued. All of these warrants have been exercised prior to April 8, 1999. We
received gross proceeds of approximately $975,000 from the sale of notes and
exercise of warrants.
In April 1999 we issued 2,000,000 shares of common stock to Antra Holding Group
Inc. in exchange for 2,000,000 shares of that corporation's shares. Teltran
believes that the transaction was exempt from the registration requirements of
the Securities Act under Section 4(2).
As of May 1999 we acquired all the shares of Omni Communications Inc. This
company is an authorized agent of UniDial Communications, which operates as an
independent network of telecommunications resellers. We issued 126,788 shares of
our common stock
16
<PAGE>
to the sellers, of which James Tubbs received 100,000 shares. Mr. Tubbs is an
officer and director of our company. Teltran believes the issuance of these
shares is exempt from the registration requirements of the Securities Act of
1933 under Section 4(2) . We have been advised that the only issuance of this
company's shares were to the three sellers, all of whom were accredited
investors.
In August 1999 Teltran issued 94,500 shares of common stock to the sole
stockholder of ChannelNet, Ltd., effective as of June 1, 1999. Teltran believes
the issuance of these shares is exempt from the registration requirements of the
Securities Act under Section 4(2) . Prior to this acquisition by us, ChannelNet
in 1999 issued its shares to its sole stockholder in an offshore transaction.
No other ChannelNet shares were issued.
Teltran issued an aggregate of 3,307,500 options between December 1998 and May
1999, all under Teltran's stock plans. All of these options were issued to
officers, directors, employees and consultants to Teltran all of whom were
familiar with Teltran's operation. Of the options Teltran issued 1,180,000
options in December 1998 with the balance issued between January and May 1999.
In December, 1999 the board of directors granted to Byron Lerner options to
purchase 400,000 shares, at an exercise price of $4.00 per share, as
compensation. The options are exercisable over a period of ten years.
In June 1999 Teltran issued a total of 316,499 shares of its common stock in
connection with a private placement of its securities. The Company agreed to
issue an additional 6,000 shares to a finder. An additional 776,529 warrants to
purchase our common stock at $6.00 per share were issued to finders. The
purchasers of the shares were accredited investors and Teltran believes this
transaction is exempt from the registration requirements of the Securities Act
under Section 4(2).
In December 1999, Teltran sold 625,000 shares for $8.00 per share and issued
warrants to purchase 2,600,000 shares at prices ranging from $8.00 to $10.25 per
share. Some of the persons who acquired shares and warrants in the June 1999
transactions acquired additional shares and warrants. If the market price of
Teltran's shares approximately 60 days after a registration statement covering
the shares issuable upon exercise of the warrants is less than the stated
exercise price, the actual exercise price of these warrants will be reduced. In
March 2000, the holders of these shares agreed to eliminate one of the reset
provisions of their subscription agreements in exchange for a reduction of the
purchase price specified in the warrants to $6.625 per share and an additional
208,331 shares of our common stock. The Company believes that this transaction
was exempt from the registration requirements of the Securities Act under
Section 4(2).
In December 1999, the Company issued 37,500 shares to Dolores Miller, the spouse
of Martin Miller. Ms. Miller is required to pay $295,312 for these shares.
Martin Miller is a former director of the Company, having resigned in January
2000. Mr. Miller denies beneficial ownership of the shares owned by Ms. Miller.
As of December 18, 1999, Teltran acquired all of the issued and outstanding
shares of Internet Protocols Ltd., a company engaged in rendering services to
Internet service providers and others. Internet Protocols Ltd. enters into
arrangements in accordance with which it shares revenue or charges a fee for use
of its equipment. Teltran issued 1,481,566 shares in connection with the
acquisition.
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<PAGE>
At the time of the acquisition, Teltran issued an additional 83,886 shares in
escrow, which may be used to satisfy approximately $550,000 of indebtedness of
Internet Protocols Ltd. to its former stockholder. The Company believes that the
shares were issued under an exemption from the registration requirements of the
Securities Act under Section 4(2). See "Item 12. Certain Relationships and
Related Transactions -- Certain Recent Securities Transactions."
Item 6. Management's Discussion and Analysis or Plan of Operation
You should read the following discussion and analysis in conjunction with the
financial statements and related notes contained elsewhere in this report.
Forward-looking statements
Some of the statements contained in this report may constitute "forward-looking
statements" within the meaning of the Private Securities Litigation Reform Act
of 1995. These forward-looking statements are subject to various known and
unknown risks and uncertainties and Teltran cautions you that any
forward-looking information provided by or on behalf of Teltran is not a
guarantee of future performance. Our actual results could differ from those
anticipated by the forward-looking statements due to a number of factors, some
of which are beyond Teltran's control, including:
o the volatile and competitive nature of the telecommunications and
Internet industry;
o changes in domestic and foreign economic and market conditions;
o the effect of federal, state and foreign regulation on Teltran's
business in general and on the telecommunications and Internet
industries;
o changes in technology;
o reduced telecommunication rates;
o delays of third parties in commencing service; and
o the impact of recent and future acquisitions on Teltran's business and
financial condition.
Teltran does not undertake any obligation beyond the requirements of the federal
securities laws to publicly update any forward-looking statement to reflect
events or circumstances after the date on which any statement is made or to
reflect the occurrence of unanticipated events.
18
<PAGE>
Plan of operations
During 2000 our plan of operation is to:
o enter into and implement arrangements to provide wholesale customers
throughout the world with Internet telephony. We are negotiating
arrangements which, if implemented, would require us to expend money
for equipment purchases and the payment of various fees.
o seek to enter into arrangements to provide Internet telephony in
additional countries that will enable us to participate in revenues on
both ends of a call.
o establish a network facility and expand the services offered
including "Fax Over IP" and direct voice over IP to different
countries.
o develop marketing strategies with Norweb, a national telecom network
operator in the UK, and utilize our alliance with them to expand our
Internet telephony network.
o enhance our portal by providing additional related business services.
These including offering banner ads, sponsorship agreements and other
types of advertising. We will also seeks to develop additional sales
affiliate arrangements on our portal and continue to run live
Internet.
o jointly operate RecordsToGo.com, for the sale of music. The venture
has entered into arrangements for the sale of records through the
Internet.
o integrate Internet Protocols Ltd., Teltran Web Factory, Ltd. our newly
acquired subsidiaries in the United Kingdom with our recently created
holding company.
o promote and market our new Internet service provider service through
our web portal, www.Teltran.com. The service will be competitively
priced and will offer unlimited Internet access, free e-mail and free
home pages to all users.
o expand our sales staff for our UniDial services to solicit commercial
accounts. UniDial operates as an independent network of
telecommunications resellers. UniDial services will also be marketed
to individuals via our www.Teltran.com web portal.
19
<PAGE>
o hire new employees as needed because of increased activity.
o continue to augment other aspects of our telecommunications business.
We cannot assure you that we will be able to successfully implement our plan.
Results of Operations
Prior to April 1998 we were essentially a start-up venture. During 1998 most of
our revenues were derived from acting as an OzEmail refile hub in the United
States. During 1999 these revenues were fully replaced by our successful efforts
in promoting our Teltran Internet telephony service as well as establishing
businesses for our web portal. Therefore comparisons between 1998 and 1999 will
be of limited value.
Comparison of the Years Ended December 31, 1999 and December 31, 1998
During the year ended December 31, 1999, the Company had revenues of $2,453,189
compared to revenues of $535,197 in 1998. The increase of 358% was due in
significant part to Internet telephony revenues and revenue from our ChannelNet
United Kingdom subsidiary. The latter revenues consisted primarily of premium
rate services. The revenues in the fourth quarter 1999 were affected by the
transition of Internet telephony operations from the OzEmail network to the IXTC
network. In addition, the transition was delayed by the fear of Y2K problems.
Our gross profits increased in 1999 to $508,339 from $290,365 in 1998. During
this period, however, our gross profit margin declined from 54% to 21%. The
decline in gross profits margin arose because of the higher cost of
communications in 1999 compared to 1998 as well as reduced rates in countries we
provide Internet telephony services in 1999.
During 1999 our expenses increased to $2,605,024 from $709,757 in 1998. The
increase was primarily due to cost we incurred to service existing and
anticipated new business and to seek additional business. Salary and payroll
expense increased by approximately $595,000 from approximately $143,300 in 1998
to $738,397 in 1999. This resulted from increased remuneration to existing
officers and personnel and new hires. Professional fees increased by over
$311,500 from $49,500 in 1998 to approximately $361,000 in 1999. This increase
is primarily due to increased auditing and legal fees in connection with
reflects our new regulatory obligations as a reporting company and in connection
with our acquisitions. We incurred over $205,000 in advertising expenses in 1999
while having no expenditures for this purpose in 1998.
20
<PAGE>
We incurred a loss on operations of $2,096,685 in 1999 compared to a loss of
$418,992 in 1998 as a result of the foregoing. We had net loss of $2,237,235 in
1999 compared to a net loss of 449,339 in 1998. Our net loss in 1999 reflects
the foregoing.
Liquidity
We had a working capital of approximately $2,810,506 as of December 31, 1999
compared to a negative working capital of approximately $280,880 as of December
31, 1998. We have financed our operations primarily out of private financing.
Since December 31, 1998 we received gross proceeds of over $6,4000,000 from such
financing. In December 1998 we received proceeds of $650,000 from the sale of
convertible notes and exercise of warrants. All the notes have been converted
into equity. As a result of that financing we have been able to repay and
terminate our factoring arrangement. In June 1999 we completed a private
placement of shares of common stock and received approximately $1,240,000. We
completed an additional private placement in December 1999 and received
approximately $5,550,000. Upon effectiveness of our registration statement on
Form SB-2 and in the absence of adverse changes, these purchasers may pay us
another $400,000 for additional shares.
The Company anticipates substantial capital and other expenditures during the
year 2000. The Company will require additional funds for equipment in connection
with the establishment of a network center in New York. It estimates it will
incur equipment costs of our $500,000 in connection with the operation. It
believes a portion of such cost may be satisfied by leasing arrangements. While
ITXC may provide additional equipment without charge for calls originating over
the IXTC network, the Company may have to purchase additional equipment to
complete calls. If it initiates additional types of telecommunications services
or establishes joint ventures in foreign countries, it may be required to obtain
additional equipment. The Company is required to make additional payments of
$3,600,000 in completing the purchase of Web Factory assets, funding its United
Kingdom operations, funding up to an additional $65,000 for Recordstogo and
$500,000 for officer salaries. If the Company cannot finance these costs from
operations it will be required to obtain additional financing. It is presently
exploring ways to obtain such additional financing. There is no assurance we
will be able to obtain funding on terms favorable to us if at all. If the
Company cannot obtain additional financing, it may have to curtail some
additional activities.
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<PAGE>
Changes in capital and accumulated deficit
Paid-in capital increased by approximately $23,667,686 during 1999. Of this
increase, $12,368,171 was attributable to the stock dividends we issued in June
and September 1999. Under generally accepted accounting principles, we offset
this entry by adding $12,368,450 to the accumulated deficit and $1,260 to
capital stock. An adjustment of $981 was made to reflect the rounding of
fractional shares issuable in the two stock dividends. As a result, there is no
overall effect on stockholder's equity on account of the transaction. An
additional $3,998,000 was added to paid-in capital with respect to the shares we
issued to Antra in April 1999 in exchange for an equivalent amount of our
shares. Additional entries were made to reflect amounts allocated for the
issuance of additional shares: $674,484 for shares issued upon conversion of
notes; $244,732 for shares issued upon the exercise of warrants; $188,905 for
shares issued in connection with the ChannelNet acquisition; and $6,007,565 for
other shares, including shares issued in the private placements in June and
November 1999.
Our deficit increased by $14,606,666 even though our loss was only $2,237,235
for the year. The substantial increase in our accumulated deficit was in
substantial part attributable to the stock dividends, as discussed above.
Year 2000 disclosure
Prior to the year 2000 many businesses and institutions reviewed and modified
their computer systems to ensure they accurately process transactions relating
to the Year 2000 and beyond. This effort was necessary because many existing
computer systems and microprocessors with date functions, including those in
non-information technology equipment and systems, use only two digits to
identify a year in the date field and assume that the first two digits of the
year are always "19." Consequently, on January 1, 2000, some computers that were
not Year 2000 compliant read the year as 1900. Computer systems that calculate,
compare or sort using the incorrect date may malfunction causing disruption of
operations, including a temporary inability to process transactions, send
invoices or engage in other normal business activities. Our failure to address
potential Year 2000 malfunctions in our computer and non-information technology
equipment and systems could have resulted in our suffering business
interruptions, financial loss, harm to our reputation and legal liability. We
nevertheless experienced no potential liabilities or stoppages in our business
as a result of the new millennium. Because of the fear of the possible
consequences of a Y2K problem, the implementation of our operations into the
ITXC network was delayed in late 1999.
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<PAGE>
Item 7. Financial Statements.
See the financial statements beginning on Page F-1, filed as part of this
report.
Item 8. Changes In and Disagreements With Accountants on Accounting and
Financial Disclosure.
None.
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PART III
Item 9. Directors, Executive Officers, Promoters and Control Persons; Compliance
With Section 16(a) of the Exchange Act.
Our directors and executive officers are:
<TABLE>
<CAPTION>
Name Age Position
- - - - - - - - - - - ---- --- --------
<S> <C> <C>
Byron R. Lerner...................... 55 President, Chief Executive Officer and Director
James E. Tubbs....................... 39 Executive Vice President, Chief Operating Officer and Director
Peter Biagioli....................... 39 Vice President of Sales and Marketing
Mitchell Hershkowitz................. 31 Vice President of Operations
Michael Neville...................... 44 Vice President - UK Operations
James Supple......................... 35 Chief Financial Officer
</TABLE>
Byron R. Lerner has been chief executive officer and president of Teltran since
June 1997 and one of our directors since May 1996. Mr. Lerner was Teltran's
chief financial officer between May 1996 and June 1997. Between 1993 and 1995,
Mr. Lerner was president of International GlobalCom, a firm he founded which
engaged in the resale of domestic and international long distance phone time.
From 1990 to 1993 Mr. Lerner was president of L&S Communications, a reseller of
domestic and international long distance telephone time.
James E. Tubbs has been our executive vice president and a director since May
1996. Between 1994 and 1995, Mr. Tubbs was president of OmniCom, a reseller of
UniDial services; OmniCom is now a subsidiary of Teltran. From 1984 through May
1996 he was employed as an executive in various entities controlled by Brent
Musburger, the sports broadcaster. Simultaneously Mr. Tubbs was employed in
various capacities as an executive in sports and entertainment matters by the
networks which engaged Mr. Musburger.
Peter Biagioli has been our vice president of sales and marketing since
February, 2000. From February 1988 to January 1997 Mr. Biagioli was vice
president of worldwide commercial development for the Manifest Division of TNT
Express Worldwide. During the period November 1982 to January 1988 he was
employed by Avis Rent A Car System Inc. and was a regional sales manager for the
New York metropolitan market.
Mitchell Hershkowitz has been our vice president of operations since April 1999.
From October 1997 through April 1999, Mr. Hershkowitz's title was director of
operations. From October 1994 through October 1997, he was regional sales
director for OmniCom.
Michael Neville has been our vice president of United Kingdom operations since
February 2000. He is presently acting as a consultant on a part-time basis and
providing
24
<PAGE>
services to others as a consultant. From July 1998 to January 2000, he
was director of business development and wholesale services for Norweb. From
August 1997 to May 1998, Mr. Neville was managing director of OzEmail Interline
Pty., a joint venture between Metro Holdings and OzEmail Ltd. From 1989 to 1997,
Mr. Neville held various positions with Cable and Wireless Communications; most
recently his title was general manager - international partner services.
James Supple has been employed by us since July 1999 and since January, 2000 has
been our chief financial officer. From 1994 to June, 1999 Mr. Supple was
financial controller of Schiavetti, Geisler, Corgan, Soscia, DeVito, Gabriele
and Nicholson a law firm located in the city of New York. From 1991 to 1994 Mr.
Supple held various positions in the law firm of Gordon Altman Butowski Weitzen
Shalov and Wein serving as assistant director of finance from 1992 through 1994.
Compliance with Section 16(a) of the Exchange Act.
Forms 3, 4 and 5 have not yet been filed by any officer, director or beneficial
owner of more than 10 percent of our common stock. Teltran had no securities
registered under the Exchange Act prior to its last fiscal year and therefore no
such reporting person was required to file reports under Section 16(a) of the
Exchange Act in prior years. All reports for officers and directors will be
filed by May 1, 2000. Teltran will encourage beneficial owners of more than
10% of Teltran's common stock to file their reports by the same date.
Item 10. Executive Compensation.
We have retroactively adjusted the share and price per share information in this
section to reflect the five percent stock dividends to holders of record on June
3, 1999 and September 1, 1999.
Our chief executive officer and two additional highest paid officers received
the compensation listed below during the fiscal years ended December 31, 1997,
1998 and 1999.
25
<PAGE>
SUMMARY COMPENSATION TABLE
<TABLE>
<CAPTION>
Long Term
Compensation Awards
Securities
Name and Principal Position Year Salary Underlying Options
- - - - - - - - - - - --------------------------- ---- ------ ------------------
<S> <C> <C> <C>
1999 $159,375 951,250
Byron E. Lerner 1998 88,000 496,127 shares
President and Chief Executive Officer 1997 37,500 --
James Tubbs 1999 $161,000 550,250
Executive Vice President and 1998 35,000 496,127 shares
Chief Operating Officer 1997 66,000 --
Peter Biagioli 1999 $124,466 132,300 shares
1998 41,477 132,300
1997 90,000 --
</TABLE>
All of our directors hold office until the next annual meeting of stockholders
and the election and qualification of their successors. The board of directors
annually elects executive officers to hold office until the first meeting of the
board following the next annual meeting of stockholders and until their
successors are chosen and qualified.
1998 Stock Option plan
We have adopted our 1998 Stock Option Plan for our officers, employees and
consultants and for those of any of our subsidiaries. The option plan authorizes
the grant of options to purchase 3,307,500 shares of our common stock, after
giving effect to our stock dividends. Options to purchase all 3,307,500 shares
have been granted.
The option plan is administered by the board of directors. In general, the
board, or a committee of the board, is empowered to select the persons to whom
options would be granted and to determine, subject to the terms of the option
plan, the number, the exercise period and other provisions of the options. The
options granted under the option plan are exercisable in however many
installments as may be provided in the grant.
Options granted to employees may either qualify as incentive stock options under
the Internal Revenue Code or be non-qualified options. The board may determine
the exercise price provided that, in the case of qualified options, the price
may not be less than 100% of the fair market value of our common stock at the
date of grant. In the case of qualified options granted to holders of 10% of or
more the voting power of our stock, the price may not be less than 110% of the
fair market value of our common stock at the date of grant. The aggregate fair
market value, determined at the time the option is
26
<PAGE>
granted, of stock with respect to which qualified options become exercisable for
the first time in any year cannot exceed $100,000.
The options are evidenced by a written agreement containing the above terms and
other terms and conditions consistent with the option plan as the board of
directors may impose. Each option, unless sooner terminated, shall expire no
later than ten years or, in the case of qualified options granted to holders of
10% or more of the voting power of our stock, five years from the date of the
grant, as the board of directors may determine. The board of directors has the
right to amend, suspend or terminate the option plan at any time, provided,
however, that unless ratified by our stockholders no amendment or change in the
option plan will be effective for limited matters including increase in the
total number of shares which may be issued under the option plan or extending
the term of the option plan.
Options Granted in Last Fiscal Year
<TABLE>
<CAPTION>
Number of Shares
Underlying Option Grant Exercise Price Expiration Date
----------------------- -------------- ---------------
<S> <C> <C> <C>
Byron Lerner 275,625 $0.51 January 31, 2009
275,625 3.49 May 8, 2009
400,000 4.00 December 30, 2009
James Tubbs 275,625 $0.51 January 31, 2009
275,625 3.49 May 8, 2009
Peter Biagioli 22,050 $0.51 January 31, 2009
110,250 3.49 May 8, 2009
</TABLE>
27
<PAGE>
Aggregate Option Exercises in
Last Fiscal Year and Fiscal Year
End Option Values
The table below provides information concerning stock option exercises during
the fiscal year ended December 31, 1999 and the value of unexercised options at
the end of that fiscal year. All of the unexercised options are in the money.
<TABLE>
<CAPTION>
Value of
Shares Number of Shares Unexercised in the
Acquired on Underlying Money Options at
Name Exercise Value Realized Unexercised Options end of Year
- - - - - - - - - - - ---- ----------- -------------- ------------------- ------------------
<S> <C> <C> <C> <C>
Byron Lerner 281,758 $2,285,416 1,165,617 $5,368,137
James Tubbs 35,000 $ 294,700 1,012,375 $5,717,171
Peter Biagioli 35,000 $ 294,700 225,000 $1,252,202
</TABLE>
The value of the in-the-money options is based on the market price of our common
stock on December 31, 1999, which was $7.56 based on the average of high and low
sales on the OTC Bulletin Board that day. All of the options were in the money.
On January 31, 1999 we issued options to purchase an additional 876,488 shares
of common stock at $.51 per share exercisable immediately. Of these options
275,625 were issued to each of Messrs. Lerner and Tubbs and Martin Miller, then
one of our directors. In May 1999 we granted options to purchase an additional
1,102,500 shares of our common stock at $3.49 per share. Of these, options to
purchase 275,625 shares were issued to each of Byron Lerner, James Tubbs and
Martin Miller. All the options granted in 1999 vested immediately.
On December 20, 1999 the board of directors awarded Byron Lerner an additional
option to purchase 400,000 shares of common stock at $4.00 per share. On
February 1, 2000 the board of directors awarded Byron Lerner and James Tubbs
options to purchase 890,500 and 717,933 shares of our common stock,
respectively. The exercise price of the options is $8.00 per share until August
2, 2000 and $1.00 thereafter. These options vest as to one-third (1/3) of the
shares subject to the Option on August 2, 2000. An additional one third of the
shares vest on each as of January 1, 2001 and January 1, 2002. The total number
of shares subject to the option increase by an amount equal to the difference
between 9.9% of the outstanding shares and the shares subject to the option
(including exercised shares). The options are exercisable until February 1,
2010.
In December 1999 we issued a total of 573,000 shares of our common stock subject
to existing options. The purchasers issued non-interest bearing notes totaling
$362,318 as payment of the exercise price under the options for the shares. The
notes are due July 1,
28
<PAGE>
2000 or earlier if the shares are sold. Mr. Byron Lerner acquired 281,758 shares
of common stock upon exercise of options and has delivered a note for $188,618
representing the unpaid exercise price and Mr. James Tubbs has acquired 35,000
shares and delivered his note for $11,550 representing the unpaid exercise
price. Martin Miller, who was then a director, acquired 250,000 shares and
issued his note for $127,500.
Employment agreements
We have entered into an employment agreement with Byron Lerner to serve as our
president and chief executive officer. The agreement is for a term of 37 months
commencing March 1, 1999 and unless notice of non-renewal is given at the end of
first thirteen months or any later year, the term of the agreement is extended
for an additional year period. Mr. Lerner received a base annual salary of
$150,000 until August 1999 when the salary increased to $180,000. As amended,
starting on February 1, 2000, the salary increased to $250,000. After that, the
salary increases at the rate of ten percent per annum. The agreement provides
for a bonus pool which shall be equal to 15% of net income as defined in the
agreement of which Mr. Lerner will receive forty percent (40%) of the pool. Mr.
James Tubbs, Teltran's executive vice president and chief operating officer, has
entered into an identical agreement, as amended, with us.
Item 11. Security Ownership of Certain Beneficial Owners and Management.
The following table sets forth, as of March 15, 2000, information concerning the
beneficial ownership of our common stock.
o each person who beneficially owns more than five percent of our
outstanding common stock,
o each of our directors,
o each of the executive officers named in the summary compensation
table,
o all our directors and executive officers as a group and
Share ownership includes both shares beneficially owned and shares a person has
the right to acquire under any option or warrant which is presently exercisable
or which may be exercised within sixty days. These include 1,165,617 options in
case of Byron Lerner, 1,012,375 options in case of James Tubbs, 229,600 options
in the case of Peter Biagioli and 2,694,242 options for all officers and
directors as a group.
Balmore S.A. owns 328,309 issued and outstanding shares, or approximately 2.1%,
of our common stock. The bulk of Balmore's apparent ownership is in the form of
warrants. Under an agreement with Teltran, Balmore is not allowed to exercise
warrants if its total ownership of shares at any time would exceed 4.99% of
Teltran's outstanding shares. Therefore, despite what appears to be Balmore's
ownership of over nineteen percent (19%) of Teltran's common stock, Balmore is
actually a holder of less than 5%.
29
<PAGE>
Teltran has been advised that Balmore S.A has changed its name from Balmore
Funds S.A. and that Matityahu Kaniel, who is a citizen of Israel, is the
beneficial owner of 100% of the shares of Balmore S.A.
Antra Holding Group, Inc., a principal stockholder listed below, is a
corporation whose stock is publicly traded. We are a principal stockholder of
Antra Holding Group, Inc., having a beneficial interest in 2,800,000 or 22.7% of
its outstanding shares. Joseph M. Marrone is President of Antra Holding Group,
Inc. and a principal stockholder of Antra, owning approximately 1,900,000 or
15.40% of the outstanding shares of Antra.
<TABLE>
<CAPTION>
Shares Percent of
Beneficially Shares
Identity of Stockholder or Group Owned Outstanding
- - - - - - - - - - - -------------------------------- ------------ -----------
<S> <C> <C>
Byron Lerner.................................................. 1,748,000 9.6%
James Tubbs................................................... 1,444,188 8.0%
Peter Biagioli................................................ 263,600 1.5%
Balmore S.A, C.B.............................................. 3,312,429 19.3%
Trident Chambers,
P.O. Box 146
Road Town Tortola
British Virgin Islands
Antra Holding Group Inc....................................... 2,205,000 12.9%
1515 Locust Street,
Philadelphia, PA 19102
All Officers and Directors
(6 persons)............................................... 3,742,438 18.9%
</TABLE>
Item 12. Certain Relationships and Related Transactions
Information in this section is retroactively adjusted to reflect the five
percent stock dividend to holders of record on June 3, 1999 and September 1,
1999.
During and prior to 1998 an affiliate of Byron Lerner and James Tubbs each
advanced $50,000 to us. In 1998 all these advances were converted into 551,250
shares of our common stock. All these advances were interest free. Mr. Lerner
has advanced approximately an additional $13,000 to us in 1998 and received an
additional 71,662 shares of common stock.
In April 1999, we and Antra Holding Group Inc. exchanged shares of each other's
stock. We received 2,000,000 shares of Antra's common stock and Antra owns
2,205,000 shares of our common stock. Antra is a public company engaged through
subsidiaries in the music business. As a result of the transaction Antra may be
deemed a principal stockholder of Teltran. We have entered into an agreement
with Antra which requires an
30
<PAGE>
adjustment in the shares delivered in connection with the above-described
exchange. If on the first business day of the year 2000 either Antra's shares or
our shares are trading less than 20% below the market price of the other party's
shares, the party whose shares are trading lower must issue additional shares to
the other party. As a result of this adjustment we received an additional
800,000 shares of Antra's common stock.
We formed a joint venture corporation with a subsidiary of Antra to market
records with Antra through a website to be established on the Internet using our
portal. We and Antra each own 49% of the outstanding shares of this corporation
with an unrelated third party owning 2% of the outstanding shares. We each will
be equally responsible for funding and share equally in losses and profits. This
venture initially will market records owned by independent third parties through
the Internet. See Item 1 - Description of Business
As of May 1999 we acquired all the shares of Omni Communications Inc. This
company is an authorized agent of UniDial Communications. We issued 126,788
shares of our common stock to the sellers, of which James Tubbs received 110,250
shares. Mr. Tubbs is an officer and director of Teltran. We did not obtain a
fairness opinion.
A portion of the space leased by us is occupied by entity, a corporation in
which two of our officers have an equity interest. These entities are paying us
an aggregate of $48,000 per annum for the use of the facilities. We believe the
terms are fair and are equal to what we would have received from an independent
third party.
Certain recent securities transactions
On August 16, 1999, in exchange for 94,500 shares of our common stock, we
acquired all of the outstanding shares of ChannelNet Ltd. common stock,
effective June 1, 1999. ChannelNet has been providing premium-rate
telecommunications services to customers in the United Kingdom as well as being
an OzEmail affiliate in the United Kingdom and Ireland. Byron Lerner and James
Tubbs, officers and directors of Teltran, became directors of ChannelNet.
In June 1999 we issued a total of 332,324 shares of common stock in connection
with a private placement of our securities. Five investors acquired 326,024
shares at $3.81 per share. If the price of our common stock is selling below
specified levels after the offering, we may have to issue additional shares to
these investors. The purchasers of 286,650 of the shares are required to
purchase an additional number of shares after this registration statement is
declared effective provided that there is no material change adversely effecting
Teltran. An additional 6,300 shares were issued to a finder and an additional
815,355 warrants to purchase our common stock at $5.71 per share were issued to
finders. In November 1999, Teltran sold an additional 625,000 shares for $8.00
per share and issued warrants to purchase 2,600,000 shares at prices ranging
from $8.00 to $10.25 per share. If the market price of Teltran's shares
approximately 60 days after a registration statement covering the shares
issuable upon exercise of the warrants is less than the stated exercise price,
the actual exercise price of these warrants will be reduced.
31
<PAGE>
In April,1999 we agreed to issue options to purchase shares of our common stock
to Corrie Ltd. and Craighouse Ltd. if their assistance proved successful in
obtaining international communication arrangements. These options, if issued,
may entitle the holder or holders to purchase an aggregate maximum of 450,000
shares of common stock. While the conditions for these options have not
occurred, we believe there is a strong possibility that these options will be
issued. Neither of these entities or their principals are related to Teltran.
In December 1999, the Company issued 37,500 shares to Dolores Miller, the spouse
of Martin Miller. Ms. Miller is required to pay $295,312 for these shares.
Martin Miller is a former director of the Company, having resigned in January
2000. Mr. Miller denies beneficial ownership of the shares owned by Ms. Miller.
As of December 18, 1999, Teltran acquired all of the issued and outstanding
shares of Internet Protocols Ltd., a company engaged in rendering services to
Internet service providers and others. Internet Protocols Ltd. enters into
arrangements under which it shares revenue or charges a fee for use of its
equipment. Teltran issued 1,481,566 shares in connection with the acquisition.
We have also purchased shares of Internet Protocols Ltd. directly from the
company for approximately $3,000,000 payable in installments through August
2000. The ultimate purchase price for the shares acquired from the former
shareholder may be increased or decreased depending upon the valuation of
Internet Protocols Ltd. in November 2000. One-half of the shares issued to the
former shareholder were deposited in escrow covering indemnification and
possible downward revaluation. At the time of the acquisition, Teltran issued an
additional 83,886 shares in escrow, which may be used to satisfy approximately
$550,000 of indebtedness of Internet Protocols Ltd. to its former stockholder.
The price was determined by negotiation. Recently, the parties have agreed in
principle to reduce the price paid by the Company to Internet Protocols from
(pound) 10,800,000 to (pound) 9,600,000. The number of shares may be adjusted
in certain circumstances based on a decline in the market price of the Company's
shares.
Item 13. Exhibits and Reports on Form 8-K.
(a) INDEX TO EXHIBITS.
EXHIBIT
NO. DESCRIPTION*
--- ------------
3.1 -- Certificate of Incorporation (a)
3.2 -- Certificate of Ownership and Merger of Spectratek
Incorporation by Teltran International Group, Ltd.(a)
3.3 -- Amendment to Certificate of Incorporation (a)
4. -- By-Laws(b)
10.1 -- 1998 Stock Option Plan (a)
10.2 -- Employment Agreement between Byron Lerner and Registrant (a)
10.2(a) -- Employment Agreement between James Tubbs and Registrant (b)
10.2(b) -- Amendment 1 dated as of January 31, 2000 to the Employment
Agreement between Byron Lerner and Registrant *
10.2(c) -- Amendment 1 dated as of January 31, 2000 to the Employment
Agreement between James Tubbs and Registrant *
10.3 -- USA Interconnectivity and Support Agreement dated October
12,1999 (a)
10.4 -- USA Intellectual Property License Agreement dated October
12,1999
32
<PAGE>
between OzEmail and Registrant (a)
10.5 -- Telecommunication Services Agreement dated October 15, 1998
between OzEmail and Registrant (a)
10.6 -- Extension and Modification of OzEmail Agreement (e)
10.7 -- Subscription Agreement dated June 10, 1999 (c)
10.8 -- Memorandum Agreement between Registrant and Antra Holdings
Group Inc.(c)
10.9 -- (i) Exchange Agreement dated as of July 15, 1999 between
Barclay Brydon Limited and Teltran International Group,Ltd.,
as amended by the Closing Memorandum dated August 16, 1999(d)
(ii) Memorandum of Closing between and among Barclay
Brydon Limited and Teltran International Group, Ltd., dated
August 16, 1999(d)
10.10 -- Restated and Amended Stockholders' Agreement dated
January 24, 2000 amending and restating the Agreement dated as
of September 30, 1999 among Teltran International Group, Ltd.,
Antra Group Holdings, Inc., and Recordstogo.com Inc. *
10.11 -- Telecommunications Services Agreement between Teltran
International, Inc. and Pacific Gateway Exchange (f)
10.12 -- Telecommunications Services Agreement between Teltran
International, Inc. and North American Gateway, Inc.(f)
10.13 -- Exchange Agreement among Teltran International Group, Ltd.
and the Sellers named on Schedule A.(f)
10.14 -- Deferred Equipment Purchase Agreement, dated August 16, 1999,
between Barclay Brydon Limited and Teltran International
Group, Ltd. (g)
10.15 -- ChannelNet Limited Service Provider Agreement with Norweb
Telecom Limited, dated November 23, 1999 (g)
10.16 -- Acquisition Agreement made as of December 18, 1999, by and
among Teltran International Group, Ltd. and Internet Protocols
Limited and the Shareholders of Internet Protocols Limited.
(h)
10.17 -- Office Lease, One Penn Plaza, New York. *
10.18 -- Commercial Lease Agreement , made and effective February 4,
2000 by and between TELEVISIONES COMMUNICATIONS, CORP. and
Teltran International Group, Ltd., for collocation facility
in Miami, Florida. *
10.19 -- WWExchange Network Services Agreement by & between Teltran
International, Inc. & ITXC Corp. *
10.20 -- Stock Option Agreement, made as of February 1, 2000 between
Teltran International Group, Inc. and Bryon R. Lerner. *
10.21 -- Stock Option Agreement, made as of February 1, 2000 between
Teltran International Group, Inc. and James Tubbs. *
10.22 -- Form of Promissory Note, dated December 9, 1999, used in
connection with the exercise of stock options. *
21.1 -- Subsidiary List *
23 Consent of Liebman Goldberg & Drogin*
27 -- Financial Data Schedule*
* Filed herewith.
33
<PAGE>
(a) Previously filed with the Company's Form 10-SB on March 24, 1999
(b) Filed with the Company's Amendment 1 to its Form 10-SB
(c) Filed with the Company's Amendment 1 to its Form SB-2
(d) Filed with the Company's Form 8-K, dated August 16, 1999.
(e) Filed with the Company's Amendment 2 to its Form SB-2.
(f) Filed with the Company's Amendment 3 to its Form SB-2.
(g) Filed with the Company's Amendment 4 to its Form SB-2.
(h) Filed with the Company's Current Report on Form 8-K on
January 3, 2000
(b) Reports on Form 8-K.
No new reports on Form 8-K were filed during the last quarter of the period
covered by this report. However, an amendment containing financial statements
was filed on October 19, 1999 with respect to the Form 8-K originally filed on
August 31, 1999. Additionally, a Form 8-K was filed on January 3, 2000, with
respect to an acquisition that occurred on December 18, 1999. An amendment
containing financial statements was filed on March 2, 2000 with respect to this
Form 8-K.
Signatures
In accordance with Section 13 or 15(d) of the Exchange Act, the registrant
caused this report to be signed on its behalf by the undersigned, thereunto duly
authorized.
Date: April 11, 2000 TELTRAN INTERNATIONAL GROUP, LTD.
By: /s/ Byron R. Lerner
-----------------------------------
Byron R. Lerner, President
In accordance with the Exchange Act, this report has been signed below by the
following persons on behalf of the registrant and in the capacities and on the
dates indicated.
Date: April 11, 2000 /s/ Byron R. Lerner
--------------------------------------
Byron R. Lerner, President, Chief
Executive Officer and Director
Date: April 11, 2000 /s/ James E. Tubbs
--------------------------------------
James E. Tubbs, Executive Vice
President, Chief Operating Officer
and Director
Date: April 11, 2000 /s/ James Supple
--------------------------------------
James Supple, Chief Financial Officer
34
<PAGE>
TELTRAN INTERNATIONAL GROUP, LTD.
AND SUBSIDIARIES
CONSOLIDATED FINANCIAL STATEMENTS
FOR THE YEARS ENDED DECEMBER 31, 1999 AND 1998
with
INDEPENDENT AUDITORS' REPORT
<PAGE>
Independent Auditor's Report
The Board of Directors
Teltran International Group, Ltd. and Subsidiaries
We have audited the consolidated balance sheet of Teltran International Group,
Ltd. and Subsidiaries as of December 31, 1999 and the related consolidated
statements of operations, stockholders' equity and cash flows for the two years
then ended. These consolidated financial statements are the responsibility of
the Company's management. Our responsibility is to express an opinion on these
consolidated financial statements based on our audit.
We conducted our audit in accordance with generally accepted auditing
standards. Those standards require that we plan and perform the audit to obtain
reasonable assurance about whether the financial statements are free of material
misstatement. An audit includes examining, on a test basis, evidence supporting
the amounts and disclosures in the consolidated financial statements. An audit
also includes assessing the accounting principles used and significant estimates
made by management, as well as, evaluating the overall financial statements
presentation. We believe that our audit provides a reasonable basis for our
opinion.
In our opinion, the consolidated financial statements referred to above present
fairly, in all material respects, the financial position of Teltran
International Group, Ltd. and Subsidiaries as of December 31, 1999 and
the results of its operations and its cash flows for the two years then ended in
conformity with generally accepted accounting principles.
Liebman Goldberg & Drogin LLP
Garden City, New York
March 10, 2000
<PAGE>
TELTRAN INTERNATIONAL GROUP, LTD. AND SUBSIDIARIES
INDEX
<TABLE>
<CAPTION>
PAGE NO.
<S> <C>
Part I Financial Information
Consolidated Balance Sheet at December 31, 1999 F-1
Consolidated Statements of Operations for the year
ended December 31, 1999 and 1998 F-2
Consolidated Statements of Stockholders Equity for the year
ended December 31, 1999 and 1998 F-3
Consolidated Statements of Cash Flows for the year
ended December 31, 1999 and 1998 F-4
Notes to Consolidated Financial Statements F-5-F-15
</TABLE>
<PAGE>
TELTRAN INTERNATIONAL GROUP, LTD. AND SUBSIDIARIES
CONSOLIDATED BALANCE SHEET
ASSETS
<TABLE>
<CAPTION>
December 31,
1999
------------
<S> <C>
Current Assets:
Cash $ 3,823,468
Accounts receivable - net of allowance
for doubtful accounts of $ 398,067 978,037
Prepaid expenses and other current assets 192,466
------------
Total current assets 4,993,971
------------
Property and Equipment
Machinery & Equipment, net of accumulated depreciation 1,094,816
------------
Other Assets:
Investment (Cost method) 4,000,000
Security deposits 50,705
Goodwill - net of amortization 229,564
------------
Total other assets 4,280,269
------------
Total assets $ 10,369,056
============
LIABILITIES AND STOCKHOLDERS' EQUITY
Current Liabilities:
Loan payable $ 97,818
Accounts payable, accrued expenses and taxes payable 2,069,556
Corporation taxes payable 16,090
------------
Total current liabilities 2,183,464
------------
Long-Term Liabilities:
Loans payable - stockholders' 1,245
Long term debt 50,449
------------
Total long-term liabilities 51,694
------------
Total liabilities 2,235,158
------------
Commitments and Contingencies
Stockholders' Equity:
Preferred stock, $.001 par value per share, 5,000,000 shares
authorized and -0- issued and outstanding
Common stock, $.001 par value per share, 50,000,000 shares
authorized and 16,420,983 and 7,697,295 issued
and outstanding, respectively 16,421
Additional paid in capital in excess of par value 20,795,070
Note receivable (391,219)
Stock subscription receivable (295,312)
Deficit (11,988,871)
Translation adjustment (2,191)
------------
Total stockholders' equity 8,133,898
------------
Total liabilities and stockholders' equity $ 10,369,056
============
</TABLE>
The accompanying notes are an integral part of these financial statements
F-1
<PAGE>
TELTRAN INTERNATIONAL GROUP, LTD. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF OPERATIONS
For the year ended December 31,
1999 1998
----------- -----------
Revenues:
Sales $ 2,453,189 $ 535,197
Cost of Sales:
Purchases 1,944,849 244,832
----------- -----------
Gross profit 508,339 290,365
----------- -----------
Expenses:
Salaries 738,397 143,356
Outside services 50,331 271,850
Professional fees 361,031 49,531
Bad debts 398,067 -
Fees - other 95,039 9,384
Payroll taxes 26,167 14,878
Leasing expense 13,834 11,446
Travel 168,257 93,701
Insurance 41,297 28,863
Rent 153,440 48,834
Office expense 21,208 3,435
Miscellaneous 25,089 3,908
Maintenance costs 2,030 -
Printing 39,825 -
Commissions 21,538 -
Depreciation 6,785 -
Registration fees 16,135 -
Business development 70,304 -
Telephone 140,532 6,088
Contributions 1,450 -
Advertising 206,709 -
Joint venture expenses 4,150 -
Amortization expense 6,094 24,083
----------- -----------
Total expenses 2,607,709 709,357
----------- -----------
(Loss) from operations (2,099,370) (418,992)
Interest expense - net 17,154 29,959
----------- -----------
(Loss) before other expense and
provision for income taxes (2,116,524) (448,951)
Other expense:
(Loss) from joint venture (104,653) -
----------- -----------
(Loss) before provision for income taxes (2,221,177) (448,951)
Provision for income taxes 18,743 388
----------- -----------
Net (loss) $(2,239,920) $ (449,339)
=========== ===========
Net (loss) per share of common stock based
upon 11,845,357 and 6,929,082 (weighted
average) shares issued, respectively $ (0.19) $ (0.06)
=========== ===========
The accompanying notes are an integral part of these financial statements
F-2
<PAGE>
TELTRAN INTERNATIONAL GROUP, LTD. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF STOCKHOLDERS' EQUITY
<TABLE>
<CAPTION>
Common Stock Capital
----------------------------- in Excess of
Shares Amount Par Value Deficit
------------ ------------ ------------ ------------
<S> <C> <C> <C> <C>
Balance - January 1, 1998 915,637 $ 916 $ 1,501,928 $ (1,805,156)
Issuance of shares Re:
joint venture termination 6,000,000 6,000 284,000 -
Issuance of shares
re: conversion of debt 281,658 281 116,931 -
Issuance of shares re: payment
of stockholders' loans 500,000 500 99,500
Net (loss) for the period - - - (449,339)
------------ ------------ ------------ ------------
Balance - December 31, 1998 7,697,295 7,697 2,002,359 (2,254,495)
Issuance of shares re:
conversion of debt 1,835,033 1,835 674,484
Investment: Omnicom of NY Inc. 115,000 115
Writedown of investment:
Omnicom of NY Inc. (24,957)
Issuance of shares re:
warrants (conversion of debt) 167,500 167 98,270
Issuance of shares re:
Private placement 278,999 279 1,008,190
Issuance of shares re:
Warrants exercised 37,500 38 146,462
Investment 2,000,000 2,000 3,998,000
Issuance of shares re:
acquisition - Channelnet 94,500 95 188,905
Stock dividend 585,000 585 2,596,815 (2,597,400)
Stock dividend 675,456 675 4,896,381 (4,897,056)
Issuance of shares re:
Private placement 625,000 625 4,524,375
Stock issued to employees
exercising stock options 706,758 707 390,511
Investment: Internet Protocols 1,565,442 1,565 15,151,914
Writedown of investment
- Internet Protocols (15,151,914)
Issuance of stock for
stock subscription 37,500 38 295,274
Net (loss) for the period (2,239,920)
------------ ------------ ------------ ------------
Balance - December 31, 1999 16,420,983 $ 16,421 $ 20,795,070 $(11,988,871)
============ ============ ============ ============
</TABLE>
The accompanying notes are an integral part of these financial statements
F-3
<PAGE>
TELTRAN INTERNATIONAL GROUP, LTD. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF CASH FLOWS
For the year ended December 31,
<TABLE>
<CAPTION>
1999 1998
------------ ------------
<S> <C> <C>
Cash Flows from Operating Activities:
Net (loss) $ (2,239,920) $ (449,339)
Adjustment to reconcile net (loss) to net cash
(used in) operating activities:
Depreciation and amortization expense 12,879 24,083
(Loss) from joint venture 104,653 -
(Increase) in accounts receivable (883,741) (94,296)
(Increase) in prepaid expenses and other current assets (192,466) -
(Increase) in goodwill (198,070) -
(Increase) in security deposits (50,705) -
Decrease (increase) in deferred financing costs 19,797 (55,875)
Cash (repayments) received - factor (65,193) 65,193
Increase in accounts payable, accrued expenses
and taxes payable 1,982,555 69,112
------------ ------------
Net cash (used in) operating activities (1,510,210) (441,122)
------------ ------------
Cash Flows from Investing Activities:
Purchase of property and equipment (1,101,512) -
------------ ------------
Cash Flows from Financing Activities:
(Decrease) Increase of convertible debentures payable (180,488) 180,488
(Decrease) in notes payable - (250,000)
Decrease in loans payable - stockholders - 102,865
Conversion of convertible debenture - stock issued 676,319 119,512
Decrease in loan payable 47,818 (50,000)
Proceeds from loan payable 107,747 50,000
Exercise of warrants 244,937 -
Private placement 5,533,469 -
Issuance of stock for notes payable - 290,000
------------ ------------
Net cash provided by financing activities 6,429,802 442,865
------------ ------------
Net increase in cash 3,818,079 1,743
Cash - January 1, 5,389 3,646
------------ ------------
Cash - December 31, $ 3,823,468 $ 5,389
============ ============
Supplemental Disclosures:
Income tax $ 625 625
============ ============
Interest paid $ 37,692 29,959
============ ============
Supplemental Schedule of Non-Cash Investing and
Financing Activities:
Non-cash issuance of common stock $ 17,246,526 $ -
============ ============
</TABLE>
The accompanying notes are an integral part of these financial statements
F-4
<PAGE>
TELTRAN INTERNATIONAL GROUP, LTD. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
December 31, 1999
Note 1 - Operations:
Nature of Business:
Teltran International Group, Ltd. through its wholly owned
Subsidiaries ("the Company") provides services for state of the art
telecommunications. Specifically, the Company operates as both an
international and domestic reseller of telecommunications, a provider
of internet telephoning and the continued development of related
interest business such as a web portal. During the year, the Company
acquired two subsidiaries in the United Kingdom and intends to form a
new United Kingdom subsidiary to manage and coordinate all of their
United Kingdom subsidiaries.
Effective March 1, 1996, the shareholders of Teltran International
Inc. ("the Subsidiary"), a Delaware corporation, completed a stock
exchange with Spectratek Inc., a Utah corporation, whereby all the
common shares of the subsidiary, were exchanged for 10,000,000 common
shares of Spectratek, par value $.001. The 10,000,000 shares
represented approximately 67% of the then total issued and
outstanding 15,145,491 shares of Spectratek Inc.
On October 6, 1997, Spectratek subsequently incorporated as Teltran
International Group, Ltd., a Delaware corporation.
Prior to 1998, the Company was engaged in attempts to develop their
business and did not receive any significant revenues.
Except as otherwise indicated by the context, references to "the
Company" refer to Teltran International Group, Ltd. and its
subsidiaries.
Note 2 - Summary of Significant Accounting Policies:
Principles of Consolidation:
The consolidated financial statements include the accounts of the
company and its wholly owned subsidiaries. Intercompany balances and
transactions have been eliminated.
The Company acquired all the outstanding shares of Omnicom of New
York Inc. in exchange for 115,000 shares of Teltran common stock. At
the time of the acquisition, Omnicom had insubstantial assets and
liabilities.
Teltran acquired all of the outstanding common stock of ChannelNet,
Ltd. in exchange for 94,500 shares of Teltran's common stock. Teltran
may also be obligated to issue additional shares based upon earnings
generated by the acquired subsidiary during the period September 1999
through February 2001. At the time of the acquisition, ChannelNet had
insubstantial assets and liabilities.
F-5
<PAGE>
TELTRAN INTERNATIONAL GROUP, LTD. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
December 31, 1999
Note 2 - Summary of Significant Accounting Policies (Continued):
Principles of Consolidation (Continued):
The Company also entered into an agreement with the former
stockholder of ChannelNet to purchase equipment necessary for the
operation of ChannelNet's business. Teltran also entered into an
employment agreement with a key ChannelNet employee for the operation
of the ChannelNet business. The agreement provides in part for the
issuance of Teltran shares based on the future earnings of
ChannelNet.
Additionally, on December 18, 1999, Teltran acquired all the
outstanding shares of Internet Protocols Ltd., a provider of
equipment and services to internet service providers. Teltran is
required to transfer approximately $3,000,000 to Internet Protocols
Ltd. and issue 1,565,442 shares of its common stock to the
shareholders of Internet Protocols Ltd. in exchange for their stock
in Internet Protocols Ltd.. Subsequent to the completion of this
transaction and after December 31, 1999, the parties have agreed in
principle to substantially modify this purchase based upon the
downward reevaluation of the assets acquired and the inability to
determine the true, if any goodwill, factor of Internet Protocols
Ltd. Internet Protocols Ltd. is a development stage company and
realized minimal sales in 1999.
Development Stage Activities and Operations:
Prior to April 1998, the Company (Teltran) was a development stage
company. Since the Company now has continuing business revenues,
comparative financial information does not include losses accumulated
during the development stage period.
At December 31, 1999, the Company has a net operating loss
carryforward of approximately $4,000,000 after limitations based on
changes in ownership.
The Company adopted Financial Accounting Standards Board (FASB)
Statement No. 128, "Earnings per Share". The Statement established
standards for computing and presenting earnings per share (EPS). It
replaced the presentation of primary EPS with a presentation of basic
EPS and also requires dual presentation of basic and diluted EPS on
the face of the income statement. Basic loss per share was computed
by dividing the Company's net loss by the weighted average number of
common shares outstanding during the period. There is no presentation
of diluted loss per share, as the effect of common stock options,
warrants and convertible debt amounts are antidilutive. The weighted
average number of common shares used to calculate loss per common
share during 1999 and 1998 was 11,845,357 and 6,929,082 respectively.
F-6
<PAGE>
TELTRAN INTERNATIONAL GROUP, LTD. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
December 31, 1999
Note 2 - Summary of Significant Accounting Policies (Continued):
Income Taxes:
The Company accounts for income taxes in accordance with the
provisions of SFAS No. 109, "Accounting for Income Taxes". SFAS No.
109 requires the Company to recognize income tax benefits for loss
carryforwards which have not previously been recorded. The tax
benefits recognized must be reduced by a valuation allowance in
certain circumstances. The benefit of the Company's net operating
loss carryforwards have been reduced 100% by a valuation allowance.
Deferred income taxes reflect the impact of temporary differences
between the amounts of assets and liabilities for financial reporting
purposes and such amounts as measured by tax laws. The deferred tax
assets and liabilities as of December 31, 1999 and 1998 are as
follows:
Deferred Tax Assets: 1999 1998
Net operating loss carryforwards $4,114,217 $2,241,245
========== ==========
Deferred tax Liabilities: 1,398,834 762,023
Valuation Allowance (1,398,834) (762,023)
---------- ----------
$ -0- $ -0-
========== ==========
At December 31, 1999, the Company has approximately $4,000,000 of net
operating loss carryforwards for income tax purposes, which expire
2016 through 2019.
At December 31, 1999, the Company's net deferred tax assets were
fully offset by a valuation allowance. The Company will continue to
assess the valuation allowance and to the extent it is determined
that such allowance is no longer required, the tax benefit of the
remaining net deferred tax assets will be recognized in the future.
F-7
<PAGE>
TELTRAN INTERNATIONAL GROUP, LTD. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
December 31, 1999
Note 2 - Summary of Significant Accounting Policies (Continued):
Income Taxes (Continued):
Teltran International Group, Ltd. and Subsidiaries Deferred Taxes -
1999:
NOL from 1998 $2,241,245
Current Year NOL 1,872,972
----------
Total 4,114,217
Rate 34%
Deferred Tax $1,398,834
Less 1998 Taxes Payable -
----------
Net Deferred Taxes $1,398,834
==========
1997 Federal NOL Carryover $1,801,606
1998 Operating Loss 439,639
----------
NOL Carryover to 1999 $2,241,245
==========
Use of Estimates:
The preparation of financial statements in conformity with generally
accepted accounting principles requires management to make estimates
and assumptions that affect the reported amounts of assets and
liabilities and disclosure of contingent assets and liabilities at
the date of the financial statements and the reported amounts of
revenues and expenses during the reporting period. Actual results
could differ from those amounts.
Fair Value of Financial Instruments:
SFAS No. 107, "Disclosures About Fair Value of Financial
Instruments", requires disclosure of the fair value information,
whether or not recognized in the balance sheet, where it is
practicable to estimate that value. The carrying value of cash, cash
equivalents, accounts receivable and notes payable approximates fair
value.
F-8
<PAGE>
TELTRAN INTERNATIONAL GROUP, LTD. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
December 31, 1999
Note 2 - Summary of Significant Accounting Policies (Continued):
Revenue Recognition:
Telecommunication revenues from services provided are recognized and
billed as services are performed.
Revenues can vary, due to factors including call volume fluctuations,
particularly in regions with relatively high per minute rates; the
addition or loss of major customers, whether through competition,
merger, consolidation or otherwise; and financial difficulties of
major customers; pricing pressure resulting from increased
competition, technical difficulties or failures of portions of the
provider may impact the ability to provide service to customers.
Additionally, technical difficulties with the internet network, web
portal, etc. may be responsible for revenue variations.
Major Customer:
During the year ended December 31, 1998, approximately 70% of the
company's revenue was from one customer. Also, 65% of accounts
receivable were from this customer who also was factored.
Advertising Costs:
Advertising costs are expensed as incurred and were $206,709 in 1999
and 0 in 1998.
Goodwill:
Goodwill is stated at cost and is amortized on a straight line basis
over a life of 15 years. Amortization expense is $6,094 for the year
ended December 31, 1999.
Note 3 - Property and Equipment:
Property and equipment - net consists of computer equipment and
furniture at a cost of $1,101,512 less depreciation of $6,696. The
estimated useful lives of the assets are 3 - 5 years.
Note 4 - Related Party Transactions:
On May 1, 1999, the company acquired all the outstanding shares of
Omnicom of New York Inc. from Mr. James Tubbs, Executive Vice
President, Chief Financial Officer and a director of the Company. The
agreement called for the issuance of 115,000 shares of common stock
(126,788 after the two stock dividends) and is reflected in the
consolidated statements of stockholders' equity.
In December 1999, the company issued 37,500 shares to Dolores Miller,
the spouse of Martin Miller. Ms. Miller is required to pay $295,312
for these shares. Martin Miller is a former director of the company,
having resigned in January 2000.
Note 5 - Investment in Joint Venture:
During the year ended December 31, 1999 Teltran invested $75,000 as
their initial investment in a joint venture with Antra Holdings Group
Inc. The joint venture, known as Recordstogo.Com will be utilized as
a vehicle to sell records belonging to an unaffiliated third party.
Revenues will be generated from numerous sources that are part of the
joint venture website. These include hard to find records,
memorabilia, old record albums, music downloads in MP3 and other
formats. As of December 31, 1999, Teltran's share of the joint
venture loss was $104,653. Teltran has not advanced a working capital
requirement of $75,000 and $29,653 of loss over their initial
investment, is a liability.
F-9
<PAGE>
TELTRAN INTERNATIONAL GROUP, LTD. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
December 31, 1999
Note 6 - Convertible Debentures Payable:
In August 1998, the Company issued $300,000 of convertible debentures
due August 14, 1999 to non-related parties. The debentures accrued
interest at 10%. The debentures were convertible into the Company's
stock at $1.25 or 70% of the lowest closing bid price, which was
approximately $.50, of the common stock, 30 trading days preceding
the conversion date. During the years ended December 1999 and 1998,
$730,488 and $119,512, respectively, of debentures were converted to
2,116,691 shares of common stock. In connection with the transaction,
the Company issued 30,000 warrants to purchase 30,000 shares of
common stock at $1.25 per share. Financing costs of this transaction
were deferred, and amortized to the convertible debentures conversion
date.
Note 7 - Notes Payable:
Prior to 1998, the Company received a loan in the amount of $50,000.
The loan was from a non-related party (Fiscal Concepts, Inc.) and the
note stated that no interest was to be paid. During 1998, the
repayment due date was extended until December 15, 1999. Since it was
anticipated that the loan would be repaid within one year and there
was no interest due; imputed interest in accordance with APB#21 was
not calculated. On December 15, 1999, the loan was extended until
March 31, 2000.
In November 1997, the Company entered into a joint venture agreement
with a group of unrelated foreign investors which provided for their
participation of future profits of the Company in return for
cancellation of indebtedness. In June 1998, the Company issued an
aggregate of 6,000,000 shares to these investors in consideration of
the termination of the joint venture.
Note 8 - Due to Factor:
In May 1998, the Company entered into a factoring agreement which was
terminated in February 1999. The Company financed the accounts
receivable of its major customers and used advances from the factor
($509,036 before customer repayments) to pay operating expenses as
well as vendor purchases. Upon termination of the factoring agreement
the outstanding balance was paid in full.
Note 9 - Stockholders' Equity:
During the period August 1998 to December 31, 1999, the Company
issued 2,116,691 shares of its common stock upon the conversion of
$730,488 and $119,512 of the debentures referred to in Note 6.
F-10
<PAGE>
TELTRAN INTERNATIONAL GROUP, LTD. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
December 31, 1999
Note 9 - Stockholders' Equity (Continued):
Relating to the same transaction, the Company issued 167,500 shares
when warrants that were issued as part of the convertible debenture
transaction were exercised.
The Company also issued 500,000 shares of its common stock to related
parties of an officer and an officer as repayment of $100,000
advanced to the Company during 1998.
In January 1999, the Company issued $550,000 principal amount of
convertible debentures due to non-related parties. The debentures
accrue interest at 10%, and are convertible into the Company's common
stock at prices related to market. Subsequent to the issuance of the
debentures, all the debentures were converted into shares.
In April, 1999, Teltran and Antra Holding Group Inc. exchanged shares
of their Company's common stock. Teltran owns 2,000,000 shares of
Antra's common stock and Antra owns 2,205,000 shares of our common
stock (based upon two 5% stock dividends paid in June and October
1999). Antra is a public company engaged, through subsidiaries, in
the music business. As a result of the transaction, Antra may be
deemed a principal stockholder of Teltran. Each Company exchanged
shares which were valued at $3 per share representing $6,000,000. As
of December 31, 1999, the Company adjusted the value of its
investment to give effect to the non-liquidity, thin market and
restriction on sale of shares of such stock. The investment is
reflected on the balance sheet at the fair market value of
$4,000,000.
Additionally, the agreement with Antra requires an adjustment in the
shares delivered in connection with the above described exchange if
on the first business day of the year 2000 either Antra's shares or
the Company's shares are trading less than 20% below the market price
of the other party's shares, the party whose shares are trading lower
must issue additional shares to the other party.
Teltran issued 94,500 shares of its common stock to acquire 100% of
ChannelNet, Ltd. Teltran may be obligated to issue additional shares
based upon earnings generated by the acquired subsidiary during the
period September, 1999 through February, 2001.
The purchase price was determined as follows:
94,500 common shares @ $2.00 per share = $189,000 (fair
market value)
The purchase price was allocated as follows:
In U.S. Dollars
Accounts receivable $ 8,795
Accounts payable (6,598)
---------
Net assets 2,197
Purchase price 189,000
---------
Goodwill $ 186,803
=========
F-11
<PAGE>
TELTRAN INTERNATIONAL GROUP, LTD. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
December 31, 1999
Note 9 - Stockholders' Equity (Continued):
In April, 1999 the Company declared a 5 % stock dividend to
shareholders of record on June 1, 1999 and issued 585,000 common
shares on June 15, 1999.
In August, 1999 the Company declared a second 5 % stock dividend to
shareholders of record on September 1, 1999 and issued 675,456 common
shares on October 15, 1999.
At the time of issuance of both 5% stock dividends, the Company had a
retained earnings deficit. The transaction was recorded by increasing
the retained earnings deficit and increasing additional paid in
capital.
In June 1999, the Company issued 316,499 shares in a private
placement transaction; the net proceeds to the Company were
$1,154,969.
In November 1999, the Company sold 625,000 shares at $8.00 per share
in a private placement. With each share purchased in this private
placement, the purchaser received four warrants to purchase one share
of Teltran common stock at a price ranging from $8 to $10.25 per
share. The actual price of these warrants could be reduced if the
market price of Teltran's stock is less than the stated exercise
price approximately 60 days after the filing of the registration
statement covering the shares issuable upon exercise of the warrants.
On December 18, 1999, Teltran, as part of the acquisition of Internet
Protocols, Ltd., issued 1,565,442 shares of its common stock to the
shareholders of Internet Protocols Ltd. in exchange for their stock
in Internet Protocols Ltd..
The Company adopted Financial Accounting Standards Board (FASB)
Statement No. 128, "Earnings per Share". The Statement established
standards for computing and presenting earnings per share (EPS). It
replaced the presentation of primary EPS with a presentation of basic
EPS and also requires dual presentation of basic and diluted EPS on
the face of the income statement. The Statement was retroactively
applied to the 1997 loss per share but did not have any effect.
F-12
<PAGE>
TELTRAN INTERNATIONAL GROUP, LTD. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
December 31, 1999
Note 10 - Legal Proceedings:
The Company and its subsidiaries are subject to legal proceedings,
claims, and litigation arising in the ordinary course of business.
The Company's management does not expect that the ultimate costs to
resolve these matters will have a material adverse effect on the
Company's consolidated financial position, results of operations, or
cash flows.
Note 11 - Commitments and Contingencies:
A substantial accounts receivable held by the foreign subsidiary,
ChannelNet, may not be collectible. The Company has set up a reserve
of $398,067 against this receivable.
During the first three months of 1998, the Company was a development
stage company and had no significant revenues and limited financing.
Additionally, the Company, as shown in the accompanying consolidated
financial statements, has an accumulated deficit of $11,988,871 at
December 31, 1999 and incurred a net loss of $2,239,920 during the
year ended December 31, 1999.
The Company rents its facility under a lease agreement through August
31, 2003.
Future minimum lease payments under these agreements for the years
ended December 31, are as follows:
2000 $ 162,981
2001 217,308
2002 217,308
2003 224,553
2004 and thereafter 1,461,966
-----------
$2,284,116
==========
Rent expense for the years ended December 31, 1999 and 1998 was
$153,440 and $48,834, respectively.
Note 12 - Stock Compensation Plan:
During the year ended December 31, 1998, the company granted
1,180,000 stock options, with a life of 10 years, to certain
officers/directors, employees and non-employees that may be
exercised at prices ranging from $.375 to $5.00 per share.
Subsequent to December 31, 1998, the Company pursuant to the plan,
granted 2,127,500 additional stock options, also with a 10 year
life, to certain employees and non-employees that may be exercised
at a price of $2.00 per share. These options vested immediately
upon the date of issuance.
F-13
<PAGE>
TELTRAN INTERNATIONAL GROUP, LTD. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
December 31, 1999
Note 12 - Stock Compensation Plan (Continued):
The following table summarizes certain information relative to stock
options:
Weighted Average
Incentive Stock Options Shares Exercise Price
----------------------- ------ --------------
Granted 1,180,000 $1.69
Exercised 0 -
---------
Outstanding-December 31, 1998 1,180,000 1.69
Exercised (706,758) .55
Granted 2,127,500 2.00
---------
Outstanding-December 31, 1999 2,600,742 -
=========
Exercisable-December 31, 1999 959,732 1.11
=========
The Company adopted the provisions of Statement No. 123, Accounting
for Stock-Based Compensation. As permitted by the Statement, the
Company has chosen to continue to account for stock-based
compensation using the intrinsic value method. Accordingly, no
compensation expense has been recognized for its stock-based
compensation plans.
The Company recognizes compensation for stock options granted to
employees in accordance with APB#25. The Intrinsic value method does
not recognize compensation cost in the financial statements when
options are granted. Had the Company determined compensation based on
the fair value at the grant date for its stock options, the Company's
net loss would have been increased to the pro-forma amounts indicated
below. The fair value was estimated using the Black Scholes option
pricing model based on the weighted average market price at grant
date of $2.00 in 1999. The following assumptions were used:
Dividend Yield 0%
Risk Free Interest Rate
Volatility
Expected Life
Net Loss:
As reported $(2,239,920)
=========
Pro-forma $(2,737,481)
=========
Net loss per share:
As reported $( 0.19)
=========
Pro-forma $( 0.23)
=========
F-14
<PAGE>
TELTRAN INTERNATIONAL GROUP, LTD. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
December 31, 1999
Note 13 - Subsequent Events:
On January 3, 2000, Teltran received an additional 800,000 shares of
Antra's stock. Teltran now owns 2,800,000 shares of Antra's common
stock.
The adjustment of stock was agreed to by the parties, should there be
a disparity in the relative market value of the two entities on
January 3, 2000.
F-15
<PAGE>
AMENDMENT 1 TO
EMPLOYMENT AGREEMENT
Amendment 1 dated as of January 31, 2000 to the Employment Agreement
(the "Agreement") made and entered into as of March 1, 1999 by and between
TELTRAN INTERNATIONAL GROUP, LTD., a Delaware corporation (the "Company"), and
BYRON R. LERNER (the "Executive").
The parties have previously entered into the Agreement and desire to
amend the Agreement to reflect increased compensation as a result of the
favorable results of the Company.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
set forth herein and the mutual benefits to be derived here from, the Company
and the Executive agree as follows:
1. Notwithstanding the provision of paragraph 1 of the Agreement
the Executive may devote time to other activities as long as
they are not competition with the Company's activities and as
long as Executive devotes substantially most of his time to
the business of the Company.
2. Paragraph 3(a) and 3(b) of the Agreement are amended in their
entirety to read as follows:
3. Except as amended hereby the Agreement shall continue in full
force and effect.
3. Compensation.
(a). Base Salary. Executive shall receive a "Base
Salary" during the Term. For the period March 1, 1999
through July 31, 1999 the Base Salary shall be at the
rate of $150,000 per annum which shall increase to
the rate of $180,000 per annum commencing August 1,
1999. On _____ __, ____ the Base Salary shall
increase to $250,000 per annum for the balance of the
first Year and for the entire second Year. Every Year
after March 31, 2001 the Base Salary shall increase
by an amount equal to ten (10%) percent of the prior
year's base Salary.
(b). Net Income. As used herein the term "Net Income"
shall mean pre- tax income of the Company determined
in accordance with generally accepted accounting
principles consistently applied but excluding
therefrom any deduction reflecting (i) amortization
of good-will or (ii) any deduction for any bonus
awarded under Paragraph 1(c).
<PAGE>
4. Except as amended hereby the Agreement shall continue
in full force and effect.
IN WITNESS WHEREOF, the parties have executed this Amendment as of the
date above.
------------------------------------------
Byron Lerner
TELTRAN INTERNATIONAL GROUP, INC.
By:
---------------------------------------
James Tubbs, Executive Vice President
2
<PAGE>
AMENDMENT 1 TO
EMPLOYMENT AGREEMENT
Amendment 1 dated as of January 31, 2000 to the Employment Agreement
(the "Agreement") made and entered into as of March 1, 1999 by and between
TELTRAN INTERNATIONAL GROUP, LTD., a Delaware corporation (the "Company"), and
JAMES TUBBS (the "Executive").
The parties have previously entered into the Agreement and desire to
amend the Agreement to reflect increased compensation as a result of the
favorable results of the Company.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
set forth herein and the mutual benefits to be derived here from, the Company
and the Executive agree as follows:
1. Notwithstanding the provision of paragraph 1 of the Agreement
the Executive may devote time to other activities as long as
they are not competition with the Company's activities and as
long as Executive devotes substantially most of his time to
the business of the Company.
2. Paragraph 3(a) and 3(b) of the Agreement are amended in their
entirety to read as follows:
3. Except as amended hereby the Agreement shall continue in full
force and effect.
3. Compensation.
(a). Base Salary. Executive shall receive a "Base
Salary" during the Term. For the period March 1, 1999
through July 31, 1999 the Base Salary shall be at the
rate of $150,000 per annum which shall increase to
the rate of $180,000 per annum commencing August 1,
1999. On _____ __, ____ the Base Salary shall
increase to $250,000 per annum for the balance of the
first Year and for the entire second Year. Every Year
after March 31, 2001 the Base Salary shall increase
by an amount equal to ten (10%) percent of the prior
year's base Salary.
(b). Net Income. As used herein the term "Net Income"
shall mean pre- tax income of the Company determined
in accordance with generally accepted accounting
principles consistently applied but excluding
therefrom any deduction reflecting (i) amortization
of good-will or (ii) any deduction for any bonus
awarded under Paragraph 1(c).
<PAGE>
4. Except as amended hereby the Agreement shall continue in full
force and effect.
IN WITNESS WHEREOF, the parties have executed this Amendment as of the
date above.
---------------------------------------
James Tubbs
TELTRAN INTERNATIONAL GROUP, INC.
By:
------------------------------------
Byron Lerner, President
2
<PAGE>
Restated and Amended
RECORDStogo.com, Inc.
RESTATED and AMENDED
STOCKHOLDERS' AGREEMENT
AGREEMENT (the "Agreement") dated January 24, 2000 amending
and restating the AGREEMENT, ("Prior Agreement") dated as of September 30,
1999, by and among TELTRAN INTERNATIONAL GROUP, LTD. ("Teltran"), a Delaware
corporation with its principal address at One Penn Plaza, Suite 4632, New
York, New York 10119, ANTRA HOLDINGS GROUP, INC., a Delaware corporation with
its principal address at 1515 Locust Street, Philadelphia, Pennsylvania 19102
("ANTRA"), and RECORDSTOGO.COM, Inc., a Delaware corporation with its
principal address at One Penn Plaza, Suite 4632, New York, New York 10119 (the
"Corporation"). Teltran and Antra may each be referred to herein as a
"Stockholder" and sometimes collectively referred to herein as the
"Stockholders".
INTRODUCTION
------------
The parties previously entered into the Prior Agreement and
now desire to amend and restate the Prior Agreement in its entirety as set forth
hereinafter.
Teltran is in the telecommunications business and has created
a web portal, and Antra is in the urban music business. The Corporation was
formed on July 29, 1999 to serve as the corporate vehicle for a joint venture
between the two Stockholders to sell various music and other entertainment
products on the Internet. The authorized capital stock of the Corporation
consists of 50,000,000 shares of common stock, $.001 par value per share (the
"Common Shares"), and 5,000,000 shares of preferred stock, $.001 par value per
share (the "Preferred Shares"; and with the Common Shares, sometimes
collectively referred to herein as the "Shares"). Teltran and Antra each own
forty-nine (49%) percent of the outstanding Common Shares. There are no
Preferred Shares currently outstanding.
The Stockholders believe that in order to promote their mutual
interests and the interests of the Corporation, it is advisable to set forth
herein certain understandings with respect to the future disposition of any
Shares and the management of the business and affairs of the Corporation.
Accordingly, in consideration of the foregoing and of the
mutual promises and
<PAGE>
agreements hereinafter set forth, and for other good and valuable consideration,
the receipt and sufficiency of which is hereby acknowledged, the parties agree
as follows:
1. Management and Internal Affairs.
1.1.1. Initial Shareholding. Each of the Shareholders shall
own 4,900,000 shares of the Corporation's common stock. The parties have agreed
that the Corporation shall issue 200,000 shares of its common stock to an
affiliate of an entity in which the Corporation has a business relationship.
Each party agrees that hereinafter their percentage ownership shall continue and
no shares shall be issued unless each of the Shareholders shall acquire one half
of such shares.
1.1.2 Initial Capital Contributions. As of the date of the
execution and delivery of this Agreement, the parties have agreed to contribute
$75,000 each to the Corporation as an initial capital contribution ("Initial
Capital Contribution"). As of the date hereof each party has made its initial
capital contribution. Each party shall contribute an additional $175,000
("Additional Required Contribution") from time to time as requested by the Board
of Directors as hereinafter defined.
1.1.3 Budget and Plan of Operations. The Board (as such term
is defined in subsection 1.2.1 below) shall, from time to time, cause to be
prepared and shall approve a budget (the "Budget") for the Corporation, which
sets forth the estimated receipts and expenditures of the Corporation for the
period covered thereby, and a plan of operations (the "Plan") for the
Corporation, which sets forth the projected business goals and methods of
achieving such goals of the Corporation for the period covered thereby. The
Board shall meet periodically to discuss the results of the business operations
of the Corporation and to evaluate the Plan and the Budget, and may, as it deems
in the best interest of the Corporation, update a Budget during a year as
frequently as it wishes, in light of its evaluations of the business operations
and Plan of the Corporation for such year. Upon approval of a Budget (including
any update thereof) and Plan for the Corporation, the officers of the
Corporation shall adhere to the Plan and the Budget and are only authorized to
expend funds and incur liabilities on behalf of the Corporation as therein set
forth.
1.1.4 Additional Advances.
(a) The Stockholders shall make additional advances
("Additional Advances") to or on behalf of the Corporation as part of the
Additional Required Contribution as directed by the Board of Directors or as
required by the Budget. Additional Advances shall be made equally by each
Stockholder.
(b) If a Stockholder does not make any Additional Advances the
other Stockholder may advance any amount owed to the Corporation by the
defaulting Stockholder. Such amount shall bear interest at the rate of interest
equal to three (3%) percent above the prime rate
<PAGE>
published by Citibank and shall be a joint and several obligation of the
defaulting Stockholder and the Corporation. In addition, all distributions from
the Corporation that would otherwise be made to the defaulting Stockholder
(whether before or after liquidation of the Corporation) shall, instead, be paid
to the non-defaulting Stockholder, or retained by the Corporation to the extent
it made any payments to the non-defaulting Stockholder, until such amount and
all interest accrued thereon has been repaid in full.
1.1.5 No Other Capital Contributions. Except as set forth in
subsection 1.1.3 and 1.1.4 above, the Stockholders shall not be obligated to
make any additional capital contributions to the Corporation.
1.2 Board of Directors.
1.2.1 The number of directors constituting the entire Board of
Directors of the Corporation (the "Board") shall be two (2). Each Stockholder
agrees during the term of this Agreement, to nominate and to vote their
respective shares for one nominee designated by Teltran and one nominee
designated by Antra. The initial designee of each Stockholder is as set forth on
Schedule A annexed hereto.
1.2.2 The Stockholders may change any or all of their
respective designees from time to time by notice to the other Stockholders, and
the Stockholders agree to vote to elect or appoint such new designees as
Directors as set forth in such notice. In the event that any designee shall fail
to continue to serve as a Director, the Stockholder appointing such designee
shall have the right to designate a replacement for such Director, and the
Stockholders agree to vote to elect or appoint such designee as a Director.
1.2.3 The right to designate Directors for election to the
Board, shall remain in place for as long as the so empowered Stockholders remain
Stockholders of the Company. Upon the cessation for any reason of a
Stockholder's authority to designate a Director, those seats on the Board
formerly controlled by such Stockholder shall be filled by election of the
Stockholders without restriction in accordance with the relevant terms of the
General Corporation Law of the State of Delaware.
1.3 Quorum and Voting Requirements of the Board of Directors.
1.3.1 The presence in person or telephonically of all of the
Directors shall be required for any meeting of the Board. The unanimous vote or
written consent of all of the Directors shall be required for any action taken
by the Board.
1.3.2 Actions taken by written consent shall have the same
effect as actions voted on at meetings of the Board of Directors.
<PAGE>
1.4 Officers. The Stockholders agree to use their best efforts to
secure the election and continuation in office of officers of the Company to be
agreed upon.
1.5 No Prohibition Against Other Business Ventures. Except as
prohibited by the provisions of subsection 3.2 hereof, the Stockholders, as well
as any persons or entities which own and/or control a Stockholder, may engage
and hold interests in other business ventures of every kind and description for
their own account. Neither the Corporation nor any of the Stockholders shall
have any rights in or to such business ventures by virtue of the Stockholder (or
a person owning or controlling such Stockholder) engaging in such venture being
a Stockholder (or owning or controlling a Stockholder) of the Corporation.
1.6 Responsibilities of the Stockholders. The Stockholders shall
provide the Corporation with the services it is contemplated that Antra's
services will relate to the nature of the music business and Teltran's services
will be technical in nature.
1.7 Reimbursement by the Corporation. The parties acknowledge
that the services to be provided to the Corporation by Teltran and Antra shall
be an expense of the Corporation and the respective party shall be reimbursed
therefor by the Corporation.
2. Books of Account.
Books and records of account of the Corporation shall be
maintained at its principal office, and true and accurate entries of all
transactions had by and on behalf of the Corporation shall be set down therein.
Such books and records, accounts and all other documents of the Corporation, at
all times during normal business hours, shall be open to the inspection of the
Stockholders and their authorized designees, who shall be entitled to make
copies therefrom and to take extracts thereof. Notwithstanding whether any of
the parties hereto remains a Stockholder, all such records and books of account,
together with all files and documents prepared on behalf of the Corporation,
shall remain in the exclusive possession of the Corporation.
3. Covenants of Stockholders.
3.1 Confidentiality. Each Stockholder agrees that it
shall not, during the term of this Agreement or at any time thereafter, use for
its own benefit, nor divulge, furnish or make accessible to anyone (otherwise
than in the regular course of the business of the Corporation) any confidential
or secret knowledge or information with respect to the business of the
Corporation.
3.2 Non-Competition. Each Stockholder agrees that it
shall not except as provided in subsection 1.1, while it is a Stockholder,
compete with the Corporation with respect to the sale of music products on the
Internet in any business then conducted or under development by the Corporation,
directly or indirectly, nor shall it be, directly or indirectly, a partner
<PAGE>
or stockholder of any proprietorship, partnership or corporation which so
competes with the Corporation.
3.3 Non-Solicitation. Each Stockholder agrees that, for
so long as it is a Stockholder of any of the Corporation and for a period of one
(1) year thereafter, it shall not directly or indirectly, (i) seek to persuade
any director, officer, employee or consultant of any of the Corporation to
discontinue that individual's status of employment by, or affiliation with, the
Corporation, (ii) solicit or hire, or cause to be solicited or hired, any such
officer, employee or consultant whether on its own behalf or on the behalf of
any third party; or (iii) solicit any client of the Corporation or solicit any
business which was being solicited by the Corporation or was under contract with
the Corporation during the period in which it was a Stockholder of the
Corporation.
3.4 Investment. Nothing in this Agreement shall preclude
a Stockholder from investing its corporate assets in securities of any
corporation or other business entity which is engaged in a business competitive
with the Corporation, if such securities are regularly traded on a national
stock exchange or over-the-counter and if such purchase shall not result in its
holding beneficially, at any time, more than two (2%) percent of the equity
securities of such competitor.
3.5 Equitable remedies. The parties hereto agree that the
remedy at law for any breach of this Section 3 shall be inadequate and that, in
the event of any such breach, the non-breaching parties shall be authorized and
entitled to obtain from any court of competent jurisdiction preliminary and
permanent injunctive relief, as well as an equitable accounting of all profits
or benefits arising from such breach, which rights and remedies shall be
cumulative and in addition to any other rights and remedies to which the
non-breaching parties may be entitled. The provisions of this subsection 3.5
shall be enforceable notwithstanding the existence of any claim or cause of
action of the breaching party against any of the non-breaching parties, whether
predicated on this Agreement or otherwise.
4. Obligations of the Corporation; Conflict with By-Laws.
The parties hereto agree that all of the terms, covenants
and conditions of this Agreement shall supplement the By-Laws of the
Corporation, and, in the event of conflict therewith, shall prevail. The
Corporation shall not be deemed a party to, nor be directly obligated with
respect to, any of the voting, consent or approval provisions hereof; provided,
however, that nothing in this Section 4 or elsewhere set forth shall affect the
rights and obligations of the Stockholders among themselves under any of the
provisions of this Agreement. Wherever in any section of this Agreement
reference is made to any action to be taken or not be taken by the Corporation
or otherwise or in accordance with specified procedures, such reference shall be
deemed to mean that the Stockholders shall cast their votes and take such other
action as reasonably may be necessary or desirable or otherwise appropriate to
cause the Corporation to take or not to take such action or otherwise to
effectuate such provisions and in accordance with the procedures therein
<PAGE>
specified.
5. General Transfer Restrictions.
Prohibition of Transfers. Neither Stockholder shall sell,
assign, pledge, hypothecate or otherwise alienate, encumber or otherwise dispose
of, in any manner, whether or not for consideration (hereinafter referred to as
a "Transfer"), any of the Shares, except as expressly permitted by the terms of
this Agreement. Any attempted issue or Transfer of Shares or other securities of
the Corporation in violation of this Agreement shall not be recognized and shall
be deemed void ab initio. The foregoing provisions shall not, however, apply to
any sale by a Stockholder in connection with the sale of all such Stockholder's
assets to an entity or person not a party to this Agreement or to a wholly owned
subsidiary of such Stockholder, provided such purchasing party agrees in writing
to be bound by the terms and conditions hereof.
6. Rights of First Refusal.
6.1 Right of First Refusal Generally. If at any time, or
from time to time, a Stockholder receives a bona fide offer from a person or
entity not a party to this Agreement (an "Offeror") to purchase all of its
Shares (the "Third Party Offer"), prior to the acceptance thereof, such
Stockholder (the "Offering Stockholder") shall give notice thereof to the other
Stockholder in accordance with the terms of this Section. Such notice (the
"Offering Notice") shall contain a copy of the Third Party Offer, including, but
not limited to, the name and address of the Offeror and the price at which and
terms upon which such Shares (the "Offered Shares") are proposed to be
transferred. The Offering Notice shall be deemed to be an offer by the Offering
Stockholder to sell all Offered Shares to the other Stockholders in accordance
with the terms of the Offering Notice and subject to the terms of this
Agreement.
6.1.1 The Offered Shares first shall be offered to the
other Stockholder, who shall have thirty (30) days in which to accept by notice
of the Offered Shares at the purchase price and other terms and conditions set
forth in the Third Party Offer. An offer may not be accepted for less than all
such shares unless the Corporation purchase the balance.
6.1.2 If the remaining Shareholder does not agree to
purchase all the aforesaid Offered Shares, the number of Offered Shares not
purchased by the remaining Shareholder shall be deemed offered to the
Corporation, which shall have an additional thirty (30) days in which to accept
the offer to purchase all such Offered Shares not purchased by the remaining
Shareholder at the purchase price and other terms and conditions set forth in
the Third Party Offer.
6.1.3 If all of the Offered Shares are not accepted
pursuant to the provisions of this subsection 6.1 then all, but not less than
all, of the Offered Shares may be transferred by the Offering Stockholder, at
any time within 105 days after the Offering Notice to the
<PAGE>
Offeror named in the Offering Notice at the price and upon the other terms and
conditions set forth in the Offering Notice as evidenced by such document as the
Corporation may reasonable require.
6.1.4 Notwithstanding the provisions of this Agreement,
Teltran or Antra, at any time, may buy any or all or the Shares owned by the
other at such price and upon such terms as they may agree.
6.1.5 Except as otherwise expressly provided in this
Agreement, the closing, price and other terms and conditions of a Transfer made
pursuant to any of the provisions of this subsection 6.1 shall be as provided in
Section 8 hereof.
6.1.6 The Offering Stockholder transferring all of its
Shares pursuant to this subsection 6.1 shall cause its designee to the Board of
Directors and any officers nominated thereby to tender his resignation from all
such positions simultaneously with the closing of the transfer of its Shares,
and the other parties hereto shall forthwith do all acts necessary to modify all
applicable documents filed by the Corporation with various regulatory
authorities.
6.1.7 During any period beginning on the giving of an
Offering Notice and ending upon the closing of the transfer of any Shares
offered thereunder, such Shares shall not be voted and the holder thereof shall
not exercise any of the rights attendant to ownership thereof except with
respect to such closing or as provided hereunder.
7. Bankruptcy of a Stockholder.
7.1 Affected Stockholder. Anything in this Agreement to
the contrary notwithstanding, if any Stockholder becomes bankrupt or its Shares
become subject to attachment (a "Triggering Event"), then neither such
Stockholder (an "Affected Stockholder") nor its trustee or transferee (a "Legal
Substitute") shall be entitled thereafter to be offered or to purchase any
Shares pursuant to any of the provisions of this Agreement, and such
Stockholder's interests shall be disregarded for all such purposes hereof;
provided, however, that such Stockholder or its Legal Substitute, in such an
event, shall be bound, with respect to such Shares, to all of the restrictions
and obligations imposed under this Agreement. Notice of the bankruptcy or
attachment of the Affected Stockholder (the "Triggering Event Notice") shall be
given promptly after its occurrence (which shall be within ten (10) days of any
event constituting bankruptcy) by the Affected Stockholder to the Corporation
and to the other Stockholder.
7.2 Call Privilege. Irrespective of the provisions of
subsection 7.2 hereof, a Triggering Event Notice shall constitute the granting
of an option to purchase all of the Affected Stockholder's Shares (hereinafter
referred to as a "Call") at a purchase price determined in accordance with
subsection 7.3 below, which Call shall be available to and may be exercised by
the other Stockholder and/or the Corporation in the same proportions, order of
priorities and manner, within the same time limits and subject to the same
general conditions as provided for a right of first
<PAGE>
refusal in section 6 hereof, except that (i) any or all of the Affected Shares
may be purchased pursuant thereto, and (ii) the terms "Affected Stockholder" and
"Triggering Event Notice" shall be substituted for the terms "Offering
Stockholder" and "Offering Notice", respectively, as used therein.
7.3 Valuation. If at any time a Stockholder is deemed to
have offered to sell its Shares pursuant to this Section 7 without having
received a valid Third Party Offer valuing the Shares, the initial purchase
price of the Offered Shares shall be the "Net Book Value" per Share. "Net Book
Value" of a Share shall mean the per share book value of the Corporation as of
the last day of the calendar month immediately preceding the date upon which the
Corporation receives notice of the bankruptcy or? of the Affected Stockholder,
as determined in accordance with generally accepted accounting principles
applied on a basis consistent with prior periods by the Corporation's regularly
employed certified public accountants.
8. General Conditions to Purchase.
8.1 Corporate Repurchase. In the case of any repurchase
of Shares required to be made by the Corporation pursuant to any of the
provisions hereof, the Stockholders shall do all things (including, but not
limited to, the casting of their votes) appropriate and necessary to cause the
Corporation to effect such repurchase, but the Stockholders shall not be
required to contribute additional capital to the Corporation or lend it funds.
In the event that the Corporation=s funds legally available for the repurchase
of such Shares are insufficient to pay the full purchase price due therefor, as
and when it becomes due (or at such sooner date as is required by applicable
laws), and such obligation is not assumed by the Stockholders under such terms
as they shall agree among themselves, then the Corporation and the Stockholders
shall promptly take all action necessary to reduce the stated capital of the
Corporation to the extent required to make funds available for said purpose.
8.2 Closing and Payment.
8.2.1 Except as otherwise provided herein, the
closing of any purchase by the Corporation and/or a Stockholder pursuant to this
Agreement shall take place on the "Closing Date" at the offices of Parker Duryee
Rosoff & Haft, P.C., 529 Fifth Avenue, 8th Floor, New York, New York, 10017. The
Closing Date shall be the first business day following the thirtieth calendar
day after the last Acceptance Notice is given.
8.2.2 At such closing, and except as otherwise provided
herein:
(i) The selling Stockholder (or his or its Legal
Substitute) shall deliver to the purchasing
party certificates representing the Shares to
be purchased, duly endorsed, free and clear
of all liens, claims or encumbrances, with
evidence of payment of all
<PAGE>
transfer taxes and fees, if any.
(ii) The purchasing party shall deliver:
(A) A down-payment (by certified or bank
cashier's check) in an amount equal to (x) in
the case of a sale pursuant to the terms of
subsection 6 hereof, the down-payment
required by the terms of the Third Party
Offer; or (y) in the case of a sale pursuant
to Section 7 hereof, thirty three and one
third (33 1/3%) percent of the purchase price
determined in accordance with subsection 7.3
hereof.
(B) A promissory note, in negotiable form, in
the principal amount of the remainder of the
price stated in the Offering Notice or the
purchase price determined in accordance with
subsection 1.3 hereof, as the case may be,
bearing interest at the prime rate per annum
in effect from time to time at a bank to be
designated in New York, New York, but in no
event higher than the highest applicable rate
permitted by law. Such Note shall be payable
in two equal six-month installments of
principal together with all interest accrued
thereon to the date of such payment, the
first such payment to be due and payable six
(6) months following the Closing Date. The
Shares shall be held in escrow until payment
of the Note.
(C) The Corporation and all Stockholders and
their Legal Substitutes shall do all things
necessary and appropriate to consummate such
closing.
9. Binding Agreement; Assignment; Survival.
Except to the extent otherwise expressly provided herein,
this Agreement shall be binding upon the present and future parties hereto,
their respective successors, assigns, heirs, legatees and Legal Substitutes and
all persons and other entities who otherwise may derive any rights or interests
hereunder from or through any of the parties hereto, regardless, in any event,
of whether any certificate representing shares of Common Stock bears the legend
reflecting the restrictions hereby. Except to the extent otherwise expressly
provided herein, this Agreement shall inure to the benefit of the present and
future parties hereto, their respective heirs and legatees
<PAGE>
and, to the extent that a transfer of their shares of Common Stock is effected
pursuant to the provisions of this Agreement, their assigns. All agreements,
covenants, representations, and warranties made herein shall survive the
execution and delivery of this Agreement and the agreements made pursuant hereto
or referred to herein.
10. Communications.
All notices, demands, requests, offers, approvals,
consents, acceptances, waivers, reports and other communications required or
permitted hereunder shall be in writing and shall be deemed to have been duly
given, received and dated when delivered personally or, if sent by overnight
courier, three days after being deposited with such courier addressed to the
parties at their addresses respectively set forth above or at such other address
as any party may give by notice. Any party may change its address by sending
notice thereof to the other parties in the manner prescribed above, except that
notice of change of address shall not be effective until actually received.
11. Construction; Headings; Word Meanings.
This Agreement, and all related agreements, instruments
and documents, shall be construed and enforced in accordance with the laws of
the State of New York without giving effect to the principles of conflict of
laws. Headings and titles are for convenience of reference only and shall not
control the construction or interpretation of any provision hereof.
12. Choice of Forum.
All disputes that may arise under this Agreement shall be
submitted to hearing in the Courts of the State of New York, County of New York
and the parties hereto irrevocable waive any defenses or claims as to improper
jurisdiction, inconvenient forum and improper venue with regard to such courts.
13. No Third Party Beneficiaries.
Nothing in this Agreement shall be construed as
conferring upon any person or other entity, other than the parties hereto and
their Legal Substitutes (to the extent provided herein), any right, remedy or
claim under or by reason of this Agreement.
14. Entire Agreement; Modification; Consents; Waivers.
This Agreement and the agreements and instruments
referred to herein represent the entire agreement of the parties with respect to
the subject matter hereof and no interpretation, change, termination or waiver
of or extension of time for performance under,
<PAGE>
any provision of the Agreement shall be binding upon any party unless in writing
and signed by the party intended to be bound thereby. Any provision of this
Agreement can be modified if consented to by all of the parties hereto. Receipt
by any party of money or other consideration due under this Agreement, with or
without knowledge of breach, shall not constitute a waiver of such breach or of
any provision of this Agreement. Except as otherwise provided herein, no waiver
of or other failure to exercise any right under, or default or extension of time
for performance under, any of the provisions of this Agreement shall affect the
right of any party to exercise any subsequent right under or otherwise enforce
said provision or any other provision hereof or to exercise any right or remedy
in the event of any other default, whether or not similar. Without limitation to
the generality of the foregoing and except as otherwise provided herein, the
failure of any party to exercise any right of first refusal or any Put or Call
hereunder (hereinafter collectively referred to as "said rights") shall not in
any way constitute a waiver of or otherwise affect such party's right to
exercise any of the other said rights or to exercise any subsequent said rights
to which such party may otherwise be entitled hereunder.
15. Severability.
The invalidity or unenforceability of any particular
provision of this Agreement shall not affect any of the other provisions hereof
and this Agreement shall be construed in all respects as if such invalid or
unenforceable provision were omitted.
IN WITNESS WHEREOF, the parties hereto have executed this Stockholders
Agreement of ________ __, 2000.
TELTRAN INTERNATIONAL GROUP, LTD.
By:
------------------------------------
Name:
Title:
ANTRA HOLDINGS GROUP, INC.
By:
-----------------------------------
Name:
Title:
<PAGE>
================================================================================
AGREEMENT OF LEASE
between
ONE PENN PLAZA LLC
Landlord
and
TELTRAN INTERNATIONAL GROUP, LTD.
Tenant
Portion of the 44th Floor
One Penn Plaza
New York, New York
PROSKAUER ROSE LLP
1585 Broadway
New York, New York 10036-8299
================================================================================
<PAGE>
TABLE OF CONTENTS
-----------------
DEFINITIONS.................................................................1
ARTICLE 1 DEMISE, PREMISES, TERM, RENT..............................8
ARTICLE 2 USE AND OCCUPANCY.........................................8
ARTICLE 3 ALTERATIONS...............................................9
ARTICLE 4 REPAIRS-FLOOR LOAD.......................................13
ARTICLE 5 WINDOW CLEANING..........................................15
ARTICLE 6 REQUIREMENTS OF LAW......................................15
ARTICLE 7 SUBORDINATION............................................16
ARTICLE 8 RULES AND REGULATIONS....................................19
ARTICLE 9 INSURANCE, PROPERTY LOSS OR DAMAGE; REIMBURSEMENT........20
ARTICLE 10 DESTRUCTION-FIRE OR OTHER CAUSE..........................22
ARTICLE 11 EMINENT DOMAIN...........................................25
ARTICLE 12 ASSIGNMENT, SUBLETTING, MORTGAGE, ETC....................27
ARTICLE 13 ELECTRICITY ............................................40
ARTICLE 14 ACCESS TO PREMISES.......................................45
ARTICLE 15 CERTIFICATE OF OCCUPANCY.................................46
ARTICLE 16 DEFAULT..................................................47
ARTICLE 17 REMEDIES AND DAMAGES.....................................50
ARTICLE 18 LANDLORD FEES AND EXPENSES...............................52
ARTICLE 19 NO REPRESENTATIONS BY LANDLORD...........................52
ARTICLE 20 END OF TERM..............................................53
ARTICLE 21 QUIET ENJOYMENT..........................................54
ARTICLE 22 FAILURE TO GIVE POSSESSION...............................54
<PAGE>
ARTICLE 23 NO WAIVER................................................55
ARTICLE 24 WAIVER OF TRIAL BY JURY..................................55
ARTICLE 25 INABILITY TO PERFORM.....................................56
ARTICLE 26 BILLS AND NOTICES........................................56
ARTICLE 27 ESCALATION...............................................57
ARTICLE 28 SERVICES.................................................64
ARTICLE 29 PARTNERSHIP TENANT.......................................67
ARTICLE 30 VAULT SPACE..............................................68
ARTICLE 31 SECURITY.................................................68
ARTICLE 32 CAPTIONS.................................................69
ARTICLE 33 PARTIES BOUND............................................70
ARTICLE 34 BROKER...................................................70
ARTICLE 35 INDEMNITY................................................70
ARTICLE 36 ADJACENT EXCAVATION-SHORING..............................71
ARTICLE 37 MISCELLANEOUS............................................71
ARTICLE 38 RENT CONTROL.............................................74
Schedule A - Rules and Regulations
Schedule B - Cleaning Specifications
EXHIBIT "A" - Floor Plan
<PAGE>
AGREEMENT OF LEASE, made as of the 13th day of December, 1999, between
----
Landlord and Tenant.
W I T N E S S E T H :
---------------------
The parties hereto, for themselves, their legal representatives,
successors and assigns, hereby covenant as follows.
DEFINITIONS
-----------
"Affiliate" shall mean a Person which shall (1) Control, (2) be under
the Control of, or (3) be under common Control with the Person in question.
"Alteration Fee" shall have the meaning set forth in Section 3.2
hereof.
"Alterations" shall mean alterations, installations, improvements,
additions or other physical changes (other than decorations) in or about the
Premises.
"Applicable Rate" shall mean the lesser of (x) two (2) percentage
points above the then current Base Rate, and (y) the maximum rate permitted by
applicable law.
"Assessed Valuation" shall have the meaning set forth in Section 27.1
hereof.
"Assignment Proceeds" shall have the meaning set forth in Section 12.8
hereof.
"Assignment Statement" shall have the meaning set forth in Section 12.8
hereof.
"Assignment Termination" shall have the meaning set forth in Section
12.8 hereof.
"Bankruptcy Code" shall mean 11 U.S.C. Section 101 et seq., or any
statute of similar nature and purpose.
"Base Electric Rate" shall mean the Electric Rate as of the date
hereof.
"Base Operating Expenses" shall have the meaning set forth in Section
27.1 hereof.
"Base Operating Year" shall have the meaning set forth in Section 27.1
hereof.
"Base Rate" shall mean the rate of interest publicly announced from
time to time by The Chase Manhattan Bank, N.A., or its successor, as its "prime
lending rate" (or such other term as
<PAGE>
may be used by The Chase Manhattan Bank, N.A., from time to time, for the rate
presently referred to as its "prime lending rate"), which rate was 8.25% on
October 25, 1999.
"Base Taxes" shall have the meaning set forth in Section 27.1 hereof.
"Broker" shall have the meaning set forth in Article 34 hereof.
"Building" shall mean all the buildings, equipment and other
improvements and appurtenances of every kind and description now located or
hereafter erected, constructed or placed upon the land and any and all
alterations, and replacements thereof, additions thereto and substitutions
therefor, known by the address of One Penn Plaza, New York, New York.
"Building Systems" shall mean the mechanical, gas, electrical,
sanitary, heating, air conditioning, ventilating, elevator, plumbing,
life-safety and other service systems of the Building.
"Business Days" shall mean all days, excluding Saturdays, Sundays and
all days observed by either the State of New York or the Federal Government and
by the labor unions servicing the Building as legal holidays.
"Compass" shall have the meaning set forth in Section 22.1 hereof.
"Commencement Date" shall have the meaning set forth in Section 1.1
hereof.
"Condition" shall have the meaning set forth in Section 22.2 hereof.
"Control" or "control" shall mean direct or indirect ownership of more
than fifty percent (50%) of the outstanding voting stock of a corporation or
other majority equity and control interest if not a corporation and the
possession, directly or indirectly, of power to direct or cause the direction of
the management and policy of such corporation or other entity, whether through
the ownership of voting securities, by statute or according to the provisions of
a contract.
"Current Year" shall have the meaning set forth in Section 27.4 hereof.
"Deficiency" shall have the meaning set forth in Section 17.2 hereof.
"Electric Rate" shall have the meaning set forth in Section 13.2
hereof.
"Electricity Additional Rent" shall have the meaning set forth in
Section 13.3 hereof.
"Electricity Inclusion Factor" shall have the meaning set forth in
Section 13.2 hereof.
"Electricity Statement" shall have the meaning set forth in Section
13.2 hereof.
2
<PAGE>
"Escalation Rent" shall mean, individually or collectively, the Tax
Payment and the Operating Payment.
"Event of Default" shall have the meaning set forth in Section 16.1
hereof.
"Expiration Date" shall mean the Fixed Expiration Date or such earlier
date on which the Term shall sooner end pursuant to any of the terms, conditions
or covenants of this Lease or pursuant to law.
"1st Security Period" shall mean the period commencing on the
Commencement Date and ending on the day immediately preceding the second (2nd)
anniversary of the Rent Commencement Date.
"Fixed Expiration Date" shall have the meaning set forth in Section 1.1
hereof.
"Fixed Rent" shall have the meaning set forth in Section 1.1 hereof.
"Full Value" shall have the meaning set forth in Section 13.2 hereof.
"Governmental Authority (Authorities)" shall mean the United States of
America, the State of New York, the City of New York, any political subdivision
thereof and any agency, department, commission, board, bureau or instrumentality
of any of the foregoing, or any quasi-governmental authority, now existing or
hereafter created, having jurisdiction over the Real Property or any portion
thereof.
"HVAC" shall mean heat, ventilation and air conditioning.
"HVAC Systems" shall mean the Building Systems providing HVAC.
"Indemnitees" shall mean Landlord, the members and partners comprising
Landlord and its and their members, partners, shareholders, officers, directors,
employees, agents and contractors, Lessors and Mortgagees.
"Initial Alterations" shall mean the Alterations to be made by Tenant
to initially prepare the Premises for Tenant's occupancy.
"Landlord", on the date as of which this Lease is made, shall mean One
Penn Plaza LLC, a New York limited liability company, having an office c/o MRC
Management LLC, at 330 Madison Avenue, New York, New York 10017, but thereafter,
"Landlord" shall mean only the fee owner of the Real Property or if there shall
exist a Superior Lease, the tenant thereunder.
"Landlord's Engineer" shall have the meaning set forth in Section 13.2
hereof.
"Lessor(s)" shall mean a lessor under a Superior Lease.
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"Letter of Credit" shall have the meaning set forth in Article 31
hereof.
"Long Lead Work" shall mean any item which is not a stock item and must
be specially manufactured, fabricated or installed or is of such an unusual,
delicate or fragile nature that there is a substantial risk that
(i) there will be a delay in its manufacture, fabrication,
delivery or installation, or
(ii) after delivery, such item will need to be reshipped or
redelivered or repaired
so that in Landlord's reasonable judgment the item in question cannot be
completed when the standard items are completed even though the item of Long
Lead Work in question is (1) ordered together with the other items required and
(2) installed or performed (after the manufacture or fabrication thereof) in the
order and sequence that such Long Lead Work and other items are normally
installed or performed in accordance with good construction practice. In
addition, "Long Lead Work" shall include any standard item which in accordance
with good construction practice should be completed after the completion of any
item of work in the nature of the items described in the immediately preceding
sentence.
"Mortgage(s)" shall mean any trust indenture or mortgage which may now
or hereafter affect the Real Property, the Building or any Superior Lease and
the leasehold interest created thereby, and all renewals, extensions,
supplements, amendments, modifications, consolidations and replacements thereof
or thereto, substitutions therefor, and advances made thereunder.
"Mortgagee(s)" shall mean any trustee, mortgagee or holder of a
Mortgage.
"Operating Expenses" shall have the meaning set forth in Section 27.1
hereof.
"Operating Payment" shall have the meaning set forth in Section 27.4
hereof.
"Operating Statement" shall have the meaning set forth in Section 27.1
hereof.
"Operating Year" shall have the meaning set forth in Section 27.1
hereof.
"Operation of the Property" shall mean the maintenance, repair and
management of the Real Property and the curbs, sidewalks and areas adjacent
thereto.
"Overtime Periods" shall have the meaning set forth in Section 28.3
hereof.
"Parties" shall have the meaning set forth in Section 37.2 hereof.
"Partner" or "partner" shall mean any partner of Tenant, any employee
of a professional corporation which is a partner comprising Tenant, and any
shareholder of Tenant if Tenant shall become a professional corporation.
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"Partnership Tenant" shall have the meaning set forth in Article 29
hereof.
"Permitted Occupants" shall have the meaning set forth in Section 12.10
hereof.
"Person(s) or person(s)" shall mean any natural person or persons, a
partnership, a corporation and any other form of business or legal association
or entity.
"Premises" shall mean, subject to the provisions of Section 14.4
hereof, the portion of the forty-fourth (44th) floor (Suite 4430) of the
Building, as set forth on the floor plan attached hereto and made a part hereof
as Exhibit "A".
"Prevailing Rate" shall have the meaning set forth in Section 12.6
hereof.
"Real Property" shall mean the Building, together with the plot of land
upon which it stands.
"Recapture Space" shall have the meaning set forth in Section 12.6
hereof.
"Recapture Sublease" shall have the meaning set forth in Section 12.6
hereof.
"Related Costs" shall have the meaning set forth in Section 3.4 hereof.
"Related Entity" shall have the meaning set forth in Section 12.4
hereof.
"Rent Commencement Date" shall have the meaning set forth in Section
1.1 hereof.
"Rent Per Square Foot" shall have the meaning set forth in Section 12.7
hereof.
"Rental" shall mean and be deemed to include Fixed Rent, Escalation
Rent, all additional rent and any other sums payable by Tenant hereunder.
"Requirements" shall mean all present and future laws, rules, orders,
ordinances, regulations, statutes, requirements, codes and executive orders,
extraordinary as well as ordinary, of all Governmental Authorities now existing
or hereafter created, and of any and all of their departments and bureaus, and
of any applicable fire rating bureau, or other body exercising similar
functions, affecting the Real Property or any portion thereof, or any street,
avenue or sidewalk comprising a part of or in front thereof or any vault in or
under the same, or requiring removal of any encroachment, or affecting the
maintenance, use or occupation of the Real Property or any portion thereof.
"Rules and Regulations" shall mean the rules and regulations annexed
hereto and made a part hereof as Schedule A, and such other and further rules
and regulations as Landlord or Landlord's agents may from time to time adopt on
such notice to be given as Landlord may elect, subject to Tenant's right to
dispute the reasonableness thereof as provided in Article 8 hereof.
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"2nd Security Period" shall mean the period commencing on the second
(2nd) anniversary of the Rent Commencement Date and ending on the Fixed
Expiration Date.
"Security Amount" shall mean:
(i) Fifty Thousand Seven Hundred Four and 50/100 Dollars
($50,704.50) during the 1st Security Period; and
(ii) Thirty-Seven Thousand Eight Hundred Twenty-Seven and 17/100
Dollars ($37,827.17) during the 2nd Security Period.
"Space Factor" shall mean Four Thousand Eight Hundred Twenty-Nine
(4,829), as the same may be increased or decreased pursuant to the terms hereof.
"Specialty Alterations" shall mean Alterations consisting of kitchens,
executive bathrooms, raised computer floors, computer installations, vaults,
libraries, internal staircases, dumbwaiters, pneumatic tubes, vertical and
horizontal transportation systems, and other Alterations of a similar character.
"Sublease Expenses" shall have the meaning set forth in Section 12.7
hereof.
"Sublease Profit" shall have the meaning set forth in Section 12.7
hereof.
"Sublease Rent" shall have the meaning set forth in Section 12.7
hereof.
"Sublease Rent Per Square Foot" shall have the meaning set forth in
Section 12.7 hereof.
"Superior Lease(s)" shall mean all ground or underlying leases of the
Real Property or the Building and all renewals, extensions, supplements,
amendments and modifications thereof.
"Taxes" shall have the meaning set forth in Section 27.1 hereof.
"Tax Payment" shall have the meaning set forth in Section 27.2 hereof.
"Tax Statement" shall have the meaning set forth in Section 27.1
hereof.
"Tax Year" shall have the meaning set forth in Section 27.1 hereof.
"Tenant", on the date as of which this Lease is made, shall mean
Teltran International Group, Ltd., a Delaware corporation, having an address at
One Penn Plaza, New York, New York 10119, but thereafter "Tenant" shall mean
only the tenant under this Lease at the time in question; provided, however,
that the originally named tenant and any assignee of this Lease shall not be
released from liability hereunder in the event of any assignment of this Lease.
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"Tenant Fund" shall have the meaning set forth in Section 3.4 hereof.
"Tenant Statement" shall have the meaning set forth in Section 12.6
hereof.
"Tenant's Engineer" shall have the meaning set forth in Section 13.2
hereof.
"Tenant's Property" shall mean Tenant's movable fixtures and movable
partitions, telephone and other equipment, furniture, furnishings, decorations
and other items of personal property located in or about the Premises.
"Tenant's Share" shall mean Two Thousand Five Hundred Four ten
thousandths percent (0.2504%) as the same may be increased or decreased pursuant
to the terms hereof.
"Tenant's Tax Share" shall mean Two Thousand Three Hundred Thirty ten
thousandths percent (0.2330%) as the same may be increased or decreased pursuant
to the terms hereof.
"Tentative Monthly Escalation Charge" shall have the meaning set forth
in Section 27.4 hereof.
"Term" shall mean a term which shall commence on the Commencement Date
and shall expire on the Expiration Date.
"Termination Date" shall have the meaning set forth in Section 12.6
hereof.
"Third Engineer" shall have the meaning set forth in Section 13.2
hereof.
"Unavoidable Delays" shall have the meaning set forth in Article 25
hereof.
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ARTICLE 1
DEMISE, PREMISES, TERM, RENT
----------------------------
Section 1.1. Landlord hereby leases to Tenant and Tenant hereby hires
from Landlord the Premises for the Term to commence on December 15, 1999 (the
"Commencement Date") and to end on March 31, 2010 (the "Fixed Expiration Date"),
at an annual rent (the "Fixed Rent") of:
(1) Two Hundred Seventeen Thousand Three Hundred Five Dollars
($217,305) per annum for the period commencing on April 15, 2000 (the "Rent
Commencement Date") and ending on March 31, 2003 ($18,108.75 per month),
(2) Two Hundred Twenty-Six Thousand Nine Hundred Sixty-Three
Dollars ($226,963) per annum for the period commencing on April 1, 2003 and
ending March 31, 2007 ($18,913.58 per month), and
(3) Two Hundred Forty-One Thousand Four Hundred Fifty Dollars
($241,450) per annum for the period commencing on April 1, 2007 and ending on
the Fixed Expiration Date ($20,120.83 per month),
which Tenant agrees to pay in lawful money of the United States which shall be
legal tender in payment of all debts and dues, public and private, at the time
of payment, in equal monthly installments in advance, on the first (1st) day of
each calendar month during the Term commencing on the Rent Commencement Date, at
the office of Landlord or such other place as Landlord may designate, without
any set-off, offset, abatement or deduction whatsoever, except that Tenant shall
pay the first full monthly installment on the execution hereof. At the request
of Landlord, Fixed Rent shall be payable when due by wire transfer of funds to
an account designated from time to time by Landlord.
Section 1.2. Tenant shall pay to Landlord, as additional rent, on
account of electricity consumed at the Premises, an amount equal to One Thousand
Two Hundred Seven and 25/100 Dollars ($1,207.25) per month during the period
commencing on the Commencement Date and ending on the day immediately preceding
the Rent Commencement Date.
ARTICLE 2
USE AND OCCUPANCY
-----------------
Section 2.1. Tenant shall use and occupy the Premises as general and
executive offices, uses incidental thereto and for no other purpose.
Section 2.2. (A) Tenant shall not use the Premises or any part thereof,
or permit the Premises or any part thereof to be used, (1) for the business of
photographic, multilith or multigraph reproductions or offset printing, except
in connection with, either directly or indirectly,
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Tenant's own business and/or activities, (2) for a banking, trust company,
depository, guarantee or safe deposit business, (3) as a savings bank, a savings
and loan association, or as a loan company, (4) for the sale of travelers
checks, money orders, drafts, foreign exchange or letters of credit or for the
receipt of money for transmission, (5) as a stockbroker's or dealer's office or
for the underwriting or sale of securities, (6) by the United States government,
the City or State of New York, any foreign government, the United Nations or any
agency or department of any of the foregoing or any other Person having
sovereign or diplomatic immunity, (7) as a restaurant or bar or for the sale of
confectionery, soda or other beverages, sandwiches, ice cream or baked goods or
for the preparation, dispensing or consumption of food or beverages in any
manner whatsoever, except for consumption by Tenant's officers, employees and
business guests, (8) as an employment agency, executive search firm or similar
enterprise, labor union, school, or vocational training center (except for the
training of employees of Tenant intended to be employed at the Premises), or (9)
as a barber shop or beauty salon.
(B) In connection with, and incidental to, Tenant's use of the
Premises for general and executive offices as provided in this Article 2,
Tenant, at its sole cost and expense and upon compliance with all applicable
Requirements, may install a "dwyer" or similar unit in the Premises for the
purpose of warming food for the officers, employees and business guests of
Tenant (but not for use as a public restaurant), provided that Tenant shall
obtain all permits required by any Governmental Authorities for the operation
thereof and such installation shall comply with the provisions of this Lease,
including, without limitation, Article 3 hereof. Tenant may also install, at its
sole cost and expense and subject to and in compliance with the provisions of
Articles 3 and 4 hereof, vending machines for the exclusive use of the officers,
employees and business guests of Tenant, each of which vending machines (if it
dispenses any beverages or other liquids or refrigerates) shall have a
waterproof pan located thereunder, connected to a drain.
ARTICLE 3
ALTERATIONS
-----------
Section 3.1. (A) Tenant shall not make any Alterations without
Landlord's prior consent. Landlord shall not unreasonably withhold or delay its
consent to any proposed nonstructural Alterations, provided that such
Alterations (i) are not visible from the outside of the Building, (ii) do not
affect any part of the Building other than the Premises or require any
alterations, installations, improvements, additions or other physical changes to
be performed in or made to any portion of the Building or the Real Property
other than the Premises, (iii) do not affect any service required to be
furnished by Landlord to Tenant or to any other tenant or occupant of the
Building, (iv) do not affect the proper functioning of any Building System, (v)
do not reduce the value or utility of the Building, and (vi) do not affect the
certificate of occupancy for the Building or the Premises. Landlord shall not be
deemed to be unreasonable with respect to withholding its consent to any
proposed nonstructural Alteration which meets the criteria set forth in this
Section 3.1(A) if the Lessor or Mortgagee, as the case may be, shall withhold
its consent.
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(B) (1) Prior to making any Alterations, including, without
limitation, the Initial Alterations, Tenant shall (i) submit to Landlord
detailed plans and specifications (including layout, architectural, mechanical
and structural drawings) for each proposed Alteration and shall not commence any
such Alteration without first obtaining Landlord's approval of such plans and
specifications, which, in the case of nonstructural Alterations which meet the
criteria set forth in Section 3.1(A) above, shall not be unreasonably withheld
or delayed, (ii) at Tenant's expense, obtain all permits, approvals and
certificates required by any Governmental Authorities, it being agreed that all
filings with Governmental Authorities to obtain such permits, approvals and
certificates shall be made, at Tenant's expense, by a Person designated by
Landlord, and (iii) furnish to Landlord duplicate original policies or
certificates thereof of worker's compensation (covering all persons to be
employed by Tenant, and Tenant's contractors and subcontractors in connection
with such Alteration) and comprehensive public liability (including property
damage coverage) insurance in such form, with such companies, for such periods
and in such amounts as Landlord may reasonably approve, naming Landlord and its
agents, any Lessor and any Mortgagee, as additional insureds. Upon completion of
such Alteration, Tenant, at Tenant's expense, shall obtain certificates of final
approval of such Alteration required by any Governmental Authority and shall
furnish Landlord with copies thereof, together with the "as-built" plans and
specifications for such Alterations, it being agreed that all filings with
Governmental Authorities to obtain such permits, approvals and certificates
shall be made, at Tenant's expense, by a Person designated by Landlord. All
Alterations shall be made and performed substantially in accordance with the
plans and specifications therefor as approved by Landlord, all Requirements, the
Rules and Regulations, and all rules and regulations relating to Alterations
promulgated by Landlord in its reasonable judgment. All materials and equipment
to be incorporated in the Premises as a result of any Alterations or a part
thereof shall be first quality and no such materials or equipment (other than
Tenant's Property) shall be subject to any lien, encumbrance, chattel mortgage
or title retention or security agreement. In addition, no Alteration shall be
undertaken prior to Tenant's delivering to Landlord either (i) a performance
bond and labor and materials payment bond (issued by a surety company and in
form reasonably satisfactory to Landlord), each in an amount equal to one
hundred twenty percent (120%) of the cost of such Alteration (as reasonably
estimated by Landlord's architect, engineer, or contractor), or (ii) such other
security as shall be reasonably satisfactory to Landlord or required by any
Mortgagee or Lessor. If, as a result of any Alterations performed by Tenant,
including, without limitation, the Initial Alterations, any alterations,
installations, improvements, additions or other physical changes are required to
be performed or made to any portion of the Building or the Real Property other
than the Premises in order to comply with any Requirement(s), which alterations,
installations, improvements, additions or other physical changes would not
otherwise have had to be performed or made pursuant to applicable Requirement(s)
at such time, Landlord, at Tenant's sole cost and expense, may perform or make
such alterations, installations, improvements, additions or other physical
changes and take such actions as Landlord shall deem reasonably necessary and
Tenant, within five (5) days after demand therefor by Landlord, shall provide
Landlord with such security as Landlord shall reasonably require, in an amount
equal to one hundred twenty percent (120%) of the cost of such alterations,
installations, improvements, additions or other physical changes, as reasonably
estimated by Landlord's architect, engineer or contractor. All Alteration(s)
shall be performed
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only under the supervision of an independent licensed architect approved by
Landlord, which approval shall not be unreasonably withheld.
(2) Landlord reserves the right to disapprove any plans
and specifications in part, to reserve approval of items shown thereon pending
its review and approval of other plans and specifications, and to condition its
approval upon Tenant making revisions to the plans and specifications or
supplying additional information. Any review or approval by Landlord of any
plans and/or specifications or any preparation or design of any plans by
Landlord's architect or engineer (or any architect or engineer designated by
Landlord) with respect to any Alteration is solely for Landlord's benefit, and
without any representation or warranty whatsoever to Tenant or any other Person
with respect to the compliance thereof with any Requirements, the adequacy,
correctness or efficiency thereof or otherwise.
(C) Tenant shall be permitted to perform Alterations during
the hours of 8:00 A.M. to 6:00 P.M. on Business Days, provided that such work
shall not interfere with or interrupt the operation and maintenance of the
Building or unreasonably interfere with or interrupt the use and occupancy of
the Building by other tenants in the Building. Otherwise, Alterations shall be
performed at such times and in such manner as Landlord may from time to time
reasonably designate. All Tenant's Property installed by Tenant and all
Alterations in and to the Premises which may be made by Tenant at its own cost
and expense prior to and during the Term, shall remain the property of Tenant.
Upon the Expiration Date, Tenant shall remove Tenant's Property from the
Premises and, at Tenant's option, Tenant also may remove, at Tenant's cost and
expense, all Alterations made by Tenant to the Premises, provided, however, in
any case, that Tenant shall repair and restore in a good and workerlike manner
to good condition any damage to the Premises or the Building caused by such
removal. Notwithstanding the foregoing, however, Landlord, upon notice given at
least thirty (30) days prior to the Fixed Expiration Date or upon such shorter
notice as is reasonable under the circumstances upon the earlier expiration of
the Term, may require Tenant to remove any Alterations, and to repair and
restore in a good and workerlike manner to good condition any damage to the
Premises or the Building caused by such removal.
(D) (1) All Alterations shall be performed, at Tenant's
sole cost and expense, by Landlord's contractor(s) or by contractors,
subcontractors or mechanics approved by Landlord. Prior to making an Alteration,
at Tenant's request, Landlord shall furnish Tenant with a list of contractors
who may perform Alterations to the Premises on behalf of Tenant. If Tenant
engages any contractor set forth on the list, Tenant shall not be required to
obtain Landlord's consent for such contractor unless, prior to the earlier of
(a) entering into a contract with such contractor, and (b) the commencement of
work by such contractor, Landlord shall notify Tenant that such contractor has
been removed from the list.
(2) Notwithstanding the foregoing, with respect to any
Alteration affecting any Building System, (i) Tenant shall select a contractor
from a list of approved contractors furnished by Landlord to Tenant (containing
at least three (3) contractors) and (ii) the
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Alteration shall, at Tenant's cost and expense, be designed by Landlord's
engineer for the relevant Building System.
(E) Any mechanic's lien filed against the Premises or the Real
Property for work claimed to have been done for, or materials claimed to have
been furnished to, Tenant shall be discharged by Tenant within thirty (30) days
after Tenant shall have received notice thereof (or such shorter period if
required by the terms of any Superior Lease or Mortgage), at Tenant's expense,
by payment or filing the bond required by law. Tenant shall not, at any time
prior to or during the Term, directly or indirectly employ, or permit the
employment of, any contractor, mechanic or laborer in the Premises, whether in
connection with any Alteration or otherwise, if such employment would interfere
or cause any conflict with other contractors, mechanics or laborers engaged in
the construction, maintenance or operation of the Building by Landlord, Tenant
or others, or of any adjacent property owned by Landlord. In the event of any
such interference or conflict, Tenant, upon demand of Landlord, shall cause all
contractors, mechanics or laborers causing such interference or conflict to
leave the Building immediately.
(F) Tenant shall commence performance of the Initial
Alterations by not later than thirty (30) days after the Commencement Date,
shall thereafter diligently continuously prosecute the same to completion, and
shall substantially complete the Initial Alterations by not later than ninety
(90) days after the Commencement Date.
Section 3.2. Tenant shall pay to Landlord or to Landlord's agent, as
additional rent, all out-of pocket costs and expenses incurred by Landlord or
Landlord's agent in connection with any Alterations, including, without
limitation, the Initial Alterations (the "Alteration Fee"). The Alteration Fee
shall be paid by Tenant within ten (10) Business Days after demand therefor.
Tenant also shall pay any fee charged by any Lessor or Mortgagee in reviewing
the plans and specifications for such Alterations or inspecting the progress of
completion of the same.
Section 3.3. Upon the request of Tenant, Landlord, at Tenant's cost and
expense, shall join in any applications for any permits, approvals or
certificates required to be obtained by Tenant in connection with any permitted
Alteration (provided that the provisions of the applicable Requirement shall
require that Landlord join in such application) and shall otherwise cooperate
with Tenant in connection therewith, provided that Landlord shall not be
obligated to incur any cost or expense, including, without limitation,
attorneys' fees and disbursements, or suffer any liability in connection
therewith.
Section 3.4 (A) Landlord shall contribute an amount not to exceed
Thirty-One Thousand Three Hundred Eighty-Eight and 50/100 Dollars ($31,388.50)
(the "Tenant Fund") toward (i) the "hard" cost of the Initial Alterations, and
(ii) architect's and engineering fees, permit fees, expediter's fees and
designers' fees in connection with the Initial Alterations (such "soft costs"
and related costs referred to in this clause (ii) incurred by Tenant in
connection with the Initial Alterations being collectively referred to herein as
"Related Costs").
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(B) Landlord shall disburse a portion of the Tenant Fund to
Tenant from time to time, within thirty (30) Business Days after receipt of
reasonably detailed invoices for work completed and materials furnished in
connection with the Initial Alterations and proof of payment thereof, provided
that on the date of a request and on the date of disbursement from the Tenant
Fund no Event of Default shall have occurred and be continuing. Disbursements
from the Tenant Fund shall not be made more frequently than monthly, and shall
be in an amount equal to the aggregate amounts theretofore paid (as certified by
an officer of Tenant of the rank of vice-president or higher) to Tenant's
contractors, subcontractors and materialmen which have not been the subject of a
previous disbursement from the Tenant Fund; provided, however, that in no event
shall Tenant be entitled to a disbursement from the Tenant Fund on account of
Related Costs unless and until Tenant shall have received its first disbursement
of the Tenant Fund for the cost of the Initial Alterations (other than Related
Costs).
(C) In no event shall the aggregate amount paid by Landlord to
Tenant under this Section 3.4 exceed the amount of the Tenant Fund. Upon the
completion of the Initial Alterations and satisfaction of the conditions set
forth in Section 3.4(E) hereof, any amount of the Tenant Fund which has not been
previously disbursed shall be retained by Landlord. Upon the disbursement of the
entire Tenant Fund (or the portion thereof if upon completion of the Initial
Alterations the Tenant Fund is not exhausted), Landlord shall have no further
obligation or liability whatsoever to Tenant for further disbursement of any
portion of the Tenant Fund to Tenant. It is expressly understood and agreed that
Tenant shall complete, at its sole cost and expense, the Initial Alterations,
whether or not the Tenant Fund is sufficient to fund such completion. Any costs
to complete the Initial Alterations in excess of the Tenant Fund shall be the
sole responsibility and obligation of Tenant.
(D) Within thirty (30) days after completion of the Initial
Alterations, Tenant shall deliver to Landlord general releases and waivers of
lien from all contractors, subcontractors and materialmen involved in the
performance of the Initial Alterations and the materials furnished in connection
therewith.
ARTICLE 4
REPAIRS-FLOOR LOAD
------------------
Section 4.1. Landlord shall operate, maintain and make all necessary
repairs (both structural and nonstructural) to the part of Building Systems
which provide service to the Premises (but not to the distribution portions of
such Building Systems located within the Premises) and the public portions of
the Building, both exterior and interior, in conformance with standards
applicable to non-institutional first class office buildings in Manhattan.
Tenant, at Tenant's sole cost and expense, shall take good care of the Premises
and the fixtures, equipment and appurtenances therein and the distribution
systems and shall make all nonstructural repairs thereto as and when needed to
preserve them in good working order and condition, except for reasonable wear
and tear, obsolescence and damage for which Tenant is not responsible pursuant
to the provisions of Article 10 hereof. Notwithstanding the foregoing, all
damage or injury to the
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Premises or to any other part of the Building and Building Systems, or to its
fixtures, equipment and appurtenances, whether requiring structural or
nonstructural repairs, caused by or resulting from carelessness, omission,
neglect or improper conduct of, or Alterations made by, Tenant, Tenant's agents,
employees, invitees or licensees, shall be repaired at Tenant's sole cost and
expense, by Tenant to the reasonable satisfaction of Landlord (if the required
repairs are nonstructural in nature and do not affect any Building System), or
by Landlord (if the required repairs are structural in nature or affect any
Building System). All of the aforesaid repairs shall be of first quality and of
a class consistent with non-institutional first class office building work or
construction and shall be made in accordance with the provisions of Article 3
hereof. If Tenant fails after ten (10) days' notice (or such shorter period as
Landlord may be permitted pursuant to any Superior Lease or Mortgage or such
shorter period as may be required due to an emergency) to proceed with due
diligence to make repairs required to be made by Tenant, the same may be made by
Landlord at the expense of Tenant, and the expenses thereof incurred by
Landlord, with interest thereon at the Applicable Rate, shall be forthwith paid
to Landlord as additional rent after rendition of a bill or statement therefor.
Tenant shall give Landlord prompt notice of any defective condition in the
Building or in any Building System, located in, servicing or passing through the
Premises.
Section 4.2. Tenant shall not place a load upon any floor of the
Premises exceeding fifty (50) pounds per square foot "live load". Tenant shall
not move any safe, heavy machinery, heavy equipment, business machines, freight,
bulky matter or fixtures into or out of the Building without Landlord's prior
consent, which consent shall not be unreasonably withheld, and shall make
payment to Landlord of Landlord's costs in connection therewith. If such safe,
machinery, equipment, freight, bulky matter or fixtures requires special
handling, Tenant shall employ only persons holding a Master Rigger's license to
do said work. All work in connection therewith shall comply with all
Requirements and the Rules and Regulations, and shall be done during such hours
as Landlord may reasonably designate. Business machines and mechanical equipment
shall be placed and maintained by Tenant at Tenant's expense in settings
sufficient in Landlord's reasonable judgment to absorb and prevent vibration,
noise and annoyance. Except as expressly provided in this Lease, there shall be
no allowance to Tenant for a diminution of rental value and no liability on the
part of Landlord by reason of inconvenience, annoyance or injury to business
arising from Landlord, Tenant or others making, or failing to make, any repairs,
alterations, additions or improvements in or to any portion of the Building or
the Premises, or in or to fixtures, appurtenances or equipment thereof.
Section 4.3. Landlord shall use its reasonable efforts to minimize
interference with Tenant's use and occupancy of the Premises in making any
repairs, alterations, additions or improvements; provided, however, that
Landlord shall have no obligation to employ contractors or labor at so-called
overtime or other premium pay rates or to incur any other overtime costs or
expenses whatsoever, except that Landlord, at its expense but subject to
recoupment pursuant to Article 27 hereof, shall employ contractors or labor at
so-called overtime or other premium pay rates if necessary to make any repair
required to be made by it hereunder to remedy any condition that either (i)
results in a denial of access to the Premises, (ii) threatens the health or
safety of any occupant of the Premises, or (iii) except in the case of a fire or
other casualty,
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materially interferes with Tenant's ability to conduct its
business in the Premises. In all other cases, at Tenant's request, Landlord
shall employ contractors or labor at so-called overtime or other premium pay
rates and incur any other overtime costs or expenses in making any repairs,
alterations, additions or improvements, and Tenant shall pay to Landlord, as
additional rent, within ten (10) Business Days after demand, an amount equal to
the difference between the overtime or other premium pay rates and the regular
pay rates for such labor and any other overtime costs or expenses so incurred.
ARTICLE 5
WINDOW CLEANING
---------------
Tenant shall not clean, nor require, permit, suffer or allow any window
in the Premises to be cleaned from the outside in violation of Section 202 of
the Labor Law, or any other Requirement, or of the rules of the Board of
Standards and Appeals, or of any other board or body having or asserting
jurisdiction.
ARTICLE 6
REQUIREMENTS OF LAW
-------------------
Section 6.1. Tenant, at its sole cost and expense, shall comply with
all Requirements applicable to the Premises, including, without limitation,
those applicable to the making of any Alterations therein or the result of the
making thereof and those applicable by reason of the nature or type of business
operated by Tenant in the Premises. Tenant shall not do or permit to be done any
act or thing upon the Premises which will invalidate or be in conflict with a
standard "all-risk" insurance policy; and shall not do, or permit anything to be
done in or upon the Premises, or bring or keep anything therein, except as now
or hereafter permitted by the New York City Fire Department, New York Board of
Fire Underwriters, the Insurance Services Office or other authority having
jurisdiction and then only in such quantity and manner of storage as not to
increase the rate for fire insurance applicable to the Building, or use the
Premises in a manner (as opposed to mere use as general "offices") which shall
increase the rate of fire insurance on the Building or on property located
therein, over that in similar type buildings or in effect on the Commencement
Date. If by reason of Tenant's failure to comply with the provisions of this
Article, the fire insurance rate shall be higher than it otherwise would be,
then Tenant shall desist from doing or permitting to be done any such act or
thing and shall reimburse Landlord, as additional rent hereunder, for that part
of all fire insurance premiums thereafter paid by Landlord which shall have been
charged because of such failure by Tenant, and shall make such reimbursement
upon demand by Landlord. In any action or proceeding wherein Landlord and Tenant
are parties, a schedule or "make up" of rates for the Building or the Premises
issued by the Insurance Services Office, or other body fixing such fire
insurance rates, shall be conclusive evidence of the facts therein stated and of
the several items and charges in the fire insurance rates then applicable to the
Building.
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Section 6.2. Tenant, at its sole cost and expense and after notice to
Landlord, may contest by appropriate proceedings prosecuted diligently and in
good faith, the legality or applicability of any Requirement affecting the
Premises, provided that (a) Landlord (or any Indemnitee) shall not be subject to
imprisonment or to prosecution for a crime, nor shall the Real Property or any
part thereof be subject to being condemned or vacated, nor shall the certificate
of occupancy for the Premises or the Building be suspended or threatened to be
suspended by reason of non-compliance or by reason of such contest; (b) before
the commencement of such contest, if Landlord or any Indemnitee may be subject
to any civil fines or penalties or other criminal penalties or if Landlord may
be liable to any independent third party as a result of such noncompliance,
Tenant shall furnish to Landlord either (i) a bond of a surety company
satisfactory to Landlord, in form and substance reasonably satisfactory to
Landlord, and in an amount equal to one hundred twenty percent (120%) of the sum
of (A) the cost of such compliance, (B) the criminal or civil penalties or fines
that may accrue by reason of such non-compliance (as reasonably estimated by
Landlord), and (C) the amount of such liability to independent third parties (as
reasonably estimated by Landlord), and shall indemnify Landlord (and any
Indemnitee) against the cost of such compliance and liability resulting from or
incurred in connection with such contest or non-compliance (except that Tenant
shall not be required to furnish such bond to Landlord if it has otherwise
furnished any similar bond required by law to the appropriate Governmental
Authority and has named Landlord as a beneficiary thereunder) or (ii) other
security reasonably satisfactory in all respects to Landlord; (c) such
non-compliance or contest shall not constitute or result in a violation (either
with the giving of notice or the passage of time or both) of the terms of any
Mortgage or Superior Lease, or if such Superior Lease or Mortgage shall
condition such non-compliance or contest upon the taking of action or furnishing
of security by Landlord, such action shall be taken or such security shall be
furnished at the expense of Tenant; and (d) Tenant shall keep Landlord regularly
advised as to the status of such proceedings. Without limiting the applicability
of the foregoing, Landlord (or any Indemnitee) shall be deemed subject to
prosecution for a crime if Landlord (or any Indemnitee), a Lessor, a Mortgagee
or any of their officers, directors, partners, shareholders, agents or employees
is charged with a crime of any kind whatsoever, unless such charges are
withdrawn ten (10) days before Landlord (or any Indemnitee), such Lessor or such
Mortgagee or such officer, director, partner, shareholder, agent or employee, as
the case may be, is required to plead or answer thereto.
ARTICLE 7
SUBORDINATION
-------------
Section 7.1. This Lease shall be subject and subordinate to each and
every Superior Lease and to each and every Mortgage. This clause shall be
self-operative and no further instrument of subordination shall be required from
Tenant to make the interest of any Lessor or Mortgagee superior to the interest
of Tenant hereunder; however, Tenant shall execute and deliver promptly any
instrument, in recordable form, that Landlord, any Mortgagee or Lessor may
request to evidence and confirm such subordination. If the date of expiration of
any Superior Lease shall be the same day as the Expiration Date, the Term shall
end and expire
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twelve (12) hours prior to the expiration of the Superior Lease. Tenant shall
not do anything that would constitute a default under any Superior Lease or
Mortgage, or omit to do anything that Tenant is obligated to do under the terms
of this Lease so as to cause Landlord to be in default thereunder. If, in
connection with the financing of the Real Property, the Building or the interest
of the lessee under any Superior Lease, or if in connection with the entering
into of a Superior Lease, any lending institution or Lessor shall request
reasonable modifications of this Lease that do not increase Tenant's monetary
obligations under this Lease, or materially adversely affect or diminish the
rights, or materially increase the other obligations of Tenant under this Lease,
Tenant shall make such modifications.
Section 7.2. If at any time prior to the expiration of the Term, any
Superior Lease shall terminate or be terminated for any reason or any Mortgagee
comes into possession of the Real Property or the Building or the estate created
by any Superior Lease by receiver or otherwise, Tenant agrees, at the election
and upon demand of any owner of the Real Property or the Building, or of the
Lessor, or of any Mortgagee in possession of the Real Property or the Building,
to attorn, from time to time, to any such owner, Lessor or Mortgagee or any
person acquiring the interest of Landlord as a result of any such termination,
or as a result of a foreclosure of the Mortgage or the granting of a deed in
lieu of foreclosure, upon the then executory terms and conditions of this Lease,
subject to the provisions of Section 7.1 hereof and this Section 7.2, for the
remainder of the Term, provided that such owner, Lessor or Mortgagee, or
receiver caused to be appointed by any of the foregoing, as the case may be,
shall then be entitled to possession of the Premises and provided further that
such owner, Lessor or Mortgagee, as the case may be, or anyone claiming by,
through or under such owner, Lessor or Mortgagee, as the case may be, including
a purchaser at a foreclosure sale, shall not be:
(1) liable for any act or omission of any prior
landlord (including, without limitation, the then defaulting landlord), or
(2) subject to any defense or offsets which Tenant may
have against any prior landlord (including, without limitation, the then
defaulting landlord), or
(3) bound by any payment of Rental which Tenant may
have made to any prior landlord (including, without limitation, the then
defaulting landlord) more than thirty (30) days in advance of the date upon
which such payment was due, or
(4) bound by any obligation to make any payment to or
on behalf of Tenant, including, without limitation, payments on account of any
Tenant Fund, or
(5) bound by any obligation to perform any work or to
make improvements to the Premises, except for (i) repairs and maintenance
pursuant to the provisions of Article 4, the need for which repairs and
maintenance first arises after the date upon which such owner, Lessor, or
Mortgagee shall be entitled to possession of the Premises, (ii) repairs to the
Premises or any part thereof as a result of damage by fire or other casualty
pursuant to Article 10 hereof, but only to the extent that such repairs can be
reasonably made from the net proceeds
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of any insurance actually made available to such owner, Lessor or Mortgagee, and
(iii) repairs to the Premises as a result of a partial condemnation pursuant to
Article 11 hereof, but only to the extent that such repairs can be reasonably
made from the net proceeds of any award made available to such owner, Lessor or
Mortgagee, or
(6) bound by any amendment or modification of this
Lease made without its consent, or
(7) bound to return Tenant's security deposit, if any,
until such deposit has come into its actual possession and Tenant would be
entitled to such security deposit pursuant to the terms of this Lease.
The provisions of this Section 7.2 shall enure to the benefit of any such owner,
Lessor or Mortgagee, shall apply notwithstanding that, as a matter of law, this
Lease may terminate upon the termination of any Superior Lease, shall be
self-operative upon any such demand, and no further instrument shall be required
to give effect to said provisions. Tenant, however, upon demand of any such
owner, Lessor or Mortgagee, shall execute, at Tenant's expense, from time to
time, instruments, in recordable form, in confirmation of the foregoing
provisions of this Section 7.2, satisfactory to any such owner, Lessor or
Mortgagee, acknowledging such attornment and setting forth the terms and
conditions of its tenancy. Nothing contained in this Section 7.2 shall be
construed to impair any right otherwise exercisable by any such owner, Lessor or
Mortgagee. Notwithstanding the provisions of this Section 7.2, this Lease shall
not terminate by reason of the termination of any Superior Lease without the
prior written consent of the Mortgagee of the Mortgage which is a first mortgage
on Landlord's interest in the Real Property or the leasehold estate created by
such Superior Lease.
Section 7.3 From time to time, within seven (7) days next following
request by Landlord, any Mortgagee or any Lessor, Tenant shall deliver to
Landlord, such Mortgagee or such Lessor a written statement executed by Tenant,
in form satisfactory to Landlord, such Mortgagee or such Lessor, (1) stating
that this Lease is then in full force and effect and has not been modified (or
if modified, setting forth all modifications), (2) setting forth the date to
which the Fixed Rent, Escalation Rent and other items of Rental have been paid,
(3) stating whether or not, to the best knowledge of Tenant, Landlord is in
default under this Lease, and, if Landlord is in default, setting forth the
specific nature of all such defaults, and (4) as to any other matters reasonably
requested by Landlord, such Mortgagee or such Lessor. Tenant acknowledges that
any statement delivered pursuant to this Section 7.3 may be relied upon by any
purchaser or owner of the Real Property or the Building, or Landlord's interest
in the Real Property or the Building or any Superior Lease, or by any Mortgagee,
or by an assignee of any Mortgagee, or by any Lessor.
Section 7.4 From time to time, within seven (7) days next following
request by Tenant but not more frequently than twice in any twelve (12) month
period, Landlord shall deliver to Tenant a written statement executed by
Landlord (i) stating that this Lease is then in full force and effect and has
not been modified (or if modified, setting forth all modifications), (ii)
setting
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forth the date to which the Fixed Rent, Escalation Rent and any other items of
Rental have been paid, (iii) stating whether or not, to the best knowledge of
Landlord (but without having made any investigation), Tenant is in default under
this Lease, and, if Tenant is in default, setting forth the specific nature of
all such defaults, and (iv) as to any other matters reasonably requested by
Tenant and related to this Lease.
Section 7.5 As long as any Superior Lease or Mortgage shall exist,
Tenant shall not seek to terminate this Lease by reason of any act or omission
of Landlord until Tenant shall have given written notice of such act or omission
to all Lessors and Mortgagees at such addresses as shall have been furnished to
Tenant by such Lessors and Mortgagees and, if any such Lessor or Mortgagee, as
the case may be, shall have notified Tenant within ten (10) Business Days
following receipt of such notice of its intention to remedy such act or
omission, until a reasonable period of time shall have elapsed following the
giving of such notice, during which period such Lessors and Mortgagees shall
have the right, but not the obligation, to remedy such act or omission.
Section 7.6 Tenant hereby irrevocably waives any and all right(s) it
may have in connection with any zoning lot merger or transfer of development
rights with respect to the Real Property including, without limitation, any
rights it may have to be a party to, to contest, or to execute, any Declaration
of Restrictions (as such term is used in Section 12-10 of the Zoning Resolution
of The City of New York effective December 15, 1961, as amended) with respect to
the Real Property, which would cause the Premises to be merged with or unmerged
from any other zoning lot pursuant to such Zoning Resolution or to any document
of a similar nature and purpose, and Tenant agrees that this Lease shall be
subject and subordinate to any Declaration of Restrictions or any other document
of similar nature and purpose now or hereafter affecting the Real Property. In
confirmation of such subordination and waiver, Tenant shall execute and deliver
promptly any certificate or instrument that Landlord reasonably may request.
ARTICLE 8
RULES AND REGULATIONS
---------------------
Tenant and Tenant's contractors, employees, agents, visitors, invitees
and licensees shall comply with the Rules and Regulations. Tenant shall have the
right to dispute the reasonableness of any additional Rule or Regulation
hereafter adopted by Landlord. If Tenant disputes the reasonableness of any
additional Rule or Regulation hereafter adopted by Landlord, the dispute shall
be determined by arbitration in the City of New York in accordance with the
rules and regulations then obtaining of the American Arbitration Association or
its successor. Any such determination shall be final and conclusive upon the
parties hereto. The right to dispute the reasonableness of any additional Rule
or Regulation upon Tenant's part shall be deemed waived unless the same shall be
asserted by service of a notice upon Landlord within thirty (30) days after
receipt by Tenant of notice of the adoption of any such additional Rule or
Regulation. Nothing in this Lease contained shall be construed to impose upon
Landlord any duty or obligation to enforce the Rules and Regulations or terms,
covenants or conditions in any
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other lease against any other tenant, and Landlord shall not be liable to Tenant
for violation of the same by any other tenant, its employees, agents, visitors
or licensees.
ARTICLE 9
INSURANCE, PROPERTY LOSS OR DAMAGE; REIMBURSEMENT
-------------------------------------------------
Section 9.1. (A) Any Building employee to whom any property shall be
entrusted by or on behalf of Tenant shall be deemed to be acting as Tenant's
agent with respect to such property and neither Landlord nor its agents shall be
liable for any damage to property of Tenant or of others entrusted to employees
of the Building, nor for the loss of or damage to any property of Tenant by
theft or otherwise. Neither Landlord nor its agents shall be liable for any
injury (or death) to persons or damage to property, or interruption of Tenant's
business, resulting from fire or other casualty; nor shall Landlord or its
agents be liable for any such injury (or death) to persons or damage caused by
other tenants or persons in the Building or caused by construction of any
private, public or quasi-public work; nor shall Landlord be liable for any
injury (or death) to persons or damage to property or improvements, or
interruption of Tenant's business, resulting from any latent defect in the
Premises or in the Building (provided that the foregoing shall not relieve
Landlord from its obligations, if any, to repair such latent defect pursuant to
the provisions of Article 4 hereof).
(B) If at any time any windows of the Premises are temporarily
closed, darkened or bricked-up due to any Requirement or by reason of repairs,
maintenance, alterations, or improvements to the Building, or any of such
windows are permanently closed, darkened or bricked-up due to any Requirement,
Landlord shall not be liable for any damage Tenant may sustain thereby and
Tenant shall not be entitled to any compensation therefor, nor abatement or
diminution of Fixed Rent or any other item of Rental, nor shall the same release
Tenant from its obligations hereunder, nor constitute an actual or constructive
eviction, in whole or in part, by reason of inconvenience or annoyance to
Tenant, or injury to or interruption of Tenant's business, or otherwise, nor
impose any liability upon Landlord or its agents. If at any time the windows of
the Premises are temporarily closed, darkened or bricked-up, as aforesaid, then,
unless Tenant is required pursuant to the Lease to perform the repairs,
maintenance, alterations, or improvements, or to comply with the Requirements,
which resulted in such windows being closed, darkened or bricked-up, Landlord
shall perform such repairs, maintenance, alterations or improvements and comply
with the applicable Requirements with reasonable diligence and otherwise take
such action as may be reasonably necessary to minimize the period during which
such windows are temporarily closed, darkened, or bricked-up.
(C) Tenant shall immediately notify Landlord of any fire or
accident in the Premises.
Section 9.2. Tenant shall obtain and keep in full force and effect (i)
an "all risk" insurance policy for Tenant's Specialty Alterations and Tenant's
Property at the Premises in an amount equal to one hundred percent (100%) of the
replacement value thereof, and (ii) a policy
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of commercial general liability and property damage insurance on an occurrence
basis, with a broad form contractual liability endorsement. Such policies shall
provide that Tenant is named as the insured. Landlord, Landlord's managing
agent, Landlord's agents and any Lessors and any Mortgagees (whose names shall
have been furnished to Tenant) shall be added as additional insureds, as their
respective interests may appear, with respect to the insurance required to be
carried pursuant to clauses (i) and (ii) above. Such policy with respect to
clause (ii) above shall include a provision under which the insurer agrees to
indemnify, defend and hold Landlord, Landlord's managing agent, Landlord's
agents and such Lessors and Mortgagees harmless from and against, subject to the
limits of liability set forth in this Section 9.2, all cost, expense and
liability arising out of, or based upon, any and all claims, accidents, injuries
and damages mentioned in Article 35. In addition, the policy required to be
carried pursuant to clause (ii) above shall contain a provision that (a) no act
or omission of Tenant shall affect or limit the obligation of the insurer to pay
the amount of any loss sustained and (b) the policy shall be non-cancellable
with respect to Landlord, Landlord's managing agent, Landlord's agents and such
Lessors and Mortgagees (whose names and addresses shall have been furnished to
Tenant) unless thirty (30) days' prior written notice shall have been given to
Landlord by certified mail, return receipt requested, which notice shall contain
the policy number and the names of the insured and additional insureds. In
addition, upon receipt by Tenant of any notice of cancellation or any other
notice from the insurance carrier which may adversely affect the coverage of the
insureds under such policy of insurance, Tenant shall immediately deliver to
Landlord and any other additional insured hereunder a copy of such notice. The
minimum amounts of liability under the policy of insurance required to be
carried pursuant to clause (ii) above shall be a combined single limit with
respect to each occurrence in an amount of Five Million Dollars ($5,000,000) for
injury (or death) to persons and damage to property, which amount shall be
increased from time to time to that amount of insurance which in Landlord's
reasonable judgment is then being customarily required by prudent landlords of
non-institutional first class buildings in New York City. All insurance required
to be carried by Tenant pursuant to the terms of this Lease shall be effected
under valid and enforceable policies issued by reputable and independent
insurers permitted to do business in the State of New York, and rated in Best's
Insurance Guide, or any successor thereto (or if there be none, an organization
having a national reputation) as having a general policyholder rating of "A" and
a financial rating of at least "XIII".
Section 9.3. On or prior to the Commencement Date, Tenant shall deliver
to Landlord appropriate certificates of insurance, including evidence of waivers
of subrogation required pursuant to Section 10.5 hereof, required to be carried
by Tenant pursuant to this Article 9. Evidence of each renewal or replacement of
a policy shall be delivered by Tenant to Landlord at least twenty (20) days
prior to the expiration of such policy.
Section 9.4. Tenant acknowledges that Landlord shall not carry
insurance on, and shall not be responsible for damage to, Tenant's Property or
Specialty Alterations, and that Landlord shall not carry insurance against, or
be responsible for any loss suffered by Tenant due to, interruption of Tenant's
business.
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Section 9.5. If notwithstanding the recovery of insurance proceeds by
Tenant for loss, damage or destruction of its property (or rental value or
business interruptions) Landlord is liable to Tenant with respect thereto or is
obligated under this Lease to make replacement, repair or restoration, then, at
Landlord's option, either (i) the amount of the net proceeds of Tenant's
insurance against such loss, damage or destruction shall be offset against
Landlord's liability to Tenant therefor, or (ii) shall be made available to
Landlord to pay for replacement, repair or restoration.
ARTICLE 10
DESTRUCTION-FIRE OR OTHER CAUSE
-------------------------------
Section 10.1. (A) If the Premises (including Alterations other than
Specialty Alterations) shall be damaged by fire or other casualty, and if Tenant
shall give prompt notice thereof to Landlord, the damage, with such
modifications as shall be required in order to comply with Requirements shall be
diligently repaired by and at the expense of Landlord to substantially the
condition prior to the damage, and until such repairs which are required to be
performed by Landlord (excluding Long Lead Work) shall be substantially
completed (of which substantial completion Landlord shall promptly notify
Tenant) the Fixed Rent, Escalation Rent and Space Factor shall be reduced in the
proportion which the area of the part of the Premises which is not usable by
Tenant, as determined by Landlord in its reasonable discretion, bears to the
total area of the Premises immediately prior to such casualty. Upon the
substantial completion of such repairs (excluding Long Lead Work), Landlord
shall diligently prosecute to completion any items of Long Lead Work remaining
to be completed. Landlord shall have no obligation to repair any damage to, or
to replace, any Specialty Alterations or Tenant's Property, which Tenant shall
complete promptly after substantial completion of Landlord's repair obligations
under this Article 10. In addition, Landlord shall not be obligated to repair
any damage to, or to replace, any Alterations unless Tenant shall have notified
Landlord of the completion of such Alterations and the cost thereof, and shall
have maintained adequate records with respect to such Alterations. Tenant shall
make all necessary repairs to the Specialty Alterations and same shall be
completed promptly after substantial completion of Landlord's repair obligations
under this Article 10. Landlord shall use its reasonable efforts to minimize
interference with Tenant's use and occupancy in making any repairs pursuant to
this Section. Anything contained herein to the contrary notwithstanding, if the
Premises (including any Alterations) are damaged by fire or other casualty at
any time prior to the completion of the Initial Alterations, Landlord's
obligation to repair the Premises (and any Alterations) shall be limited to
repair of the part of the Building Systems serving the Premises on the
Commencement Date, but not the distribution portions of such Building Systems
located within the Premises, the floor and ceiling slabs of the Premises and the
exterior walls of the Premises, all to substantially the same condition which
existed on the Commencement Date, with such modifications as shall be required
in order to comply with Requirements.
(B) Prior to the substantial completion of Landlord's repair
obligations set forth in Section 10.1 (A) hereof, Landlord shall provide Tenant
and Tenant's contractor,
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subcontractors and materialmen access to the Premises to perform Specialty
Alterations (or Alterations, if Landlord is not obligated to repair same
pursuant to the provisions hereof), on the following terms and conditions (but
not to occupy the same for the conduct of business):
(1) Tenant shall not commence work in any portion of
the Premises until the date specified in a notice from Landlord to Tenant
stating that the repairs required to be made by Landlord have been or will be
completed to the extent reasonably necessary, in Landlord's discretion, to
permit the commencement of the Specialty Alterations (or Alterations, if
Landlord is not obligated to repair same pursuant to the provisions hereof) then
prudent to be performed in accordance with good construction practice in the
portion of the Premises in question without interference with, and consistent
with the performance of, the repairs remaining to be performed.
(2) Such access by Tenant shall be deemed to be subject
to all of the applicable provisions of this Lease, including, without
limitation, Tenant's obligation to pay to Landlord an amount equal to the
Electricity Inclusion Factor, or, if applicable, the Electricity Additional Rent
except that there shall be no obligation on the part of Tenant solely because of
such access to pay any Fixed Rent or Escalation Rent with respect to the
affected portion of the Premises for any period prior to substantial completion
of the repairs.
(3) It is expressly understood that if Landlord shall
be delayed from substantially completing the repairs due to any acts of Tenant,
its agents, servants, employees or contractors, including, without limitation,
by reason of the performance of any Specialty Alteration (or Alteration, if
Landlord is not obligated to repair same pursuant to the provisions hereof), by
reason of Tenant's failure or refusal to comply or to cause its architects,
engineers, designers and contractors to comply with any of Tenant's obligations
described or referred to in this Lease, or if such repairs are not completed
because under good construction scheduling practice such repairs should be
performed after completion of any Specialty Alteration (or Alteration, if
Landlord is not obligated to repair same pursuant to the provisions hereof),
then such repairs shall be deemed substantially complete on the date when the
repairs would have been substantially complete but for such delay and the
expiration of the abatement of the Tenant's obligations hereunder shall not be
postponed by reason of such delay. Any additional costs to Landlord to complete
any repairs occasioned by such delay shall be paid by Tenant to Landlord within
ten (10) days after demand, as additional rent.
Section 10.2. Anything contained in Section 10.1 hereof to the contrary
notwithstanding, if the Building shall be so damaged by fire or other casualty
that, in Landlord's opinion, substantial alteration, demolition, or
reconstruction of the Building shall be required (whether or not the Premises
shall have been damaged or rendered untenantable), then Landlord, at Landlord's
option, may, not later than ninety (90) days following the damage, give Tenant a
notice in writing terminating this Lease, provided that if the Premises are not
substantially damaged or rendered substantially untenantable, Landlord may not
terminate this Lease unless it shall elect to terminate leases (including this
Lease), affecting at least fifty percent (50%) of the rentable area of the
Building (excluding any rentable area occupied by Landlord or its Affiliates).
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If Landlord elects to terminate this Lease, the Term shall expire upon a date
set by Landlord, but not sooner than the tenth (10th) day after such notice is
given, and Tenant shall vacate the Premises and surrender the same to Landlord
in accordance with the provisions of Article 20 hereof. Upon the termination of
this Lease under the conditions provided for in this Section 10.2, the Fixed
Rent and Escalation Rent shall be apportioned and any prepaid portion of Fixed
Rent and Escalation Rent for any period after such date shall be refunded by
Landlord to Tenant.
Section 10.3. (A) Within forty-five (45) days after notice to Landlord
of any damage described in Section 10.1 hereof, Landlord shall deliver to Tenant
a statement prepared by a reputable contractor setting forth such contractor's
estimate as to the time required to repair such damage, exclusive of time
required to repair any Specialty Alterations (which are Tenant's obligation to
repair) or to perform Long Lead Work. If the estimated time period exceeds
eighteen (18) months from the date of such statement, Tenant may elect to
terminate this Lease by notice to Landlord not later than thirty (30) days
following receipt of such statement. If Tenant makes such election, the Term
shall expire upon the thirtieth (30th) day after notice of such election is
given by Tenant, and Tenant shall vacate the Premises and surrender the same to
Landlord in accordance with the provisions of Article 20 hereof. If Tenant shall
not have elected to terminate this Lease pursuant to this Article 10 (or is not
entitled to terminate this Lease pursuant to this Article 10), the damages shall
be diligently repaired by and at the expense of Landlord as set forth in Section
10.1 hereof.
(B) Notwithstanding the foregoing, if the Premises shall be
substantially damaged during the last year of the Term, Landlord may elect by
notice, given within thirty (30) days after the occurrence of such damage, to
terminate this Lease and if Landlord makes such election, the Term shall expire
upon the thirtieth (30th) day after notice of such election is given by Landlord
and Tenant shall vacate the Premises and surrender the same to Landlord in
accordance with the provisions of Article 20 hereof.
(C) Except as expressly set forth in this Section 10.3, Tenant
shall have no other options to cancel this Lease under this Article 10.
Section 10.4. This Article 10 constitutes an express agreement
governing any case of damage or destruction of the Premises or the Building by
fire or other casualty, and Section 227 of the Real Property Law of the State of
New York, which provides for such contingency in the absence of an express
agreement, and any other law of like nature and purpose now or hereafter in
force shall have no application in any such case.
Section 10.5. The parties hereto shall procure an appropriate clause
in, or endorsement on, any fire or extended coverage insurance covering the
Premises, the Building and personal property, fixtures and equipment located
thereon or therein, pursuant to which the insurance companies waive subrogation
or consent to a waiver of right of recovery and having obtained such clauses or
endorsements of waiver of subrogation or consent to a waiver of right of
recovery, will not make any claim against or seek to recover from the other for
any loss or damage to its property or the property of others resulting from fire
or other hazards covered by
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such fire and extended coverage insurance, provided, however, that the release,
discharge, exoneration and covenant not to sue herein contained shall be limited
by and be coextensive with the terms and provisions of the waiver of subrogation
clause or endorsements or clauses or endorsements consenting to a waiver of
right of recovery. If the payment of an additional premium is required for the
inclusion of such waiver of subrogation provision, each party shall advise the
other of the amount of any such additional premiums and the other party at its
own election may, but shall not be obligated to, pay the same. If such other
party shall not elect to pay such additional premium, the first party shall not
be required to obtain such waiver of subrogation provision. If either party
shall be unable to obtain the inclusion of such clause even with the payment of
an additional premium, then such party shall attempt to name the other party as
an additional insured (but not a loss payee) under the policy. If the payment of
an additional premium is required for naming the other party as an additional
insured (but not a loss payee), each party shall advise the other of the amount
of any such additional premium and the other party at its own election may, but
shall not be obligated to, pay the same. If such other party shall not elect to
pay such additional premium or if it shall not be possible to have the other
party named as an additional insured (but not loss payee), even with the payment
of an additional premium, then (in either event) such party shall so notify the
first party and the first party shall not have the obligation to name the other
party as an additional insured. Tenant acknowledges that Landlord shall not
carry insurance on and shall not be responsible for damage to, Tenant's Property
or Specialty Alterations or any other Alteration prior to the completion of the
Initial Alterations, and that Landlord shall not carry insurance against, or be
responsible for any loss suffered by Tenant due to, interruption of Tenant's
business.
ARTICLE 11
EMINENT DOMAIN
--------------
Section 11.1. If the whole of the Real Property, the Building or the
Premises shall be acquired or condemned for any public or quasi-public use or
purpose, this Lease and the Term shall end as of the date of the vesting of
title with the same effect as if said date were the Expiration Date. If only a
part of the Real Property and not the entire Premises shall be so acquired or
condemned then, (1) except as hereinafter provided in this Section 11.1, this
Lease and the Term shall continue in force and effect, but, if a part of the
Premises is included in the part of the Real Property so acquired or condemned,
from and after the date of the vesting of title, the Fixed Rent and the Space
Factor shall be reduced in the proportion which the area of the part of the
Premises so acquired or condemned bears to the total area of the Premises
immediately prior to such acquisition or condemnation and Tenant's Share and
Tenant's Tax Share shall each be redetermined based upon the proportion in which
the ratio between the rentable area of the Premises remaining after such
acquisition or condemnation bears to the rentable area of the Building remaining
after such acquisition or condemnation; (2) whether or not the Premises shall be
affected thereby, Landlord, at Landlord's option, may give to Tenant, within
sixty (60) days next following the date upon which Landlord shall have received
notice of vesting of title, a thirty (30) days' notice of termination of this
Lease if Landlord shall elect to terminate leases (including this Lease),
affecting at least fifty percent (50%) of the rentable area
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of the Building (excluding any rentable area leased by Landlord or its
Affiliates); and (3) if the part of the Real Property so acquired or condemned
shall contain more than fifteen percent (15%) of the total area of the Premises
immediately prior to such acquisition or condemnation, or if, by reason of such
acquisition or condemnation, Tenant no longer has reasonable means of access to
the Premises, Tenant, at Tenant's option, may give to Landlord, within sixty
(60) days next following the date upon which Tenant shall have received notice
of vesting of title, a thirty (30) days' notice of termination of this Lease. If
any such thirty (30) days' notice of termination is given by Landlord or Tenant,
this Lease and the Term shall come to an end and expire upon the expiration of
said thirty (30) days with the same effect as if the date of expiration of said
thirty (30) days were the Expiration Date. If a part of the Premises shall be so
acquired or condemned and this Lease and the Term shall not be terminated
pursuant to the foregoing provisions of this Section 11.1, Landlord, at
Landlord's expense, shall restore that part of the Premises not so acquired or
condemned to a self-contained rental unit inclusive of Tenant's Alterations
(other than Specialty Alterations), except that if such acquisition or
condemnation occurs prior to completion of the Initial Alterations, Landlord
shall only be required to restore that part of the Premises not so acquired or
condemned to a self-contained rental unit exclusive of Tenant's Alterations.
Upon the termination of this Lease and the Term pursuant to the provisions of
this Section 11.1, the Fixed Rent and Escalation Rent shall be apportioned and
any prepaid portion of Fixed Rent and Escalation Rent for any period after such
date shall be refunded by Landlord to Tenant.
Section 11.2. In the event of any such acquisition or condemnation of
all or any part of the Real Property, Landlord shall be entitled to receive the
entire award for any such acquisition or condemnation, Tenant shall have no
claim against Landlord or the condemning authority for the value of any
unexpired portion of the Term and Tenant hereby expressly assigns to Landlord
all of its right in and to any such award. Nothing contained in this Section
11.2 shall be deemed to prevent Tenant from making a separate claim in any
condemnation proceedings for the then value of any Tenant's Property included in
such taking, and for any moving expenses.
Section 11.3. If the whole or any part of the Premises shall be
acquired or condemned temporarily during the Term for any public or quasi-public
use or purpose, Tenant shall give prompt notice thereof to Landlord and the Term
shall not be reduced or affected in any way and Tenant shall continue to pay in
full all items of Rental payable by Tenant hereunder without reduction or
abatement, and Tenant shall be entitled to receive for itself any award or
payments for such use, provided, however, that:
(i) if the acquisition or condemnation is for a
period not extending beyond the Term and if such award or
payment is made less frequently than in monthly installments,
the same shall be paid to and held by Landlord as a fund
which Landlord shall apply from time to time to the Rental
payable by Tenant hereunder, except that, if by reason of
such acquisition or condemnation changes or alterations are
required to be made to the Premises which would necessitate
an expenditure to restore the Premises, then a portion of
such award or payment considered by Landlord as appropriate
to cover the expenses of the
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restoration shall be retained by Landlord, without
application as aforesaid, and applied toward the restoration
of the Premises as provided in Section 11.1 hereof; or
(ii) if the acquisition or condemnation is for a
period extending beyond the Term, such award or payment shall
be apportioned between Landlord and Tenant as of the
Expiration Date; Tenant's share thereof, if paid less
frequently than in monthly installments, shall be paid to
Landlord and applied in accordance with the provisions of
clause (i) above, provided, however, that the amount of any
award or payment allowed or retained for restoration of the
Premises shall remain the property of Landlord if this Lease
shall expire prior to the restoration of the Premises.
ARTICLE 12
ASSIGNMENT, SUBLETTING, MORTGAGE, ETC.
--------------------------------------
Section 12.1. (A) Except as expressly permitted herein, Tenant, without
the prior consent of Landlord in each instance, shall not (a) assign its rights
or delegate its duties under this Lease (whether by operation of law, transfers
of interests in Tenant or otherwise), mortgage or encumber its interest in this
Lease, in whole or in part, (b) sublet, or permit the subletting of, the
Premises or any part thereof, or (c) permit the Premises or any part thereof to
be occupied or used for desk space, mailing privileges or otherwise, by any
Person other than Tenant.
(B If this Lease is assigned to any person or entity pursuant
to the provisions of the Bankruptcy Code, any and all monies or other
consideration payable or otherwise to be delivered in connection with such
assignment shall be paid or delivered to Landlord, shall be and remain the
exclusive property of Landlord and shall not constitute property of Tenant or of
the estate of Tenant within the meaning of the Bankruptcy Code. Any and all
monies or other consideration constituting Landlord's property under the
preceding sentence not paid or delivered to Landlord shall be held in trust for
the benefit of Landlord and shall be promptly paid to or turned over to
Landlord.
Section 12.2. (A) If Tenant's interest in this Lease is assigned in
violation of the provisions of this Article 12, such assignment shall be void
and of no force and effect against Landlord; provided, however, that Landlord
may collect an amount equal to the then Fixed Rent plus any other item of Rental
from the assignee as a fee for its use and occupancy, and shall apply the net
amount collected to the Fixed Rent and other items of Rental reserved in this
Lease. If the Premises or any part thereof are sublet to, or occupied by, or
used by, any Person other than Tenant, whether or not in violation of this
Article 12, Landlord, after default by Tenant under this Lease, including,
without limitation, a subletting or occupancy in violation of this Article 12,
may collect any item of Rental or other sums paid by the subtenant, user or
occupant as a fee for its use and occupancy, and shall apply the net amount
collected to the Fixed Rent and other items of Rental reserved in this Lease. No
such assignment, subletting, occupancy or use,
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whether with or without Landlord's prior consent, nor any such collection or
application of Rental or fee for use and occupancy, shall be deemed a waiver by
Landlord of any term, covenant or condition of this Lease or the acceptance by
Landlord of such assignee, subtenant, occupant or user as tenant hereunder. The
consent by Landlord to any assignment, subletting, occupancy or use shall not
relieve Tenant from its obligation to obtain the express prior consent of
Landlord to any further assignment, subletting, occupancy or use.
(B) Tenant shall reimburse Landlord on demand for any costs
that may be incurred by Landlord in connection with any proposed assignment of
Tenant's interest in this Lease or any proposed subletting of the Premises or
any part thereof, including, without limitation, any reasonable processing fee,
reasonable attorneys' fees and disbursements and the reasonable costs of making
investigations as to the acceptability of the proposed subtenant or the proposed
assignee. At Landlord's option, Tenant shall engage, as exclusive leasing agent
for Tenant with respect to any proposed subletting of the Premises or any part
thereof or any proposed assignment of Tenant's interest in this Lease,
Landlord's managing agent for the Building or such other broker as Landlord
shall designate.
(C) Neither any assignment of Tenant's interest in this Lease
nor any subletting, occupancy or use of the Premises or any part thereof by any
Person other than Tenant, nor any collection of Rental by Landlord from any
Person other than Tenant as provided in this Section 12.2, nor any application
of any such Rental as provided in this Section 12.2 shall, in any circumstances,
relieve Tenant of its obligations under this Lease on Tenant's part to be
observed and performed.
(D) Any Person to which this Lease is assigned pursuant to the
provisions of the Bankruptcy Code shall be deemed without further act or deed to
have assumed all of the obligations arising under this Lease on and after the
date of such assignment. Any such assignee shall execute and deliver to Landlord
upon demand an instrument confirming such assumption. No assignment of this
Lease shall relieve Tenant of its obligations hereunder and, subsequent to any
assignment, Tenant's liability hereunder shall continue notwithstanding any
subsequent modification or amendment hereof or the release of any subsequent
tenant hereunder from any liability, to all of which Tenant hereby consents in
advance.
Section 12.3. (A) If Tenant assumes this Lease and proposes to assign
the same pursuant to the provisions of the Bankruptcy Code to any Person who
shall have made a bona fide offer to accept an assignment of this Lease on terms
acceptable to Tenant, then notice of such proposed assignment shall be given to
Landlord by Tenant no later than twenty (20) days after receipt by Tenant, but
in any event no later than ten (10) days prior to the date that Tenant shall
make application to a court of competent jurisdiction for authority and approval
to enter into such assignment and assumption. Such notice shall set forth (a)
the name and address of such Person, (b) all of the terms and conditions of such
offer, and (c) adequate assurance of future performance by such Person under the
Lease as set forth in Paragraph (B) below, including, without limitation, the
assurance referred to in Section 365(b)(3) of the Bankruptcy Code. Landlord
shall have the prior right and option, to be exercised by notice to Tenant given
at
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any time prior to the effective date of such proposed assignment, to accept an
assignment of this Lease upon the same terms and conditions and for the same
consideration, if any, as the bona fide offer made by such Person, less any
brokerage commissions which would otherwise be payable by Tenant out of the
consideration to be paid by such Person in connection with the assignment of
this Lease.
(B) The term "adequate assurance of future performance" as
used in this Lease shall mean that any proposed assignee shall, among other
things, (a) deposit with Landlord on the assumption of this Lease the sum of the
then Fixed Rent as security for the faithful performance and observance by such
assignee of the terms and obligations of this Lease, which sum shall be held by
Landlord in accordance with the provisions of Article 31 hereof, (b) furnish
Landlord with financial statements of such assignee for the prior three (3)
fiscal years, as finally determined after an audit and certified as correct by a
certified public accountant, which financial statements shall show a net worth
of at least six (6) times the then Fixed Rent for each of such three (3) years,
(c) grant to Landlord a security interest in such property of the proposed
assignee as Landlord shall deem necessary to secure such assignee's future
performance under this Lease, and (d) provide such other information or take
such action as Landlord, in its reasonable judgment shall determine is necessary
to provide adequate assurance of the performance by such assignee of its
obligations under the Lease.
Section 12.4. (A) As long as Teltran International Group, Ltd. is
Tenant, Tenant shall have the privilege, subject to the terms and conditions
hereinafter set forth, without the consent of Landlord but subject to Tenant's
satisfaction of conditions set forth in clauses (1), (4) and (5) of Section
12.8(A) hereof, and without Landlord having the right granted in Section 12.8(B)
hereof to recapture, (x) to assign its interest in this Lease (i) to any
corporation which is a successor to Tenant either by merger or consolidation,
(ii) to a purchaser of all or substantially all of Tenant's assets (provided
such purchaser shall have also assumed substantially all of Tenant's
liabilities) or (iii) to a Person which shall (1) Control, (2) be under the
Control of, or (3) be under common Control with Tenant (any such Person referred
to in this clause (iii) being a "Related Entity"), or (y) to sell or transfer a
controlling interest in the shares of Tenant (if Tenant is a corporation or
trust), or to transfer a controlling interest in Tenant (if Tenant is a
partnership or other entity), including by reason of the sale or transfer of
treasury stock or the creation and issuance of new stock or a new class of
stock, or (z) to convert to a so-called "limited liability company" or "limited
liability partnership", subject to the provisions of Section 12.4(B) hereof. As
long as Teltran International Group, Ltd. is Tenant, Tenant also shall have the
privilege, subject to the terms and conditions hereinafter set forth, without
the consent of Landlord but subject to Tenant's satisfaction of conditions set
forth in clauses (3), (6) through (8) and (10) of Section 12.6(A) and without
Landlord having the right granted in Section 12.6(B) hereof to recapture, to
sublease all or any portion of the Premises to a Related Entity. Any assignment
or subletting described above may only be made upon the condition that (a) any
such assignee or subtenant shall continue to use the Premises for the conduct of
the same business as Tenant was conducting prior to such assignment or sublease,
(b) the principal purpose of such assignment or sublease is not the acquisition
of Tenant's interest in this Lease or to circumvent the provisions of Section
12.1 of this Article (except if such assignment or sublease is made to a Related
Entity and is made for a valid intracorporate business purpose and is not made
to circumvent the provisions of Section 12.1 of this Article), and (c) in the
case of an assignment, any such assignee
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shall have a net worth and annual income and cash flow, determined in accordance
with generally accepted accounting principles, consistently applied, after
giving effect to such assignment, equal to the greater of Tenant's net worth and
annual income and cash flow, as so determined, on (i) the date immediately
preceding the date of such assignment, and (ii) the Commencement Date. Tenant
shall, within ten (10) Business Days after execution thereof, deliver to
Landlord either (x) a duplicate original instrument of assignment in form and
substance reasonably satisfactory to Landlord, duly executed by Tenant, together
with an instrument in form and substance reasonably satisfactory to Landlord,
duly executed by the assignee, in which such assignee shall assume observance
and performance of, and agree to be personally bound by, all of the terms,
covenants and conditions of this Lease on Tenant's part to be observed and
performed, or (y) a duplicate original sublease in form and substance reasonably
satisfactory to Landlord, duly executed by Tenant and the subtenant.
(B) If Tenant is a partnership, the admission of new Partners,
the withdrawal, retirement, death, incompetency or bankruptcy of any Partner, or
the reallocation of partnership interests among the Partners shall not
constitute an assignment of this Lease, provided the principal purpose of any of
the foregoing is not to circumvent the restrictions on assignment set forth in
the provisions of this Article 12. The reorganization of Tenant from a
professional corporation into a partnership or the reorganization of a Tenant
from a partnership into a professional corporation, shall not constitute an
assignment of this Lease, provided that immediately following such
reorganization the Partners of Tenant shall be the same as the shareholders of
Tenant existing immediately prior to such reorganization, or the shareholders of
Tenant shall be the same as the Partners of Tenant existing immediately prior to
such reorganization, as the case may be. If Tenant shall become a professional
corporation, each individual shareholder in Tenant and each employee of a
professional corporation which is a shareholder in Tenant shall have the same
personal liability as such individual or employee would have under this Lease if
Tenant were a partnership and such individual or employee were a Partner in
Tenant. If any individual Partner in Tenant is or becomes an employee of a
professional corporation, such individual shall have the same personal liability
under this Lease as such individual would have if he and not the professional
corporation were a Partner of Tenant.
(C) Except as set forth above, either a transfer (including
the issuance of treasury stock or the creation and issuance of new stock or a
new class of stock) of a controlling interest in the shares of Tenant or of any
entity which holds an interest in Tenant through one or more intermediaries (if
Tenant or such entity is a corporation or trust) or a transfer of a majority of
the total interest in Tenant or of any entity which holds an interest in Tenant
through one or more intermediaries (if Tenant or such entity is a partnership or
other entity) at any one time or over a period of time through a series of
transfers, shall be deemed an assignment of this Lease and shall be subject to
all of the provisions of this Article 12, including, without limitation, the
requirement that Tenant obtain Landlord's prior consent thereto. The transfer of
shares of Tenant or of any entity which holds an interest in Tenant through one
or more intermediaries (if Tenant
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or such entity is a corporation or trust) for purposes of this Section 12.4
shall not include the sale of shares by persons other than those deemed
"insiders" within the meaning of the Securities Exchange Act of 1934, as
amended, which sale is effected through the "over-the-counter market" or through
any recognized stock exchange.
Section 12.5. If, at any time after the originally named Tenant herein
may have assigned Tenant's interest in this Lease, this Lease shall be
disaffirmed or rejected in any proceeding of the types described in paragraph
(E) of Section 16.1 hereof, or in any similar proceeding, or in the event of
termination of this Lease by reason of any such proceeding or by reason of lapse
of time following notice of termination given pursuant to said Article 16 based
upon any of the Events of Default set forth in such paragraph, any prior Tenant,
including, without limitation, the originally named Tenant, upon request of
Landlord given within thirty (30) days next following any such disaffirmance,
rejection or termination (and actual notice thereof to Landlord in the event of
a disaffirmance or rejection or in the event of termination other than by act of
Landlord), shall (1) pay to Landlord all Fixed Rent, Escalation Rent and other
items of Rental due and owing by the assignee to Landlord under this Lease to
and including the date of such disaffirmance, rejection or termination, and (2)
as "tenant", enter into a new lease with Landlord of the Premises for a term
commencing on the effective date of such disaffirmance, rejection or termination
and ending on the Expiration Date, unless sooner terminated as in such lease
provided, at the same Fixed Rent and upon the then executory terms, covenants
and conditions as are contained in this Lease, except that (a) Tenant's rights
under the new lease shall be subject to the possessory rights of the assignee
under this Lease and the possessory rights of any person claiming through or
under such assignee or by virtue of any statute or of any order of any court,
(b) such new lease shall require all defaults existing under this Lease to be
cured by Tenant with due diligence, and (c) such new lease shall require Tenant
to pay all Escalation Rent reserved in this Lease which, had this Lease not been
so disaffirmed, rejected or terminated, would have accrued under the provisions
of Article 27 hereof after the date of such disaffirmance, rejection or
termination with respect to any period prior thereto. If any such prior Tenant
shall default in its obligation to enter into said new lease for a period of ten
(10) days next following Landlord's request therefor, then, in addition to all
other rights and remedies by reason of such default, either at law or in equity,
Landlord shall have the same rights and remedies against such Tenant as if such
Tenant had entered into such new lease and such new lease had thereafter been
terminated as of the commencement date thereof by reason of such Tenant's
default thereunder.
Section 12.6. (A) Notwithstanding the provisions of Section 12.1
hereof, if Landlord shall not exercise its rights pursuant to paragraph (B) of
this Section 12.6, Landlord shall not unreasonably withhold its consent to any
subletting of the Premises, provided that:
(1) the Premises shall not, without Landlord's prior
consent, have been listed or otherwise publicly advertised for subletting at a
rental rate less than the greater of (i) the Rent Per Square Foot with respect
to the portion of the Premises proposed to be sublet hereunder, and (ii) the
prevailing rental rate set by Landlord for comparable space in the Building or
if there is no comparable space, the prevailing rental rate reasonably
determined by Landlord (the
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"Prevailing Rate") nor shall Tenant advise any broker, agent, finder or
prospective subtenant that Tenant intends to sublet the Premises at a rate less
than the Prevailing Rate;
(2) Intentionally Omitted Prior to Execution;
(3) no Event of Default shall have occurred and be
continuing;
(4) upon the date Tenant delivers the Tenant Statement
to Landlord and upon the date immediately preceding the commencement date of any
sublease approved by Landlord, the proposed subtenant shall have a financial
standing (taking into consideration the obligations of the proposed subtenant
under the sublease) satisfactory to Landlord, be of a character, be engaged in a
business, and propose to use the Premises in a manner in keeping with the
standards in such respects of the other tenancies in the Building;
(5) the proposed subtenant (or any Person who directly
or indirectly, Controls, is Controlled by or is under common Control with the
proposed subtenant) shall not be a tenant or subtenant of any space in the
Building, nor shall the proposed subtenant (or any Person who directly or
indirectly, Controls, is Controlled by or is under common Control with the
proposed subtenant) be a Person with whom Landlord is negotiating or discussing
to lease space in the Building; if Tenant shall propose to sublease space and is
about to commence negotiations with a tenant, subtenant or prospective
subtenant, Tenant shall advise Landlord of the identity of such prospective
subtenant and Landlord shall promptly advise Tenant if the execution of a
sublease with such tenant, subtenant or prospective subtenant would violate the
provisions of this clause (5);
(6) the character of the business to be conducted or
the proposed use of the Premises by the proposed subtenant shall not (a) be
likely to increase Landlord's operating expenses beyond that which would be
incurred for use by Tenant or for use in accordance with the standards of use of
other tenancies in the Building; (b) increase the burden on existing cleaning
services or elevators over the burden prior to such proposed subletting; (c)
violate any provision or restrictions herein relating to the use or occupancy of
the Premises; (d) require any alterations, installations, improvements,
additions or other physical changes to be performed in or made to any portion of
the Building or the Real Property other than the Premises; or (e) violate any
provision or restrictions in any other lease for space in the Building or in any
Superior Lease or Mortgage; if Landlord shall have consented to a sublease and,
as a result of the use and occupancy of the subleased portion of the Premises by
the subtenant, operating expenses are increased, then Tenant shall pay to
Landlord, within ten (10) days after demand, as additional rent, all resulting
increases in operating expenses;
(7) the subletting shall be expressly subject to all of
the terms, covenants, conditions and obligations on Tenant's part to be observed
and performed under this Lease and the further condition and restriction that
the sublease shall not be modified without the prior written consent of
Landlord, which consent shall not be unreasonably withheld, or assigned (by
operation of law or otherwise; for purposes of this clause (7), the transfer of
a majority of the
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issued and outstanding capital stock of any corporate subtenant or the transfer
of a majority of the total interest in a subtenant (if a partnership or other
entity), however accomplished, whether in a single transaction or in a series of
related or unrelated transactions, shall be deemed an assignment of the
sublease, except that the transfer of the outstanding capital stock of a
corporate subtenant shall be deemed not to include the sale of such stock by
persons other than those deemed "insiders" within the meaning of the Securities
Exchange Act of 1934, as amended, which sale is effected through the
"over-the-counter market" or through any recognized stock exchange) encumbered
or otherwise transferred or the subleased premises further sublet by the
subtenant in whole or in part, or any part thereof suffered or permitted by the
subtenant to be used or occupied by others, without the prior written consent of
Landlord in each instance;
(8) the subletting shall end no later than one (1) day
before the Expiration Date and shall not be for a term of less than one (1) year
unless it commences less than one (1) year before the Expiration Date;
(9) at no time shall there be more than two (2)
occupants, including Tenant, in
the Premises; and
(10) such sublease shall expressly provide that in the
event of termination, re-entry or dispossess of Tenant by Landlord under this
Lease, Landlord may, at its option, take over all of the right, title and
interest of Tenant, as sublessor under such sublease, and such subtenant, at
Landlord's option, shall attorn to Landlord pursuant to the then executory
provisions of such sublease, except that Landlord shall not be:
(i) liable for any act or omission of Tenant under
such sublease, or
(ii) subject to any defense or offsets which such
subtenant may have against Tenant, or
(iii) bound by any previous payment which such
subtenant may have made to Tenant more than thirty (30) days in advance of the
date upon which such payment was due, unless previously approved by Landlord, or
(iv) bound by any obligation to make any payment
to or on behalf of such subtenant, or
(v) bound by any obligation to perform any work or
to make improvements to the Premises, or portion thereof demised by such
sublease, or
(vi) bound by any amendment or modification of
such sublease made without its consent, or
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(vii) bound to return such subtenant's security
deposit, if any, until such deposit has come into its actual possession and such
subtenant would be entitled to such security deposit pursuant to the terms of
such sublease.
If Tenant proposes to sublet a portion of the Premises then, unless the context
otherwise requires, references in this Section 12.6 to the Premises shall be
deemed to refer to the portion of the Premises proposed to be sublet by Tenant.
(B) At least fifteen (15) Business Days prior to any proposed
subletting of the Premises, Tenant shall submit a statement to Landlord (a
"Tenant Statement") containing the following information: (a) the name and
address of the proposed subtenant, (b) the terms and conditions of the proposed
subletting, including, without limitation, the rent payable and the value
(including cost, overhead and supervision) of any improvements (including any
demolition to be performed) to the Premises for occupancy by such subtenant, (c)
the nature and character of the business of the proposed subtenant, and (d) any
other information that Landlord may reasonably request, together with a
statement specifically directing Landlord's attention to the provisions of this
Section 12.6(B) requiring Landlord to respond to Tenant's request within fifteen
(15) Business Days after Landlord's receipt of the Tenant Statement. Landlord
shall have the right, exercisable by notice to Tenant within fifteen (15)
Business Days after Landlord's receipt of the Tenant Statement, at Landlord's
sole option, either (i) to terminate this Lease on a date specified in
Landlord's notice to Tenant (the "Termination Date"), which date shall not be
earlier than one (1) day before the effective date of the proposed subletting or
later than sixty-one (61) days after said effective date, or (ii) to sublet (in
its own name or that of its designee) such portion of the Premises ("Recapture
Space") from Tenant on the terms and conditions set forth in the Tenant
Statement, subject to the further provisions of paragraph (C) of this Section
12.6. If Landlord shall fail to notify Tenant within said fifteen (15) Business
Day period of Landlord's intention to exercise its rights pursuant to this
Section 12.6(B) or of Landlord's consent to or disapproval of the proposed
subletting pursuant to the Tenant Statement as contemplated by Section 12.6(A)
hereof, or if Landlord shall have consented to such subletting as provided in
Section 12.6(A) hereof, Tenant shall have the right to sublease that portion of
the Premises to such proposed subtenant on the same terms and conditions set
forth in the Tenant Statement, subject to the terms and conditions of this
Lease, including, without limitation, paragraph (A) of this Section 12.6. If
Tenant shall not enter into such sublease within sixty (60) days after the
delivery of the Tenant Statement to Landlord, then the provisions of Section
12.1 hereof and this Section 12.6 shall again be applicable to any other
proposed subletting. If Tenant shall enter into such sublease within sixty (60)
days as aforesaid, Tenant shall deliver a true, complete and fully executed
counterpart of such sublease to Landlord within five (5) days after execution
thereof.
(C If Landlord exercises its option to terminate this Lease as
aforesaid, Tenant shall vacate and surrender the Premises on or before the
Termination Date in accordance with Article 20 hereof and the Term shall end on
the Termination Date as if it were the Expiration Date. If Landlord exercises
its option to sublet the Recapture Space, such sublease to Landlord or its
designee as subtenant (each, a "Recapture Sublease") shall:
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(1) be at a rental equal to the lesser of (x) the Rent
Per Square Foot multiplied by the number of rentable square feet of the
Recapture Space, and (y) the sublease rent set forth in the Tenant Statement and
otherwise be upon the same terms and conditions as those contained in this Lease
(as modified by the Tenant Statement, except such as are irrelevant or
inapplicable and except as otherwise expressly set forth to the contrary in this
paragraph (C);
(2) give the subtenant the unqualified and unrestricted
right, without Tenant's permission, to assign such sublease and to further
sublet the Recapture Space or any part thereof and to make any and all changes,
alterations, and improvements in the Recapture Space;
(3) provide in substance that any such changes,
alterations, and improvements made in the Recapture Space may be removed, in
whole or in part, prior to or upon the expiration or other termination of the
Recapture Sublease provided that any material damage and injury caused thereby
shall be repaired;
(4) provide that (i) the parties to such Sublease
expressly negate any intention that any estate created under such Sublease be
merged with any other estate held by either of said parties, (ii) prior to the
commencement of the term of the Recapture Sublease, Tenant, at its sole cost and
expense (unless the Tenant Statement provides otherwise), shall make such
alterations as may be required or reasonably deemed necessary by the subtenant,
and (iii) at the expiration of the term of such Sublease, Tenant shall accept
the Recapture Space in its then existing condition, broom clean;
(5) provide that the subtenant or occupant may use and
occupy the Recapture Space for any lawful purpose (without regard to any
limitation set forth in the Tenant Statement); and
(6) not require the subtenant thereunder to post a
security deposit.
(D) Performance by Landlord, or its designee, under a
Recapture Sublease shall be deemed performance by Tenant of any similar
obligation under this Lease and Tenant shall not be liable for any default under
this Lease or deemed to be in default hereunder if such default is occasioned by
or arises from any act or omission of the subtenant under the Recapture Sublease
or is occasioned by or arises from any act or omission of any occupant under the
Recapture Sublease.
(E) If Landlord is unable to give Tenant possession of the
Recapture Space at the expiration of the term of the Recapture Sublease by
reason of the holding over or retention of possession of any tenant or other
occupant, then (w) Landlord shall continue to pay all charges previously
payable, and comply with all other obligations, under the Recapture Sublease
until the date upon which Landlord shall give Tenant possession of the Recapture
Space free of occupancies, (x) neither the Expiration Date nor the validity of
this Lease shall be affected, (y) Tenant waives any rights under Section 223-a
of the Real Property Law of New York, or any successor statute of similar
import, to rescind this Lease and further waives the right to recover
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any damages from Landlord which may result from the failure of Landlord to
deliver possession of the Recapture Space at the end of the term of the
Recapture Sublease, and (z) Landlord, at Landlord's expense, shall use its
reasonable efforts to deliver possession of the Recapture Space to Tenant and in
connection therewith, if necessary, shall institute and diligently and in good
faith prosecute holdover and any other appropriate proceedings against the
occupant of such Space; if Landlord fails to prosecute such proceedings in such
manner and such failure continues after reasonable notice thereof by Tenant,
Tenant may prosecute such proceedings in Landlord's name and at Landlord's
expense.
(F) The failure by Landlord to exercise its option under
Section 12.6(B) with respect to any subletting shall not be deemed a waiver of
such option with respect to any extension of such subletting or any subsequent
subletting of the Premises affected thereby.
Section 12.7. (A) In connection with any subletting of the Premises,
Tenant shall pay to Landlord all Sublease Profit derived therefrom. Anything
contained herein to the contrary notwithstanding Tenant shall not be entitled to
any proceeds derived from or relating to (directly or indirectly) any subletting
of the Recapture Space by Landlord or its designee to a subtenant. All sums
payable hereunder by Tenant shall be calculated on an annualized basis, but
shall be paid to Landlord, as additional rent, within ten (10) days after
receipt thereof by Tenant.
(B) For purposes of this Lease:
(1) "Rent Per Square Foot" shall mean the sum of the
then Fixed Rent, Escalation Rent, and if applicable, Electricity Additional Rent
divided by the Space Factor.
(2) "Sublease Profit" shall mean the product of (x) the
Sublease Rent Per Square Foot less the Rent Per Square Foot, and (y) the number
of rentable square feet constituting the portion of the Premises sublet by
Tenant.
(3) "Sublease Rent" shall mean any rent or other
consideration paid to Tenant directly or indirectly by any subtenant or any
other amount received by Tenant from or in connection with any subletting
(including, but not limited to, sums paid for the sale or rental, or
consideration received on account of any contribution, of Tenant's Property or
sums paid in connection with the supply of electricity or HVAC) less the
Sublease Expenses.
(4) "Sublease Expenses" shall mean: (i) in the event of
a sale of Tenant's Property, the then unamortized or undepreciated cost thereof
determined on the basis of Tenant's federal income tax returns, (ii) the
reasonable out-of-pocket costs and expenses of Tenant in making such sublease,
such as brokers' fees, attorneys' fees, and advertising fees paid to unrelated
third parties, (iii) any sums paid to Landlord pursuant to Section 12.2(B)
hereof, (iv) the cost of improvements or alterations made by Tenant expressly
and solely for the purpose of preparing that portion of the Premises for such
subtenancy if not used by Tenant subsequent to the expiration of the term of the
sublease, and (v) the unamortized or undepreciated cost of any Tenant's Property
leased to and used by such subtenant. In determining Sublease Rent, the costs
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set forth in clauses (ii), (iii) and (iv) shall be amortized on a straight-line
basis over the term of such sublease and the costs set forth in clause (v) shall
be amortized on a straight line basis over the greater of the longest useful
life of such improvements, alterations or Property (as permitted pursuant to the
Internal Revenue Code of 1986, as amended) and the term of such sublease.
(5) "Sublease Rent Per Square Foot" shall mean the
Sublease Rent divided by the rentable square feet of the space demised under the
sublease in question.
(6) Sublease Profit shall be recalculated from time to
time to reflect any corrections in the prior calculation thereof due to (i)
subsequent payments received or made by Tenant, (ii) the final adjustment of
payments to be made by or to Tenant, and (iii) mistake. Promptly after receipt
or final adjustment of any such payments or discovery of any such mistake,
Tenant shall submit to Landlord a recalculation of the Sublease Profit, and an
adjustment shall be made between Landlord and Tenant, on account of prior
payments made or credits received pursuant to this Section 12.7. In addition, if
Sublease Expenses utilized for the purpose of calculating Sublease Profit
included an amount attributable to the cost of the improvements made by Tenant
expressly and solely for the purpose of preparing the Premises or a portion
thereof for the occupancy of the subtenant and subsequent to the expiration of
the sublease such improvements and/or alterations were not demolished and/or
removed, Sublease Profits shall be recalculated as if the cost of such
improvements and/or alterations were not incurred by Tenant and Tenant promptly
shall pay to Landlord the additional amount of such Sublease Profit resulting
from such recalculation.
Section 12.8. (A) Notwithstanding the provisions of Section 12.1
hereof, if Landlord shall not exercise its rights pursuant to paragraph (B)(2)
of this Section 12.8, Landlord shall not unreasonably withhold its consent to an
assignment of this Lease in its entirety provided that:
(1) no Event of Default shall have occurred and be
continuing;
(2) upon the date Tenant delivers the Assignment
Statement to Landlord and upon the date immediately preceding the date of any
assignment approved by Landlord, the proposed assignee shall have a financial
standing (taking into consideration the obligations of the proposed assignee
under this Lease) satisfactory to Landlord, be of a character, be engaged in a
business, and propose to use the Premises in a manner in keeping with the
standards in such respects of the other tenancies in the Building;
(3) the proposed assignee (or any Person who directly
or indirectly, Controls, is Controlled by or is under common Control with the
proposed assignee) shall not be a person or entity with whom Landlord is
negotiating to lease space in the Building at the time of receipt of an
Assignment Statement;
(4) the character of the business to be conducted or
the proposed use of the Premises by the proposed assignee shall not (a) be
likely to increase Landlord's operating expenses beyond that which would be
incurred for use by Tenant or for use in accordance with
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the standards of use of other tenancies in the Building; (b) increase the burden
on existing cleaning services or elevators over the burden prior to such
proposed assignment; (c) violate any provision or restrictions herein relating
to the use or occupancy of the Premises; (d) require any alterations,
installations, improvements, additions or other physical changes to be performed
in or made to any portion of the Building or the Real Property other than the
Premises; or (e) violate any provision or restrictions in any other lease for
space in the Building or in any Superior Lease or Mortgage; if Landlord shall
have consented to an assignment and, as a result of the use and occupancy of the
Premises by Tenant/assignee, operating expenses are increased, then Tenant shall
pay to Landlord, within ten (10) days after demand, as additional rent, all
resulting increases in operating expenses; and
(5) the assignee shall agree to assume all of the
obligations of Tenant under this Lease from and after the date of the
assignment.
(B) (1) At least fifteen (15) Business Days prior to any
proposed assignment, Tenant shall submit a statement to Landlord (the
"Assignment Statement") containing the following information: (i) the name and
address of the proposed assignee, (ii) the essential terms and conditions of the
proposed assignment, including, without limitation, the consideration payable
for such assignment and the value (including cost, overhead and supervision) of
any improvements (including any demolition to be performed) to the Premises
proposed to be made by Tenant to prepare the Premises for occupancy by such
assignee, (iii) the nature and character of the business of the proposed
assignee, and (iv) any other information that Landlord may reasonably request,
together with a statement specifically directing Landlord's attention to the
provisions of this Section 12.8(B) requiring Landlord to respond to Tenant's
request within fifteen (15) Business Days after Landlord's receipt of the
Assignment Statement. The Assignment Statement shall be executed by Tenant and
the proposed assignee and shall indicate both parties' intent (but not
necessarily binding obligation) to enter into an assignment agreement conforming
to the terms and conditions of the Assignment Statement and on such other terms
and conditions to which the parties may agree which are not inconsistent with
the essential terms set forth in the Assignment Statement.
(2) Landlord shall have the right, exercisable by
written notice given by Landlord to Tenant within fifteen (15) Business Days
after Landlord's receipt of the Assignment Statement, to terminate this Lease
(an "Assignment Termination"), in which event the Term shall expire on a date
set by Landlord that is not sooner than ninety (90) days after the date of
Landlord's notice, and Tenant shall vacate the Premises and surrender the same
to Landlord on such date set by Landlord in accordance with the provisions of
Article 20 hereof.
(3) If Landlord shall fail to notify Tenant within said
fifteen (15) Business Day period of Landlord's intention to exercise its rights
pursuant to paragraph (B)(2) of this Section 12.8 or of Landlord's consent to or
disapproval of the proposed assignment pursuant to the Assignment Statement, or
if Landlord shall have consented to such assignment as provided in Section
12.8(A) hereof, Tenant shall be free to assign the Premises to such proposed
assignee on the same terms and conditions set forth in the Assignment Statement.
If Tenant shall not
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enter into such assignment within sixty (60) days after the delivery of the
Assignment Statement to Landlord, then the provisions of this Section 12.8 shall
again be applicable in their entirety to any proposed assignment.
(4) If Tenant shall propose to assign this Lease and is
about to commence negotiations with a prospective assignee, Tenant shall advise
Landlord of the identity of such prospective assignee and Landlord shall, within
five (5) Business Days, advise Tenant if the execution of an assignment
agreement with such prospective assignee would violate the provisions of
paragraph (A)(3) of this Section 12.8.
(C) If Tenant shall assign this Lease, Tenant shall deliver to
Landlord, within five (5) days after execution thereof, (x) a duplicate original
instrument of assignment in form and substance reasonably satisfactory to
Landlord, duly executed by Tenant, and (y) an instrument in form and substance
reasonably satisfactory to Landlord, duly executed by the assignee, in which
such assignee shall assume observance and performance of, and agree to be
personally bound by, all of the terms, covenants and conditions of this Lease on
Tenant's part to be observed and performed.
(D) Tenant shall pay to Landlord, upon receipt thereof, an
amount equal to the Assignment Proceeds. For purposes of this paragraph (D),
"Assignment Proceeds" shall mean all consideration payable to Tenant, directly
or indirectly, by any assignee, including Landlord pursuant to paragraph (B) of
this Section 12.8, or any other amount received by Tenant from or in connection
with any assignment (including, but not limited to, sums paid for the sale or
rental, or consideration received on account of any contribution, of Tenant's
Property) after deducting therefrom: (i) in the event of a sale (or
contribution) of Tenant's Property, the then unamortized or undepreciated cost
thereof determined on the basis of Tenant's federal income tax returns, (ii) the
reasonable out-of-pocket costs and expenses of Tenant in making such assignment,
such as brokers' fees, attorneys' fees, and advertising fees paid to unrelated
third parties, (iii) any payments required to be made by Tenant in connection
with the assignment of its interest in this Lease pursuant to Article 31 of the
Tax law of the State of New York or any real property transfer tax of the United
States or the City or State of New York (other than any income tax), (iv) any
sums paid by Tenant to Landlord pursuant to Section 12.2(B) hereof, (v) the cost
of improvements or alterations made by Tenant expressly and solely for the
purpose of preparing the Premises for such assignment, as determined by Tenant's
federal income tax returns, (vi) the unamortized or undepreciated cost of any
Tenant's Property leased to and used by such assignee, and (vii) the then
unamortized or undepreciated cost of the Alterations determined on the basis of
Tenant's federal income tax returns less the Tenant Fund. If the consideration
paid to Tenant for any assignment shall be paid in installments, then the
expenses specified in this paragraph (D) shall be amortized over the period
during which such installments shall be payable.
Section 12.9. Notwithstanding any other provision of this Lease,
neither Tenant nor any direct or indirect assignee or subtenant of Tenant may
enter into any lease, sublease, license, concession or other agreement for use,
occupancy or utilization of space in the Premises which provides for a rental or
other payment for such use, occupancy or utilization based in whole or in
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part on the net income or profits derived by any person from the property
leased, occupied or utilized, or which would require the payment of any
consideration which would not fall within the definition of "rents from real
property", as that term is defined in Section 856(d) of the Internal Revenue
Code of 1986, as amended.
Section 12.10. Provided Teltran International Group, Ltd. is Tenant,
Tenant shall have the privilege, with the consent of Landlord, subject to all of
the terms and conditions of this Lease (other than Landlord's right granted in
Section 12.6(B) to recapture and Landlord's right granted in Section 12.7 to one
hundred percent (100%) of Sublease Profit), to permit any temporary use or
occupancy of desk space in the Premises of not more than one (1) office in the
Premises by Persons who shall have an on-going business relationship with Tenant
(such Persons who shall be permitted to occupy portions of the Premises pursuant
to this Section 12.10 being referred to as "Permitted Occupants"), provided that
(i) no demising walls shall be, or shall be required by any Requirements to be,
erected in the Premises separating the space used by the Permitted Occupants
from the remainder of the Premises, (ii) the Permitted Occupants shall use the
Premises in conformity with all applicable provisions of this Lease, (iii) in no
event shall the use of any portion of the Premises by the Permitted Occupants or
the right of Permitted Occupants to use one (1) of Tenant's directory listings
create or be deemed to create any right, title or interest of the Permitted
Occupants in or to the Premises, (iv) the occupancy by Permitted Occupants shall
not materially increase the traffic through the lobby of the Building beyond
that which would reasonably be expected to occur if Tenant used the entire
Premises for the normal conduct of its business, be likely to materially
increase Landlord's operating expenses beyond that which would be incurred for
use by Tenant or for use in accordance with standards of use by Tenant or for
use in accordance with standards of use of other tenancies in the Building, or
materially increase the burden on existing cleaning services or elevators over
the burden that would be incurred for use by Tenant for normal business purposes
in accordance with the provisions of this Lease if the Premises were fully
occupied by Tenant, (v) such arrangement will terminate automatically upon the
termination of this Lease, and (vi) Tenant shall receive no rent, payment or
other consideration in connection with the occupancy by a Permitted Occupant in
excess of the pro rata portion of the Fixed Rent, Escalation Rent and, if
applicable, Electricity Additional Rent attributable to such space plus a
reasonable charge for services rendered by Tenant. At least thirty (30) days
prior to a proposed Permitted Occupant taking occupancy of a portion of the
Premises, Tenant shall give notice to Landlord advising Landlord of (x) the
character and nature of the business to be conducted by such Permitted Occupant,
(y) the rentable square footage to be occupied by such Permitted Occupant, and
(z) the duration of such occupancy together with a copy of the executed license
or occupancy agreement between Tenant and the Permitted Occupant.
ARTICLE 13
ELECTRICITY
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Section 13.1. Tenant shall at all times comply with the rules,
regulations, terms and conditions applicable to service, equipment, wiring and
requirements of the public utility
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supplying electricity to the Building. Tenant shall not use any electrical
equipment which, in Landlord's reasonable judgment, would exceed the capacity of
existing feeders to the Building or the risers or wiring installations therein
or which will overload such installations or interfere with the electrical
service to other tenants of the Building. In the event that, in Landlord's sole
judgment, Tenant's electrical requirements necessitate installation of an
additional riser, risers or other proper and necessary equipment, Landlord shall
so notify Tenant of same. Within five (5) Business Days after receipt of such
notice, Tenant shall either cease such use of such additional electricity or
shall request that additional electrical capacity (specifying the amount
requested) be made available to Tenant. Landlord, in Landlord's sole judgment
shall determine whether to make available such additional electrical capacity to
Tenant and the amount of such additional electrical capacity to be made
available. If Landlord shall agree to make available additional electrical
capacity and the same necessitates installation of an additional riser, risers
or other proper and necessary equipment, including, without limitation, any
switchgear, the same shall be installed by Landlord. Any such installation shall
be made at Tenant's sole cost and expense, and shall be chargeable and
collectible as additional rent and paid within ten (10) days after the rendition
of a bill to Tenant therefor. Landlord shall not be liable in any way to Tenant
for any failure or defect in the supply or character of electric service
furnished to the Premises by reason of any requirement, act or omission of the
utility serving the Building or for any other reason not attributable to the
gross negligence of Landlord, whether electricity is provided by public or
private utility or by any electricity generation system owned and operated by
Landlord.
Section 13.2. (A) Unless Landlord elects to supply electricity to the
Premises pursuant to Section 13.3 or Landlord elects to have Tenant obtain
electricity from the public utility furnishing electricity to the Building
pursuant to the provisions of Section 13.4 hereof, Landlord shall furnish
electric current to the Premises for the use of Tenant for the operation of the
lighting fixtures and the electrical receptacles for ordinary office equipment
in the Premises on a "rent inclusion" basis, that is, there shall be no separate
charge to Tenant for such electric current by way of measuring such electricity
service on any meter. The Fixed Rent set forth in this Lease includes an annual
charge for electricity service of Fourteen Thousand Four Hundred Eighty-Seven
Dollars ($14,487) (such amount, as it may be increased pursuant to the
provisions of this Lease, being referred to as the "Electricity Inclusion
Factor"). The parties agree that although the charge for furnishing electrical
energy is included in the Fixed Rent on a so-called "rent inclusion" basis, the
value to Tenant of such service may not be fully reflected in the Fixed Rent.
Accordingly, Tenant agrees that Landlord, at Landlord's option and expense, may
cause a reputable and independent electrical engineer or electrical consulting
firm, selected by Landlord (such engineer or consulting firm being hereinafter
referred to as "Landlord's Engineer"), to make a determination, following the
commencement of Tenant's normal business activities in the Premises, of the Full
Value of such service to Tenant. As used herein, the "Full Value" to Tenant of
such service shall mean the product obtained by multiplying the demand and
consumption of electric energy at the Premises by the Electric Rate. Landlord's
Engineer shall certify such determination in writing to Landlord and Tenant. If
the Full Value to Tenant is in excess of the Electricity Inclusion Factor, the
Electricity Inclusion Factor and the Fixed Rent shall be increased by such
excess. However, if it shall be so determined that the Full Value to Tenant of
such
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service does not exceed the Electricity Inclusion Factor, there shall
nevertheless be no decrease in the Electricity Inclusion Factor or in the Fixed
Rent.
(B If during the Term the Electric Rate shall increase over
the Base Electric Rate, the Electricity Inclusion Factor (and therefore the
Fixed Rent) shall be proportionately increased.
(C) (i) Landlord, from time to time during the Term, may cause
Landlord's Engineer to survey the demand and consumption of electrical energy at
the Premises at Landlord's expense. If the then Full Value shall exceed the then
Electricity Inclusion Factor, the Electricity Inclusion Factor (and therefore
the Fixed Rent), shall be proportionately increased, based on the increased
demand and consumption and the then prevailing Electric Rate.
(ii) Landlord shall furnish to Tenant a written
statement (an "Electricity Statement") setting forth Landlord's determination of
any increase which has occurred in the Full Value and the Electricity Inclusion
Factor (and therefore the Fixed Rent) pursuant to the provisions of either
Sections 13.2(A), (B), or (C)(i). Any such increase in the Electricity Inclusion
Factor and the Fixed Rent shall be effective as of the date of such increase in
the Electric Rate or the consumption and demand of electric energy by Tenant and
shall be retroactive to such dates if necessary. Any retroactive increase shall
be paid by Tenant within ten (10) days after demand and such amount shall be
collectible by Landlord as Fixed Rent hereunder.
(iii) Each such Electricity Statement given by Landlord
pursuant to Section 13.2(C)(ii) above, shall be conclusive and binding upon
Tenant, unless within thirty (30) days after the receipt of such Electricity
Statement, Tenant shall notify Landlord that it disputes the correctness of the
Electricity Statement. If such dispute is based on Tenant's demand and
consumption of electric current, Tenant shall submit a survey and determination
of such adjustment, made at its sole cost and expense, by a reputable and
independent electrical engineer or electrical consulting firm ("Tenant's
Engineer"), within thirty (30) days after receipt of such Electricity Statement.
If Landlord and Tenant are unable to resolve the dispute differences between
them within thirty (30) days after receipt by Landlord of a copy of the
determination of Tenant's Engineer, the dispute shall be decided by a third
reputable and independent electrical engineer or electrical consulting firm
("Third Engineer"). If the parties shall fail to agree upon the designation of
the Third Engineer within forty (40) days after the receipt by Landlord of the
determination of Tenant's Engineer, then either party may apply to the American
Arbitration Association or any successor thereto for the designation of the
Third Engineer. The Third Engineer shall conduct such hearings as he deems
appropriate. The Third Engineer, within thirty (30) days after his designation,
shall select the determination of either Landlord's Engineer or Tenant's
Engineer and such determination shall be conclusive and binding upon the parties
whether or not a judgment shall be entered in any court. The fees of the Third
Engineer and the costs of arbitration shall be paid equally by the parties,
except that each party shall pay its own counsel fees and expenses, if any, in
connection with the arbitration. Pending the resolution of such dispute by
agreement or arbitration as aforesaid, Tenant shall pay
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the increase in the Electricity Inclusion Factor in accordance with the
Electricity Statement, without prejudice to Tenant's position, as herein
provided. If the dispute shall be resolved in Tenant's favor, Landlord, at its
option, shall either credit the amount of such overpayment against subsequent
monthly installments of Fixed Rent hereunder or pay to Tenant the amount of such
overpayment.
(D) Landlord's failure during the Term to prepare and deliver
any Electricity Statement, or bills, or Landlord's failure to make a demand,
under this Article or any other provisions of this Lease, shall not in any way
be deemed to be a waiver of, or cause Landlord to forfeit or surrender, its
rights to collect any portion of the increase in the Electricity Inclusion
Factor (and therefore the Fixed Rent) which may have become due pursuant to this
Article 13 during the Term. Tenant's liability for the amounts due under this
Article 13 shall survive the expiration or sooner termination of this Lease and
Landlord's obligation, if any, to refund any payments by Tenant in excess of the
amounts required to be paid by Tenant to Landlord pursuant to this Article 13
shall survive the expiration or sooner termination of this Lease. The preceding
sentence shall not, however, be construed as limiting or restricting, in any
manner whatsoever, Landlord's right pursuant to this Lease or pursuant to law to
offset any such overpayments by Tenant against any amounts which may be due and
payable as provided in this Lease.
(E) In no event shall any adjustment of the payments made or
to be made hereunder result in a decrease in Fixed Rent or additional rent
payable pursuant to any other provision of this Lease, or in the amount paid for
electricity for the prior year.
(F) The Electricity Inclusion Factor shall be collectible by
Landlord in the same manner as Fixed Rent.
(G) For the purposes of this Section 13.2, Landlord and Tenant
agree that the term "Electric Rate" (including all applicable surcharges, demand
charges, energy charges, fuel adjustment charges, time of day charges, taxes and
other sums payable in respect thereof) shall mean the greater of:
(i) the service classification pursuant to which
Landlord purchases electricity from the utility company servicing the Building,
and
(ii) the service classification pursuant to which
Tenant would purchase electricity directly from the utility company servicing
the Building.
(H) If Landlord discontinues furnishing electricity to Tenant
pursuant to this Section 13.2, the Fixed Rent shall be decreased by the
Electricity Inclusion Factor effective as of the date Landlord discontinues the
provision of electricity in such manner.
Section 13.3. (A) If Landlord shall no longer elect to have electricity
furnished to the Premises pursuant to Section 13.2 hereof then, unless Landlord
is required by Requirements or the public utility serving the Premises to have
Tenant obtain electricity from the public utility
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company furnishing electricity to the Building pursuant to the provisions of
Section 13.4 hereof, electricity shall be furnished by Landlord to the Premises
and Tenant shall pay to Landlord, as additional rent for such service, during
the Term, an amount (the "Electricity Additional Rent") equal to (i) the amount
Landlord actually pays to the utility company to provide electricity to the
Premises, including all applicable surcharges, demand charges, time-of-day
charges, energy charges, fuel adjustment charges, rate adjustment charges, taxes
and other sums payable in respect thereof, based on Tenant's demand and/or
consumption of electricity (and/or any other method of quantifying Tenant's use
of or demand for electricity as set forth in the utility company's tariff) as
registered on a meter or submeter (installed by Landlord at Landlord's sole cost
and expense) for purposes of measuring such demand, consumption and/or other
method of quantifying Tenant's use of or demand for electricity (it being agreed
that such meter or submeter shall measure demand and consumption, and off-peak
and on-peak use, in either case to the extent such factors are relevant in
making the determination of Landlord's cost) plus (ii) an amount equal to the
out-of-pocket costs and expenses incurred by Landlord in connection with reading
such meters and preparing bills therefor. Tenant, from time to time, shall have
the right to review Landlord's meter readings, and Landlord's calculation of the
Electricity Additional Rent, at reasonable times and on reasonable prior notice,
by giving notice thereof to Landlord on or prior to the thirtieth (30th) day
after the date when Landlord gives Tenant a bill or statement for the
Electricity Additional Rent.
(B) Where more than one meter measures the electricity
supplied to Tenant, the electricity rendered through each meter may be computed
and billed separately in accordance with the provisions hereinabove set forth.
Bills for the Electricity Additional Rent shall be rendered to Tenant at such
time as Landlord may elect, and Tenant shall pay the amount shown thereon to
Landlord within ten (10) days after receipt of such bill. Tenant expressly
acknowledges that in connection with the installation of the meters or
submeters, the electricity being supplied to the Premises shall be temporarily
interrupted. Landlord shall use reasonable efforts to minimize interference with
the conduct of Tenant's business in connection with such installation; provided,
however, that Landlord shall have no obligation to employ contractors or labor
at so-called overtime or other premium pay rates or to incur any other overtime
costs or expenses whatsoever.
Section 13.4. If Landlord shall be required by Requirements or the
public utility serving the Premises to discontinue furnishing electricity to
Tenant, this Lease shall continue in full force and effect and shall be
unaffected thereby, except only that from and after the effective date of such
discontinuance, Landlord shall not be obligated to furnish electricity to Tenant
and Tenant shall not be obligated to pay the Electricity Additional Rent or the
Electricity Inclusion Factor, as the case may be. If Landlord so discontinues
furnishing electricity to Tenant, Tenant shall use diligent efforts to obtain
electric energy directly from the public utility furnishing electric service to
the Building. The costs of such service shall be paid by Tenant directly to such
public utility. Such electricity may be furnished to Tenant by means of the
existing electrical facilities serving the Premises, at no charge, to the extent
the same are available, suitable and safe for such purposes as determined by
Landlord. All meters and all additional panel boards, feeders, risers, wiring
and other conductors and equipment which may be required to obtain electricity
shall be
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installed by Landlord at Tenant's expense. Provided Tenant shall use and
continue to use diligent efforts to obtain electric energy directly from the
public utility, Landlord, to the extent permitted by applicable Requirements,
shall not discontinue furnishing electricity to the Premises until such
installations have been made and Tenant shall be able to obtain electricity
directly from the public utility.
ARTICLE 14
ACCESS TO PREMISES
------------------
Section 14.1. (A) Tenant shall permit Landlord, Landlord's agents,
representatives, contractors and employees and public utilities servicing the
Building to erect, use and maintain, concealed ducts, pipes and conduits in and
through the Premises. Landlord, Landlord's agents, representatives, contractors,
and employees and the agents, representatives, contractors, and employees of
public utilities servicing the Building shall have the right to enter the
Premises at all reasonable times upon reasonable prior notice (except in the
case of an emergency in which event Landlord and Landlord's agents,
representatives, contractors, and employees may enter without prior notice to
Tenant), which notice may be oral, to examine the same, to show them to
prospective purchasers, or prospective or existing Mortgagees or Lessors, and to
make such repairs, alterations, improvements, additions or restorations (i) as
Landlord may deem necessary or desirable to the Premises or to any other portion
of the Building, or (ii) which Landlord may elect to perform following ten (10)
days after notice, except in the case of an emergency (in which event Landlord
and Landlord's agents, representatives, contractors, and employees may enter
without prior notice to Tenant), following Tenant's failure to make repairs or
perform any work which Tenant is obligated to make or perform under this Lease,
or (iii) for the purpose of complying with any Requirements, a Superior Lease or
a Mortgage, and Landlord shall be allowed to take all material into and upon the
Premises that may be required therefor without the same constituting an eviction
or constructive eviction of Tenant in whole or in part and the Fixed Rent (and
any other item of Rental) shall in no wise abate while said repairs,
alterations, improvements, additions or restorations are being made, by reason
of loss or interruption of business of Tenant, or otherwise.
(B) Any work performed or installations made pursuant to this
Article 14 shall be made with reasonable diligence and otherwise pursuant to the
provisions of Section 4.3 hereof.
(C) Except as hereinafter provided, any pipes, ducts, or
conduits installed in or through the Premises pursuant to this Article 14 shall
be concealed behind, beneath or within partitioning, columns, ceilings or floors
located or to be located in the Premises. Notwithstanding the foregoing, any
such pipes, ducts, or conduits may be furred at points immediately adjacent to
partitioning columns or ceilings located or to be located in the Premises,
provided that the same are completely furred and that the installation of such
pipes, ducts, or
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conduits, when completed, shall not reduce the usable area of the Premises
beyond a de minimis amount.
Section 14.2. During the nine (9) month period prior to the Expiration
Date, Landlord may exhibit the Premises to prospective tenants thereof at
reasonable times and upon reasonable prior notice (which notice may be oral).
Section 14.3. If Tenant shall not be present when for any reason entry
into the Premises shall be necessary or permissible, Landlord or Landlord's
agents, representatives, contractors or employees may enter the same without
rendering Landlord or such agents liable therefor if during such entry Landlord
or Landlord's agents shall accord reasonable care under the circumstances to
Tenant's Property, and without in any manner affecting this Lease. Nothing
herein contained, however, shall be deemed or construed to impose upon Landlord
any obligation, responsibility or liability whatsoever, for the care,
supervision or repair of the Building or any part thereof, other than as herein
provided.
Section 14.4. Landlord also shall have the right at any time, without
the same constituting an actual or constructive eviction and without incurring
any liability to Tenant therefor, to change the arrangement or location of
entrances or passageways, doors and doorways, and corridors, elevators, stairs,
toilets, or other public parts of the Building and to change the name, number or
designation by which the Building is commonly known, provided any such change
does not (a) unreasonably reduce, interfere with or deprive Tenant of access to
the Building or the Premises or (b) reduce the rentable area (except by a de
minimis amount) of the Premises. All parts (except surfaces facing the interior
of the Premises) of all walls, windows and doors bounding the Premises
(including exterior Building walls, exterior core corridor walls, exterior doors
and entrances), all balconies, terraces and roofs adjacent to the Premises, all
space in or adjacent to the Premises used for shafts, stacks, stairways, chutes,
pipes, conduits, ducts, fan rooms, heating, air cooling, plumbing and other
mechanical facilities, service closets and other Building facilities are not
part of the Premises, and Landlord shall have the use thereof, as well as access
thereto through the Premises for the purposes of operation, maintenance,
alteration and repair.
ARTICLE 15
CERTIFICATE OF OCCUPANCY
------------------------
Tenant shall not at any time use or occupy the Premises in violation of
the certificate of occupancy at such time issued for the Premises or for the
Building and in the event that any department of the City or State of New York
shall hereafter contend or declare by notice, violation, order or in any other
manner whatsoever that the Premises are used for a purpose which is a violation
of such certificate of occupancy, Tenant, upon written notice from Landlord or
any Governmental Authority, shall immediately discontinue such use of the
Premises. On the Commencement Date a temporary or permanent certificate of
occupancy covering the Premises will be in force permitting the Premises to be
used as offices, provided, however, neither such
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certificate, nor any provision of this Lease, nor any act or omission of
Landlord, shall be deemed to constitute a representation or warranty that the
Premises, or any part thereof, lawfully may be used or occupied for any
particular purpose or in any particular manner, in contradistinction to mere
"office" use.
ARTICLE 16
DEFAULT
-------
Section 16.1. Each of the following events shall be an "Event of
Default" hereunder:
(A) if Tenant shall default in the payment when due of any
installment of Fixed Rent or in the payment when due of any other item of
Rental; or
(B) if Tenant shall default in the observance or performance
of any term, covenant or condition on Tenant's part to be observed or performed
under any other lease with Landlord or Landlord's predecessor in interest of
space in the Building and such default shall continue beyond any grace period
set forth in such other lease for the remedying of such default; or
(C) if the Premises shall become vacant, deserted or
abandoned; or
(D) if Tenant's interest or any portion thereof in this Lease
shall devolve upon or pass to any person, whether by operation of law or
otherwise, except as expressly permitted under Article 12 hereof; or
(E) (1) if Tenant shall generally not, or shall be unable
to, or shall admit in writing its inability to, pay its debts as they become
due; or
(2) if Tenant shall commence or institute any case,
proceeding or other action (A) seeking relief on its behalf as debtor, or to
adjudicate it a bankrupt or insolvent, or seeking reorganization, arrangement,
adjustment, winding-up, liquidation, dissolution, composition or other relief
with respect to it or its debts under any existing or future law of any
jurisdiction, domestic or foreign, relating to bankruptcy, insolvency,
reorganization or relief of debtors, or (B) seeking appointment of a receiver,
trustee, custodian or other similar official for it or for all or any
substantial part of its property; or
(3) if Tenant shall make a general assignment for the
benefit of creditors; or
(4) if any case, proceeding or other action shall be
commenced or instituted against Tenant (A) seeking to have an order for relief
entered against it as debtor or to adjudicate it a bankrupt or insolvent, or
seeking reorganization, arrangement, adjustment, winding-up, liquidation,
dissolution, composition or other relief with respect to it or its debts
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under any existing or future law of any jurisdiction, domestic or foreign,
relating to bankruptcy, insolvency, reorganization or relief of debtors, or (B)
seeking appointment of a receiver, trustee, custodian or other similar official
for it or for all or any substantial part of its property, which in either of
such cases (i) results in any such entry of an order for relief, adjudication of
bankruptcy or insolvency or such an appointment or the issuance or entry of any
other order having a similar effect or (ii) remains undismissed for a period of
sixty (60) days; or
(5) if any case, proceeding or other action shall be
commenced or instituted against Tenant seeking issuance of a warrant of
attachment, execution, distraint or similar process against all or any
substantial part of its property which results in the entry of an order for any
such relief which shall not have been vacated, discharged, or stayed or bonded
pending appeal within sixty (60) days from the entry thereof; or
(6) if Tenant shall take any action in furtherance of,
or indicating its consent to, approval of, or acquiescence in, any of the acts
set forth in clauses (2), (3), (4) or (5) above; or
(7) if a trustee, receiver or other custodian is
appointed for any substantial part of the assets of Tenant which appointment is
not vacated or stayed within seven (7) Business Days; or
(F) if Tenant shall fail more than five (5) times during any
twelve (12) month period to pay any installment of Fixed Rent or any item of
Rental when due; or
(G) if Tenant shall fail to pay any installments of Fixed Rent
or items of Rental when due as required by this Lease, and Landlord shall bring
more than one (1) summary dispossess proceeding during any twelve (12) month
period; or
(H) if this Lease is assigned (or all or a portion of the
Premises are subleased) to a Related Entity and such Related Entity shall no
longer (i) Control, (ii) be under common Control with, or (iii) be under the
Control of Tenant (or any permitted successor by merger, consolidation or
purchase as provided herein); or
(I) if Landlord shall present the Letter of Credit to the bank
which issued the same in accordance with the provisions of Article 31 hereof,
and the bank shall fail to honor the Letter of Credit and pay the proceeds
thereof to Landlord for any reason whatsoever; or
(J) if Tenant shall default in the observance or performance
of any other term, covenant or condition of this Lease on Tenant's part to be
observed or performed and Tenant shall fail to remedy such default within twenty
(20) days after notice by Landlord to Tenant of such default, or if such default
is of such a nature that it cannot with due diligence be completely remedied
within said period of twenty (20) days and Tenant shall not commence within said
period of twenty (20) days, or shall not thereafter diligently prosecute to
completion, all steps necessary to remedy such default.
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Section 16.2. (A) If an Event of Default (i) described in Section
16.1(E) hereof shall occur, or (ii) described in Sections 16.1(A), (B), (C),
(D), (F), (G), (H), (I) or (J) shall occur and Landlord, at any time thereafter,
at its option gives written notice to Tenant stating that this Lease and the
Term shall expire and terminate on the date Landlord shall give Tenant such
notice, then this Lease and the Term and all rights of Tenant under this Lease
shall expire and terminate as if the date on which the Event of Default
described in clause (i) above occurred or the date of such notice, pursuant to
clause (ii) above, as the case may be, were the Fixed Expiration Date and Tenant
immediately shall quit and surrender the Premises, but Tenant shall nonetheless
be liable for all of its obligations hereunder, as provided for in Articles 17
and 18 hereof. Anything contained herein to the contrary notwithstanding, if
such termination shall be stayed by order of any court having jurisdiction over
any proceeding described in Section 16.1(E) hereof, or by federal or state
statute, then, following the expiration of any such stay, or if the trustee
appointed in any such proceeding, Tenant or Tenant as debtor-in-possession shall
fail to assume Tenant's obligations under this Lease within the period
prescribed therefor by law or within one hundred twenty (120) days after entry
of the order for relief or as may be allowed by the court, or if said trustee,
Tenant or Tenant as debtor-in-possession shall fail to provide adequate
protection of Landlord's right, title and interest in and to the Premises or
adequate assurance of the complete and continuous future performance of Tenant's
obligations under this Lease as provided in Section 12.3(B), Landlord, to the
extent permitted by law or by leave of the court having jurisdiction over such
proceeding, shall have the right, at its election, to terminate this Lease on
five (5) days' notice to Tenant, Tenant as debtor-in-possession or said trustee
and upon the expiration of said five (5) day period this Lease shall cease and
expire as aforesaid and Tenant, Tenant as debtor-in-possession or said trustee
shall immediately quit and surrender the Premises as aforesaid.
(B) If an Event of Default described in Section 16.1(A) hereof
shall occur, or this Lease shall be terminated as provided in Section 16.2(A)
hereof, Landlord, without notice, may reenter and repossess the Premises using
such force for that purpose as may be necessary without being liable to
indictment, prosecution or damages therefor and may dispossess Tenant by summary
proceedings or otherwise.
Section 16.3. If at any time, (i) Tenant shall be comprised of two (2)
or more persons, or (ii) Tenant's obligations under this Lease shall have been
guaranteed by any person other than Tenant, or (iii) Tenant's interest in this
Lease shall have been assigned, the word "Tenant", as used in Section 16.1(E),
shall be deemed to mean any one or more of the persons primarily or secondarily
liable for Tenant's obligations under this Lease. Any monies received by
Landlord from or on behalf of Tenant during the pendency of any proceeding of
the types referred to in Section 16.1(E) shall be deemed paid as compensation
for the use and occupation of the Premises and the acceptance of any such
compensation by Landlord shall not be deemed an acceptance of Rental or a waiver
on the part of Landlord of any rights under Section 16.2.
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ARTICLE 17
REMEDIES AND DAMAGES
--------------------
Section 17.1. (A) If there shall occur any Event of Default, and this
Lease and the Term shall expire and come to an end as provided in Article 16
hereof:
(1) Tenant shall quit and peacefully surrender the
Premises to Landlord, and Landlord and its agents may immediately, or at any
time after such default or after the date upon which this Lease and the Term
shall expire and come to an end, re-enter the Premises or any part thereof,
without notice, either by summary proceedings, or by any other applicable action
or proceeding, or by force or otherwise (without being liable to indictment,
prosecution or damages therefor), and may repossess the Premises and dispossess
Tenant and any other persons from the Premises and remove any and all of their
property and effects from the Premises; and
(2) Landlord, at Landlord's option, may relet the whole
or any portion or portions of the Premises from time to time, either in the name
of Landlord or otherwise, to such tenant or tenants, for such term or terms
ending before, on or after the Expiration Date, at such rental or rentals and
upon such other conditions, which may include concessions and free rent periods,
as Landlord, in its sole discretion, may determine; provided, however, that
Landlord shall have no obligation to relet the Premises or any part thereof and
shall in no event be liable for refusal or failure to relet the Premises or any
part thereof, or, in the event of any such reletting, for refusal or failure to
collect any rent due upon any such reletting, and no such refusal or failure
shall operate to relieve Tenant of any liability under this Lease or otherwise
affect any such liability, and Landlord, at Landlord's option, may make such
repairs, replacements, alterations, additions, improvements, decorations and
other physical changes in and to the Premises as Landlord, in its sole
discretion, considers advisable or necessary in connection with any such
reletting or proposed reletting, without relieving Tenant of any liability under
this Lease or otherwise affecting any such liability.
(B) Tenant hereby waives the service of any notice of
intention to re-enter or to institute legal proceedings to that end which may
otherwise be required to be given under any present or future law. Tenant, on
its own behalf and on behalf of all persons claiming through or under Tenant,
including all creditors, does further hereby waive any and all rights which
Tenant and all such persons might otherwise have under any present or future law
to redeem the Premises, or to re-enter or repossess the Premises, or to restore
the operation of this Lease, after (a) Tenant shall have been dispossessed by a
judgment or by warrant of any court or judge, or (b) any re-entry by Landlord,
or (c) any expiration or termination of this Lease and the Term, whether such
dispossess, re-entry, expiration or termination shall be by operation of law or
pursuant to the provisions of this Lease. The words "re-enter," "re-entry" and
"re-entered" as used in this Lease shall not be deemed to be restricted to their
technical legal meanings. In the event of a breach or threatened breach by
Tenant, or any persons claiming through or under Tenant, of any term, covenant
or condition of this Lease, Landlord shall have the right to enjoin such breach
and the right to invoke any other remedy allowed by law or in equity as if
re-entry,
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summary proceedings and other special remedies were not provided in this Lease
for such breach. The right to invoke the remedies hereinbefore set forth are
cumulative and shall not preclude Landlord from invoking any other remedy
allowed at law or in equity.
Section 17.2. (A) If this Lease and the Term shall expire and come to
an end as provided in Article 16 hereof, or by or under any summary proceeding
or any other action or proceeding, or if Landlord shall re-enter the Premises as
provided in Section 17.1, or by or under any summary proceeding or any other
action or proceeding, then, in any of said events:
(1) Tenant shall pay to Landlord all Fixed Rent,
Escalation Rent and other items of Rental payable under this Lease by Tenant to
Landlord to the date upon which this Lease and the Term shall have expired and
come to an end or to the date of re-entry upon the Premises by Landlord, as the
case may be;
(2) Tenant also shall be liable for and shall pay to
Landlord, as damages, any deficiency (referred to as "Deficiency") between the
Rental for the period which otherwise would have constituted the unexpired
portion of the Term and the net amount, if any, of rents collected under any
reletting effected pursuant to the provisions of clause (2) of Section 17.1 (A)
for any part of such period (first deducting from the rents collected under any
such reletting all of Landlord's expenses in connection with the termination of
this Lease, Landlord's re-entry upon the Premises and with such reletting,
including, but not limited to, all repossession costs, brokerage commissions,
legal expenses, attorneys' fees and disbursements, alteration costs,
contribution to work and other expenses of preparing the Premises for such
reletting); any such Deficiency shall be paid in monthly installments by Tenant
on the days specified in this Lease for payment of installments of Fixed Rent;
Landlord shall be entitled to recover from Tenant each monthly Deficiency as the
same shall arise, and no suit to collect the amount of the Deficiency for any
month shall prejudice Landlord's right to collect the Deficiency for any
subsequent month by a similar proceeding; and
(3) whether or not Landlord shall have collected any
monthly Deficiency as aforesaid, Landlord shall be entitled to recover from
Tenant, and Tenant shall pay to Landlord, on demand, in lieu of any further
Deficiency as and for liquidated and agreed final damages, a sum equal to the
amount by which the Rental for the period which otherwise would have constituted
the unexpired portion of the Term (commencing on the date immediately succeeding
the last date with respect to which a Deficiency, if any, was collected) exceeds
the then fair and reasonable rental value of the Premises for the same period,
both discounted to present worth at the Base Rate; if, before presentation of
proof of such liquidated damages to any court, commission or tribunal, the
Premises, or any part thereof, shall have been relet by Landlord for the period
which otherwise would have constituted the unexpired portion of the Term, or any
part thereof, the amount of rent reserved upon such reletting shall be deemed,
prima facie, to be the fair and reasonable rental value for the part or the
whole of the Premises so relet during the term of the reletting.
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(B) If the Premises, or any part thereof, shall be relet
together with other space in the Building, the rents collected or reserved under
any such reletting and the expenses of any such reletting shall be equitably
apportioned for the purposes of this Section 17.2. Tenant shall in no event be
entitled to any rents collected or payable under any reletting, whether or not
such rents shall exceed the Fixed Rent reserved in this Lease. Solely for the
purposes of this Article 17, the term "Escalation Rent" as used in Section
17.2(A) shall mean the Escalation Rent in effect immediately prior to the
Expiration Date, or the date of re-entry upon the Premises by Landlord, as the
case may be, adjusted to reflect any increase pursuant to the provisions of
Article 27 hereof for the Operating Year immediately preceding such event.
Nothing contained in Article 16 hereof or this Article 17 shall be deemed to
limit or preclude the recovery by Landlord from Tenant of the maximum amount
allowed to be obtained as damages by any statute or rule of law, or of any sums
or damages to which Landlord may be entitled in addition to the damages set
forth in this Section 17.2.
ARTICLE 18
LANDLORD FEES AND EXPENSES
--------------------------
Section 18.1. If Tenant shall be in default under this Lease or if
Tenant shall do or permit to be done any act or thing upon the Premises which
would cause Landlord to be in default under any Superior Lease or Mortgage,
Landlord may (1) as provided in Section 14.1 hereof, perform the same for the
account of Tenant, or (2) make any expenditure or incur any obligation for the
payment of money, including, without limitation, reasonable attorneys' fees and
disbursements in instituting, prosecuting or defending any action or proceeding,
and the cost thereof, with interest thereon at the Applicable Rate, shall be
deemed to be additional rent hereunder and shall be paid by Tenant to Landlord
within ten (10) days of rendition of any bill or statement to Tenant therefor
and if the term of this Lease shall have expired at the time of making of such
expenditures or incurring of such obligations, such sums shall be recoverable by
Landlord as damages.
Section 18.2. If Tenant shall fail to pay any installment of Fixed
Rent, Escalation Rent or any other item of Rental when due, Tenant shall pay to
Landlord, in addition to such installment of Fixed Rent, Escalation Rent or
other item of Rental, as the case may be, as a late charge and as additional
rent, a sum equal to interest at the Applicable Rate on the amount unpaid,
computed from the date such payment was due to and including the date of
payment.
ARTICLE 19
NO REPRESENTATIONS BY LANDLORD
Landlord and Landlord's agents and representatives have made no
representations or promises with respect to the Building, the Real Property or
the Premises except as herein expressly set forth, and no rights, easements or
licenses are acquired by Tenant by implication or otherwise except as expressly
set forth herein. Tenant shall accept possession of the Premises in
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the condition which shall exist on the Commencement Date "as is" (subject to the
provisions of Section 4.1 hereof), and Landlord shall have no obligation to
perform any work or make any installations in order to prepare the Premises for
Tenant's occupancy.
ARTICLE 20
END OF TERM
-----------
Upon the expiration or other termination of this Lease, Tenant shall
quit and surrender to Landlord the Premises, vacant, broom clean, in good order
and condition, ordinary wear and tear and damage for which Tenant is not
responsible under the terms of this Lease excepted, and otherwise in compliance
with the provisions of Article 3 hereof. If the last day of the Term or any
renewal thereof falls on Saturday or Sunday, this Lease shall expire on the
Business Day immediately preceding. Tenant expressly waives, for itself and for
any person claiming through or under Tenant, any rights which Tenant or any such
person may have under the provisions of Section 2201 of the New York Civil
Practice Law and Rules and of any successor law of like import then in force in
connection with any holdover summary proceedings which Landlord may institute to
enforce the foregoing provisions of this Article 20. Tenant acknowledges that
possession of the Premises must be surrendered to Landlord on the Expiration
Date. Tenant agrees to indemnify and save Landlord harmless from and against all
claims, losses, damages, liabilities, costs and expenses (including, without
limitation, attorneys' fees and disbursements) resulting from delay by Tenant in
so surrendering the Premises, including, without limitation, any claims made by
any succeeding tenant founded on such delay. The parties recognize and agree
that the damage to Landlord resulting from any failure by Tenant to timely
surrender possession of the Premises as aforesaid will be extremely substantial,
will exceed the amount of the monthly installments of the Fixed Rent and Rental
theretofore payable hereunder, and will be impossible to accurately measure.
Tenant therefore agrees that if possession of the Premises is not surrendered to
Landlord on the Expiration Date, in addition to any other rights or remedies
Landlord may have hereunder or at law, and without in any manner limiting
Landlord's right to demonstrate and collect any damages suffered by Landlord and
arising from Tenant's failure to surrender the Premises as provided herein,
Tenant shall pay to Landlord on account of use and occupancy of the Premises for
each month and/or for each portion of any month during which Tenant holds over
in the Premises after the Expiration Date, a sum equal to the greater of (i) two
(2) times the aggregate of that portion of the Fixed Rent, Escalation Rent and
Rental which was payable under this Lease during the last month of the Term, and
(ii) two (2) times the then fair market rental value for the Premises. Nothing
herein contained shall be deemed to permit Tenant to retain possession of the
Premises after the Expiration Date or to limit in any manner Landlord's right to
regain possession of the Premises through summary proceedings, or otherwise, and
no acceptance by Landlord of payments from Tenant after the Expiration Date
shall be deemed to be other than on account of the amount to be paid by Tenant
in accordance with the provisions of this Article 20. The provisions of this
Article 20 shall survive the Expiration Date.
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ARTICLE 21
QUIET ENJOYMENT
---------------
Provided no Event of Default has occurred and is continuing, Tenant may
peaceably and quietly enjoy the Premises subject, nevertheless, to the terms and
conditions of this Lease.
ARTICLE 22
FAILURE TO GIVE POSSESSION
--------------------------
Section 22.1. (A) Tenant acknowledges that the Premises are currently
occupied by Compass International Services, Inc. ("Compass"). Tenant waives any
right to rescind this Lease under Section 223-a of the New York Real Property
Law or any successor statute of similar nature and purpose then in force and
further waives the right to recover any damages which may result from Landlord's
failure for any reason to deliver possession of the Premises on the date set
forth in Section 1.1 hereof for the commencement of the Term. The provisions of
this Article are intended to constitute an "express provision to the contrary"
within the meaning of Section 223-a of the New York Real Property Law. No such
failure to give possession on the date set forth in Section 1.1 hereof for the
commencement of the Term shall in any wise affect the validity of this Lease or
the obligations of Tenant hereunder or give rise to any claim for damages by
Tenant or claim for rescission of this Lease, nor shall the same be construed in
any wise to extend the Term.
(B) Notwithstanding anything to the contrary contained herein,
if Landlord shall fail to give possession of the Premises on the date set forth
in Section 1.1 hereof for the commencement of the Term, and provided that Tenant
is not responsible for such inability to give possession, the Rent Commencement
Date shall be adjourned by one (1) day for each day from and after December 15,
1999 that the Premises are not delivered.
Section 22.2. Landlord and Tenant hereby expressly acknowledge and
agree that this Lease is conditioned upon the unconditional execution and
delivery by Landlord and Compass of an agreement between Landlord and Compass
with respect to the surrender of the Premises on terms and conditions acceptable
to Landlord in its sole discretion (the aforesaid event being hereinafter
referred to as the "Condition"), and shall be of no force and effect unless and
until the Condition is satisfied; it being understood and agreed however, that
if for any reason whatsoever, the Condition is not satisfied or waived by
Landlord on or before the date which is forty-five (45) days after the date
hereof, this Lease shall be void ab initio, and be of no force and effect, and
Landlord and Tenant shall have no obligations or liability to the other
respective party under this Lease.
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ARTICLE 23
NO WAIVER
---------
Section 23.1. No act or thing done by Landlord or Landlord's agents
during the Term shall be deemed an acceptance of a surrender of the Premises,
and no agreement to accept such surrender shall be valid unless in writing
signed by Landlord. No employee of Landlord or of Landlord's agents shall have
any power to accept the keys of the Premises prior to the termination of this
Lease. The delivery of keys to any employee of Landlord or of Landlord's agents
shall not operate as a termination of this Lease or a surrender of the Premises.
In the event Tenant at any time desires to have Landlord sublet the Premises for
Tenant's account, Landlord or Landlord's agents are authorized to receive said
keys for such purpose without releasing Tenant from any of the obligations under
this Lease, and Tenant hereby relieves Landlord of any liability for loss of or
damage to any of Tenant's effects in connection with such subletting.
Section 23.2. The failure of Landlord to seek redress for violation of,
or to insist upon the strict performance of, any covenant or condition of this
Lease, or any of the Rules and Regulations set forth or hereafter adopted by
Landlord, shall not prevent a subsequent act, which would have originally
constituted a violation of the provisions of this Lease, from having all of the
force and effect of an original violation of the provisions of this Lease. The
receipt by Landlord of Fixed Rent, Escalation Rent or any other item of Rental
with knowledge of the breach of any covenant of this Lease shall not be deemed a
waiver of such breach. The failure of Landlord to enforce any of the Rules and
Regulations set forth, or hereafter adopted, against Tenant or any other tenant
in the Building shall not be deemed a waiver of any such Rules and Regulations.
No provision of this Lease shall be deemed to have been waived by Landlord,
unless such waiver be in writing signed by Landlord. No payment by Tenant or
receipt by Landlord of a lesser amount than the monthly Fixed Rent or other item
of Rental herein stipulated shall be deemed to be other than on account of the
earliest stipulated Fixed Rent or other item of Rental, or as Landlord may elect
to apply same, nor shall any endorsement or statement on any check or any letter
accompanying any check or payment as Fixed Rent or other item of Rental be
deemed an accord and satisfaction, and Landlord may accept such check or payment
without prejudice to Landlord's right to recover the balance of such Fixed Rent
or other item of Rental or to pursue any other remedy provided in this Lease.
This Lease contains the entire agreement between the parties and all prior
negotiations and agreements are merged herein. Any executory agreement hereafter
made shall be ineffective to change, modify, discharge or effect an abandonment
of this Lease in whole or in part unless such executory agreement is in writing
and signed by the party against whom enforcement of the change, modification,
discharge or abandonment is sought.
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ARTICLE 24
WAIVER OF TRIAL BY JURY
-----------------------
The respective parties hereto shall and they hereby do waive trial by
jury in any action, proceeding or counterclaim brought by either of the parties
hereto against the other (except for personal injury or property damage) on any
matters whatsoever arising out of or in any way connected with this Lease, the
relationship of Landlord and Tenant, Tenant's use or occupancy of the Premises,
or for the enforcement of any remedy under any statute, emergency or otherwise.
If Landlord commences any summary proceeding against Tenant, Tenant will not
interpose any counterclaim of whatever nature or description in any such
proceeding (unless failure to impose such counterclaim would preclude Tenant
from asserting in a separate action the claim which is the subject of such
counterclaim), and will not seek to consolidate such proceeding with any other
action which may have been or will be brought in any other court by Tenant.
ARTICLE 25
INABILITY TO PERFORM
--------------------
This Lease and the obligation of Tenant to pay Rental hereunder and
perform all of the other covenants and agreements hereunder on the part of
Tenant to be performed shall in no wise be affected, impaired or excused because
Landlord is unable to fulfill any of its obligations under this Lease expressly
or impliedly to be performed by Landlord or because Landlord is unable to make,
or is delayed in making any repairs, additions, alterations, improvements or
decorations or is unable to supply or is delayed in supplying any equipment or
fixtures, if Landlord is prevented or delayed from so doing by reason of strikes
or labor troubles or by accident, or by any cause whatsoever beyond Landlord's
control, including, but not limited to, laws, governmental preemption in
connection with a national emergency or by reason of any Requirements of any
Governmental Authority or by reason of failure of the HVAC, electrical,
plumbing, or other Building Systems in the Building (to the extent such failure
is by any cause beyond Landlord's control), or by reason of the conditions of
supply and demand which have been or are affected by war or other emergency
("Unavoidable Delays").
ARTICLE 26
BILLS AND NOTICES
-----------------
Except as otherwise expressly provided in this Lease, any bills,
statements, consents, notices, demands, requests or other communications given
or required to be given under this Lease shall be in writing and shall be deemed
sufficiently given or rendered if delivered by hand (against a signed receipt)
or if sent by registered or certified mail (return receipt requested) addressed
if to Tenant (a) at Tenant's address set forth in this Lease,
Attn.: _________________________, if mailed prior to Tenant's
taking possession of the Premises, or (b) at the Building,
Attn.: _________________________, if mailed subsequent to
Tenant's taking possession of the Premises, or (c) at any
place where Tenant
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or any agent or employee of Tenant may be found if mailed
subsequent to Tenant's vacating, deserting, abandoning or
surrendering the Premises, in each case with a copy to
___________________________________, Attn.: _____________,
Esq., or
if to Landlord at Landlord's address set forth in this Lease,
Attn.: Mr. David R. Greenbaum, and with copies to (x) Vornado
Realty Trust, Park 80 West, Plaza II, Saddle Brook, New Jersey
07663, Attn.: Mr. Joseph Macnow, (y) Proskauer Rose LLP, 1585
Broadway, New York, New York 10036, Attn.: Lawrence J. Lipson,
Esq., and (z) each Mortgagee and Lessor which shall have
requested same, by notice given in accordance with the
provisions of this Article 26 at the address designated by
such Mortgagee or Lessor, or
to such other address(es) as Landlord, Tenant or any Mortgagee or Lessor may
designate as its new address(es) for such purpose by notice given to the other
in accordance with the provisions of this Article 26. Any such bill, statement,
consent, notice, demand, request or other communication shall be deemed to have
been rendered or given on the date when it shall have been hand delivered or
three (3) Business Days from when it shall have been mailed as provided in this
Article 26. Anything contained herein to the contrary notwithstanding, any
Operating Statement, Tax Statement or any other bill, statement, consent,
notice, demand, request or other communication from Landlord to Tenant with
respect to any item of Rental (other than any "default notice" if required
hereunder) may be sent to Tenant by regular United States mail.
ARTICLE 27
ESCALATION
----------
Section 27.1. For the purposes of this Article 27, the following terms
shall have the meanings set forth below.
(A) "Assessed Valuation" shall mean the amount for which the
Real Property is assessed pursuant to applicable provisions of the New York City
Charter and of the Administrative Code of the City of New York for the purpose
of calculating all or any portion of the Taxes payable with respect to the Real
Property.
(B) "Base Operating Expenses" shall mean the Operating
Expenses for the Base Operating Year.
(C) "Base Operating Year" shall mean the calendar year ending
December 31, 2000.
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(D) "Base Taxes" shall mean the Taxes payable for the Tax Year
commencing July 1, 2000 and ending June 30, 2001.
(E) (1) "Operating Expenses" shall mean the aggregate of those
costs and expenses (and taxes, if any, thereon, including without limitation,
sales and value added taxes) paid or incurred by or on behalf of Landlord
(whether directly or through independent contractors) in respect of the
Operation of the Property which, are properly chargeable to the Operation of the
Property together with and including (without limitation) the costs of gas, oil,
steam, water, sewer rental, electricity (for the portions of the Real Property
not leased to and occupied by tenants or available for occupancy), HVAC and
other utilities furnished to the Building and utility taxes, and the expenses
incurred in connection with the Operation of the Property such as insurance
premiums, attorneys' fees and disbursements, auditing and other professional
fees and expenses, and all expenses (including attorneys' fees and
disbursements, experts' and other witnesses' fees) incurred in contesting the
validity or amount of any Taxes or in obtaining a refund of any Taxes, but
specifically excluding:
(i) Taxes,
(ii) franchise or income taxes imposed upon
Landlord,
(iii) debt service on Mortgages,
(iv) leasing commissions,
(v) capital improvements (except as otherwise
provided herein),
(vi) the cost of electrical energy furnished
directly to Tenant and other tenants of the Building,
(vii) the cost of tenant installations incurred in
connection with preparing space for a new tenant,
(viii) salaries of personnel above the grade of
building manager and such building manager's supervisor,
(ix) rent paid under Superior Leases (other than
in the nature of Rent consisting of Taxes or Operating Expenses),
(x) any expense for which Landlord is otherwise
compensated through the proceeds of insurance or is otherwise compensated by any
tenant (including Tenant) of the Building for services in excess of the services
Landlord is obligated to furnish to Tenant hereunder,
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(xi) legal fees incurred in connection with any
negotiation of, disputes arising out of, or enforcement of, any space lease in
the Building,
(xii) depreciation, except as provided herein, and
(xiii) Landlord's advertising and promotional
costs for the Building,
except, however, that if Landlord is not furnishing any particular work or
service (the cost of which if performed by Landlord would constitute an
Operating Expense) to a tenant who has undertaken to perform such work or
service in lieu of the performance thereof by Landlord, Operating Expenses shall
be deemed to be increased by an amount equal to the additional Operating
Expenses which reasonably would have been incurred during such period by
Landlord if it had at its own expense furnished such work or services to such
tenant. Any insurance proceeds received with respect to any item previously
included as an Operating Expense shall be deducted from Operating Expenses for
the Operating Year in which such proceeds are received; provided, however, to
the extent any insurance proceeds are received by Landlord in any Operating Year
with respect to any item which was included in Operating Expenses during the
Base Operating Year, the amount of insurance proceeds so received shall be
deducted from Base Operating Expenses and (x) the Base Operating Expenses shall
be retroactively adjusted to reflect such deduction and (y) all retroactive
Operating Payments resulting from such retroactive adjustment shall be due and
payable when billed by Landlord. Until such time as the electricity supplied to
each floor of the Building and the common and public areas of the Building
(including, without limitation, the Building Systems) shall be separately
metered or submetered, Operating Expenses shall include an amount equal to (x)
(i) Landlord's cost (utilizing the electrical rates applicable to the Building
including energy charges, demand charges, time-of-day charges, fuel adjustment
charges, rate adjustment charges, sales tax and any other factors used by the
public utility in computing its charges to Landlord) of furnishing electric
current to the entire Building, multiplied by (ii) the number of kilowatt hours
of electric current furnished to the public and common areas of the Building
(including, without limitation, the Building Systems) and other areas not
available for occupancy as determined by a survey prepared by an independent,
reputable electrical engineer selected by Landlord, plus (y) an amount equal to
Landlord's out-of-pocket costs in connection with the same.
(2) In determining the amount of Operating Expenses for
any Operating Year, if less than all of the Building rentable area shall have
been occupied by tenant(s) at any time during any such Operating Year, Operating
Expenses shall be determined for such Operating Year to be an amount equal to
the like expenses which would normally be expected to be incurred had all such
areas been occupied throughout such Operating Year.
(3) (a) If any capital improvement is made during any
Operating Year in compliance with a Requirement, whether or not such Requirement
is valid or mandatory, or in lieu of a repair, then the cost of such improvement
shall be included in Operating Expenses for the Operating Year in which such
improvement was made; provided, however, to the extent
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the cost of such improvement is required to be capitalized for federal income
tax purposes, such cost shall be amortized over the useful economic life of such
improvement as reasonably estimated by Landlord, and the annual amortization,
together with interest thereon at the then Base Rate, of such improvement shall
be deemed an Operating Expense in each of the Operating Years during which such
cost of the improvement is amortized.
(b) If any capital improvement is made during any
Operating Year either for the purpose of saving or reducing Operating Expenses
(as, for example, a labor-saving improvement), then the cost of such improvement
shall be included in Operating Expenses for the Operating Year in which such
improvement was made; provided, however, such cost shall be amortized over such
period of time as Landlord reasonably estimates such savings or reduction in
Operating Expenses will equal the cost of such improvement and the annual
amortization, together with interest thereon at the then Base Rate, of such
improvement shall be deemed an Operating Expense in each of the Operating Years
during which such cost of the improvement is amortized.
(F) "Operating Statement" shall mean a statement in reasonable
detail setting forth a comparison of the Operating Expenses for an Operating
Year with the Base Operating Expenses and the Escalation Rent for the preceding
Operating Year pursuant to the provisions of this Article 27.
(G) "Operating Year" shall mean the calendar year within which
the Commencement Date occurs and each subsequent calendar year for any part or
all of which Escalation Rent shall be payable pursuant to this Article 27.
(H) "Taxes" shall mean the aggregate amount of real estate
taxes and any general or special assessments (exclusive of penalties and
interest thereon) imposed upon the Real Property (including, without limitation,
(i) assessments made upon or with respect to any "air" and "development" rights
now or hereafter appurtenant to or affecting the Real Property, (ii) any fee,
tax or charge imposed by any Governmental Authority for any vaults, vault space
or other space within or outside the boundaries of the Real Property, and (iii)
any taxes or assessments levied after the date of this Lease in whole or in part
for public benefits to the Real Property or the Building, including, without
limitation, any Business Improvement District taxes and assessments) without
taking into account any discount that Landlord may receive by virtue of any
early payment of Taxes; provided, that if because of any change in the taxation
of real estate, any other tax or assessment, however denominated (including,
without limitation, any franchise, income, profit, sales, use, occupancy, gross
receipts or rental tax) is imposed upon Landlord or the owner of the Real
Property or the Building, or the occupancy, rents or income therefrom, in
substitution for any of the foregoing Taxes, such other tax or assessment shall
be deemed part of Taxes computed as if Landlord's sole asset were the Real
Property. Anything contained herein to the contrary notwithstanding, Taxes shall
not be deemed to include (w) any taxes on Landlord's income, (x) franchise
taxes, (y) estate or inheritance taxes or (z) any similar taxes imposed on
Landlord, unless such taxes are levied, assessed or imposed in lieu of or as a
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substitute for the whole or any part of the taxes, assessments, levies,
impositions which now constitute Taxes.
(I) "Tax Statement" shall mean a statement in reasonable
detail setting forth a comparison of the Taxes for a Tax Year with the Base
Taxes.
(J) "Tax Year" shall mean the period July 1 through June 30
(or such other period as hereinafter may be duly adopted by the Governmental
Authority then imposing taxes as its fiscal year for real estate tax purposes),
any portion of which occurs during the Term.
Section 27.2. (A) If the Taxes payable for any Tax Year (any part or
all of which falls within the Term) shall represent an increase above the Base
Taxes, then Tenant shall pay as additional rent for such Tax Year and continuing
thereafter until a new Tax Statement is rendered to Tenant, Tenant's Tax Share
of such increase (the "Tax Payment") as shown on the Tax Statement with respect
to such Tax Year. Tenant shall be obliged to pay the Tax Payment regardless of
whether Tenant is exempt in whole or part, from the payment of any Taxes by
reason of Tenant's diplomatic status or for any other reason whatsoever. The
Taxes shall be computed initially on the basis of the Assessed Valuation in
effect at the time the Tax Statement is rendered (as the Taxes may have been
settled or finally adjudicated prior to such time) regardless of any then
pending application, proceeding or appeal respecting the reduction of any such
Assessed Valuation, but shall be subject to subsequent adjustment as provided in
Section 27.3 hereof.
(B) At any time during or after the Term, Landlord may render
to Tenant a Tax Statement or Statements showing (i) a comparison of the Taxes
for the Tax Year with the Base Taxes and (ii) the amount of the Tax Payment
resulting from such comparison. On the first day of the month following the
furnishing to Tenant of a Tax Statement, Tenant shall pay to Landlord a sum
equal to 1/12th of the Tax Payment shown thereon to be due for such Tax Year
multiplied by the number of months of the Term then elapsed since the
commencement of such Tax Year. Tenant shall continue to pay to Landlord a sum
equal to one-twelfth (1/12th) of the Tax Payment shown on such Tax Statement on
the first day of each succeeding month until the first day of the month
following the month in which Landlord shall deliver to Tenant a new Tax
Statement. If Landlord furnishes a Tax Statement for a new Tax Year subsequent
to the commencement thereof, promptly after the new Tax Statement is furnished
to Tenant, Landlord shall give notice to Tenant stating whether the amount
previously paid by Tenant to Landlord for the current Tax Year was greater or
less than the installments of the Tax Payment for the current tax year in
accordance with the Tax Statement, and (a) if there shall be a deficiency,
Tenant shall pay the amount thereof within ten (10) days after demand therefor,
or (b) if there shall have been an overpayment, Landlord shall credit the amount
thereof against the next monthly installments of the Fixed Rent payable under
this Lease. Tax Payments shall be collectible by Landlord in the same manner as
Fixed Rent. Landlord's failure to render a Tax Statement shall not prejudice
Landlord's right to render a Tax Statement during or with respect to any
subsequent Tax Year, and shall not eliminate or reduce Tenant's obligation to
make Tax Payments for such Tax Year.
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Section 27.3. (A) Only Landlord shall be eligible to institute tax
reduction or other proceedings to reduce the Assessed Valuation. In the event
that, after a Tax Statement has been sent to Tenant, an Assessed Valuation which
had been utilized in computing the Taxes for a Tax Year is reduced (as a result
of settlement, final determination of legal proceedings or otherwise), and as a
result thereof a refund of Taxes is actually received by or on behalf of
Landlord, then, promptly after receipt of such refund, Landlord shall send
Tenant a Tax Statement adjusting the Taxes for such Tax Year and setting forth
Tenant's Tax Share of such refund and Tenant shall be entitled to receive such
Share, at Landlord's option, either by way of a credit against the Fixed Rent
next becoming due after the sending of such Tax Statement or by a refund to the
extent no further Fixed Rent is due; provided, however, that Tenant's Tax Share
of such refund shall be limited to the portion of the Tax Payment, if any, which
Tenant had theretofore paid to Landlord attributable to increases in Taxes for
the Tax Year to which the refund is applicable on the basis of the Assessed
Valuation before it had been reduced.
(B) In the event that, after a Tax Statement has been sent to
Tenant, the Assessed Valuation which had been utilized in computing the Base
Taxes is reduced (as a result of settlement, final determination of legal
proceedings or otherwise) then, and in such event: (i) the Base Taxes shall be
retroactively adjusted to reflect such reduction, and (ii) all retroactive Tax
Payments resulting from such retroactive adjustment shall be due and payable
when billed by Landlord. Landlord promptly shall send to Tenant a statement
setting forth the basis for such retroactive adjustment and Tax Payments.
Section 27.4. (A) If the Operating Expenses for any Operating Year (any
part or all of which falls within the Term) shall be greater than the Base
Operating Expenses, then Tenant shall pay as additional rent for such Operating
Year and continuing thereafter until a new Operating Statement is rendered to
Tenant, Tenant's Share of such increase (the "Operating Payment") as hereinafter
provided.
(B) At any time during or after the Term Landlord may render
to Tenant an Operating Statement or Statements showing (i) a comparison of the
Operating Expenses for the Operating Year in question with the Base Operating
Expenses, and (ii) the amount of the Operating Payment resulting from such
comparison. Landlord's failure to render an Operating Statement during or with
respect to any Operating Year in question shall not prejudice Landlord's right
to render an Operating Statement during or with respect to any subsequent
Operating Year, and shall not eliminate or reduce Tenant's obligation to make
payments of the Operating Payment pursuant to this Article 27 for such Operating
Year.
(C) On the first day of the month following the furnishing to
Tenant of an Operating Statement, Tenant shall pay to Landlord a sum equal to
1/12th of the Operating Payment shown thereon to be due for the preceding
Operating Year multiplied by the number of months (and any fraction thereof) of
the Term then elapsed since the commencement of such Operating Year in which
such Operating Statement is delivered, less Operating Payments theretofore made
by Tenant for such Operating Year and thereafter, commencing with the then
current monthly installment of Fixed Rent and continuing monthly thereafter
until rendition of
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the next succeeding Operating Statement, Tenant shall pay on account of the
Operating Payment for such Year an amount equal to 1/12th of the Operating
Payment shown thereon to be due for the preceding Operating Year. Any Operating
Payment shall be collectible by Landlord in the same manner as Fixed Rent.
(D) (1) As used in this Section 27.4, (i) "Tentative Monthly
Escalation Charge" shall mean a sum equal to 1/12th of the product of (a)
Tenant's Share, and (b) the difference between (x) the Base Operating Expenses
and (y) Landlord's estimate of Operating Expenses for the Current Year, and (ii)
"Current Year" shall mean the Operating Year in which a demand is made upon
Tenant for payment of a Tentative Monthly Escalation Charge.
(2) At any time in any Operating Year, Landlord, at its
option, in lieu of the payments required under Section 27.4(C) hereof, may
demand and collect from Tenant, as additional rent, a sum equal to the Tentative
Monthly Escalation Charge multiplied by the number of months in said Operating
Year preceding the demand and reduced by the sum of all payments theretofore
made under Section 27.4(C) with respect to said Operating Year, and thereafter,
commencing with the month in which the demand is made and continuing thereafter
for each month remaining in said Operating Year, the monthly installments of
Fixed Rent shall be deemed increased by the Tentative Monthly Escalation Charge.
Any amount due to Landlord under this Section 27.4(D) may be included by
Landlord in any Operating Statement rendered to Tenant as provided in Section
27.4(B) hereof.
(E) (1) After the end of the Current Year and at any time that
Landlord renders an Operating Statement or Statements to Tenant as provided in
Section 27.4(B) hereof with respect to the comparison of the Operating Expenses
for said Operating Year or Current Year, with the Base Operating Expenses, as
the case may be, the amounts, if any, collected by Landlord from Tenant under
Section 27.4(C) or (D) on account of the Operating Payment or the Tentative
Monthly Escalation Charge, as the case may be, shall be adjusted, and, if the
amount so collected is less than or exceeds the amount actually due under said
Operating Statement for the Operating Year, a reconciliation shall be made as
follows: Tenant shall be debited with any Operating Payment shown on such
Operating Statement and credited with the amounts, if any, paid by Tenant on
account in accordance with the provisions of subsection (C) and subsection
(D)(2) of this Section 27.4 for the Operating Year in question. Tenant shall pay
any net debit balance to Landlord within fifteen (15) days next following
rendition by Landlord of an invoice for such net debit balance; any net credit
balance shall be applied against the next accruing monthly installments of Fixed
Rent.
(2) If the sum of the Tentative Monthly Escalation
Charges and payments made by Tenant in accordance with subsection (C) of this
Section 27.4 for any Operating Year shall have exceeded the Operating Payment
for such Operating Year by more than ten percent (10%), interest at the
Applicable Rate on the portion of the overpayment that exceeds the applicable
Operating Payment by more than ten percent (10%) determined as of the respective
dates of such payments by Tenant and calculated from such respective dates to
the dates on which such amounts are credited against the monthly installments of
Fixed Rent, shall be so
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credited. Any amount owing to Tenant subsequent to the Term shall be paid to
Tenant within ten (10) Business Days after a final determination has been made
of the amount due to Tenant.
Section 27.5. Any Operating Statement sent to Tenant shall be
conclusively binding upon Tenant unless, within thirty (30) days after such
Statement is sent, Tenant shall send a written notice to Landlord objecting to
such Statement and specifying the respects in which such Statement is disputed.
If such notice is sent, Tenant (together with its independent certified public
accountants, provided they are a nationally recognized and reputable firm of
partners or principals who are certified public accountants) may examine
Landlord's books and records relating to the Operation of the Property to
determine the accuracy of the Operating Statement. Tenant recognizes the
confidential nature of such books and records and agrees to maintain the
information obtained from such examination in strict confidence. If after such
examination, Tenant still disputes such Operating Statement, either party may
refer the decision of the issues raised to a reputable independent firm of
certified public accountants, selected by Landlord and approved by Tenant, which
approval shall not be unreasonably withheld or delayed as long as such firm of
certified public accountants is a nationally recognized and reputable firm of
partners or principals who are certified public accountants, and the decision of
such accountants shall be conclusively binding upon the parties. The fees and
expenses involved in such decision shall be borne by the unsuccessful party (and
if both parties are partially successful, such fees and expenses shall be
apportioned between Landlord and Tenant in inverse proportion to the amount by
which such decision is favorable to each party). Notwithstanding the giving of
such notice by Tenant, and pending the resolution of any such dispute, Tenant
shall pay to Landlord when due the amount shown on any such Operating Statement,
as provided in Section 27.4 hereof.
Section 27.6. The expiration or termination of this Lease during any
Operating Year or Tax Year shall not affect the rights or obligations of the
parties hereto respecting any payments of Operating Payments for such Operating
Year and any payments of Tax Payments for such Tax Year, and any Operating
Statement relating to such Operating Payment and any Tax Statement relating to
such Tax Payment, may be sent to Tenant subsequent to, and all such rights and
obligations shall survive, any such expiration or termination. In determining
the amount of the Operating Payment for the Operating Year or the Tax Payment
for the Tax Year in which the Term shall expire, the payment of the Operating
Payment for such Operating Year or the Tax Payment for the Tax Year shall be
prorated based on the number of days of the Term which fall within such
Operating Year or Tax Year, as the case may be. Any payments due under such
Operating Statement or Tax Statement shall be payable within twenty (20) days
after such Statement is sent to Tenant.
ARTICLE 28
SERVICES
Section 28.1. (A) Landlord shall provide passenger elevator service to
the Premises on Business Days from 8:00 A.M. to 6:00 P.M. and have an elevator
subject to call at all other times.
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(B) There shall be one (1) freight elevator serving the
Premises and the entire Building on call on a "first come, first served" basis
on Business Days from 8:00 A.M. to 12:00 P.M. and from 2:00 P.M. to 5:00 P.M.,
and on a reservation, "first come, first served" basis from 12:00 P.M. to 2:00
P.M. and 5:00 P.M. to 8:00 A.M. on Business Days and at any time on days other
than Business Days. If Tenant shall use the freight elevators serving the
Premises between 12:00 P.M. to 2:00 P.M. and 5:00 P.M. and 8:00 A.M. on Business
Days or at any time on any other days, Tenant shall pay Landlord, as additional
rent for such use, the standard rates then fixed by Landlord for the Building,
or if no such rates are then fixed, at reasonable rates.
(C) Landlord shall not be required to furnish any freight
elevator services during the hours from 12:00 P.M. to 2:00 P.M. and 5:00 P.M. to
8:00 A.M. on Business Days and at any time on days other than Business Days
unless Landlord has received advance notice from Tenant requesting such services
prior to 2:00 P.M. of the day upon which such service is requested or by 2:00
P.M. of the last preceding Business Day if such periods are to occur on a day
other than a Business Day.
Section 28.2. Landlord, at Landlord's expense (but subject to
recoupment pursuant to Article 27 hereof), shall furnish to the perimeter of the
Premises (for distribution by Tenant within the Premises) through the HVAC
System, when required for the comfortable occupancy of the Premises, HVAC on a
year round basis from 8:00 A.M. to 6:00 P.M. on Business Days. Landlord,
throughout the Term, shall have free access to any and all mechanical
installations of Landlord, including, but not limited to, air-cooling, fan,
ventilating and machine rooms and electrical closets; Tenant shall not construct
partitions or other obstructions which may interfere with Landlord's free access
thereto, or interfere with the moving of Landlord's equipment to and from the
enclosures containing said installations. Neither Tenant, nor its agents,
employees or contractors shall at any time enter the said enclosures or tamper
with, adjust or touch or otherwise in any manner affect said mechanical
installations. Tenant shall draw and close the draperies or blinds for the
windows of the Premises whenever the HVAC System is in operation and the
position of the sun so requires and shall at all times cooperate fully with
Landlord and abide by all of the regulations and requirements which Landlord may
prescribe for the proper functioning and protection of the HVAC System.
Section 28.3. The Fixed Rent does not reflect or include any charge to
Tenant for the furnishing of any necessary HVAC to the Premises during periods
other than the hours and days set forth above ("Overtime Periods"). Accordingly,
if Landlord shall furnish such HVAC to the Premises at the request of Tenant
during Overtime Periods, Tenant shall pay Landlord additional rent for such
services at the standard rates then fixed by Landlord for the Building, or if no
such rates are then fixed, at reasonable rates. Landlord shall not be required
to furnish any such services during any Overtime Periods unless Landlord has
received advance notice from Tenant requesting such services prior to 2:00 P.M.
of the day upon which such services are requested or by 2:00 P.M. of the last
preceding Business Day if such Overtime Periods are to occur on a day other than
a Business Day. If Tenant fails to give Landlord such advance notice, then,
failure by Landlord to furnish or distribute any such services during such
Overtime Periods shall not constitute an actual or constructive eviction, in
whole or in part, or entitle Tenant to any
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abatement or diminution of Rental, or relieve Tenant from any of its obligations
under this Lease, or impose any liability upon Landlord or its agents by reason
of inconvenience or annoyance to Tenant, or injury to or interruption of
Tenant's business or otherwise. If more than one tenant utilizing the same
system as Tenant requests the same Overtime Periods for the same services as
Tenant, the charge to Tenant shall be adjusted pro rata.
Section 28.4. Provided Tenant shall keep the Premises in order,
Landlord, at Landlord's expense, subject to recoupment pursuant to Article 27
hereof, shall cause the Premises, excluding any portions thereof used for the
storage, preparation, service or consumption of food or beverages, to be
cleaned, substantially in accordance with the standards set forth in Schedule B
annexed hereto and made a part hereof. Tenant shall pay to Landlord the cost of
removal of any of Tenant's refuse and rubbish from the Premises and the Building
to the extent that the same exceeds the refuse and rubbish usually attendant
upon the use of such Premises as offices. Bills for the same shall be rendered
by Landlord to Tenant at such time as Landlord may elect and shall be due and
payable when rendered as additional rent. Tenant, at Tenant's sole cost and
expense, shall cause all portions of the Premises used for the storage,
preparation, service or consumption of food or beverages to be cleaned daily in
a manner satisfactory to Landlord, and to be exterminated against infestation by
vermin, rodents or roaches regularly and, in addition, whenever there shall be
evidence of any infestation. Any such exterminating shall be done at Tenant's
sole cost and expense, in a manner satisfactory to Landlord, and by Persons
approved by Landlord. If Tenant shall perform any cleaning services in addition
to the services provided by Landlord as aforesaid, Tenant shall employ the
cleaning contractor providing cleaning services to the Building on behalf of
Landlord or such other cleaning contractor as shall be approved by Landlord.
Tenant shall comply with any recycling program and/or refuse disposal program
(including, without limitation, any program related to the recycling, separation
or other disposal of paper, glass or metals) which Landlord shall impose or
which shall be required pursuant to any Requirements.
Section 28.5. If the New York Board of Fire Underwriters or the
Insurance Services Office or any Governmental Authority, department or official
of the state or city government shall require or recommend that any changes,
modifications, alterations or additional sprinkler heads or other equipment be
made or supplied by reason of Tenant's business, or the location of the
partitions, trade fixtures, or other contents of the Premises, Landlord, at
Tenant's cost and expense, shall promptly make and supply such changes,
modifications, alterations, additional sprinkler heads or other equipment.
Section 28.6. Landlord reserves the right to stop service of the HVAC
System or the elevator, electrical, plumbing or other Building Systems when
necessary, by reason of accident or emergency, or for repairs, additions,
alterations, replacements or improvements in the judgment of Landlord desirable
or necessary to be made, until said repairs, alterations, replacements or
improvements shall have been completed (which repairs, additions, alterations,
replacements and improvements shall be performed in accordance with Section 4.3
hereof). Landlord shall have no responsibility or liability for interruption,
curtailment or failure to supply HVAC, elevator, electrical, plumbing or other
Building Systems when prevented by Unavoidable
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Delays or by any Requirement of any Governmental Authority or due to the
exercise of its right to stop service as provided in this Article 28. The
exercise of such right or such failure by Landlord shall not constitute an
actual or constructive eviction, in whole or in part, or entitle Tenant to any
compensation or to any abatement or diminution of Rental, or relieve Tenant from
any of its obligations under this Lease, or impose any liability upon Landlord
or its agents by reason of inconvenience or annoyance to Tenant, or injury to or
interruption of Tenant's business, or otherwise.
Section 28.7. Landlord shall make available to Tenant the computerized
directory in the lobby of the Building for up to ______________ (___) listings.
The initial programming shall be without charge to Tenant. From time to time,
but not more frequently than once every three (3) months, Landlord shall
reprogram the computerized directory to reflect such changes in the listings
therein as Tenant shall request, and Tenant promptly after request shall pay to
Landlord a reasonable reprogramming charge for each reprogramming Tenant
requests. If Landlord replaces the computerized directory with a standard
directory in the lobby of the Building, Tenant shall be entitled to Tenant's
Share of such listings on such directory.
ARTICLE 29
PARTNERSHIP TENANT
------------------
If Tenant is a partnership (including, without limitation, a limited
liability partnership) or a limited liability company or a professional
corporation (or is comprised of two (2) or more Persons, individually or as
co-partners of a partnership (including, without limitation a limited liability
partnership), as members of a limited liability company or as shareholders of a
professional corporation) or if Tenant's interest in this Lease shall be
assigned to a partnership (including, without limitation, a limited liability
partnership) a limited liability company or a professional corporation (or to
two (2) or more Persons, individually or as co-partners of a partnership, as
members of a limited liability company or shareholders of a professional
corporation) pursuant to Article 12 hereof (any such partnership, professional
corporation and such Persons are referred to in this Article 29 as "Partnership
Tenant"), the following provisions shall apply to such Partnership Tenant: (a)
the liability of each of the parties comprising Partnership Tenant shall be
joint and several; (b) each of the parties comprising Partnership Tenant hereby
consents in advance to, and agrees to be bound by (x) any written instrument
which may hereafter be executed by Partnership Tenant or any successor entity,
changing, modifying, extending or discharging this Lease, in whole or in part,
or surrendering all or any part of the Premises to Landlord, and (y) any
notices, demands, requests or other communications which may hereafter be given
by Partnership Tenant or by any of the parties comprising Partnership Tenant;
(c) any bills, statements, notices, demands, requests or other communications
given or rendered to Partnership Tenant or to any of such parties shall be
binding upon Partnership Tenant and all such parties; (d) if Partnership Tenant
shall admit new partners, shareholders or members, as the case may be,
Partnership Tenant shall give Landlord notice of such event not later than ten
(10) Business Days prior to the admission of such partner(s), shareholder(s) or
member(s) together with an assumption agreement in form and
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substance satisfactory to Landlord pursuant to which each of such new partners,
shareholders or members, as the case may be, shall, by their admission to
Partnership Tenant, agree to assume joint and several liability for the
performance of all of the terms, covenants and conditions of this Lease (as the
same may have been or thereafter be amended) on Tenant's part to be observed and
performed; it being expressly understood and agreed that each such new partner,
shareholder or member (as the case may be) shall be deemed to have assumed joint
and several liability for the performance of all of the terms, covenants and
conditions of this Lease (as the same may have been or thereafter be amended),
whether or not such new partner, shareholder or member shall have executed such
assumption agreement, and that neither Tenant's failure to deliver such
assumption agreement nor the failure of any such new partner or shareholder, as
the case may be, to execute or deliver any such agreement to Landlord shall
vitiate the provisions of this clause (d) of this Article 29).
ARTICLE 30
VAULT SPACE
-----------
Notwithstanding anything contained in this Lease or indicated on any
sketch, blueprint or plan, any vaults, vault space or other space outside the
boundaries of the Real Property are not included in the Premises. Landlord makes
no representation as to the location of the boundaries of the Real Property. All
vaults and vault space and all other space outside the boundaries of the Real
Property which Tenant may be permitted to use or occupy are to be used or
occupied under a revocable license, and if any such license shall be revoked, or
if the amount of such space shall be diminished or required by any Governmental
Authority or by any public utility company, such revocation, diminution or
requisition shall not constitute an actual or constructive eviction, in whole or
in part, or entitle Tenant to any abatement or diminution of Rental, or relieve
Tenant from any of its obligations under this Lease, or impose any liability
upon Landlord. Any fee, tax or charge imposed by any Governmental Authority for
any such vaults, vault space or other space occupied by Tenant shall be paid by
Tenant.
ARTICLE 31
SECURITY
--------
Section 31.1. Tenant shall deposit with Landlord on the signing of this
Lease an amount equal to the Security Amount for the 1st Security Period, or at
Tenant's option, a "clean," unconditional, irrevocable and transferable letter
of credit (the "Letter of Credit") in the same amount, satisfactory to Landlord,
issued by and drawn on a bank satisfactory to Landlord and which is a member of
the New York Clearing House Association, for the account of Landlord, for a term
of not less than one (1) year, as security for the faithful performance and
observance by Tenant of the terms, covenants, conditions and provisions of this
Lease, including, without limitation, the surrender of possession of the
Premises to Landlord as herein provided. If an Event of Default shall occur and
be continuing, Landlord may apply the whole or any part of the security so
deposited, or present the Letter of Credit for payment and apply the whole or
any part
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of the proceeds thereof, as the case may be, (i) toward the payment of any Fixed
Rent, Escalation Rent or any other item of Rental as to which Tenant is in
default, (ii) toward any sum which Landlord may expend or be required to expend
by reason of Tenant's default in respect of any of the terms, covenants and
conditions of this Lease, including, without limitation, any damage, liability
or expense (including, without limitation, reasonable attorneys' fees and
disbursements) incurred or suffered by Landlord, and (iii) toward any damage or
deficiency incurred or suffered by Landlord in the reletting of the Premises,
whether such damages or deficiency accrue or accrues before or after summary
proceedings or other re-entry by Landlord. If Landlord applies or retains any
part of the proceeds of the Letter of Credit or the security so deposited, as
the case may be, Tenant, upon demand, shall deposit with Landlord the amount so
applied or retained so that Landlord shall have the full deposit on hand at all
times during the Term. If Tenant shall fully and faithfully comply with all of
the terms, provisions, covenants and conditions of this Lease, the Letter of
Credit or the security, as the case may be, shall be returned to Tenant after
the Expiration Date and after delivery of possession of the Premises to
Landlord. In the event of a sale or leasing of the Real Property or the
Building, Landlord shall have the right to transfer the Letter of Credit or
security, as the case may be, to the vendee or lessee and Landlord shall
thereupon be released by Tenant from all liability for the return of such
security or the Letter of Credit, as the case may be, and Tenant shall cause the
bank which issued the Letter of Credit to issue an amendment to the Letter of
Credit or issue a new Letter of Credit naming the vendee or lessee as the
beneficiary thereunder. Tenant shall look solely to the new landlord for the
return of the Letter of Credit or the security, as the case may be. The
provisions hereof shall apply to every transfer or assignment of the Letter of
Credit or security made to a new landlord. Tenant shall not assign or encumber
or attempt to assign or encumber the monies deposited herein as security and
neither Landlord nor its successors or assigns shall be bound by any such
assignment, encumbrance, attempted assignment or attempted encumbrance. Tenant
shall renew any Letter of Credit from time to time, at least thirty (30) days
prior to the expiration thereof, and deliver to Landlord a new Letter of Credit
or an endorsement to the Letter of Credit, and any other evidence required by
Landlord that the Letter of Credit has been renewed for a period of at least one
(1) year. If Tenant shall fail to renew the Letter of Credit as aforesaid,
Landlord may present the Letter of Credit for payment and retain the proceeds
thereof as security in lieu of the Letter of Credit.
Section 31.2 Provided no default shall have occurred and be continuing
on the first day of the 2nd Security Period, (a) if a Letter of Credit is on
deposit, Tenant shall be entitled to replace the Letter of Credit on deposit
with Landlord with a Letter of Credit in the Security Amount applicable to the
2nd Security Period, or (b) if Tenant shall have deposited with Landlord cash
security in lieu of a Letter of Credit, provided that the Security Amount for
the 2nd Security Period is less than the security then on deposit for the 1st
Security Period, and further provided that Tenant shall have fully and
faithfully complied with all of the terms, provisions, covenants and conditions
of this Lease, then Landlord shall refund to Tenant an amount equal to the
difference between the Security Amount for the 2nd Security Period and the
security then on deposit for the 1st Security Period.
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ARTICLE 32
CAPTIONS
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The captions are inserted only as a matter of convenience and for
reference and in no way define, limit or describe the scope of this Lease nor
the intent of any provision thereof.
ARTICLE 33
PARTIES BOUND
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The covenants, conditions and agreements contained in this Lease shall
bind and inure to the benefit of Landlord and Tenant and their respective legal
representatives, successors, and, except as otherwise provided in this Lease,
their assigns.
ARTICLE 34
BROKER
------
Each party represents and warrants to the other that it has not dealt
with any broker or Person in connection with this Lease other than Branford
Properties, Inc. ("Broker"). The execution and delivery of this Lease by each
party shall be conclusive evidence that such party has relied upon the foregoing
representation and warranty. Tenant shall indemnify and hold Landlord harmless
from and against any and all claims for commission, fee or other compensation by
any Person (other than Broker) who shall claim to have dealt with Tenant in
connection with this Lease and for any and all costs incurred by Landlord in
connection with such claims, including, without limitation, reasonable
attorneys' fees and disbursements. The provisions of this Article 34 shall
survive the Expiration Date.
ARTICLE 35
INDEMNITY
---------
Section 35.1. Tenant shall not do or permit any act or thing to be done
upon the Premises which may subject Landlord to any liability or responsibility
for injury, damages to persons or property or to any liability by reason of any
violation of any Requirement, and shall exercise such control over the Premises
as to fully protect Landlord against any such liability. Tenant shall indemnify
and save the Indemnitees harmless from and against (a) all claims of whatever
nature against the Indemnitees arising from any act, omission or negligence of
Tenant, its contractors, licensees, agents, servants, employees, invitees or
visitors, (b) all claims against the Indemnitees arising from any accident,
injury or damage whatsoever caused to any person or to the property of any
person and occurring during the Term in or about the Premises, (c) all claims
against the Indemnitees arising from any accident, injury or damage occurring
outside of the Premises but anywhere within or about the Real Property, where
such accident, injury or damage results or is claimed to have resulted from an
act, omission or negligence of Tenant or Tenant's
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contractors, licensees, agents, servants, employees, invitees or visitors, and
(d) any breach, violation or non-performance of any covenant, condition or
agreement in this Lease set forth and contained on the part of Tenant to be
fulfilled, kept, observed and performed. This indemnity and hold harmless
agreement shall include indemnity from and against any and all liability, fines,
suits, demands, costs and expenses of any kind or nature (including, without
limitation, attorneys' fees and disbursements) incurred in or in connection with
any such claim or proceeding brought thereon, and the defense thereof but except
with respect to claims with respect to bodily injury or death, shall be limited
to the extent any insurance proceeds collectible by Landlord under policies
owned by Landlord or such injured party with respect to such damage or injury
are insufficient to satisfy same.
Section 35.2. If any claim, action or proceeding is made or brought
against Landlord, which claim, action or proceeding Tenant shall be obligated to
indemnify Landlord against pursuant to the terms of this Lease, then, upon
demand by Landlord, Tenant, at its sole cost and expense, shall resist or defend
such claim, action or proceeding in Landlord's name, if necessary, by such
attorneys as Landlord shall approve, which approval shall not be unreasonably
withheld. Attorneys for Tenant's insurer are hereby deemed approved for purposes
of this Section 35.2. Notwithstanding the foregoing, Landlord may retain its own
attorneys to defend or assist in defending any claim, action or proceeding
involving potential liability of Five Million Dollars ($5,000,000) or more, and
Tenant shall pay the reasonable fees and disbursements of such attorneys. The
provisions of this Article 35 shall survive the expiration or earlier
termination of this Lease.
ARTICLE 36
ADJACENT EXCAVATION-SHORING
---------------------------
If an excavation shall be made upon land adjacent to the Premises, or
shall be authorized to be made, Tenant, upon reasonable advance notice, shall
afford to the person causing or authorized to cause such excavation, a license
to enter upon the Premises for the purpose of doing such work as said person
shall deem necessary to preserve the wall or the Building from injury or damage
and to support the same by proper foundations, without any claim for damages or
indemnity against Landlord, or diminution or abatement of Rental, provided that
Tenant shall continue to have access to the Premises and the Building.
ARTICLE 37
MISCELLANEOUS
-------------
Section 37.1. This Lease is offered for signature by Tenant and it is
understood that this Lease shall not be binding upon Landlord or Tenant unless
and until Landlord and Tenant shall have executed and unconditionally delivered
a fully executed copy of this Lease to each other.
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Section 37.2. The obligations of Landlord under this Lease shall not be
binding upon Landlord named herein after the sale, conveyance, assignment or
transfer by such Landlord (or upon any subsequent landlord after the sale,
conveyance, assignment or transfer by such subsequent landlord) of its interest
in the Building or the Real Property, as the case may be, and in the event of
any such sale, conveyance, assignment or transfer, Landlord shall be and hereby
is entirely freed and relieved of all covenants and obligations of Landlord
hereunder. The members, partners, shareholders, directors, officers and
principals, direct and indirect, comprising Landlord (collectively, the
"Parties") shall not be liable for the performance of Landlord's obligations
under this Lease. Tenant shall look solely to Landlord to enforce Landlord's
obligations hereunder and shall not seek any damages against any of the Parties.
The liability of Landlord for Landlord's obligations under this Lease shall be
limited to Landlord's interest in the Real Property and Tenant shall not look to
any other property or assets of Landlord or the property or assets of any of the
Parties in seeking either to enforce Landlord's obligations under this Lease or
to satisfy a judgment for Landlord's failure to perform such obligations.
Section 37.3. Notwithstanding anything contained in this Lease to the
contrary, all amounts payable by Tenant to or on behalf of Landlord under this
Lease, whether or not expressly denominated Fixed Rent, Escalation Rent,
additional rent or Rental, shall constitute rent for the purposes of Section
502(b)(7) of the Bankruptcy Code.
Section 37.4. Tenant's liability for all items of Rental shall survive
the Expiration Date.
Section 37.5. Tenant shall reimburse Landlord as additional rent,
within ten (10) days after rendition of a statement, for all expenditures made
by, or damages or fines sustained or incurred by, Landlord, due to any default
by Tenant under this Lease, with interest thereon at the Applicable Rate.
Section 37.6. This Lease shall not be recorded.
Section 37.7. Tenant hereby waives any claim against Landlord which
Tenant may have based upon any assertion that Landlord has unreasonably withheld
or unreasonably delayed any consent or approval requested by Tenant, and Tenant
agrees that its sole remedy shall be an action or proceeding to enforce any
related provision or for specific performance, injunction or declaratory
judgment. In the event of a determination that such consent or approval has been
unreasonably withheld or delayed, the requested consent or approval shall be
deemed to have been granted; however, Landlord shall have no liability to Tenant
for its refusal or failure to give such consent or approval. Tenant's sole
remedy for Landlord's unreasonably withholding or delaying consent or approval
shall be as provided in this Section 37.7.
Section 37.8. This Lease contains the entire agreement between the
parties and supersedes all prior understandings, if any, with respect thereto.
This Lease shall not be modified, changed, or supplemented, except by a written
instrument executed by both parties.
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Section 37.9. Tenant hereby (a) irrevocably consents and submits to the
jurisdiction of any Federal, state, county or municipal court sitting in the
State of New York in respect to any action or proceeding brought therein by
Landlord against Tenant concerning any matters arising out of or in any way
relating to this Lease; (b) irrevocably waives personal service of any summons
and complaint and consents to the service upon it of process in any such action
or proceeding by mailing of such process to Tenant at the address set forth
herein and hereby irrevocably designates Teltran International Group, Ltd., One
Penn Plaza, New York, New York 10119, Attn: Mr. James Tubbs, to accept service
of any process on Tenant's behalf and hereby agrees that such service shall be
deemed sufficient; (c) irrevocably waives all objections as to venue and any and
all rights it may have to seek a change of venue with respect to any such action
or proceedings; (d) agrees that the laws of the State of New York shall govern
in any such action or proceeding and waives any defense to any action or
proceeding granted by the laws of any other country or jurisdiction unless such
defense is also allowed by the laws of the State of New York; and (e) agrees
that any final judgment rendered against it in any such action or proceeding
shall be conclusive and may be enforced in any other jurisdiction by suit on the
judgment or in any other manner provided by law. Tenant further agrees that any
action or proceeding by Tenant against Landlord in respect to any matters
arising out of or in any way relating to this Lease shall be brought only in the
State of New York, county of New York. In furtherance of the foregoing, Tenant
hereby agrees that its address for notices given by Landlord and service of
process under this Lease shall be the Premises. Notwithstanding the foregoing
provisions of this Section 37.9, Tenant may, by written notice to Landlord,
change the designated agent for acceptance of service of process to any other
law firm located in the City, county and State of New York.
Section 37.10. Unless Landlord shall render written notice to Tenant to
the contrary in accordance with the provisions of Article 26 hereof, MRC
Management LLC is authorized to act as Landlord's agent in connection with the
performance of this Lease, including, without limitation, the receipt and
delivery of any and all notices and consents in accordance with Article 26.
Tenant shall direct all correspondence and requests to, and shall be entitled to
rely upon correspondence received from, MRC Management LLC, as agent for the
Landlord in accordance with Article 26. Tenant acknowledges that MRC Management
LLC, is acting solely as agent for Landlord in connection with the foregoing,
and neither MRC Management LLC nor any of its direct or indirect members,
partners, officers, shareholders, directors or employees shall have any
liability to Tenant in connection with the performance of Landlord's obligations
under this Lease and Tenant waives any and all claims against any such party
arising out of, or in any way connected with, this Lease or the Real Property.
Section 37.11. (A) All of the Schedules and Exhibits attached hereto
are incorporated in and made a part of this Lease, but, in the event of any
inconsistency between the terms and provisions of this Lease and the terms and
provisions of the Schedules and Exhibits hereto, the terms and provisions of
this Lease shall control. Wherever appropriate in this Lease, personal pronouns
shall be deemed to include the other genders and the singular to include the
plural. All Article and Section references set forth herein shall, unless the
context otherwise specifically requires, be deemed references to the Articles
and Sections of this Lease.
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(B) If any term, covenant, condition or provision of this
Lease, or the application thereof to any person or circumstance, shall ever be
held to be invalid or unenforceable, then in each such event the remainder of
this Lease or the application of such term, covenant, condition or provision to
any other Person or any other circumstance (other than those as to which it
shall be invalid or unenforceable) shall not be thereby affected, and each term,
covenant, condition and provision hereof shall remain valid and enforceable to
the fullest extent permitted by law.
(C) All references in this Lease to the consent or approval of
Landlord shall be deemed to mean the written consent or approval of Landlord and
no consent or approval of Landlord shall be effective for any purpose unless
such consent or approval is set forth in a written instrument executed by
Landlord.
ARTICLE 38
RENT CONTROL
------------
If at the commencement of, or at any time or times during the Term of
this Lease, the Rental reserved in this Lease shall not be fully collectible by
reason of any Requirement, Tenant shall enter into such agreements and take such
other steps (without additional expense to Tenant) as Landlord may request and
as may be legally permissible to permit Landlord to collect the maximum rents
which may from time to time during the continuance of such legal rent
restriction be legally permissible (and not in excess of the amounts reserved
therefor under this Lease). Upon the termination of such legal rent restriction
prior to the expiration of the Term, (a) the Rental shall become and thereafter
be payable hereunder in accordance with the amounts reserved in this Lease for
the periods following such termination, and (b) Tenant shall pay to Landlord, if
legally permissible, an amount equal to (i) the items of Rental which would have
been paid pursuant to this Lease but for such legal rent restriction less (ii)
the rents paid by Tenant to Landlord during the period or periods such legal
rent restriction was in effect.
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IN WITNESS WHEREOF, Landlord and Tenant have respectively executed this
Lease as of the day and year first above written.
ONE PENN PLAZA LLC, Landlord
By: Vornado Realty L.P., sole member
By: Vornado Realty Trust, general partner
By: /s/ Irwin Goldberg
-----------------------------------------
Irwin Goldberg
Vice President and Chief Financial Officer
TELTRAN INTERNATIONAL GROUP, LTD., Tenant
By: /s/ James Tubbs
------------------------------------------------
Name: JAMES TUBBS
Title: COO
Fed. Id. No. 113172507
-------------------
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State of New York )
County of New York ) ss.:
On the ____ day of _______________ in the year 1999 before me, the undersigned,
personally appeared ________________________________, personally known to me or
proved to me on the basis of satisfactory evidence to be the individual(s) whose
name(s) is (are) subscribed to the within instrument and acknowledged to me that
he/she/they executed the same in his/her/their capacity(ies), and that by
his/her/their signature(s) on the instrument, the individual(s), or the person
upon behalf of which the individual(s) acted, executed the instrument.
- - - - - - - - - - - -----------------------------------
Notary Public
76
<PAGE>
Schedule A
----------
RULES AND REGULATIONS
---------------------
(1) The sidewalks, entrances, passages, courts, elevators, vestibules,
stairways, corridors, or halls shall not be obstructed or encumbered by Tenant
or used for any purpose other than ingress and egress to and from the Premises
and for delivery of merchandise and equipment in prompt and efficient manner,
using elevators and passageways designated for such delivery by Landlord.
(2) No awnings, air-conditioning units, fans or other projections shall
be attached to the outside walls of the Building. No curtains, blinds, shades,
or screens, other than those which conform to Building standards as established
by Landlord from time to time, shall be attached to or hung in, or used in
connection with, any window or door of the Premises, without the prior written
consent of Landlord which shall not be unreasonably withheld or delayed. Such
awnings, projections, curtains, blinds, shades, screens or other fixtures must
be of a quality, type, design and color, and attached in the manner reasonably
approved by Landlord. All electrical fixtures hung in offices or spaces along
the perimeter of the Premises must be of a quality, type, design and bulb color
approved by Landlord, which consent shall not be withheld or delayed
unreasonably unless the prior consent of Landlord has been obtained for other
lamping.
(3) No sign, advertisement, notice or other lettering shall be
exhibited, inscribed, painted or affixed by Tenant on any part of the outside of
the Premises or Building or on the inside of the Premises if the same can be
seen from the outside of the Premises without the prior written consent of
Landlord except that the name of Tenant may appear on the entrance door of the
Premises. In the event of the violation of the foregoing by Tenant, if Tenant
has refused to remove same after reasonable notice from Landlord, Landlord may
remove same without any liability, and may charge the expense incurred by such
removal to Tenant. Interior signs on doors and directory tablet shall be of a
size, color and style reasonably acceptable to Landlord.
(4) The exterior windows and doors that reflect or admit light and air
into the Premises or the halls, passageways or other public places in the
Building, shall not be covered or obstructed by Tenant.
(5) No showcases or other articles shall be put in front of or affixed
to any part of the exterior of the Building, nor placed in the halls, corridors
or vestibules, nor shall any article obstruct any air-conditioning supply or
exhaust without the prior written consent of Landlord.
(6) The water and wash closets and other plumbing fixtures shall not be
used for any purposes other than those for which they were constructed, and no
sweepings, rubbish, rags, acids or other substances shall be deposited therein.
All damages resulting from any misuse of the fixtures shall be borne by Tenant.
A-1
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(7) Subject to the provisions of Article 3 of this Lease, Tenant shall
not mark, paint, drill into, or in any way deface any part of the Premises or
the Building. No boring, cutting or stringing of wires shall be permitted,
except with the prior written consent of Landlord, which consent shall not be
unreasonably withheld or delayed, and as Landlord may direct.
(8) No space in the Building shall be used for manufacturing, for the
storage of merchandise, or for the sale of merchandise, goods or property of any
kind at auction or otherwise.
(9) Tenant shall not make, or permit to be made, any unseemly or
disturbing noises or disturb or interfere with occupants of this or neighboring
buildings or premises or those having business with them whether by the use of
any musical instrument, radio, television set, talking machine, unmusical noise,
whistling, singing, or in any other way.
(10) Tenant, or any of Tenant's employees, agents, visitors or
licensees, shall not at any time bring or keep upon the Premises any
inflammable, combustible or explosive fluid, chemical or substance except such
as are incidental to usual office occupancy.
(11) No additional locks or bolts of any kind shall be placed upon any
of the doors or windows by Tenant, nor shall any changes be made in existing
locks or the mechanism thereof, unless Tenant promptly provides Landlord with
the key or combination thereto. Tenant must, upon the termination of its
tenancy, return to Landlord all keys of stores, offices and toilet rooms, and in
the event of the loss of any keys furnished at Landlord's expense, Tenant shall
pay to Landlord the cost thereof.
(12) No bicycles, vehicles or animals of any kind except for seeing eye
dogs shall be brought into or kept by Tenant in or about the Premises or the
Building.
(13) All removals, or the carrying in or out of any safes, freight,
furniture or bulky matter of any description must take place in the manner and
during the hours which Landlord or its agent reasonably may determine from time
to time. Landlord reserves the right to inspect all safes, freight or other
bulky articles to be brought into the Building and to exclude from the Building
all safes, freight or other bulky articles which violate any of these Rules and
Regulations or the Lease of which these Rules and Regulations are a part.
(14) Tenant shall not occupy or permit any portion of the Premises
demised to it to be occupied as an office for a public stenographer or typist,
or for the possession, storage, manufacture, or sale of liquor, narcotics, dope,
or as a barber or manicure shop, or as an employment bureau. Tenant shall not
engage or pay any employees on the Premises, except those actually working for
Tenant at the Premises, nor advertise for labor giving an address at the
Premises.
(15) Tenant shall not purchase spring water, ice, towels or other like
service, or accept barbering or bootblacking services in the Premises, from any
company or persons not approved
A-2
<PAGE>
by Landlord, which approval shall not be withheld or delayed unreasonably and at
hours and under regulations other than as reasonably fixed by Landlord.
(16) Landlord shall have the right to prohibit any advertising by
Tenant which, in Landlord's reasonable opinion, tends to impair the reputation
of the Building or its desirability as a building for offices, and upon written
notice from Landlord, Tenant shall refrain from or discontinue such advertising.
(17) Landlord reserves the right to exclude from the Building between
the hours of 6 P.M. and 8 A.M. and at all hours on days other than Business Days
all persons who do not present a pass to the Building signed or approved by
Landlord. Tenant shall be responsible for all persons for whom a pass shall be
issued at the request of Tenant and shall be liable to Landlord for all acts of
such persons.
(18) Tenant shall, at its expense, provide artificial light for the
employees of Landlord while doing janitor service or other cleaning, and in
making repairs or alterations in the Premises.
(19) The requirements of Tenant will be attended to only upon written
application at the office of the Building. Building employees shall not perform
any work or do anything outside of the regular duties, unless under special
instructions from the office of Landlord.
(20) Canvassing, soliciting and peddling in the Building is prohibited
and Tenant shall cooperate to prevent the same.
(21) There shall not be used in any space, or in the public halls of
the Building, either by Tenant or by jobbers or others, in the delivery or
receipt of merchandise, any hand trucks, except those equipped with rubber tires
and side guards.
(22) Except as specifically provided in Section 2.2 of this Lease,
Tenant shall not do any cooking, conduct any restaurant, luncheonette or
cafeteria for the sale or service of food or beverages to its employees or to
others, or cause or permit any odors of cooking or other processes or any
unusual or objectionable odors to emanate from the Premises. Tenant shall not
permit the delivery of any food or beverage to the Premises, except by such
persons delivering the same as shall be approved by Landlord, which approval
shall not be unreasonably withheld or delayed.
(23) Tenant shall keep the entrance door to the Premises closed at all
times.
(24) Landlord shall have the right to require that all messengers and
other Persons delivering packages, papers and other materials to Tenant (i) be
directed to deliver such packages, papers and other materials to a Person
designated by Landlord who will distribute the same to Tenant or (ii) be
escorted by a person designated by Landlord to deliver the same to Tenant.
A-3
<PAGE>
(25) Landlord and its agents reserve the right to inspect all packages,
boxes, bags, handbags, attache cases, suitcases, and other items carried into
the Building, and to refuse entry into the Building to any person who either
refuses to cooperate with such inspection or who is carrying any object which
may be dangerous to persons or property. In addition, Landlord reserves the
right to implement such further measures designed to ensure safety of the
Building and the persons and property located therein as Landlord shall deem
necessary or desirable.
A-4
<PAGE>
Schedule B
CLEANING SPECIFICATIONS
GENERAL CLEANING:
NIGHTLY
General Offices:
1. All hardsurfaced flooring to be swept using approved dustdown
preparation.
2. Carpet sweep all carpets, moving only light furniture (desks,
file cabinets, etc. not to be moved).
3. Hand dust and wipe clean all furniture, fixtures and window
sills.
4. Empty and clean all ash trays and screen all sand urns.
5. Empty and clean all waste disposal cans and baskets.
6. Dust interiors of all waste disposal cans and baskets.
7. Wash clean all water fountains and coolers.
Public Lavatories (Base Building):
1. Sweep and wash all floors, using proper disinfectants.
2. Wash and polish all mirrors, shelves, bright work and enameled
surfaces.
3. Wash and disinfect all basins, bowls and urinals.
4. Wash all toilet seats.
5. Hand dust and clean all partitions, tile walls, dispensers and
receptacles in lavatories and restrooms.
6. Empty paper receptacles and remove wastepaper.
7. Fill and clean all soap, towel and toilet tissue dispensers as
needed, supplies therefore to be furnished by Landlord at a
reasonable charge to Tenant. If the
B-1
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Premises consists of a part of a rentable floor, said charge
to Tenant shall be that portion of a reasonable charge for
such supplies that is reasonably allocable to Tenant.
8. Empty and clean sanitary disposal receptacles.
WEEKLY:
1. Vacuum clean all carpeting and rugs.
2. Dust all door louvres and other ventilating louvres within a
person's reach.
3. Wipe clean all brass and other bright work.
QUARTERLY:
High dust the Premises complete, including the following:
1. Dust all pictures, frames, charts, graphs and similar wall
hangings not reached in nightly cleaning.
2. Dust clean all vertical surfaces, such as walls, partitions,
doors and door bucks and other surfaces not reached in nightly
cleaning.
3. Dust all pipes, ventilating and air-conditioning louvres,
ducts, high mouldings and other high
areas not reached in nightly cleaning.
4. Dust all venetian blinds.
Wash exterior and interior of windows periodically, subject to weather
conditions and requirements of law.
B-2
<PAGE>
EXHIBIT "A"
FLOOR PLAN
This floor plan is annexed to and made a part of this Lease solely to indicate
the Premises by outlining and diagonal marking. All areas, conditions,
dimensions and locations are approximate.
ONE PENN PLAZA
ARCHITECTURAL PLAN
NEW YORK, NEW YORK
7-14-97
[FLOOR PLAN]
<PAGE>
COMMERCIAL LEASE AGREEMENT
This Commercial Lease Agreement ("Lease") is made and effective February 4, 2000
by and between TELEVISIONES COMMUNICATIONS, CORP. (TCC) ("Landlord") and Teltran
International Group, Ltd., ("Tenant"), on the following terms:
RECITALS
WHEREAS, Landlord is the owner of land and improvements commonly known and
numbered as 1080 N.W. 163rd Dr., Miami, FL 33169.
WHEREAS, Tenant is a New York corporation which provides long distance and
tele-communication services.
WHEREAS, Landlord makes available for lease technical storage space commonly
referred to as "POP # 2 Colocation Space East room (22' x 36')" at the above
stated address, comprised of the area known by Landlord and referred to herein
as the "Leased Premises", together with, except as otherwise herein provided, a
grant of a non-exclusive easement for unrestricted rights of access to the
"Leased Premises" and to the appropriate source of electric and telephone
facilities.
WHEREAS, Tenant desires to lease the Leased Premises from Landlord upon the
terms and conditions set forth herein.
NOW THEREFORE, in consideration of covenants herein, contained and other good
and valuable consideration, it is agreed:
1. Term.
----
Lease Commencement
Tenant hereby leases the Leased Premises from Landlord, for an "Initial Term" of
3 (three) years beginning March 1, 2000 and ending February 28, 2003
Lease Renewal
Tenant may renew, at their option, the Lease for one extended term of 3 (three)
years. Tenant shall exercise such renewal option, if at all, by giving written
notice to Landlord not less than ninety (90) days prior to the expiration of the
Initial Term. Following the expiration of the Initial Lease Term, this Lease
shall continue in effect on a month to month basis upon the same terms and
conditions specified in the prior lease term, unless terminated by either Tenant
or Landlord upon thirty (30) days prior written notice.
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2. Rental.
------
A. Tenant shall pay to Landlord during the Initial Term rental of $ 72,000.00
per year, payable in installments of $ 6,000.00 per month, in advance, in
addition to applicable taxes and Utilities as stated in 11B. No additional
security deposit is required. Existing deposit, if any, from previous lease will
be transferred to this lease. Any deposits given will be returned to Tenant upon
termination of the contract unless such deposit is needed to return Leased
Premises to original form or payment of past due accounts. Each installment
payment shall be due in advance on the first day of each calendar month during
the lease term to Landlord at 1080 N.W. 163rd Dr., Miami, FL 33169 or at such
other place designated by written notice from Landlord. A grace period from the
first to the 15th will be granted. Should the rental payment arrive after the
15th a surcharge of 25% will be accrued to your monthly rental amount. The
rental payment amount for any partial calendar month included in the lease term
shall be prorated on a thirty (30) day monthly basis.
B. The rental for any renewal lease term, if created as permitted under this
Lease, shall be as is determined by the parties at the time of renewal.
3. Right of First Refusal
-----------------------
During the initial term of ts lease or during any renewal period, Landlord may
desire to lease the area adjacent to the Leased Premises. In such an event,
Landlord shall notify Tenant of its intent to do so. Tenant shall advise
Landlord in writing within five (5) days of being notified by Landlord whether
Tenant wishes to lease the adjacent area. Should Tenant fail to respond within
this time, Tenant will be deemed to have refused said option and Landlord shall
be free to enter into a lease with a third party.
4. Use
---
Telecommunications equipment: Use of Leased Premises by Tenant shall be for the
purpose of operating telecommunication equipment and providing telecommunication
services. Tenant shall not use the Leased Premises for the purposes of storing,
manufacturing or selling any explosives, flammable or other inherently dangerous
substance, chemical, thing or device.
Landlord does not represent that the use of the Space(s) shall be free from any
interruptions for any reason whatsoever, as provided in Section 21, and Landlord
shall not be liable for any failure to provide the Services where such failure
is due to an act of God, governmental control, or other factors beyond the
reasonable control of Landlord.
5. Sublease and Assignment.
-----------------------
Tenant shall not have the right to sublease all or any part of the Leased
Premises, or assign this Lease, in whole or in part, without Landlord's consent,
except as follows:
A. Tenant shall be entitled to allow customers of Tenant to collocate equipment
in the Leased Premises, without the Landlord's consent, so long as such
equipment and the use thereof does not violate any other of the terms of this
Lease and provided such acts do not cause interference, in any manner, with
Landlord's other tenant's operations in which case Tenant shall be
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<PAGE>
responsible. Further, provided, Tenant shall assume all financial responsibility
for any damages, of any nature whatsoever, sustained by reason of any such
collocation.
B. Tenant shall be entitled to interconnect the equipment with telecommunication
services provided to the Tenant by third parties, without Landlord's consent and
provided such acts do not cause interference, in any manner, with Landlord's
other tenant's operations in which case Tenant shall be responsible. Further,
provided, Tenant shall assume all financial responsibility for any damages, of
any nature whatsoever, sustained by reason of any such collocation. Alterations,
however, to the Leased Premises or any other common areas of the building such
as wiring conduits shall require Landlord's prior written consent, which shall
not be unreasonably held (such alterations to be in accordance with Section 6 of
this Lease).
6. Alterations and Improvements.
----------------------------
Tenant, at Tenant's expense, shall have the right following Landlord's consent
to remodel, redecorate, and make additions, improvements and replacements of and
to all or any part of the Leased Premises from time to time as Tenant may deem
desirable, provided the same are made in a workmanlike manner and utilizing good
quality materials.
Tenant shall be required to obtain all the necessary permits and to otherwise
comply with all local laws and ordinances. Tenant shall have the right to place
and install personal property, trade fixtures, equipment and other temporary
installations in and upon the Leased Premises, and fasten the same to the
premises. All personal property, equipment, machinery, trade fixtures and
temporary installations, whether acquired by Tenant at the commencement of the
Lease term or placed or installed on the Leased Premises by Tenant thereafter,
shall remain Tenant's property free and clear of any claim by Landlord. Tenant
shall have the right to remove the same at any time during the term of this
Lease provided that all damage to the Leased Premises caused by such removal
shall be repaired by Tenant at Tenant's expense.
Landlord , at Landlord's own expense shall have the right to alter or improve
the premises. In such an event, Tenant shall provide Landlord with reasonable
access to the Leased Premises.
7. Property Taxes.
--------------
Tenant shall be responsible for paying all personal property taxes with respect
to Tenant's personal property at the Leased Premises.
Tenant agrees to indemnify, defend and hold Landlord harmless from any
liabilities, costs, expenses (including without limitation, reasonable expenses
of investigation and attorney's fees and expenses) assessments, settlements or
judgements arising out of or incident to the imposition, assessment or assertion
by any taxing authority of any tax liability or increase in tax liability which
is the obligation of Tenant arising under this Agreement.
8. Insurance.
---------
A. If the Leased Premises or any other part of the Building is damaged by fire
or other casualty resulting from any act or negligence of Tenant or any of
Tenant's agents, employees or invitees,
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rent shall not be diminished or abated while such damages are under repair, and
Tenant shall be responsible for the costs of repair not covered by insurance.
B. Tenant at its own expense, shall maintain a policy of comprehensive general
liability insurance with respect to its activities in the Building with the
premiums thereon fully paid on or before due date, issued by and binding upon
some insurance company approved by Landlord, such insurance to afford minimum
protection of not less than $1,000,000 combined single limit coverage of bodily
injury, property damage, errors and omissions, and combination thereof. Landlord
shall be listed as an additional insured on Tenant's policy or policies of
comprehensive general liability insurance, and Tenant shall provide Landlord
with current Certificates of Insurance evidencing Tenant's compliance with this
Paragraph. Tenant shall obtain the agreement of Tenant's insurers to notify
Landlord that a policy is due to expire at least (10) days prior to such
expiration. Landlord shall not be required to maintain insurance against thefts
within the Leased Premises or the Building.
C. Tenant at its own expense, shall maintain a policy of Worker's Compensation
complying with the law of the State or States of operation, whether or not such
coverage is required by law and Employee's Liability Insurance.
9. Building Rules
--------------
A. Tenant will keep the Leased Premises in good condition and will comply with
the rules of the Building adopted and altered by Landlord from time to time and
will cause all of its agents, employees, invitees and visitors to do so; all
changes to such rules will be sent by Landlord to Tenant in writing. The initial
rules of the Building are attached hereto as Exhibit "A" and will be
incorporated herein for all purposes. In the event that Landlord changes the
rules in such a manner that it materially adversely affects Tenant, Tenant may
immediately terminate this Lease without recourse of any kind; provided,
Landlord, upon written advice from Tenant that such change materially adversely
affects Tenant, fails to remove such change within twenty (20) days of receipt
of such notice.
B. Notwithstanding anything to the contrary under Section 9.A. or Exhibit "A",
or any future modification of the rules by Landlord, Tenant shall have an
absolute right to transport equipment in/out of the Leased Premises, other than
as set forth in rule 19 of Exhibit "A" and paragraph 13 hereof, only upon
written consent of Landlord. While in default of rent under this Lease, Tenant
shall not remove any equipment, without Landlord's consent until such rental
becomes current.
10. Emergency Phone Numbers
-----------------------
Landlord shall, upon the execution of this Agreement, provide Tenant with a 24
hour maintenance number for trouble notification in the case of an emergency.
Tenant shall likewise provide landlord with the same. Such number shall be
included as Exhibit "B" to this contract. In addition, Tenant shall place such
numbers at a visible location.
4
<PAGE>
11. Utilities.
----------
A. The operation of the communications equipment shall be the sole
responsibility of Tenant, however, Landlord agrees to cooperate with Tenant in
its efforts to obtain utilities from any location provided by the Tenant or
servicing utility.
B. Tenant shall pay Landlord $150.00 monthly for use of electricity during the
term of this contract. However, should Landlord's cost of providing electricity
be increased by the supplying company, the amount due by Tenant shall be
increased the same rate. Tenant shall pay the rate for electricity usage to
Landlord together with and at the same time and place Tenant pays the rental
amount provided for in Section 2A above. Landlord will pay for all other
utilities used by Tenant on the Leased Premises during the initial term or any
Renewal Term, provided, Tenant's consumption of such utilities is not excessive
in Landlord's reasonable opinion.
12. Entry.
-----
Landlord shall have the right to enter upon the Leased Premises at reasonable
hours to inspect the same, provided Landlord shall not thereby unreasonably
interfere with Tenant's business on the Leased Premises.
13. Access
------
Tenant shall have unrestricted access to the Leased Premises during regular
business hours which are 9:00 A.M. to 6:00 P.M.. Any access to the Leased
Premises after business hours is restricted and limited to the list of
individuals whose names, addresses and telephone numbers are submitted to
Landlord attached hereto as Exhibit "C". Any additions or deletions of
individuals to this list shall be immediately provided to Landlord.
14. Parking.
-------
During the term of this Lease, Tenant shall have the non-exclusive use in common
with Landlord, other tenants of the Building, their guests and invitees, on a
first come first serve basis, of the non-reserved common automobile parking
areas, driveways and footways, subject to the rules and regulations for the use
thereof prescribed form time to time by Landlord.
15. Damage and Destruction.
----------------------
Subject to Section 8A. above, if the Leased Premises or any part thereof or any
appurtenance thereto is so damaged by fire, casualty or structural defects that
the same cannot be used for Tenant's purposes, then Tenant shall have the right
within ninety (90) days following damage to elect by notice to Landlord to
terminate this Lease as of the date of such damage. In the event of minor damage
to any part of the Leased Premises, and if such damage does not render the
Leased Premises unusable for Tenant's purposes, Landlord shall promptly repair
such damage at the cost of the Landlord. In making the repairs called for in
this paragraph, Landlord shall not be liable for any delays resulting from
strikes, governmental restrictions, inability to obtain necessary materials or
labor or other matters which are beyond the reasonable control of Landlord.
Tenant shall be relieved from paying rent and other charges during any portion
of the Lease term that the Leased Premises are inoperable or unfit for
occupancy, or use, in whole or in part, for Tenant's purposes. Rentals and other
charges paid in advance for any such periods shall be credited on the
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<PAGE>
next ensuing payments, if any, but if no further payments are to be made, any
such advance payments shall be refunded to Tenant. The provisions of this
paragraph extend not only to the matters aforesaid, but also to any occurrence
which is beyond Tenant's reasonable control and which renders the Leased
Premises, or any appurtenance thereto, inoperable or unfit for occupancy or use,
in whole or in part, for Tenant's purposes.
16. Default.
-------
If default shall at any time be made by Tenant in the payment of rent or any
other amount due and owing to Landlord as provided herein and if said default
shall continue for fifteen (15) days after written notice thereof shall have
been given to Tenant by Landlord, or if default shall be made in any of the
other covenants or conditions to be kept, observed and performed by Tenant, and
such default shall continue for thirty (30) days after notice thereof in writing
to Tenant by Landlord without correction thereof then having been commenced and
thereafter diligently prosecuted, Landlord may declare the term of this Lease
ended and terminated by giving Tenant written notice of such intention, and if
possession of the Leased Premises is not surrendered, Landlord may reenter said
premises. Landlord shall have, in addition to the remedy above provided, any
other right or remedy available to Landlord on account of any Tenant default,
either in law or equity. Landlord shall use reasonable efforts to mitigate its
damages.
17. Quiet Possession.
----------------
Landlord covenants and warrants that upon performance by Tenant of its
obligations hereunder, Landlord will take reasonable efforts to protect the
Leased Premises and will keep and maintain Tenant in exclusive, quiet, peaceable
and undisturbed and uninterrupted possession of the Leased Premises during the
term of this Lease.
18. Condemnation.
------------
If any legally, constituted authority condemns the Building or such part thereof
which shall make the Leased Premises unsuitable for leasing, this Lease shall
cease when the public authority takes possession, and Landlord and Tenant shall
account for rental as of that date. Such termination shall be without prejudice
to the rights of either party to recover compensation from the condemning
authority for any loss or damage caused by the condemnation. Neither party shall
have any rights in or to any award made to the other by the condemning
authority.
19. Subordination.
-------------
Tenant accepts this Lease subject and subordinate to any mortgage, deed of trust
or other lien presently existing or hereafter arising upon the Leased Premises,
or upon the Building and to any renewals, refinancing and extensions thereof,
but Tenant agrees that any such mortgagee shall have the right at any time to
subordinate such mortgage, deed of trust or other lien to this Lease on such
terms and subject to such conditions as such mortgagee may deem appropriate in
its discretion.
Landlord is hereby irrevocably vested with full power and authority to
subordinate this Lease to any mortgage, deed of trust or other lien now existing
or hereafter placed upon the Leased Premises of the Building, and Tenant agrees
upon demand to execute such further instruments
6
<PAGE>
subordinating this Lease or attorning to the holder of any such liens as
Landlord may request. In the event that Tenant should fail to execute any
instrument of subordination herein required to be executed by Tenant promptly as
requested, Tenant hereby irrevocably constitutes Landlord as its
attorney-in-fact to execute such instrument in Tenant's name, place and stead,
it being agreed that such power is one coupled with an interest.
Tenant agrees that it will from time to time upon request by Landlord execute
and deliver to such persons as Landlord shall request a statement in recordable
form certifying that this Lease is unmodified and in full force and effect (or
if there have been modifications, that the same is in full force and effect as
so modified), stating the dates to which rent and other charges payable under
this Lease have been paid, stating that Landlord is not in default hereunder (or
if Tenant alleges a default stating the nature of such alleged default) and
further stating such other matters as Landlord shall reasonably require.
20. Lien on Equipment.
------------------
Landlord shall have no rights to or interest in the Equipment other than
statutory rights granted a landlord with respect to the commercial property of a
tenant. In all other respects, the Equipment shall remain the sole property of
the Tenant. However, in the event the Tenant fails to pay the Landlord for
amounts hereunder and is in default of this Agreement, Landlord shall have a
lien upon the Equipment which shall attach in and all other personal property of
the Tenant which may be located in or upon the Premises. Customer hereby
specifically waives any and all exemption allowed by law with respect to such
lien. Such lien, subject to the rights of third parties, if any, with security
interest in the Equipment, may be enforced by Landlord for Tenant's failure to
pay amounts due hereunder by the taking and selling of such Equipment and/or
property, said sale to be made upon thirty (30) days written notice served upon
the Tenant, or such lien may be enforced in any other manner at the sole option
of Landlord. The lien provided for herein shall not be recorded as a security
interest in the Equipment and shall only arise in the event Tenant is in default
of this Agreement.
21. Limitation of Liability and Indemnification
-------------------------------------------
Landlord will be indemnified and held harmless by Tenant against Landlord for
any claims arising from Tenant's acts or the acts of parties engaged with
Landlord's in its activities under this Lease for:
(a) Any defacement of or damage to Tenant's equipment resulting from the
provision of the utility services provided for in Section 11, when such
defacement or damage is not the result of Landlord's negligence; and
(b) Any act or omission of the Tenant and any other company or companies
furnishing a portion of the Service or facilities, equipment or service
associated with this Agreement; and
(c) Any defacement of, or damage to, the Equipment or Premises of Tenant
resulting from the provision of Service when such defacement or damage is not
the result of the Landlord's actions.
7
<PAGE>
(d) Any other direct, indirect, consequential, special, actual, or punitive
damages, or for any lost profits of any kind or nature whatsoever arising out of
the furnishings of, or interruption in, service provided hereunder, absent a
determination of willful misconduct by Landlord through judicial or
administrative proceedings;
(e) Any damages whatsoever incurred by Tenant as a result of, or arising from,
actions or omissions of other tenants whether performed willfully or
negligently; and.
(f) Any claims for libel, slander, infringement of patent or copyright, or
unauthorized trademark, trade name or service mark arising out of the material,
data, information, or other content transmitted over the Tenant's lines and
facilities;
(g) All other claims arising out of any act or omission of Tenant in connection
with any service offered by Tenant.
22. Eminent Domain.
---------------
In the event of a taking of eminent domain (or a conveyance by Landlord of a or
any portion of the Building to an entity having the power of eminent domain
after receipt of actual notice of the threat of such taking) of all or any
portion of the Building so as to prevent Tenant the utilization of the Leased
Premises, this Agreement shall terminate as of the date of such taking or
conveyance with respect to the Leased Premises which is affected by such taking
or conveyance.
Tenant shall have no claim against Landlord for the value of the unexpired Term
as set forth in this Agreement (or any portion thereof), any claim or right to
any portion of the amount that might be awarded to the Landlord as a result of
any such payment for condemnation or damages. Nothing contained in this
Agreement should prohibit Tenant from seeking relief or remedy against the
condemning authority in the event of an Eminent Domain proceeding or
condemnation which effect the Leased Premises.
Landlord will notify Tenant of any potential action, Eminent Domain or otherwise
that will affect the lease arrangement and Tenant will be afforded prior of said
action 90 days to transition from the building.
23. Notice.
------
Any notice required or permitted under this Lease shall be deemed sufficiently
given or served if sent by United States certified mail, return receipt
requested, addressed as follows:
If to Landlord to:
TELEVISIONES COMMUNICATIONS, CORP.
1080 N.W. 163rd DR.
Miami, FL 33169
8
<PAGE>
If to Tenant to:
TELTRAN INTERNATIONAL GROUP LTD.
1 Ten Plaza, Suite 4430
New York, NY 10119
- - - - - - - - - - - --------------------------------------------------------------------------------
Landlord and Tenant shall each have the right from time to time to change the
place notice is to be given under this paragraph by written notice thereof to
the other party.
24. Brokers.
-------
Tenant represents that Tenant was not shown the Premises by any real estate
broker or agent and that Tenant has not otherwise engaged in, any activity which
could form the basis for a claim for real estate commission, brokerage fee,
finder's fee or other similar charge, in connection with this Lease.
25. Waiver.
------
No waiver of any default of Landlord or Tenant hereunder shall be implied from
any omission to take any action on account of such default if such default
persists or is repeated, and no express waiver shall affect any default other
than the default specified in the express waiver and that only for the time and
to the extent therein stated. One or more waivers by Landlord or Tenant shall
not be construed as a waiver of a subsequent breach of the same covenant, term
or condition.
26. Memorandum of Lease.
-------------------
The parties hereto contemplate that this Lease should not and shall not be filed
for record, but in lieu thereof, at the request of either party, Landlord and
Tenant shall execute a Memorandum of Lease to be recorded for the purpose of
giving record notice of the appropriate provisions of this Lease.
27. Headings.
--------
The headings used in this Lease are for convenience of the parties only and
shall not be considered in interpreting the meaning of any provision of this
Lease.
28. Successors.
----------
The provisions of this Lease shall extend to and be binding upon Landlord and
Tenant and their respective legal representatives, successors and assigns.
29. Bankruptcy
----------
During the initial term of this contract or any Renewal Term, if either Tenant
or Landlord shall file a petition for bankruptcy, the filing party shall
promptly notify the other party of such filing. This contract shall subsequently
be terminated, unless the filing party cures the bankruptcy within thirty (90)
days.
30. Compliance with Law.
-------------------
Tenant shall comply with all laws, orders, ordinances and other public
requirements now or hereafter pertaining to Tenant's use of the T1 lines and the
Leased Premises
9
<PAGE>
31. Governing Law.
--------------
This Lease shall be governed by and construed under the laws of the State of
Florida.
32. Jurisdiction and Venue.
-----------------------
Tenant consents to the jurisdiction and venue of any State or Federal court of
general jurisdiction in Miami, Florida, with respect to any proceeding arising
our of this agreement.
33. Effect of Unenforceable Provisions
----------------------------------
A determination by a court of competent jurisdiction that any provisions of this
Agreement or any part hereof is illegal or unenforceable shall not cancel or
invalidate the remainder of such provision of this agreement which shall remain
in full force and the provision or other provisions of this Agreement which
shall remain herein contained to be performed by the other party.
34. Final Agreement
---------------
This Agreement terminates and supersedes all prior understandings or agreements
on the subject matter hereof. This Agreement may be modified only by a further
writing that is duly executed by both parties.
IN WITNESS WHEREOF, the parties have executed this Lease as of the day and year
first above written.
Landlord: Televisiones Communications, Corp.
----------------------------------
By:
-----------------------------------------
Its:
----------------------------------------
Witness:
------------------------------------
- - - - - - - - - - - --------------------------------------------
Print Name
Tenant: Teltran International Group, Ltd.
---------------------------------
By:
-----------------------------------------
Its:
----------------------------------------
Witness:
------------------------------------
- - - - - - - - - - - --------------------------------------------
Print Name
10
<PAGE>
EXHIBIT A
LANDLORD'S RULES AND REGULATIONS
1. Sidewalks, doorways, vestibules, halls, stairways, and similar areas shall
not be obstructed nor shall refuse, furniture, boxes or other items be placed
therein by Tenant or its officers, agents, servants, and employees, or used for
any purpose other than entering and leaving the Leased Premises, or for going
from one part of the Building to another part of the Building. Canvassing,
soliciting and peddling in the Building are prohibited.
2. Tenants shall not do, or permit anything to be done in or about the
Building, or bring or keep anything therein, that will in any way increase the
rate of fire or other insurance on the Building, or on property kept therein or
otherwise increase the possibility of fire or other casualty.
3. Landlord shall have the power to prescribe the weight and position of heavy
equipment or objects which may overstress any portion of the floor. All damage
done to the Leased Premises or the Building by the improper placing of such
heavy items will be repaired at the sole expense of the responsible Tenant.
4. Tenant shall bear all risk of loss relating to damage incurred with respect
to Tenant's property in the process of such a move, and in addition, shall
indemnify and hold Landlord harmless as to all losses, damages, claims, causes
of action, costs and/or expenses relating to personal injury or property damage
sustained by Landlord or any third party on account of Tenant's moving
activities.
5. Each Tenant shall cooperate with Landlord in keeping the Leased Premises
neat and clean. Landlord may employ a cleaning service for the Leased Premises
or the Building. Landlord is not responsible for losses caused by any such
service.
6. Tenants shall not cause or permit any improper noises in the Building, or
allow any unpleasant odors to emanate from the Leased Premises, or otherwise
interfere, injure or annoy in any way other tenants, or persons having business
with them.
7. No animals shall be brought into or kept in or about the Building.
8. No boxes, crates or other such materials shall be stored in hallways
or other common areas. Tenant must dispose of crates, boxes, or other
extraordinary waste, so as to avoid having such debris visible in the common
areas during normal business hours. Landlord will provide temporary storage of
delivered equipment
9. No machinery of any kind, other than ordinary office machines such as
typewriters and personal computers, shall be operated on Leased Premises without
the prior written consent of Landlord, nor shall a tenant use or keep on the
Leased Premises or the Building any inflammable
11
<PAGE>
or explosive fluid or substance, or any illuminating materials. No space heaters
or large fans shall be operated on the Leased Premises.
10. No bicycles, motorcycles or similar vehicles will be allowed in the
Building.
11. No nails, hooks, or screws shall be driven into or inserted in any part of
the any building except as approved by maintenance personnel. Nothing shall be
affixed to, or made to hang from the ceiling of the Leased Premises without
Landlord's prior written consent.
12. Landlord has the right to evacuate the Leased Premises and/or the
Building in the event of an emergency or catastrophe.
13. No food and/or beverages shall be permitted in Tenants area. Food or
and/or beverage may be permitted in the designated areas only.
14. No additional locks shall be placed upon any doors without the prior
written consent of Landlord. All necessary keys shall be furnished by Landlord,
and the same shall be surrendered upon termination of this Lease, and Tenant
shall then give Landlord or his agent an explanation of the combination of all
locks on the doors or vaults. Tenant shall initially be given two (2) keys to
the Leased Premises by Landlord. No duplicates of such keys shall be made by
Tenants. Additional keys shall be obtained only from Landlord, at a fee to be
determined by Landlord.
15. Tenants will not locate furnishings or cabinets adjacent to mechanical or
electrical access panels so as to prevent operating personnel from servicing
such units as routine or emergency access may require. Cost of moving such
furnishings for Landlord's access will be for Tenant's account. The lighting and
air conditioning equipment of the building will remain the exclusive charge of
Landlord.
16. No portion of the Building shall be used for the purpose of providing
lodging.
17. Proper business attire will be required by Tenant at all times will
occupying the building.
18. In the event that Landlord employs any security personnel or security
service at the Building, then the personnel or service may question anyone
entering or leaving the Building or the Leased Premises. Anyone that does not
provide suitable evidence of his or her right to be about the Building may be
excluded.
19. Tenant agrees to transport equipment in/out of the facility ONLY during
normal business hours described as Monday through Friday between the hours of 9
AM and 5 PM. or at any other time with landlord approval.
20. Landlord reserves the right to rescind any of these rules and make such
other and further rules and regulations as in its judgment shall from time to
time be needful for the operation of the Building. Modified or new rules shall
be binding upon each tenant following delivery of written notice of the new or
modified rules.
12
<PAGE>
EXHIBIT B
CONTACT PHONE NUMBERS
LANDLORD:
MAIN OFFICE: 305-620-3600 Ext. 116 or 137
Mike Vazquez 305-794-4865 Cellular phone
TENANT:
CEO /Phone
- - - - - - - - - - - --------------------------------------------------------------------------------
Administration contact / phone:
- - - - - - - - - - - --------------------------------------------------------------------------------
Emergency contact / phone (Technical):
- - - - - - - - - - - --------------------------------------------------------------------------------
Accounts Payable contact/Phone:
- - - - - - - - - - - --------------------------------------------------------------------------------
13
<PAGE>
EXHIBIT C
RESTRICTED ACCESS
The following persons will be permitted to enter the building during
non-business hours. The Tenant shall be held completely responsible for the
actions of those mentioned below.
COMPANY ALARM CODE_______
Name Address Phone Number *Access Code
- - - - - - - - - - - --------------------------------------------------------------------------------
- - - - - - - - - - - ---------------- ---------------------- ------------------ -------------
- - - - - - - - - - - ---------------- ---------------------- ------------------ -------------
- - - - - - - - - - - ---------------- ---------------------- ------------------ -------------
- - - - - - - - - - - ---------------- ---------------------- ------------------ -------------
- - - - - - - - - - - ---------------- ---------------------- ------------------ -------------
*Note: Please enter four digits you would like for the access code
14
<PAGE>
ALARM INSTRUCTIONS
Only one alarm code is used per company, PLEASE make note of your code.
When entering:
1. If outside door is locked with the dead bolt the alarm should be armed.
2. Check for red light on alarm panel (means alarm is armed).
3. Enter personal code and "Clear" Twice.
4. The light should turn green.
When leaving:
1. Enter your personal code and "Arm".
2. Leave (lock door with dead bolt).
3. Wait outside until the green light turns red.
If the alarm is tripped by mistake call Central at: 1-800-432-6533. Tell them
your password and what you did.
I understand that the alarm must be used after hours and I have received 2 keys
to enter the building.
- - - - - - - - - - - ----------------------------------
TENANT
15
<PAGE>
WWEXCHANGE NETWORK SERVICES AGREEMENT BY & BETWEEN
TELTRAN INTERNATIONAL, INC. & ITXC CORP
THIS WWEXCHANGE NETWORK SERVICES ORIGINATION/TERMINATION AGREEMENT (the
"Agreement") is made and entered into as of this day of , 1999 (the "Effective
Date"), by and between ITXC CORP, a Delaware corporation, with a principal
office at 600 College Road East, Princeton, New Jersey 08540 ("ITXC") and
Teltran International, Inc., a Delaware corporation with a principal office at
One Penn Plaza, Suite 4632, New York, NY 10119 ("Carrier" or "Teltran")).
The Carrier and ITXC (hereinafter individually referred to as "Party" and
jointly as "Parties") agree to provide to and purchase from each other Internet
telephony and/or telecommunication services, further described in Section 1.1 of
this Agreement, hereinafter referred to as the "Services".
IN CONSIDERATION of the premises and mutual agreements contained herein
and other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the Parties, intending to be legally bound, hereby
agree hereto as follows:
1. Termination Services to be provided
1.1 Each Party will arrange for and be responsible for its costs associated
with terminating Internet telephony or Public Switched Telephone Network
("PSTN") calls from Internet Telephony and/or PSTN networks to be terminated
through the PSTN 24 hours a day, 7 days a week, in the locations and at the
rates listed in Attachment 1 or as may be amended from time to time as the
Parties may mutually agree. Each Party is solely responsible for and will
provide its customers/subscribers originating calls that terminate on the other
Party s equipment with all the necessary support as hereinafter more
specifically set forth.
1.2 Each Party or its customers will be entirely responsible for providing
all end-user or caller related services for each Party's own customers,
including but not limited to authentication, authorization of customers,
marketing, sales, distribution, billing, collections, customer care, and
technical support, solely for its own originated traffic (hereinafter referred
to as Subscriber Services).
1.3 Each party will provide English-speaking technical support staff 24 hours
a day, 7 days a week.
2. Routing
Each Party reserves the right to route calls which it originates at its sole
discretion and/or use supplemental or alternative means of termination,
including without limitation the use of the PSTN.
3. Charges, Billing and Payment
3.1 Termination charges applicable to the Services between the Carrier and
ITXC shall be set out in Attachment 1 to the Agreement. The service areas and
the rates listed in Attachment 1 are subject to change by either Party with five
(5) days written notice to the other Party. All rates exclude termination to
Special Service Numbers (i.e. Audiotext, 900 equivalent, Caller pay cellular
where the caller charge exceeds standard in-country termination rates and any
other premium charge calls.), unless explicitly priced otherwise.
3.2 Once a month, each Party shall provide the other with an invoice that
includes, at a minimum, the following information: total number of calls, total
duration of calls, the country and city (if applicable) of termination; the
price per minute per country of termination and a statement setting forth the
total charges for the service month.
3.3 Unless otherwise noted herein, calls will be billed in six second
increments with a 30 second initial increment, except Mexico which shall be in
60 second increments. Any process for the rounding of charges shall be equally
applied by the Parties.
3.4 Each Party shall provide to the other a monthly invoice as soon as
practicable after the close of the service month to which the invoice relates
but in no event later than 30 days after the close of the month in which the
traffic
p. -1
<PAGE>
listed on the invoice was delivered, unless otherwise mutually agreed to by the
Parties in writing. Net settlement of invoices shall occur, such that the
outstanding balance due from one Party shall be offset by the balance due from
the other Party. Each Party shall pay to the other all amounts shown on an
invoice, after taking into account the net settlement procedure described above,
within seven business days of its receipt of such invoice. Both Parties agree to
weekly, bi-monthly or every other week invoicing should it become necessary due
to the specifics of termination to a certain country. In instances where monthly
invoicing is not done, the invoicing and payment terms shall be negotiated
separately and added to this Agreement as an addendum.
3.5 A monthly invoice shall be deemed to have been accepted by a Party if
either Party does not object in writing within 60 days receipt following the
date of the invoice. If an objection is made, the Parties shall use commercially
reasonable good faith efforts to resolve the dispute promptly. Neither Party may
withhold payment of a disputed amount and such disputed amounts shall be paid
initially. Failure to pay the disputed amount as required herein, may result in
the suspension of Services after a five day written notice period, and is a
material breach of this Agreement.
3.6 All monetary references in this Agreement are denominated in U.S.
dollars and all financial transactions under this Agreement must be settled
in U.S. dollars.
3.7 Call Detail Records (CDRs) of the terminating Party shall be the basis
for billing. In the event of a billing dispute between the Parties the
originating and terminating CDRs of both Parties shall be considered, using
mutually acceptable and industry standard practices for CDR comparison and
reconciliation.
4. Technical and Operational Matters
4.1 Each Party will install, at its expense, all equipment within its own
network reasonably necessary to provide the Services in the locations in which
it is terminating calls as indicated in Attachment 1. The Parties will agree on
a detailed schedule for testing, and trials of Internet Telephony Services and
to use commercially diligent efforts to achieve deployment in a timely fashion.
4.2 In the event of interruption of or natural degradation of the quality of
the Service, for purposes of a pre-service trial or otherwise, the Parties shall
use commercially reasonable efforts to restore the normal operation of the
Service with the least possible delay.
5. Branding; Publicity
The Parties agree to announce their deployment of commercial Internet Telephony
services and issue a press release to this effect within 15 days of execution of
this Agreement. The exact nature and content of this publicity shall be mutually
agreed upon by the Parties. Neither Party shall use the other Party s trademark
either on or in connection with the Services, Subscriber Services or otherwise
without the prior written consent of the other Party. The Parties agree that no
public statements or announcements relating to this Agreement, the Services,
Subscriber Services or their relationship shall be made by either Party without
the prior written consent of the other Party.
6. Term and Termination
This Agreement is effective for an initial term beginning on the Effective Date
and ending May 19, 2002, unless earlier terminated as provided herein.
Thereafter, this Agreement shall remain in effect from year to year unless and
until terminated by either Party by providing a written notice of cancellation
not less than 60 days prior to the intended cancellation date or as otherwise
provided herein. Notwithstanding the foregoing, either Party may terminate this
Agreement with 60 days prior written notice to the other Party.
Either Party may terminate this Agreement without any further liability to the
other Party, if such Party fails to (a) pay any fee or amount due under this
Agreement within 15 days of the due date of such fee or amount, or (b) perform
any other agreement under this Agreement, and such failure continues uncured for
a period of 30 days after the date of written notice identifying the breach to
the non-performing Party. Except where otherwise
p. -2
<PAGE>
specifically noted, either Party may suspend Services immediately if it
reasonably suspects fraud or the threat of damage to its network by the other
Party [or its customers].
7. Representations and Warranties
Each Party represents and warrants to the other: (a) it has all requisite
legal power and authority to execute and deliver this Agreement and perform its
obligations hereunder; and (b) no consent, approval, order or authorization of,
and/or registration, declaration or filing with, any court, administrative
agency or commission or other governmental authority or instrumentality, other
than those which have already been obtained, are required in connection with the
execution, delivery or performance of this Agreement.
8. Indemnification, Limitation of Liability and No Warranty
Each Party shall defend, indemnify and hold the other party and its directors,
officers, employees, agents and sub-contractors harmless from and against, any
and all suits, actions and proceedings, claims, liabilities, losses, damages
costs and expenses, arising directly or indirectly in connection with a
violation of law, regulation or order or the breach by it of any of its
obligations or representations hereunder, except to the extent such loss,
damage, cost or expense is due to any gross negligence or willful misconduct of
the Party seeking indemnification hereunder, or its directors, officers,
employees, agents or sub-contractors.
Unless caused or contributed to by such Party's gross negligence or willful
misconduct, neither Party shall be liable to the other for any special,
indirect, incidental, consequential, or exemplary damages, including without
limitation, loss of revenue, profits, customers, clients or goodwill arising in
any manner from this Agreement and the performance or non-performance of
business hereunder. The liability of either Party with respect to the
installation, provision, termination, maintenance, repair, interruption, or
restoration, of any Services shall not exceed an amount equal to the charge
applicable under this Agreement to the period during which services were
affected.
Each Party undertakes no liability whatever whether in contract, tort (including
liability for negligence) or otherwise for the acts or omissions of other
providers of telecommunication service or equipment or for faults in or failures
of such provider's service and/or equipment.
Each Party acknowledges that it is technically impracticable to provide service
free of faults and free of capacity limitations and the parties do not undertake
to do so. Neither Party makes any warranty, express or implied, with respect to
the Services. Each Party also makes no express or implied representations or
endorsements regarding any merchandise, information, products or services
provided by others or for any performance hereunder. The Services and associated
pricing are provided on an as is and as available basis without warranties of
any kind, express or implied, including but not limited to warranties of title
and non-infringement.
9. Confidentiality
All information exchanged between the Parties under this Agreement or during the
negotiations preceding this Agreement and relating either to the terms and
conditions of this Agreement or any activities contemplated by this Agreement
shall be confidential to them, their employees, their subsidiaries and legal
advisers and shall not be disclosed to any third party not used for any purpose
other than the performance of this Agreement without prior written consent of
both Parties, except that such information may be disclosed if required by any
government authority or regulatory body.
10. Assignment.
Neither Party may assign this Agreement, in whole or in part, without the prior
written notification of the other Party. Notwithstanding the foregoing, either
Party may assign this Agreement and/or assign its rights and duties hereunder,
in whole or in part, at any time and without the notification or consent, to any
of its present or future parent, affiliate or subsidiary.
p. -3
<PAGE>
11. Notices.
All notices, requests, consents, and other communications hereunder shall be in
writing and shall be deemed effectively given and received upon delivery in
person, or one business day after delivery by international overnight courier
service, if sent for next business day delivery, or by telecopier (FAX)
transmission with sender s acknowledgment of transmission receipt, email with
recipient's acknowledgement of transmission receipt, or five business days after
deposit via certified or registered mail, return receipt requested, in each case
addressed as follows:
ITXC CARRIER
Attn: Legal Dept. Attn: Peter Biagioli_____________________
- - - - - - - - - - - ---- Teltran International, Inc.
ITXC CORP One Penn Plaza, Suite 4632
600 College Road East New York, NY 10119_________________________
Princeton, NJ 08540 1.212.643.1600
Phone: +1 (609) 419-1500 1.212.643.1997_________________________
Fax: +1 (609) 419-1511
Billing Contacts:
Attn: Billing Dept. Attn: Jim Supple___________________
ITXC CORP same as above
600 College Road East
Princeton, NJ 08540
Phone: +1 (609) 419-1500
Fax: +1 (609) 419-1511
12. Taxes
Each party is responsible for complying with and paying all taxes or
surcharge assessed by government authorities with jurisdiction over its
activities. Termination charges in Section 3.1 shall not be reduced by payer to
reflect the effect of such taxes.
13. Applicable Law
This Agreement and matters connected with the performance thereof will be
construed, interpreted, applied and governed in all respects in accordance with
the law of the State of New York, U.S.A. without regard to such jurisdiction's
conflict of laws provisions.
14. Relationship of the Parties
Each Party will conduct itself under this Agreement as an independent
contractor and not as an agent, partner, joint venturer or employee of the other
Party, and will not bind or attempt to bind the other Party to any contract.
Nothing contained in this Agreement will be deemed to form a partnership or
joint venture between the Parties.
15. No Third Party Rights
This Agreement is not intended and will not be construed to create any rights
or remedies in any parties other than ITXC and the Carrier and no person will
assert any rights as a third party beneficiary hereunder.
16. Alternative Dispute Resolution.
The Parties agree that they will make a good faith effort to reach an
amicable resolution in the event of a dispute concerning this Agreement.
However, if such an amicable resolution is not reached, the Parties agree that
all disputes arising in connection with the Agreement shall be finally settled
by arbitration under the American Arbitration Association rules and procedures.
Arbitration shall be held in New York, New York, U.S.A. and shall be conducted
in English.
17. Government or Other Regulation
Each Party is independently responsible for ensuring that its activities
(including the offering or providing of services or facilities) complies with
applicable laws and government or other regulation, including regulation of
common carrier telecommunications services and regulation of marketing
activities. Each Party will cooperate with
p. -4
<PAGE>
the other in defending any civil, criminal or other claim threatened or brought
by any governmental agency or third party.
18. Strict Compliance.
No failure of a Party to exercise any right or to insist upon strict
compliance by the other Party with any obligation and no custom or practice of
the Parties at variance with this Agreement shall constitute a waiver of the
right of a party to demand exact compliance. Waiver by one Party of any
particular default by the other Party shall not affect or impair a Party's
rights in respect to any subsequent default of the same or of a different
nature, nor shall any delay or omission of a Party to exercise any rights
arising from such default affect or impair the rights of that Party as to such
default or any subsequent default.
19. Entire Agreement.
This Agreement constitutes the entire Agreement between the Parties and
shall supersede all previous negotiations, commitments, representations and
writings, written or oral. No custom, industry standard or course of dealing
between the Parties shall in any way vary or alter the terms and conditions of
this Agreement. This Agreement shall be deemed to have been drafted by both
Parties and, in the event of a dispute shall not be construed against either
Party. If any term or provision of this Agreement is held to be invalid, illegal
or unenforceable in any respect, such determination will not affect any other
provision of this Agreement, but such provision or provision will be ineffective
only to the extent of such invalidity, illegality or unenforceability without
invalidating the remainder of such provision or provisions or this Agreement.
20. Force Majeure.
If the performance of this Agreement is interfered with by reason or any
circumstances beyond the reasonable control of the Party affected including acts
of God, fire, explosion, vandalism, fiber optic cable cut, storm, extreme
temperatures or other similar catastrophes; any law, order, regulation,
direction, action or request of any national government, including state,
provincial and local governments having jurisdiction over either Party, or of
any department, agency, commission, court, bureau, corporation or other
instrumentality of any one or more said governments, or of any civil or military
authority; national emergencies, insurrections, riots, wars, or strikes,
lock-outs, work stoppages or other labor difficulties; actions or inactions of a
third party provider or operator of facilities employed in provision of the
Services ("Force Majeure"), then the Party affected shall be excused from such
performance on a day-to-day basis.
21. Authoritative Version.
The English version of this Agreement shall be the authoritative version
of this Agreement for all purposes. In the event of a conflict between the
English version and any translation of this Agreement, the English version shall
control.
22. Amendments.
Any alteration or amendment to this Agreement or its exhibit(s), excluding
rates, shall be effective only if presented in writing and signed by authorized
representatives of both Parties (in the case of ITXC, only a Corporate Officer).
Notwithstanding the foregoing, rates may be changed unilaterally by either Party
in accordance with Section 3.1.
p. -5
<PAGE>
IN WITNESS WHEREOF, the Parties hereto have caused this WWeXchange Network
Services Agreement to be duly executed and delivered.
ITXC: CARRIER:
ITXC CORP.
By: By:
------------------------------ ----------------------------
Name: Name: Byron R. Lerner
---------------------------- -----------------
Title: Title: President & CEO
--------------------------- ------------------
Date: Date:
---------------------------- --------------------
p. -6
<PAGE>
Exhibit 1: Terms and Conditions to WWEXCHANGE NETWORK SERVICES AGREEMENT BY &
BETWEEN TELTRAN INTERNATIONAL, INC. & ITXC CORP
1. ITXC agrees that from the date of execution of this Agreement and
Addendum thereto until January 31, 2000, to provide termination rates
to Teltran, which shall not exceed those listed in Exhibit 2. ITXC
shall not raise rates unless its termination costs increase or are
above those rates listed in Exhibit 2 or cost-competitive Internet
telephony is interrupted or of insufficient quality or capacity such
that these rates provided to Teltran become commercially unreasonable
to ITXC.
2. This agreement shall include Teltran's wholly owned subsidiary, ChannelNET
Ltd with offices at Enterprise House, 15 Whitworth Street West, Manchester
M1 5WA, United Kingdom.
3. The Parties agree that their rights to provide Termination Services are
non-exclusive and that either Party may enter into additional agreement
with other parties such services.
4. ITXC agrees to install at its cost, (5) E-1 gateways in accordance with
the terms and conditions of this Agreement.
5. The Parties agree that this Agreement is non-exclusive and that either
Party may purchase or provide termination services to other parties.
6. Until such time as Teltran purchases its own switching equipment, ITXC
agrees to use commercially reasonable efforts to provide weekly estimated
usage reports to Teltran.
Exhibit 2: Termination rates
(see attached)
p. -7
<PAGE>
STOCK OPTION AGREEMENT
OPTION AGREEMENT, made as of February 1, 2000 between TELTRAN INTERNATIONAL
GROUP, INC. (hereinafter called the "Company"), and BRYON R. LERNER providing
services for or on behalf or at the request of the Company or subsidiary of the
Company (hereinafter called the "Optionee").
------------------
Optionee is an executive officer of the Company and the Company desires to
incentivize the efforts of Optionee, by affording the Optionee an opportunity to
purchase shares of its common stock in light of the extraordinary growth of the
Company.
NOW, THEREFORE, in consideration of the mutual covenants hereinafter set
forth and for other good and valuable consideration, the parties hereto agree as
follows:
1. Certain Definitions.
a. "Board of Directors" shall refer to the Board of Directors of the
Company.
b. Common Shares shall mean the Common Stock of the Company as
authorized at the date hereof.
2. Grant of Option/Exercise.
a. The Company hereby grant to the Optionee, as a matter of separate
agreement and not in lieu of salary or any other compensation for services, the
right and option (hereinafter called the "Option") to purchase on the terms and
conditions set forth herein 890,500 shares of Common Stock (the "Option Shares")
eight dollars per share until the end of business of August 1, 2000 after which
time the option price shall be one dollar per share ("Exercise Price").
Notwithstanding the foregoing, the Exercise Price shall be one dollar per share
if early exercise pursuant to Paragraph 2 occurs prior to August 2, 2000.
b. The Option shall be exercisable (i) as to one third of Option
Shares on August 2, 2000 (ii) up to two thirds of such share on January 1, 2001
and (iii) all such shares on January 1, 2002 or sooner as provided herein.
c. The Option Shares shall include additional shares ("Additional
Shares") as shall equal the Differential Number as calculated below:
(i) As used herein ("Base Number") shall be 1,686,383 plus any
Additional Shares acquired upon exercise of this Option.
<PAGE>
(ii) As used herein "Differential Number" shall refer to
the difference between nine and nine tenths (9.9%) percent of the outstanding
shares of the Company on any given date and the Base Number.
d. The Option shall expire at 6:00 P.M. (E.S.T.) on January 21,
2005.
2. Exercise After Services/Early Exercise. Notwithstanding the
foregoing this Option may be exerciseable by Optionee or his estate even if he
is no longer employed by the Company unless his services were terminated for
cause. The Option shall immediately become exercisable on the date of any
termination of employment or upon completion of any transaction or series of
transactions in which an unaffiliated third party acquires a majority of the
shares of the Company or which the Company or an affiliate is not the survivor
or in which the Company's operating assets are transferred to an unaffiliated
third party. In such event this option shall be exercisable during the five year
period thereafter for the Option Shares.
3. No Rights as a Shareholder. The Optionee shall have no rights as a
holder of the Option Shares subject to the Option until such shares shall be
issued to him upon the exercise of the Option.
4. Non-Assignability of Option. Except as the Board of Directors may
determine, the Option shall not be transferable otherwise than by will or the
laws of descent and distribution, and the Option shall be exercisable, during
the lifetime of the Optionee, only by the Optionee. More particularly (but
without limiting the generality of the foregoing), the Option may not be
assigned, transferred (except as aforesaid), pledged or hypothecated in any way
(whether by operation of law or otherwise), and shall not be subject to
execution, attachment or similar process. Any attempted assignment, transfer,
pledge, hypothecation or other disposition of the Option contrary to the
provisions hereof, and the levy of any execution, attachment or similar process
upon the Option, shall be null and void and without effect.
5. Adjustments Upon Changes in Capitalization.
a. In the event that prior to the exercise of the Option in full,
the outstanding Common Stock is changed by reason or reorganization, merger,
consolidation, recapitalization, reclassification, stock split-up, combination
of shares, stock dividends or the like, an appropriate adjustment shall be made
by the Board of Directors in the aggregate number of shares available under this
Option and in the number of shares and exercise price subject to this Option. If
the Company shall be reorganized, consolidated or merged with another
corporation, or if all or substantially all of the assets of the Company shall
be sold or exchanged, the holder of an Option shall, at the time of issuance of
the stock under such a corporate event, be entitled to receive upon the exercise
of his Option the same number and kind of shares of stock or the same amount of
property, cash or securities as he would have been, immediately prior to such
event.
2
<PAGE>
b. Any adjustment in the number of shares shall apply
proportionately to only the unexercised portion of the Option granted hereunder.
If fractions of a share would result from any such adjustment, the adjustment
shall be revised to the next lower whole number of shares.
6. Method of Exercise of Option. Subject to the terms and conditions of
this Agreement and such other method of the exercise as the Board of Directors
may agree upon, the Option may be exercised by written notice to the Company at
its principal office, presently located at One Penn Plaza, New York, New York
10119, attention of the Company's Secretary. Such notice shall state the
election to exercise the Option and the number of Common Shares in respect of
which it is being exercised, shall be signed by the person or persons so
exercising the Option and shall either be accompanied by payment in full, by
check payable to the order of the Company in the amount of the purchase price of
said shares in which event the Company shall, subject to the provisions of
paragraph 11, deliver a certificate or certificates representing said shares.
7. Restrictions on Issuance.
a. Unless prior to the exercise of the Option the Common Stocks
issuable upon such exercise have been registered with the Securities and
Exchange Commission pursuant to the Securities Act of 1933, as amended, the
notice of exercise shall be accompanied by a representation or agreement of the
individual exercising the Option to the Company to the effect that such shares
are being acquired for investment and not with a view to the resale or
distribution thereof or such other documentation as may be required by the
Company, unless in the opinion of counsel to the Company, such representation,
agreement or documentation is not necessary to comply with said Act.
b. The Company shall not be obligated to issue and deliver any
Common Shares until they have been listed on each securities exchange on which
Common Shares may then be listed nor until there has been qualification under or
compliance with such state or federal laws, rules or regulations as the Company
may deem applicable. The Company shall use reasonable efforts to obtain such
listing, qualification and compliance.
c. Notwithstanding the foregoing, the Option Shares shall be
included in a registration statement to be filed by the Company.
8. Company Obligations. The Company shall at all times during the
term of the Option reserve and keep available such number of Common Shares as
will be sufficient to satisfy the requirements of this Agreement, shall pay all
original issue and/or transfer taxes with respect to the issue and/or transfer
of shares by the Company pursuant hereto and all other fees and expenses
necessarily incurred by the Company in connection therewith and will from time
to time use its best efforts to comply with all laws and regulations which in
the opinion of counsel for the Company shall be applicable thereto.
3
<PAGE>
9. No Contract of Employment. The execution of this Agreement shall
not be deemed to be a contract of employment or a grant of any right to any
employee optionee to remain in the employ of the Company or any subsidiary.
10. Governing Law. This Option Agreement shall be construed in
accordance with and governed by the laws of the State of New York.
IN WITNESS WHEREOF, the Company has caused this Agreement to be duly
executed by its officers hereunto duly authorized, and the Optionee has hereunto
set his hand and seal, all on the day and year first above written.
TELTRAN INTERNATIONAL GROUP, LTD.
By:
-----------------------------------
-----------------------------------
------------------------, President
AGREED TO AND ACCEPTED:
- - - - - - - - - - - -----------------------------------
[Type below line name], Optionee
4
<PAGE>
STOCK OPTION AGREEMENT
STOCK OPTION AGREEMENT, made as of February 1, 2000 between TELTRAN
INTERNATIONAL GROUP, INC. (hereinafter called the "Company"), and JAMES TUBBS
providing services for or on behalf or at the request of the Company or
subsidiary of the Company (hereinafter called the "Optionee").
------------------
Optionee is an executive officer of the Company and the Company desires to
incentivize the efforts of Optionee, by affording the Optionee an opportunity to
purchase shares of its common stock in light of the extraordinary growth of the
Company.
NOW, THEREFORE, in consideration of the mutual covenants hereinafter set
forth and for other good and valuable consideration, the parties hereto agree as
follows:
1. Certain Definitions.
a. "Board of Directors" shall refer to the Board of Directors of the
Company.
b. Common Shares shall mean the Common Stock of the Company as
authorized at the date hereof.
2. Grant of Option/Exercise.
a. The Company hereby grant to the Optionee, as a matter of separate
agreement and not in lieu of salary or any other compensation for services, the
right and option (hereinafter called the "Option") to purchase on the terms and
conditions set forth herein 717,933 shares of Common Stock (the "Option Shares")
eight dollars per share until the end of business of August 1, 2000 after which
time the option price shall be one dollar per share ("Exercise Price").
Notwithstanding the foregoing, the Exercise Price shall be one dollar per share
if early exercise pursuant to Paragraph 2 occurs prior to August 2, 2000.
b. The Option shall be exercisable (i) as to one third of Option
Shares on August 2, 2000 (ii) up to two thirds of such share on January 1, 2001
and (iii) all such shares on January 1, 2002 or sooner as provided herein.
c. The Option Shares shall include additional shares ("Additional
Shares") as shall equal the Differential Number as calculated below:
(i) As used herein ("Base Number") shall be 1,686,383 plus any
Additional Shares acquired upon exercise of this Option.
<PAGE>
(ii) As used herein "Differential Number" shall refer to
the difference between nine and nine tenths (9.9%) percent of the outstanding
shares of the Company on any given date and the Base Number.
d. The Option shall expire at 6:00 P.M. (E.S.T.) on January 21, 2005.
2. Exercise After Services/Early Exercise. Notwithstanding the foregoing
this Option may be exerciseable by Optionee or his estate even if he is no
longer employed by the Company unless his services were terminated for cause.
The Option shall immediately become exercisable on the date of any termination
of employment or upon completion of any transaction or series of transactions in
which an unaffiliated third party acquires a majority of the shares of the
Company or which the Company or an affiliate is not the survivor or in which the
Company's operating assets are transferred to an unaffiliated third party. In
such event this option shall be exercisable during the five year period
thereafter for the Option Shares.
3. No Rights as a Shareholder. The Optionee shall have no rights as a
holder of the Option Shares subject to the Option until such shares shall be
issued to him upon the exercise of the Option.
4. Non-Assignability of Option. Except as the Board of Directors may
determine, the Option shall not be transferable otherwise than by will or the
laws of descent and distribution, and the Option shall be exercisable, during
the lifetime of the Optionee, only by the Optionee. More particularly (but
without limiting the generality of the foregoing), the Option may not be
assigned, transferred (except as aforesaid), pledged or hypothecated in any way
(whether by operation of law or otherwise), and shall not be subject to
execution, attachment or similar process. Any attempted assignment, transfer,
pledge, hypothecation or other disposition of the Option contrary to the
provisions hereof, and the levy of any execution, attachment or similar process
upon the Option, shall be null and void and without effect.
5. Adjustments Upon Changes in Capitalization.
a. In the event that prior to the exercise of the Option in full,
the outstanding Common Stock is changed by reason or reorganization, merger,
consolidation, recapitalization, reclassification, stock split-up, combination
of shares, stock dividends or the like, an appropriate adjustment shall be made
by the Board of Directors in the aggregate number of shares available under this
Option and in the number of shares and exercise price subject to this Option. If
the Company shall be reorganized, consolidated or merged with another
corporation, or if all or substantially all of the assets of the Company shall
be sold or exchanged, the holder of an Option shall, at the time of issuance of
the stock under such a corporate event, be entitled to receive upon the exercise
of his Option the same number and kind of shares of stock or the same amount of
property, cash or securities as he would have been, immediately prior to such
event.
b. Any adjustment in the number of shares shall apply
proportionately to only 2
<PAGE>
the unexercised portion of the Option granted hereunder. If fractions of a share
would result from any such adjustment, the adjustment shall be revised to the
next lower whole number of shares.
6. Method of Exercise of Option. Subject to the terms and conditions of
this Agreement and such other method of the exercise as the Board of Directors
may agree upon, the Option may be exercised by written notice to the Company at
its principal office, presently located at One Penn Plaza, New York, New York
10119, attention of the Company's Secretary. Such notice shall state the
election to exercise the Option and the number of Common Shares in respect of
which it is being exercised, shall be signed by the person or persons so
exercising the Option and shall either be accompanied by payment in full, by
check payable to the order of the Company in the amount of the purchase price of
said shares in which event the Company shall, subject to the provisions of
paragraph 11, deliver a certificate or certificates representing said shares.
7. Restrictions on Issuance.
a. Unless prior to the exercise of the Option the Common Stocks
issuable upon such exercise have been registered with the Securities and
Exchange Commission pursuant to the Securities Act of 1933, as amended, the
notice of exercise shall be accompanied by a representation or agreement of the
individual exercising the Option to the Company to the effect that such shares
are being acquired for investment and not with a view to the resale or
distribution thereof or such other documentation as may be required by the
Company, unless in the opinion of counsel to the Company, such representation,
agreement or documentation is not necessary to comply with said Act.
b. The Company shall not be obligated to issue and deliver any
Common Shares until they have been listed on each securities exchange on which
Common Shares may then be listed nor until there has been qualification under or
compliance with such state or federal laws, rules or regulations as the Company
may deem applicable. The Company shall use reasonable efforts to obtain such
listing, qualification and compliance.
c. Notwithstanding the foregoing, the Option Shares shall be
included in a registration statement to be filed by the Company.
8. Company Obligations. The Company shall at all times during the term
of the Option reserve and keep available such number of Common Shares as will be
sufficient to satisfy the requirements of this Agreement, shall pay all original
issue and/or transfer taxes with respect to the issue and/or transfer of shares
by the Company pursuant hereto and all other fees and expenses necessarily
incurred by the Company in connection therewith and will from time to time use
its best efforts to comply with all laws and regulations which in the opinion of
counsel for the Company shall be applicable thereto.
9. No Contract of Employment. The execution of this Agreement shall not
be deemed
<PAGE>
to be a contract of employment or a grant of any right to any employee optionee
to remain in the employ of the Company or any subsidiary.
10. Governing Law. This Option Agreement shall be construed in accordance
with and governed by the laws of the State of New York.
IN WITNESS WHEREOF, the Company has caused this Agreement to be duly
executed by its officers hereunto duly authorized, and the Optionee has hereunto
set his hand and seal, all on the day and year first above written.
TELTRAN INTERNATIONAL GROUP, LTD.
By:
-----------------------------------
-----------------------------------
------------------------, President
AGREED TO AND ACCEPTED:
- - - - - - - - - - - -----------------------------------
[Type below line name], Optionee
<PAGE>
PROMISSORY NOTE
$______________ December 9, 1999
FOR VALUE RECEIVED, _______________ an individual (hereinafter referred to
as the "Maker"), promises to pay to the order of Teltran International Group,
Ltd. ("Payee"), at _________________ or at such other place as the Payee may
from time to time designate in writing to the Maker, in lawful money of the
United States of America, in immediately available funds, the principal sum of
_____________________Dollars and No Cents.
This note has been issued by the Maker in connection with the Maker's
exercise of options to purchase ______ shares of common stock ("Shares") of
Teltran International Group, Ltd. on the date hereof, at an exercise price of
______ cents ($0.__) per share (the "Exercise Price").
The outstanding principal balance hereof shall be due and payable on
December 8, 2001; provided, however, that upon the sale by Maker of any Shares,
an amount equal to (x) the number of Shares times (y) the Exercise Price shall
become immediately due and payable. The principal balance hereof may be prepaid
in whole or in part at any time without penalty.
Maker waives presentment, demand, notice, protest and all other demands
and notices in connection with the delivery, acceptance, performance or
enforcement of this Note.
The Payee shall not, by any act, delay, omission or otherwise, be deemed
to have waived any right or remedies hereunder unless such waiver be in writing
and signed by the Payee. A waiver on any one occasion shall not be construed as
a bar to or waiver of any such right or remedy on any future occasion.
All provisions of this note shall be considered as separate terms and
conditions, and in the event that any one shall be held illegal, invalid or
unenforceable, all other provisions hereof shall remain in full force and effect
as if the illegal, invalid or unenforceable provision were not a part hereof;
provided, however, that whenever possible, the illegal, invalid or unenforceable
provision shall be deemed modified and amended to the extent that it may thereby
be made legal, valid and enforceable.
This note shall be governed by, construed and interpreted in accordance
with the laws of the State of New York respecting agreements negotiated, entered
into and to be fully performed within the State of New York.
This note may not be altered, modified, amended, terminated or discharged
orally.
Given under the hand and seal of the undersigned, the date and year
indicated above.
---------------------------------
<PAGE>
EXHIBIT 21
SUBSIDIARIES*
OWNERSHIP JURISDICTION
NAME OF SUBSIDIARY PERCENTAGE WHERE ORGANIZED
- - - - - - - - - - - ------------------------------------ ---------- -------------------
Teltran International, Inc.......... 100% Delaware
ChannelNet, Ltd..................... 100% England & Wales (U.K.)
OmniCom of New York, Inc............ 100% New York
Internet Protocols Ltd.............. 100% United Kingdom
Teltran Web Factory Ltd............. 100% United Kingdom
Recordstogo.com..................... 49% Delaware
* Includes only subsidiaries engaged in operations.
<PAGE>
Exhibit 23
Consent of Independent Auditors
We consent to the incorporation by reference in the Registration Statement on
Form S-8 (No. 333-90805) of our report dated March 10, 2000, with respect to
the audited financial statements of Teltran International Group, Ltd.. included
in its Annual Report on Form 10-KSB for the year ended December 31, 1999.
/s/ LIEBMAN GOLDBERG & DROGIN LLP
LIEBMAN GOLDBERG & DROGIN LLP
GARDEN CITY, NY
April 10, 2000
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
This schedule contains summary financial information extracted from the
Unaudited Consolidated Balance Sheet and Statement of Operations as of and for
the year ended December 31, 1999 and is qualified in its entirety by reference
to such financial statements.
</LEGEND>
<S> <C>
<PERIOD-TYPE> 12-MOS
<FISCAL-YEAR-END> DEC-31-1999
<PERIOD-START> JAN-01-1999
<PERIOD-END> DEC-31-1999
<CASH> 3,823,468
<SECURITIES> 0
<RECEIVABLES> 1,376,104
<ALLOWANCES> 398,067
<INVENTORY> 0
<CURRENT-ASSETS> 4,993,971
<PP&E> 1,094,816
<DEPRECIATION> 0
<TOTAL-ASSETS> 10,369,056
<CURRENT-LIABILITIES> 2,183,464
<BONDS> 0
0
0
<COMMON> 16,421
<OTHER-SE> 8,119,668
<TOTAL-LIABILITY-AND-EQUITY> 10,369,056
<SALES> 2,453,189
<TOTAL-REVENUES> 2,453,189
<CGS> 1,944,849
<TOTAL-COSTS> 2,607,709
<OTHER-EXPENSES> 0
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 17,154
<INCOME-PRETAX> (2,221,177)
<INCOME-TAX> 18,743
<INCOME-CONTINUING> 0
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> (2,239,920)
<EPS-BASIC> (0.19)
<EPS-DILUTED> (0.19)
</TABLE>
