U.S. SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10-QSB/A
_______________
[X] QUARTERLY REPORT UNDER SECTION 13 or 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934
For the quarter ended April 30, 1999
[ ] TRANSITION REPORT UNDER SECTION 13 or 15(d) OF THE EXCHANGE
ACT FOR THE TRANSITION PERIOD FROM _____ TO _____
Commission File No. 000-24996
INTERNET COMMERCE CORPORATION
(Exact name of small business issuer as specified in its charter)
Delaware 13-3645702
- ----------------------------------------- ----------------------
(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or organization) Identification Number)
805 Third Avenue 9th flr, New York, NY 10022
- ----------------------------------------- ----------------------
(Address of principal executive offices) (Zip Code)
(212) 271-7640
- -----------------------------------------
(Issuer's telephone number)
- -----------------------------------------
(Former name, normer address and former
fiscal year, if changed since last report)
Check whether the issuer (1) filed all reports required to be filed by
Section 13 or 15(d) of the Exchange Act during the past 12 months (or
for such shorter period that the registrant was required to file such
reports), and (2) has been subject to such filing requirements for the
past 90 days.
Yes__X__ No_____
State the number of shares outstanding of each of the issuer's classes
of common equity, as of the latest practicable date.
Class Outstanding at April 30, 1999:
------------------------------------ ---------------------------------
Class A Common Stock, $.01 par value 1,383,437 shares
Class B Common Stock, $.01 par value 115,599 shares
Traditional Small Business Disclosure Format
Yes__X__ No_____
INDEX TO FORM 10-QSB/A
PAGE
PART I. FINANCIAL INFORMATION
Item 1. Financial Statements
Condensed Balance Sheets as of July 31, 1998 and
April 30, 1999 3
Condensed Statements of Operations for the Three Months
ended April 30, 1998 and April 30, 1999 and for the
period November 18, 1991 (Inception) through
April 30, 1999 4
Condensed Statements of Cash Flows for the Three Months
ended April 30, 1998 and April 30, 1999 and for the
period November 18, 1991(Inception) to April 30, 1999 5
Notes to Financial Statements 6-7
Item 2. Management's Discussion and Analysis of Financial
Condition and Results of Operations 7-12
PART II. OTHER INFORMATION
Item 2. Changes in Securities and Use of Proceeds 12
Item 6. Exhibits and Reports on Form 8-K 13
SIGNATURES 14
INTERNET COMMERCE CORPORATION
(a development stage company)
CONDENSED BALANCE SHEETS
<TABLE>
<CAPTION>
July 31, 1998 April 30, 1999
--------------- ----------------
<S> <C> <C>
ASSETS
Current assets
Cash and cash equivalents $ 178,287 $ 6,368,807
Accounts receivable 7,231 16,466
Prepaid expenses and other assets 100,882 265,096
--------------- ----------------
Total current assets 286,400 6,650,369
Fixed assets 533,188 415,881
Software development costs 714,298 713,756
Other assets 1,200 124,099
Goodwill 378,920
--------------- ----------------
Total assets $ 1,535,086 $ 8,283,025
--------------- ----------------
--------------- ----------------
LIABILITIES
Current liabilities:
Accounts payable $ 575,031 $ 18,225
Bridge notes, net of debt discount 232,557
Capital lease obligation 84,505 95,798
Accrued expenses 308,646 678,653
---------------- ----------------
Total current liabilities 1,200,739 792,676
---------------- ----------------
Capital lease obligation - less current portion 196,887 123,559
---------------- ----------------
Total liabilities 1,397,626 916,235
---------------- ----------------
---------------- ----------------
Redeemable Common Stock 5,729 5,729
STOCKHOLDERS' EQUITY
Preferred stock:
Series A preferred stock - par value $.01 per share,
$1,000 liquidation value per share 9,595 shares
issued and outstanding at April 30, 1999 96
Series S preferred stock - par value $.01 per share,
$1,000 liquidation value, 175 shares issued
and outstanding at April 30, 1999 2
Common stock:
Class A - par value $.01 per share, 40,000,000 shares authorized,
one vote per share; 1,383,437 shares issued and outstanding
at April 30, 1999 and 947,951 shares issued and outstanding
at July 31, 1998 9,480 13,834
Class B - par value $.01 per share, 2,000,000 shares authorized,
six votes per share; 115,599 shares issued and outstanding
and 194,397 shares issued and outstanding at July 31, 1998 1,944 1,156
Additional paid-in capital 14,532,208 27,336,848
Notes receivable (112,500)
(Deficit) accumulated during development stage (14,299,401) (19,990,875)
---------------- ----------------
Total stockholder's equity 131,731 7,361,061
---------------- ----------------
Total liabilities and stockholders' equity $ 1,535,086 $ 8,283,025
---------------- ----------------
</TABLE>
Attention is directed to the accompanying notes to financial statments
<TABLE>
<CAPTION>
INTERNET COMMERCE CORPORATION
(a development stage company)
Condensed Statements of Operations
For the Three Months For the Nine Months Period From
Ended April 30, Ended April 30, November 18, 1991
------------------------------ ------------------------------- (Inception) through
1998 1999 1998 1999 April 30, 1999
------------------------------ ------------------------------- --------------------
<S> <C> <C> <C> <C> <C>
Revenue:
License Fees $ 350,000
Services $ 2,058 $ 20,417 $ 8,357 $ 45,814 63,295
Other $ 2,500 261,163
------------- ------------- ------------- ------------- --------------------
Total 2,058 20,417 10,857 45,814 674,458
------------- ------------- ------------- ------------- --------------------
Expenses:
Cost of revenue 23,323 5,102 29,688 17,382 274,096
Operating expenses 877,797 1,629,791 1,827,156 3,788,779 17,057,193
Write-down of assets 183,750 183,750 1,155,091
------------- ------------- ------------- ------------- --------------------
Total 1,084,870 1,634,893 2,040,594 3,806,161 18,486,380
------------- ------------- ------------- ------------- --------------------
Operating (loss) (1,082,812) (1,614,476) (2,029,737) (3,760,347) (17,811,922)
------------ ------------ ------------- ------------- --------------------
Interest and investment
income 13,933 14,780 81,935 21,386 593,622
Settlement expense (394,828)
Minority interest 1,000
Interest expense (8,833) (1,271,639) (9,273) (1,952,513) (2,378,747)
------------- ------------- ------------- ------------- --------------------
Net (loss) $ (1,077,712) $ (2,871,335) $ (1,957,075) $ (5,691,474) $ (19,990,875)
------------- ------------- ------------- ------------- --------------------
Net(loss)
per common share $ (1.01) $ (1.92) $ (1.84) $ (4.01)
------------- ------------- ------------- -------------
Weighted average number
of common shares 1,062,348 1,499,031 1,062,348 1,418,974
------------- ------------- ------------- -------------
Attention is directed to the accompanying notes to finincial statements
</TABLE>
INTERNET COMMERCE CORPORATION
(a development stage company)
Condensed Statements of Cash Flows
<TABLE>
<CAPTION>
For the Nine Months Period From
Ended April 30, November 18, 1991
------------------------------- (Inception) through
1998 1999 April 30, 1999
------------------------------- -------------------
<S> <C> <C> <C>
Cash flows from operating activities:
Net (loss) $ (1,957,075) $ (5,691,474) $ (19,982,475)
Adjustments to reconcile net (loss) to
net cash (used in) operating activities:
Write-down of assets 183,750 1,155,091
Common stock, warrants and options
issued for compensation and
settlement 1,313,545 1,313,545
Amortization of debt discount 1,620,659 1,620,659
Other net cash provided by (used in)
operating activities 238,385 50,234 2,331,546
-------------- ------------- -------------------
Net cash (used in) operating
activities (1,534,940) (2,707,036) (13,561,634)
-------------- ------------- -------------------
Cash flows from investing activities:
Purchases of marketable securities (499,726) (16,083,295)
Sales of marketable securities 2,664,836 16,083,295
Capitalization of software development
costs (714,373) (921,188)
Other investing activities (437,651) (24,334) (1,838,971)
-------------- ------------- -------------------
Net cash provided by (used in)
investing activities 1,013,086 (24,334) (2,760,159)
-------------- ------------- -------------------
Cash flows from financing activities:
Proceeds from issuance of common stock 16,075,260
Proceeds from issuance of preferred stock 7,000,000 7,000,000
Costs in connection with sale of
common stock (2,912,671)
Costs in connection with sale of
preferred stock (355,000) (355,000)
Payment of purchase agreement (70,000) (212,840)
Exercise of warrants and options 424,895
Proceeds from bridge notes and notes
payable 2,300,000 4,095,000
Payment of bridge loan (1,500,000)
Payment of deferred financing costs (62,035) (286,954)
Proceeds form financing lease 312,639 340,715
Other financing activities (47,978) 38,925 22,195
-------------- ------------- -------------------
Net cash (used in)
financing activities 194,661 8,921,890 22,690,600
-------------- ------------- -------------------
Net increase (decrease) in cash and cash
equivalents (327,193) 6,190,520 6,368,807
Cash and cash equivalents, beginning
of period 392,860 178,287
-------------- ------------- -------------------
Cash and cash equivalents, end of period $ 65,667 $ 6,368,807 $ 6,368,807
-------------- ------------- -------------------
Supplemental schedule of noncash investing
and financing activities:
Debt discount in connection with
bridge loan 2,388,299
Goodwill 470,383
Preferred stock in exchange for
bridge notes 1,763,970
</TABLE>
Attention is directed to the accompanying notes to financial statements
NOTES TO FINANCIAL STATEMENTS
NOTE A - BASIS OF PRESENTATION AND THE COMPANY:
[1] Basis of presentation:
The accompanying unaudited condensed financial statements have been
prepared in accordance with generally accepted accounting
principles for interim financial information and with the
instructions to Form 10-QSB and Article 3 of Regulation S-B.
Accordingly, they do not include all of the information and
footnotes required by generally accepted accounting principles for
complete financial statements. In the opinion of management, all
adjustments (consisting of normal recurring accruals) considered
necessary for fair presentation have been included. Operating
results for the nine-month period ended April 30, 1999
are not necessarily indicative of the results that may be expected
for the year ending July 31, 1999.
The balance sheet at July 31, 1998 has been derived from the
audited consolidated financial statements at that date, but does
not include all the footnotes required by generally accepted
accounting principles for complete financial statements. For
further information, refer to the audited financial statements and
footnotes thereto included in the Company's Form 10-KSB for the
fiscal year ended July 31, 1998.
[2] The Company:
Internet Commerce Corporation (the "Company" or "ICC"), formerly
Infosafe Systems, Inc., a development stage company, developed,
owns and operates an Internet-based value-added network ("VAN")
with which it provides Electronic Data Interchange ("EDI") services
to large organizations and their trading partners under the
tradename CommerceSense. CommerceSense is an alternative to the
EDI services that are currently provided by traditional VANs that
offer their services primarily using dedicated telecommunications
links. CommerceSense translates and transmits electronic
documents, such as purchase orders, requests for proposals and
receipts, as well as images and other data over the Internet
through an "in" and "out" mailbox system.
The acquisition of the remaining 16.7% of its majority owned
subsidiary ("ICCSUB" or the subsidiary"), not previously held by
the Company was completed during the first fiscal quarter of 1999.
A total of 334,435 shares of Class A Common Stock was issued to the
former minority owners of ICCSUB as a result of this acquisition.
The acquisition was accounted for as a purchase of a minority
interest.
NOTE B - GOODWILL:
The Company recorded $470,383 in goodwill as a result of the
acquisition of ICCSUB. The Company valued the acquisition of
ICCSUB at the market value of the Class A Common Stock on the date
of the transaction. The goodwill, which represents the excess of
purchase price over fair value of net assets acquired,
is being amortized on a straight-line basis over 3 years.
Accumulated amortization as of April 30, 1999 was $91,463.
Item 2. Management's Discussion and Analysis of Financial
Condition and Results of Operations
This Quarterly Report on Form 10-QSB contains a number of "forward-
looking statements" within the meaning of Section 27A of the
Securities Act of 1933, as amended (the "Securities Act"), and
Section 21E of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"). Specifically, all statements other than
statements of historical facts included in this Report regarding
our financial position, business strategy and plans and objectives
of management for future operations are forward-looking statements.
These forward-looking statements are based on the beliefs of
management, as well as assumptions made by and information
currently available to management. When used in this Report, the
words "anticipate," "believe," "estimate," "expect," "may," "will,"
"continue" and "intend," and words or phrases of similar import, as
they relate to our financial position, business strategy and plans,
or objectives of management, are intended to identify forward-
looking statements. These "cautionary statements" reflect our
current view with respect to future events and are subject to
risks, uncertainties and assumptions related to various factors
including, without limitation, those listed below the heading
"Overview" and in our registration statements and periodic reports
filed with the Securities and Exchange Commission under the
Securities Act and the Exchange Act.
Although we believe that our expectations are reasonable, we cannot
assure you that our expectations will prove to be correct. Based
upon changing conditions, should any one or more of these risks or
uncertainties materialize, or should any underlying assumptions
prove incorrect, actual results may vary materially from those
described in this Report as anticipated, believed, estimated,
expected or intended.
Overview
We are a development stage company. We developed, own and operate
an Internet-based value-added network ("VAN") with which we provide
Electronic Data Interchange ("EDI") services to large organizations
and their trading partners under the tradename CommerceSense. We
have developed our CommerceSense service as an alternative to the
EDI services that are currently provided by traditional VANs that
offer their services primarily using dedicated telecommunications
links. Our CommerceSense service translates and transmits
electronic documents, such as purchase orders, requests for
proposals and receipts, as well as images and other data over the
Internet through an "in" and "out" mailbox system. We began the
development of our CommerceSense service in 1997, introduced
CommerceSense for beta testing in November 1997 and launched the
current version of CommerceSense commercially in April 1999.
From November 18, 1991 (inception) to April 30, 1999, we
recognized revenues of approximately $674,000 and had an
accumulated deficit of approximately $20 million. We continue to
operate at a deficit and expect to continue to operate at a deficit
until such time, if ever, operations generate sufficient revenues
to cover costs. Our ability to generate revenues and operate
profitably and continue as a going concern is dependent on our
ability to market our CommerceSense service. The likelihood of our
success must be considered in light of the difficulties and risks
inherent in a new business. There can be no assurance that our
revenues will increase significantly in the future or that we will
ever achieve profitability.
We raised $7 million of cash proceeds and converted into equity
$2,595,000 of debt through the sale and exchange of 9,595
shares of Series A Preferred Stock in our private placement that
was completed in April 1999.
We were founded in November 1991 and from 1991 to 1997 we conducted
limited operations and developed certain products that we were
unable to exploit commercially and consequently discontinued. In
1997, we shifted our business emphasis to focus exclusively on the
development and marketing of our CommerceSense service and launched
the current version of our CommerceSense service commercially in
April 1999. As a result, we have only a limited operating history
and there is little historical information on which to evaluate our
business and prospects.
We are currently focusing on our CommerceSense service. As a
result, our revenue for the foreseeable future is almost entirely
dependent on the success of this service, including, but not
limited to, the number of customers who subscribe to the service
and the volume (in kilocharacters) of the data, documents or
other information they send or retrieve utilizing our service. We
expect our cost of revenue and operating expenses to increase
significantly, especially in the areas of marketing, customer
installation and customer service. We will need to generate
significant revenue to achieve and maintain profitability. If we
do not increase our revenue significantly, we will continue to be
unprofitable.
We expect to base our expenditures on our plans and estimates of
future revenue. We may be unable to adjust spending in a timely
manner if we experience an unexpected shortfall in our revenue. As
a result, we may not achieve profitability.
Results of Operations
Three Months Ended April 30, 1999 Compared with Three Months Ended
April 30, 1998.
Our revenues were approximately $20,400 and $2,000, respectively,
in the three months ended April 30, 1999 (the "1999
Quarter") and April 30, 1998 (the "1998 Quarter").
CommerceSense generated these revenues.
Our operating expenses increased from $878,000 in the 1998 Quarter
to $1,630,000 in the 1999 Quarter. The increase of
$752,000 is largely due to infrastructure expansion to support
anticipated growth of our CommerceSense service. Expenses related
to salaries, payroll taxes, benefits and recruitment costs
increased $125,000. Consulting fees increased $160,000 due to the
issuance of warrants to a consultant. Other operating expenses
increased $367,000 of which $286,000 was due to the arbitration
settlement with a former officer. In addition, operating expenses
increased $100,000 since certain costs incurred in the 1998 Quarter
qualified as capitalized software development costs that do not
qualify in the 1999 Quarter.
We had income from investments of approximately $15,000 in
the 1999 Quarter and approximately $14,000 in the 1998 Quarter.
Interest expense was approximately $1,272,000 in the 1999
Quarter compared to approximately $9,000 in the 1998 Quarter.
The increase in interest expense was largely attributable to the
amortization of debt discount relating to the warrants issued in
connection with our 1998 bridge financing.
The net loss in the 1999 Quarter was approximately $2,871,000
compared to approximately $1,078,000 in the 1998 Quarter.
Included in the 1999 Quarter are non-cash charges of $1,202,000 for
the issuance of warrants and options to consultants, the
amortization of debt discount relating to the Bridge Note Units and
the amortization of debt issue costs for the issuance of warrants
to NASD registered broker/dealers who participated in the Private
Placement of Bridge Note Units. These non-cash charges were
calculated using the Black-Scholes Option Pricing Model. The
non-cash charges of $1,202,000 is comprised of: (a) $111,000
for consulting expense which was for the
issuance of 36,000 options to a consultant valued at $276,000 of
which $46,000 of the options were expensed during the 1999 Quarter
and 63,000 warrants issued to Southeast Research Partners, Inc.
("Southeast") valued at $88,000 of which $65,000 of the options
were expensed during the 1999 Quarter. Southeast was engaged by us
to perform financial advisory services; (b) the amortization of the
debt discount of $1,055,000 which was related to the issuance of 778,500
warrants issued with the Bridge Notes; (c) the amortization of
debt issue costs of $36,000 which was related to the
issuance of warrants to NASD registered broker/dealers who
participated in the Private Placement of the Bridge Notes.
We believe that losses will continue through our fiscal year ending
July 31, 1999 as we are still in the development stage and are in
the process of commercializing and marketing our new service.
Nine Months Ended April 30, 1999 Compared with Nine Months Ended
April 30, 1998.
Our revenues were approximately $46,000 and $11,000, respectively,
in the nine months ended April 30, 1999 (the "1999 Nine Months")
and April 30, 1998 (the "1998 Nine Months"). The 1999 Nine Months
revenues and $8,000 of the 1998 Nine Month revenues were
attributable to our CommerceSense service.
Operating expenses increased from $1,827,000 in the 1998 Nine
Months to $3,789,000 in the 1999 Nine Months. The increase of
$1,963,000 is largely due to infrastructure expansion to support
anticipated growth of our CommerceSense service. Expenses related
to salaries, payroll taxes, benefits and recruitment costs
increased $90,000. Consulting fees increased $734,000 due to the
issuance of warrants to consultants. We amortized $91,000 of
goodwill in the 1999 Quarter that was not present in the 1998
Quarter. Other operating expenses increased $334,000, of which
$286,000 was due to the arbitration settlement with a former
officer. In addition, operating expenses increased $714,000 since
certain costs incurred in the 1998 Nine Months qualified as
capitalized software development costs that do not qualify in the
1999 Nine Months.
We had income from investments of approximately $21,000
in the 1999 Nine Months and approximately $82,000 in the 1998 Nine
Months. The decrease was due to a decrease in average balances of
our investment securities in the 1999 for the period.
Interest expense was approximately $1,952,000 in the 1999 Nine
Months and approximately $9,000 in the 1998 Nine Months. The
increase in interest expense is largely attributable to the
amortization of debt discount related to the warrants issued in our
1998 bridge financing.
The net loss for the 1999 Nine Months was approximately $5,691,000
compared to approximately $1,957,000 for the 1998 Nine Months.
Included in the 1999 Nine Months are non-cash charges of $2,227,000
for the issuance of warrants and options to consultants, the
amortization of debt discount relating to the Bridge Note Units and
the amortization of debt issue costs for the issuance of warrants
to NASD registered broker/dealers who participated in the Private
Placement of Bridge Note Units. These non-cash charges were
calculated using the Black-Scholes Option Pricing Model. The non-
cash charges of $2,227,000 is comprised of: (a) $725,000 for
consulting expense which was for the issuance of 500,000 warrants
to Summerwind Restructuring, Inc.("Summerwind")
valued at $591,000 and the issuance of 36,000
options to a consultant valued at $276,000 of which $46,000 of the
options were expensed as of April 30, 1999 and 63,000 warrants
issued to Southeast Research Partners, Inc. ("Southeast") valued at
$88,000. Summerwind was engaged by us to assist us, among other
things, with the acquisition of the 16.7% of our majority owned
subsidiary and to assist us in raising additional finances.
Southeast was engaged by us to perform financial advisory services;
(b) the amortization of the debt discount of $1,314,000 which was
related to the issuance of 778,500 warrants issued with the Bridge
Notes; (c) The amortization of debt issue costs of $188,000 which was
related to the issuance of 59,850 warrants to NASD registered
broker/dealers who participated in the Private Placement of the
Bridge Notes. We believe that losses will continue through fiscal
1999 as we are still in the development stage and are in the
process of commercializing and marketing our new service.
Liquidity and Capital Resources
We have incurred substantial losses since inception. Although no
assurance can be given, we anticipate that we will continue to
generate revenues. However, as a result of increased expenses
associated with any such revenues, losses may increase, or the
decrease in losses realized in fiscal 1999 may not be comparable to
the decrease in losses we realized in fiscal 1998. At April
30, 1999, we had working capital of approximately
$5,858,000. We have financed our operations through
private placements during fiscal 1994, our initial public offering
during fiscal 1995 (the "IPO"), a private placement in March 1997,
a private placement of Bridge Note Units during fiscal 1998 and
1999 and a private placement of Series A Preferred Stock in April
1999. We anticipate losses through fiscal 1999, as we attempt to
expand commercial markets for CommerceSense. We have sufficient
financial resources to continue our operations beyond fiscal 1999.
There can be no assurance that we will be able to obtain the
necessary financing or to generate sufficient revenue to continue
our operations in the future. Any additional equity financing
would be dilutive to stockholders, and debt financing, if
available, may contain covenants that might restrict our ability to
implement its current objectives.
We have a net operating loss carryforward of approximately $20
million to offset any future taxable income for federal tax
purposes. The utilization of the loss carryforward to reduce any
such future income taxes will depend on our ability to generate
sufficient taxable income prior to the expiration of the net
operating loss carryforwards. The carryforward expires from 2007
to 2013. The Internal Revenue Code of 1986, as amended, generally
contains provisions which limit the use of available net operating
loss carryforwards in any given year should significant changes
(greater than 50%) in ownership interests occur. Due to the IPO,
the net operating loss carryover of approximately $1,900,000
incurred prior to the IPO will be subject to an annual limitation
of approximately $400,000 until the pre-IPO portion of the net
operating loss is utilized or expires.
Year 2000 Compliance
We have commenced implementation of new financial software for
internal operating purposes that is Year 2000 ("Y2K") compliant.
Based on our design process and assessment to date, we believe the
current versions of our service and our various systems are Y2K
compliant. However, we cannot assure you that our programs
designed to minimize the impact of the transition to the year 2000
on our electronic date-sensitive equipment, including the terminal
operations software at our facilities, will be completely
successful (or that the costs of implementing them will not exceed
our current estimates). If these programs are not successful (or
if their costs exceed our estimates), the date change from 1999 to
2000 could have a material and adverse effect on our business,
operating results and financial condition. The full extent of any
adverse impact on our business is impossible to determine.
It is possible that our customers may not become Y2K compliant in a
timely fashion. While the failure of a customer to become Y2K
compliant will not affect our ability to receive or transmit that
customer's documents or data, the ability of that customer's
trading partners to receive or utilize the document or data
transmitted may be adversely affected. As a result, customers that
are not Y2K compliant may cease using our CommerceSense service and
that may have a material and adverse effect on our business,
operating results and financial condition
PART II
Item 2: Changes in Securities and Use of Proceeds
In April 1999, we sold 9,595 shares of Series A Convertible
Redeemable Preferred Stock ("Series A Preferred Stock") for
$7,000,000 in cash and conversion of $2,595,000 of Bridge Notes.
The following placement agents received $577,500 and 173,250
warrants in commissions: Bluestone Capital Partners, L.P., Brighton
Capital, GKN Securities, M.H. Meyerson Co., Inc., National
Securities Corporation, RG Securities LLC, Thornhill Group, Inc.,
Trinkhaus & Burkhardt KGaA, Westport Resources and Win Capital
Corporation. The offering was exempt from registration under
the Securities Act because it did not involve a public offering
within the meaning of the Securities Act. The exemption was
made available since all securities sold were to accredited investors.
The Series A Preferred Stock is convertible, at the option of the
holder, into the number of shares of Class A Common Stock equal to
$1,000 divided by 75% of the average closing price of the Class A
Common Stock on the NASDAQ SmallCap Market or, if not then traded
on the NASDAQ SmallCap Market, in the over-thecounter market for
the ten trading days immediately prior to the conversion date, at a
conversion rate of $5.00 per share until December 31, 1999 with
respect to 6,895 shares of Series A Preferred Stock and a minimum
conversion rate of $3.00 per share and a maximum conversion rate of
$5.00 per share with respect to 2,700 shares of Series A Preferred
Stock. As of January 1, 2000, all outstanding shares of Series A
Preferred Stock will have a minimum conversion rate of $3.00 per
share and a maximum conversion rate of $5.00 per share. No fewer
than 25 shares may be converted at one time unless the holder then
holds fewer than 25 shares and converts all such shares at that
time. Series A Preferred Stock is redeemable, in whole or in part,
by ICC at $1,000 per share, plus any accrued and unpaid dividends,
upon thirty-days' written notice, commencing on the third
anniversary of the date of issuance.
Item 6: Exhibits and Reports on Form 8-K
(a) Exhibit(s).
Number Description Method of Filing
10.6 Lease Agreement, dated as of Filed with this
May 21, 1999, between JB Squared Form 10-QSB
LLC and ICC relating to the rental
of approximately 4,000 square feet
at the Lakeview Executive Center,
45 Research Way, East Setauket,
New York, 11733
27 Financial Data Schedule Filed with this
Form 10-QSB
(b) Reports on Form 8-K
On April 20, 1999, we filed a Current Report on Form 8-K.
On April 28, 1999, we filed an amended Current Report on Form 8-K/A.
SIGNATURES
In accordance with the requirements of the Exchange Act, the
registrant caused this report to be signed on its behalf by the
undersigned, thereunto duly authorized.
INTERNET COMMERCE CORPORATION
- -----------------------------
(Registrant)
Date: June 14, 1999 By: /s/ Richard J. Berman
-------------------------------------------
Richard J. Berman, Chief Executive Officer,
Chairman of the Board of Directors
(Principal Executive Officer)
Date: June 14, 1999 By: /s/ Walter M. Psztur
-------------------------------------------
Walter M. Psztur, V.P. Finance &
Administration (Chief Financial Officer,
Principal Accounting Officer & Secretary)
<TABLE> <S> <C>
<ARTICLE> 5
<PERIOD-TYPE> 9-MOS
<FISCAL-YEAR-END> JUL-31-1999
<PERIOD-END> APR-30-1999
<CASH> 6,368,807
<SECURITIES> 0
<RECEIVABLES> 16,466
<ALLOWANCES> 0
<INVENTORY> 0
<CURRENT-ASSETS> 6,650,369
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</TABLE>
LEASE AGREEMENT BETWEEN
JB SQUARED LLC
AND
INTERNET COMMERCE CORPORATION
AT THE LAKEVIEW EXECUTIVE CENTER
45 RESEARCH WAY
EAST SETAUKET, NY 11733
Table of Contents
1. DESCRIPTION
2. TERMS
3. BASIC RENT
4. USE AND OCCUPANCY
5. CARE AND REPAIR OF PREMISES
6. ALTERATIONS, ADDITIONS OR IMPROVEMENTS
7. ACTIVITIES INCREASING FIRE INSURANCE RATES
8. ASSIGNMENT AND SUBLETTING
9. COMPLIANCE WITH RULES AND REGULATIONS
10. DAMAGES TO BUILDING
11. EMINENT DOMAIN
12. INSOLVENCY OF LESSEE
13. LESSOR'S REMEDIES ON DEFAULT
14. DEFICIENCY
15. RIGHT TO CURE BREACH
16. MECHANIC'S LIENS
17. RIGHT TO INSPECT AND REPAIR
18. HAZARDOUS MATERIALS AND WASTE
19. SERVICES TO BE PROVIDED BY LESSOR/LESSOR'S EXCULPATION
20. INTERRUPTION OF SERVICES OR USE
21. ELECTRICITY
22. ADDITIONAL RENT
(A) Operating Costs
(B) Real Estate Taxes
(C) Payment
23. ESTOPPEL STATEMENT
24. SURRENDER
25. RIGHT TO SHOW PREMISES
26. SECURITY
27. NO OTHER REPRESENTATION
28. QUIET ENJOYMENT
29. INDEMNITY
30. PARAGRAPH HEADINGS
31. APPLICABILITY TO HEIRS AND ASSIGNS
32. SUBORDINATION
33. LESSOR'S LIABILITY FOR LOSS OF PROPERTY
34. PARTIAL INVALIDITY
35. BROKER
36. PERSONAL LIABILITY
37. NO OPTION.
38. DEFINITIONS
(A) Proportionate Share
(B) Common Facilities
(C) Force Majeure
39. SIGNS
40. NOTICES
41. ACCORD AND SATISFACTION
42. EFFECT OF WAIVERS
43. WAIVER OF TRIAL BY JURY
EXHIBIT SCHEDULE
Exhibit A Premises Occupied
Exhibit B Description of Lessor s Work at Lessee's Expense
Exhibit C Rules and Regulations
Exhibit D Storage Space Lease Form
Exhibit E Right of First Offer
LEASE, made the day of , 1999, between JB Squared LLC, a
New York limited liability company, having an office located at
Suite 100, 45 Research Way, East Setauket, NY 11733
(hereinafter called "Lessor"); and INTERNET COMMERCE CORPORATION,
a Corporation , having an office at 805 Third Avenue, New York, New
York (hereinafter called "Lessee").
W I T N E S S E T H:
For and in consideration of the covenants herein contained,
and upon the terms and conditions herein
set forth, Lessor and Lessee agree as follows:
1. DESCRIPTION. Lessor hereby leases to Lessee, and Lessee
hereby hires from Lessor, the following space: 4,117 gross
rentable square feet of office space (hereinafter called "Demised
Premises" or "Premises") all as shown on the plan or plans,
initialed by the parties hereto, marked Exhibit A attached hereto
and made part of this Lease in the Building known as The Lakeview
Executive Center, 45 Research Way , East Setauket, New York
(hereinafter called the "Building"), together with the right to
use in common with other lessees of the Building, their invitees,
customers and employees, those public areas of the Common
Facilities as hereinafter defined. Lessee shall have the right
to have the Demised Premises remeasured using the BOMA method of
measurement. Lessee shall have the right, subject to
availability, to use the common area conference room in
accordance with the enclosed regulations. At other times,
subject to availability, Lessee may use such common area
conference room at rates then being charged by Lessor for such
use. The present charges for such use are $250.00 for four
hours' use and $400.00 for eight hours's use, but those figures
are subject to changes without notice. The Building shall be
available to Lessee and its employees seven days a week, 24 hours
per day. During the term of this lease, Lessee may, subject to
availability, rent storage space in the basement, pursuant to
Lessor's standard lease for such space, for the sum of Five
($5.00) Dollars, per square foot of rentable space per annum,
payable in equal monthly installments, in advance, together with
each installment of basic rent due hereunder. A copy of Lessor's
standard storage lease form is attached hereto as Exhibit D. Any
rental of storage space shall be "as is" with Lessor not
obligated to perform any work or supply any materials to or for
the space or Lessee in connection therewith.
2. TERM. (A) The Premises are leased for a term of five (5)
years commencing June 1, 1999 (the "Commencement Date"), and
to end at 12:00 midnight on the day preceding the sixtieth (60th)
monthly anniversary of the Commencement Date. The Commencement
Date shall mean June 1, 1999 . Notwithstanding the foregoing,
the parties acknowledge and agree that Lessor is to perform
certain work for Lessee in accordance with Schedule B and that,
therefor , The Commencement Date shall be the date that the
work, if any, described in Schedule B is substantially completed.
At any time thereafter, both parties, at the request of either
party, shall execute and deliver a document stating the
Commencement Date. If the Commencement Date has not occurred by
sixty (60) days from Lessor's actual receipt of an original of
this Lease, executed by Lessee , Lessee, as its sole remedy may
terminate this Lease at any time thereafter by written notice
actually received by Lessor prior to the Commencement Date.
(B) Lessor shall complete "Tenant Construction Scope
of Work" as defined in Exhibit B, if any.
3. BASIC RENT (a) The Lessee shall pay to the Lessor
basic rent in the amount of Seventy Eight Thousand Two Hundred
Twenty Three and no/100 ($78,223.00) Dollars (herein "Rent" or
"Basic Rent") per annum, increasing three and one half (3.5%)
percent per annum. Said rent shall be payable in monthly
installments, in advance on the first day of each month during
such period without any set off, counter claim or deduction
whatsoever except that the Lessee shall pay the First Monthly
installment on the execution hereof and except that no Basic Rent
shall be payable for the first two (2) months of the lease term.
In the event the Lessee shall fail to pay the Basic Rent and any
additional rent reserved and provided for herein within ten (10)
days after the same shall become due, the Lessee shall pay to the
Lessor, as further additional rent, a late fee equal to five (5%)
percent of each rental installment then due and any other
payments due hereunder, as partial payment for Lessor's costs in
connection with such late payments, plus interest on the unpaid
amounts at the highest rate permitted by law, in addition to
such installment(s) and other payment(s) then due.
4. USE AND OCCUPANCY. Lessee shall use and occupy the
Premises only as Office space, consistent with any laws and
ordinances for such use.
5. CARE AND REPAIR OF PREMISES Provided such
requirement has not been caused by the negligence of Lessor,
Lessee, at its sole expense, shall comply with all of the laws,
orders and regulations of federal, state, county and municipal
authorities, and with any direction of any public officer or
officers, pursuant to law, which shall impose any violations,
order or duty with respect to demised premises, or the use or
occupation thereof. Lessee shall commit no act of waste and
shall take good care of the Premises and the fixtures and
appurtenances therein, and shall, in the use and occupancy of the
Premises, conform to all laws, orders and regulations of the
federal, state and municipal governments or any of their
departments arising out of the Lessee's use and occupancy; Lessor
shall make all necessary repairs to the structural components of
the Building, including the roof (exclusive of any roof
maintenance contract which is part of common area maintenance and
to be paid for as part of Operating Costs) and all plumbing below
floor slab, at its sole cost and expense, except where the repair
has been made necessary by misuse or neglect by Lessee or
Lessee's agents, invitees, employees or servants in which event
Lessor shall nevertheless make the repair but Lessee shall pay to
Lessor, as additional rent, immediately upon demand, the costs
thereof. All improvements made by Lessee to the Premises, which
are so attached to the Premises that they cannot be removed
without material injury to the Premises, shall become the
property of Lessor upon installation. Not later than the last
day of the term, Lessee shall, at Lessee's expense, remove all
Lessee's personal property and those improvements made by Lessee
which have not become the property of Lessor, including trade
fixtures, cabinet work, movable paneling, partitions and the
like; repair all injury done by or in connection with the
installation or removal of said property and improvements;
installation or removal of said property and improvements; and
surrender the Premises in as good condition as they were at the
beginning of the term, reasonable wear and damage by fire, the
elements, casualty, or other cause not due to the misuse or
neglect by Lessee, Lessee's agents, invitees, employees or
servants excepted. All other property of Lessee remaining on the
Premises after the last day of the term of this Lease shall be
conclusively deemed abandoned and may be removed by Lessor, and
Lessee shall reimburse Lessor for the reasonable cost of such
removal. Lessor may have any such property stored at Lessee's
risk and expense. The provisions of the foregoing sentence shall
survive termination of this Lease.
Lessee shall not install machinery, equipment or fixtures without
Lessor's prior written consent in each instance, which consent
shall not be unreasonably withheld or delayed. Notwithstanding
any contrary provision contained herein, provided Lessee submits
plans and specifications to Lessor and receives written approval
of such plans and specifications from Lessor and provided such
plans and specifications comply with all of the laws, orders,
rules and regulations of the governmental authorities and the
Fire Insurance Rating Organization having jurisdiction thereof
and the local board of Fire Underwriters, or any other similar
body, Lessee shall have the right, at its own cost and expense,
to install machinery, equipment and fixtures as the Lessee may
require from time to time (sometimes herein referred to as
"Lessee's Property"). Subject to the provisions of this Article,
the Lessee's Property shall remain personal notwithstanding the
fact that it may be affixed or attached to the Demised Premises,
and shall, during the term of this Lease or any extension or
renewal thereof, belong to and be removable by the Lessee,
provided that the Lessee shall repair any damage caused by said
removal and shall deliver the Demised Premises to Owner at the
end of the term of the Lease in the same condition as upon the
commencement of the term hereof, reasonable wear and tear
excepted.
6. ALTERATIONS, ADDITIONS OR IMPROVEMENTS.
(A) The Lessee may not execute such changes, alterations, or
improvements (hereinafter
collectively referred to as an "Alteration") in, to or of the
Demised Premises without Lessor's prior written consent in each
instance, which consent will not be unreasonably withheld or
delayed. Any consent to structural changes or changes to the
mechanical, electrical or plumbing systems may be granted or
withheld by Lessor in its sole discretion. If Lessor approves
any Alteration in writing, Lessee may execute such approved
Alteration provided such Alteration is executed in accordance
with the terms and conditions of this Lease.
(B) All structural, mechanical, electrical and plumbing
Alterations shall be made in accordance
with the detailed plans and specifications prepared by Lessee s
architect and engineer and previously approved in writing by the
Lessor.
(C) Any alteration shall be made and paid for by Lessee
promptly (unavoidable delays excepted) and in good and
workman-like manner and in compliance with all applicable permits
and authorizations and building and zoning laws and with all
other laws and ordinances.
7. ACTIVITIES INCREASING FIRE INSURANCE RATES.
Lessee shall not do or
suffer anything to be done on the Premises which will increase
the rate of fire insurance on the Building. If anything done or
suffered by or on behalf of Lessee causes any increase, such
increase shall be paid by Lessee.
8. ASSIGNMENT AND SUBLETTING. Lessee may not assign the
within Lease or sublet all or any portion of the Demised Premises
without the prior written consent of the Lessor in each instance
and any attempted assignment or subletting without any such
approval shall be null and void as against Lessor and shall
constitute a default by Lessee hereunder.
(A) In the event that the Lessee desires to sublease
the Premises or assign the Lease to any other party, the name and
address of the proposed assignee or sublessee, relevant financial
information as to such proposed assignee or sublessee, and the
terms and conditions of such sublease or assignment shall be
delivered to the Lessor in writing prior to the proposed
effective date of any such sublease or assignment, and, the
Lessor shall have the option, exercisable in writing to the
Lessee within thirty (30) days after submission of all necessary
information to Lessor, to recapture the Lease and the Demised
Premises upon the proposed effective date of the sublease or
assignment (but not prior to the expiration of Lessor's thirty
(30) day option period), in which event the Lessee shall be fully
released from any and all obligations hereunder from and after
such date (but not from any obligations existing on such date).
Failure of Lessor to respond within such period of time shall
constitute a refusal by Lessor to consent to such assignment or
subletting. Notwithstanding the foregoing, in the event Lessor
does not chose to recapture the Lease and the Demised Premises,
Lessor will not unreasonably withhold or delay consent to such
assignment or subletting. It is clearly understood and agreed
that in considering such assignment or subletting Lessor shall
not be limited to considering if the assignee or sublessee has at
least the present net worth of Lessee, the parties recognizing
that such net worth is not adequate for a proposed assignee or
sublessee. Additionally, such assignment or subletting may not
to an entity or for a purpose competitive with Lessor's business
or of any then occupant of space in the Building nor for any
questionable, salacious or disreputable type of business or for
any type of business that would, in Lessor's reasonable opinion,
adversely affect the stature or reputation of the Building.
(B) If Lessor does not elect to terminate the Lease and
approves the proposed assignment or
subletting:
(1) The assignee shall assume, by written instrument, all of
the obligations of this Lease, and a copy of such assumption
agreement (or of the sublease, if the Premises are sublet) shall
be furnished to the Lessor within ten (10) days of its execution.
(2) The Lessee and each assignee or sublessee shall be and
remain liable for the observance of all the covenants and
provisions of this Lease, including, but not limited to, the
payment of rent reserved herein, through the entire term of this
Lease, as the same may be renewed, extended or otherwise
modified.
(3) The Lessee and any assignee or sublessee shall promptly
pay to Lessor any consideration
received for any assignment or subletting or all of the rent, as
and when received, in excess of the rent required to be paid by
Lessee for the area sublet, computed on the basis of any average
square foot rent for the gross square footage Lessee has leased.
(4) In any event, the acceptance by the Lessor of any rent
from the assignee or from any of the
subtenants or the failure of the Lessor to insist upon a strict
performance of any of the terms, conditions and covenants herein
shall not release the Lessee herein, nor any assignee assuming
this Lease, from any and all of the obligations herein, during
and for the entire term of this Lease.
(5) Lessee shall pay Lessor the sum of Five Hundred ($500.00)
Dollars for Lessor's reasonable expenses, including reasonable
expenses or charges of its attorneys and/or accountants to cover
its handling charges for each request for consent to any sublet
or assignment prior to its approval of the same.
9. COMPLIANCE WITH RULES AND REGULATIONS Lessee
shall observe and comply, at its sole expense, with all
applicable laws, orders rules and regulations of federal, state,
county and municipal authorities and with the rules and
regulations as hereinafter set forth in Exhibit C attached hereto
and made a part hereof and with such further reasonable rules and
regulations as Lessor may prescribe, on written notice to the
Lessee, for the safety, care and cleanliness of the Building and
the comfort, quiet and convenience of other occupants of the
Building. Lessee shall not place a load upon any floor of the
Demised Premises exceeding the floor load per square foot which
it is designed to carry and which is allowed by law. Lessor
reserves the right to prescribe the weight and position of all
safes, business machines and mechanical equipment. Such
installations shall be placed and maintained by Lessee, at
Lessee's expense, in settings sufficient, in Lessor's reasonable
judgment, to absorb and prevent vibration, noise and annoyance.
10. DAMAGES TO BUILDING. If the Building is damaged by
fire or any other cause to such extent that the cost of
restoration, as reasonably estimated by Lessor, will equal or
exceed twenty-five (25%) percent of the replacement value of the
Building (exclusive of foundations) just prior to the occurrence
of the damage or if Lessee's use of the Premises is materially
affected by such fire or other cause, and the damage or
restoration is not substantially completed within one hundred
eighty days following such damage or destruction, then either
party may, no later than the 180th day following the damage give
the other party a notice of election to terminate this Lease. In
either said event of election, this Lease shall be deemed to
terminate on the Thirtieth (30th) day after the giving of said
notice, and Lessee shall surrender possession of the Premises
within a reasonable time thereafter and the basic rent, and any
additional rent shall be apportioned as of the date of said
surrender and any basic or additional rent paid for any period
beyond said date shall be repaid to Lessee. Notwithstanding the
foregoing, if Lessee has given such notice ant the repairs or
restoration shall be substantially completed within such thirty
(30) day period the lease shall continue in full force and effect
as if such notice to terminate had not been given. If the cost of
restoration as estimated by the Lessor shall amount to less than
Twenty Five (25%) percent of said replacement value of the
building or if, despite the cost, Lessor and Lessee does not
elect to terminate this Lease, Lessor shall restore the Building
and the Premises with reasonable promptness, subject to Force
Majeure, and Lessee shall have no right to terminate this
Lease. Lessor need not restore fixtures and improvements owned
by Lessee.
In any case in which use of the Premises is affected by any
damages to the Building, there shall be
either an abatement or an equitable reduction in basic rent and
any additional rent depending on the period for which and the
extent to which the Premises are not reasonably usable for the
purpose for which they are leased hereunder. The words
"restoration" and "restore" are used in this Paragraph 10 shall
include repairs. If the damage results from the fault of the
Lessee, or Lessee's agents or visitors, Lessee shall not be
entitled to any abatement or reduction in basic rent and
additional rent, except to the extent of any rent insurance
maintained by Lessee and received by Lessor, or, subject to the
following sentence, rent insurance maintained by Lessor and
received by Lessor. All insurance policies to be obtained by
Lessor or Lessee hereunder shall, to the extent reasonably
available without additional premium, or if with additional
premium the other party pays such additional premium, contain a
waiver of subrogation against the other party.
11. EMINENT DOMAIN. If Lessee's use of the Premises is
materially affected due to the taking by eminent domain of (a)
the Premises or any part thereof or any estate therein; or (b)
any other part of the Building; then, in either event, this Lease
shall terminate on the date when title vests pursuant to such
taking. The rent, and any additional rent, shall be apportioned
as of said termination date any basic or additional rent paid for
any period beyond said date shall be repaid to Lessee. Lessee
shall not be entitled to any part of the award of such taking or
any payment to any part of the award for such taking or any
payment in lieu thereof, but Lessee may file a separate claim for
any taking or any payment in lieu thereof, and Lessee may file a
separate claim for any taking of fixtures and improvements owned
by Lessee which have not become the Lessor's property, and for
moving expenses, provided the same shall in no way diminish
Lessor's award. In the event of partial taking which does not
effect a termination of this Lease but does deprive Lessee of the
use of a portion of the Demised Premises, there shall either be
an abatement or an equitable reduction of the basic rent, and an
equitable adjustment reducing the Base Costs as hereinafter
defined depending on the amount of space taken and the period for
which the Premises so taken are not reasonably usable for the
purpose for which they are leased hereunder.
12. INSOLVENCY OF LESSEE. Either (a) the appointment
of a receiver to take possession of all or substantially all of
the assets of Lessee, or (b) a general assignment by Lessee for
the benefit of creditor, or (c) any action taken or suffered by
Lessee under any insolvency or bankruptcy act, shall constitute a
default of this Lease by Lessee, and Lessor may terminate this
Lease forthwith and upon notice of such termination Lessee's
right to possession of the Demised Premises shall cease, and
Lessee shall then quit and surrender the Premises to Lessor but
Lessee shall remain liable as hereinafter provided.
13. LESSOR'S REMEDIES ON DEFAULT. If Lessee defaults
in the payment of basic rent, or any additional rent, or defaults
in the performance of any of the other covenants and conditions
hereof or permits the Premises to become deserted, abandoned or
vacated, Lessor may give Lessee notice of such default, and if,
after receipt of such notice, Lessee does not cure any basic or
additional rent default within fifteen (15) days or other default
within thirty (30) days (or if such other default is of such
nature that it cannot be completely cured within such period, if
Lessee does not cure such default such thirty (30) days and
thereafter does not proceed with reasonable diligence and in good
faith to cure such default), then Lessor may terminate this Lease
on not less than ten (10) days notice to Lessee, and on the date
specified in said notice, Lessee's right to possession of the
Demised Premises shall cease, and Lessee shall then quit and
surrender the Premises to Lessor, but Lessee shall remain liable
as hereinafter provided. If this Lease shall have been so
terminated by Lessor pursuant to Paragraphs 12 or 13 thereof,
Lessor may at any time thereafter resume possession of the
Premises by any lawful means and remove Lessee or other occupants
and their effects.
14. DEFICIENCY. In any case where Lessor has recovered
possession of the Premises by reason of Lessee's default, Lessor
may, at Lessor's option, occupy the Premises or cause the
Premises to be redecorated, altered, divided, consolidated with
other adjoining premises, or otherwise changed or prepared for
reletting, and may relet the Premises or any part thereof, for a
term or terms to expire prior to, at the same time as, or
subsequent to, the original expiration date of this Lease, at
Lessor's option, and receive the rent therefor. Rent so
received shall be applied first to the payment of such reasonable
expenses as Lessor may have incurred in connection with the
recovery of possession, redecorating, altering, dividing,
consolidating with other adjoining premises, or otherwise
changing or preparing for reletting, and the reletting, including
reasonable brokerage and reasonable attorney's fees, and then to
the payment of damages in amounts equal to the rent hereunder and
to the costs and expenses of performance of the other covenants
of Lessee as herein provided. Lessee agrees, in any such case,
whether or not Lessor has relet, to pay to Lessor damages equal
to the basic and additional rent and other sums herein agreed to
be paid by Lessee, less the net proceeds of the reletting, if
any. If Lessor and Lessee do not agree on the amount of such
deficiency then the amount will be determined and assessed by a
court of competent jurisdiction, and the same shall be payable by
Lessee on the several rent days above specified. Lessee shall
not be entitled to any surplus accruing as a result of any such
reletting. In reletting the Premises as aforesaid, Lessor may
grant rent concessions, and Lessee shall not be credited
therewith. No such reletting shall constitute a surrender and
acceptance or be
deemed evidence thereof. If Lessor elects, pursuant hereto,
actually to occupy and use the Premises or any part thereof
during any part of the balance of the term as originally fixed or
since extended, there shall be allowed against Lessee's
obligation for rent or damages as herein defined, during the
period of Lessor's occupancy, the reasonable value of such
occupancy, not to exceed in any event the basic and additional
rent herein reserved and such occupancy shall not be construed as
a release of Lessee's liability hereunder.
In lieu of suing for monthly damages, at any time, Lessor
shall be entitled to liquidated damages for the balance of the
term of the lease, plus any expenses Lessor may reasonably
anticipate would be incurred in such reletting, less the rental
value of the demised premises for the balance of the term of the
lease, both discounted back to present value at a 4% rate, or, at
Lessor's option, the difference between the stated rental and
additional rental payable hereunder and the net rental actually
received by Lessor shall be paid in monthly installments by
Lessee on the rent days specified in this lease and any suit
brought to collect the amount of the deficiency for any month
shall not prejudice in any way the rights of Lessor to collect
the deficiency, nor to bring a suit for the damages for the
remaining balance of the term.
Lessor's remedies hereunder are in addition to any remedy
allowed by law.
15. RIGHT TO CURE BREACH. If Lessee breaches any other
covenant or condition of this Lease beyond any applicable grace
period contained herein, the Lessor may, on reasonable notice to
the Lessee (except that no notice need be given in case of
emergency), cure such breach at the expense of the Lessee and the
reasonable amount of all expenses, including attorney's fees,
incurred by the Lessor in so doing shall be deemed additional
rent payable on demand.
16. MECHANIC'S LIENS. Lessee shall, within thirty (30) days
after notice from Lessor,
discharge or satisfy of record by bonding or otherwise any
mechanic's liens for materials or labor
claimed to have been furnished to the Premises on or for Lessee's
behalf.
17. RIGHT TO INSPECT AND REPAIR. Lessor may enter the
Premises but shall not be
obligated to do so (except as required by any specific provision
of this Lease) at any reasonable time on reasonable notice to
Lessee (except that no notice need be given in case of emergency)
for purpose of inspection or the making of such repairs,
replacement or additions, in, to, on and about the Premises or
the Building, as Lessor deems reasonably necessary or desirable.
In connection therewith, Lessee shall have no claims or cause of
action against Lessor by reason thereof, except for Lessor's, its
agents, servants or invitees gross negligence. In no event shall
Lessee have any claim against Lessor for interruption to Lessee's
business, however occurring, or other consequential damages.
18. HAZARDOUS MATERIALS AND WASTE.
(A) Lessee shall not occupy or use the Lease Premises, or permit
any portion of the Leased Premises to be occupied or used, for
any business or purpose which is, directly or indirectly,
forbidden by law, ordinance, or governmental or municipal
regulation or order, or which may be dangerous to life or
property, or permit the maintenance of any public or private
nuisance, or do or permit any act or thing which may disturb the
quiet enjoyment of any other lessee of the Building. In the
event Lessee's presence in or use of the Premises in any way
causes an increase in the rate of fire, liability, or any other
insurance coverage on the Property or its contents, Lessee will
be responsible for any such increase on demand, which shall
constitute additional rent hereunder. Lessor represents that, to
the best of its knowledge, it has not installed any products
containing asbestos in the Demised Premises.
(B) Lessee shall not (either with or without negligence) cause
or permit the existence, presence,
maintenance, use, escape, disposal or release of any biologically
or chemically active or other
hazardous, toxic or dangerous substances or materials in any
manner not sanctioned by law or by the highest standards
prevailing in any applicable industry. Lessee shall not allow
the storage or use of such substances or materials in any manner
not sanctioned by law or by the highest standards prevailing in
any applicable industry for the presence, existence, storage,
disposal and use of such substances or materials, nor allow to be
brought into the Property any such materials or substances except
to use in the ordinary course of Lessee's business, and then only
after written notice is given to Lessor of the identity of such
substances or materials. In any event, even if sanctioned by law
and/or the highest standards prevailing in any applicable
industry, any escape, disposal, release, storage, or use of any
biologically or chemically active or hazardous, toxic or
dangerous substance occurs, any costs, damage, fines, penalties,
interest, or other liability in connection therewith shall be the
responsibility of the Lessee including without limitation any
damages, clean-up or remediation costs and loss of property
value. Without limitation, hazardous substances and materials
shall include those described in the Comprehensive Environmental
Response, Compensation and Liability Act of 1980, as amended, 42
U.S.C. Section 9601 ct seq., the Resource Conservation and
Recovery Act, as amended 42 U.S.C., Section 6901 et seq., any
applicable state or local laws and the regulations adopted under
these acts. If any lender or governmental agency shall ever
require testing to ascertain whether or not there has been any
release of hazardous materials due to the acts or omissions of
Lessee or any of its agents or employees, then the costs thereof
shall be reimbursed by Lessee to Lessor upon demand as
additional charges. In addition, Lessee shall execute
affidavits, representations and the like from time to time at
Lessor's request concerning Lessee's best knowledge and belief
regarding the presence of hazardous substances or materials on
the Property. In all events, Lessee shall indemnify Lessor in
the manner elsewhere provided in this lease from any presence,
maintenance, use, release or storage of hazardous, toxic or
dangerous materials in the Demised Premises occurring while
Lessee is in possession, or elsewhere in or about the Property if
caused by Lessee or persons acting under Lessee (either by acts
or omissions). These covenants shall survive the expiration or
earlier termination of this lease.
19. SERVICES TO BE PROVIDED BY LESSOR/LESSOR'S EXCULPATION.
Subject
to intervening laws, ordinances, regulations and executive
orders, while Lessee is not in default under any of the
provisions of this Lease, Lessor agrees to furnish and Lessee
agrees to pay for:
(A) Cold water for drinking and lavatory purposes only.
(B) Exterior window cleaning when reasonable required.
(C) Seasonal Removal of snow and ice from common areas.
The cost of such services shall be paid for by Lessee
by its proportionate share of Operating Costs.
Notwithstanding the requirements of this or any other
provision of this Lease, Lessor shall not be liable to failure
to furnish any of the aforesaid services when such failure is due
to force Majeure, as hereinafter defined. Lessor shall not be
liable, for other than the gross negligence or willful or wanton
misconduct of Lessor, its agents, servants, or invitees, or from
defects, errors or omissions in the construction or the design of
the Demised Premises or the Building, including the structural
and non-structural portions thereof, for loss of or injury to
Lessee or to property, however occurring, through or in
connection with or incidental to the furnishing of, or failure
to furnish, any of the aforesaid services or for any interruption
to Lessee's business however occurring.
20. INTERRUPTION OF SERVICES OR USE. Interruption or
curtailment of any service
maintained in the Building or at the land, if caused by Force
Majeure, as hereinafter defined, shall not entitle Lessee to any
claim against Lessor or to any abatement in rent, and shall not
constitute to restore the service without due delay.
Notwithstanding the foregoing, if the interruption or curtailment
of any services in the Building severely interferes with Lessee's
ability to conduct its business and such interruption continues
for thirty (30) consecutive days, Lessee, at any time prior to
resumption of such services, as its sole remedy may terminate
this Lease upon written notice to Lessor. If the Premises are
rendered untenantable in whole or in part, for a period of seven
(7) consecutive days by the making of repairs, replacements or
additions, other than those made with Lessee's consent or caused
by misuse or neglect by Lessee, or Lessee's agents or servants,
there shall be a proportionate abatement of rent from and after
said seventh (7th) day and continuing for the period of such
untenantability. In no event shall Lessee be entitled to claim a
constructive eviction from the Premises unless Lessee shall first
have notified Lessor in writing of the condition or conditions
giving rise thereto, and, if the complaints be justified, unless
Lessor shall have failed, within ten (10) business days after
receipt of such notice, to remedy, or commence and proceed with
due diligence to remedy, such condition or conditions, all
subject to Force Majeure as hereinafter defined.
21. ELECTRICITY. Lessee, at its sole cost and expense,
shall arrange with the public utility
company servicing the Building of which the Demise Premises are a
part for electric service at the
Demised Premises (including that necessary for the providing of
heating, ventilation, and air
conditioning to the Demised Premises). Lessor shall arrange with
such utility company for the
installation of an electric meter to measure the consumption of
electricity solely at the Demised
Premises, and for the supply, but not the payment of, electric
service to each electrical outlet at the Demised Premises.
Lessor shall furnish the electric meter and its installation as
part of Lessee's work letter (to be included in the allowance to
be granted Lessee).
22. ADDITIONAL RENT. It is expressly agreed that Lessee
will pay monthly, in
advance, in addition to the basic rent, an additional rental to
cover Lessee's Proportionate Share, as hereinafter defined, of
the cost to Lessor, for each of the categories enumerated herein.
(A) Operating Costs. Commencing June 1, 2000, the Lessee shall
pay to Lessor, as additional rent, its proportionate share, as
hereinafter defined, of all Operating Costs over $175,000.00 per
annum. For the purposes of this lease, "Operating Costs" shall
mean all expenses, costs and accruals (excluding therefrom,
however, specific costs billed to or otherwise incurred for the
particular benefit of specific tenants of the Building as well as
depreciation of the Building, principal and interest on debt of
the Lessor with respect to mortgages affecting the Building,
rents under any ground underlying leases affecting the Building
and costs in connection with the initial construction of the
Building) of every kind and nature, computed on an accrual basis,
incurred or accrued in connection with, or relating to, the
ownership, maintenance, or operation of the Property and said
common areas during each calendar year, including, but not
limited to, the following:
(i) management fees of the building manager;
(ii) wages and salaries, including taxes, insurance and
benefits, of all on and off-site employees
engaged in operations, maintenance or access control, as
reasonably allocated by Lessor;
(iii) cost of supplies, tools, equipment and materials to the
extent used in operation and maintenance, as reasonably allocated
by Lessor;
(iv) cost of all utilities including, but not limited to, the
cost of electricity for the Common Areas, the cost of water and
the cost of power for heating, lighting, air conditioning and
ventilating;
(v) cost of all maintenance and service agreements and the
equipment therein, including, but not
limited to, access control service, if any, window cleaning,
elevator maintenance, janitorial service and landscaping
maintenance and updating;
(vi) cost of repairs and general maintenance (excluding repairs,
alterations and general maintenance paid by proceeds of
insurance);
(vii) amortization of the cost (together with reasonable
financing charges and installation costs) of any system,
apparatus, device, or equipment which is installed for the
principal purpose of (i) reducing Operating Expenses, (ii)
promoting safety or (iii) complying with governmental
requirements which become effective after the Commencement Date;
(viii) the cost of all insurance, including, but not limited to,
the cost of casualty, rental abatement and liability insurance,
and insurance on Lessor's personal property, plus the cost of all
deductible payments made by Landlord in connection therewith;
(ix) the cost of reasonable legal and accounting fees (but not
in connection with actions against or work for a particular
tenant);
All costs shall be reasonable and usual taking into account the
type and location of the Building, the availability of supplies,
suppliers, repairman, etc., the urgency of the repair and such
other factors as a reasonable lessor would consider before making
an expenditure.
Notwithstanding the foregoing, Lessee's cost shall not increase
by more than four percent per annum (exclusive of Common Area
utilities).
(B) Real Estate Taxes "Real Estate Taxes" shall mean the
property taxes and assessments imposed upon the Building and the
entire parcel of land upon which the Building sits and the land
surrounding it, or upon the rent, as such, payable to the Lessor,
in advance of the date such taxes are due to be paid by Lessor.
If due to a future change in the method of taxation, any
franchise, income or profit tax shall be levied against Lessor in
substitution for, or in lieu of, or in addition to, any tax which
would otherwise constitute a Real Estate Tax, such franchise,
income or profit tax shall be deemed to be a Real Estate Tax for
the purposes hereof but shall be calculated as if the Building
were the only building owned by Lessor; conversely, any
additional real estate tax hereafter imposed in substitution for,
or in lieu of, any franchise, income or profit tax (which is not
in substitution for, or in lieu of, or in addition to, a Real
Estate Tax as herein before provided) shall not be deemed a Real
Estate Tax for the purposes hereof. In the event there are any
special assessments against either the Building or the land,
Lessor shall be deemed for purposes of this computation (whether
or not in fact is has so elected) to elect to pay those
assessments over the longest period permitted by law, and Lessee
should only be obligated to pay its pro rata share of those
installments which may be due during the term of the Lease.
Commencing June 1, 2000, the Lessee shall pay to Lessor, as
additional rent, its proportionate share, as hereinafter defined,
of all Real Estate Taxes over $125,000.00 per annum.
(C) Payment. At any time, and from time to time, Lessor shall
advise the Lessee in writing of Lessee's proportionate share with
respect to each of the categories as estimated for each twelve
(12) months period of the lease term, commencing June 1, 2000,
over the respective figures set forth above (except that, as to
Operating Expenses, said figures shall be subject to the maximum
annual adjustment provided for in said section), and thereafter,
the Lessee shall pay as additional rent, those estimated
additional costs for the then current period affected by such
advice (as the same may be periodically revised by Lessor as
additional costs are incurred) in equal monthly installments in
advance, on the first days of each month in each year during the
lease term, such new rates being applied to any months for which
the rental shall have already been paid which are so affected by
the costs above referred to, as well as the unexpired months of
the current period, the adjustment for the then expired months to
be made at the payment of the next succeeding monthly rental, all
subject to adjustment when the actual costs for the preceding
twelve (12) months are finally determined, as well as being
subject to final adjustment at the expiration of the Lease term,
which adjustment shall survive the termination of the Lease.
23. ESTOPPEL STATEMENT The parties shall, from time to
time, on not less than ten (10) days prior written request by the
other, execute, acknowledge and deliver to the requesting party a
written statement certifying that the Lease is unmodified and in
full force and effect, or that the Lease is in full force and
effect as modified and listing the instruments of modification;
the dates to which the rents and charges have been paid; and, to
the best of the party's knowledge, whether or not the other party
is in default hereunder, and if so, specifying the nature of the
default. It is intended that any such statement delivered
pursuant of this Paragraph 23 may be relied on by a prospective
purchaser or Lessee of Lessor's interest or mortgagee of Lessor's
interest of assignee of any mortgage of Lessor's interest or
assignee of subtenant of Lessee.
24. SURRENDER
(A) On the expiration date or upon the sooner termination of
this Lease or upon any re-entry by Lessor upon the Premises,
Lessee shall, at its sole cost and expense, quit, surrender,
vacate and deliver the Premises to Lessor "broom clean" and in
good order, condition and repair except for the ordinary wear,
tear and damage by fire or other insured casualty, together with
all improvements and fixtures installed by Lessor. Prior to the
termination of this Lease, Lessee shall remove from the Building
all of Lessee's property and all other personal property and
personal effects of all persons claiming through or under
Lessee, and shall pay the cost of repairing all damage to the
Premises and the Building and land occasioned by such removal.
Any expense incurred by Lessor in removing or disposing of such
Lessee's property or other personal property shall be reimbursed
to Lessor by Lessee as Additional Rent on demand.
(B) If the end of the Lease Term or the date of sooner
termination of this Lease shall fall on a day which is not a
business day, then Lessee's obligations under Paragraph (A) shall
be performed on or prior to the immediately preceding business
day.
(C) If the premises are not surrendered upon the termination
of this Lease, Lessee hereby
indemnifies and agrees to hold Lessor harmless against liability,
damages, claims, demands, expenses, including the defense
thereof, including attorneys fees and court costs at all levels,
resulting from delay by Lessee in so surrendering the Premises,
including any claims made by any succeeding lessee or prospective
lessee founded upon such delay.
(D) In the event Lessee remains in possession of the
Premises after the termination of this Lease without the
execution of a new lease or exercise of its renewal rights, if
any, herein, Lessee, at the option of the Lessor, shall be deemed
to be occupying the Premises as a lessee from month to month, at
a rental equal to one and one half (1.5) times the last monthly
Basic Rent per month and such additional rental as provided for
herein, subject to all of the other terms of this Lease insofar
as the same are applicable to a month-to-month tenancy.
(E) Lessee's obligations under this Article shall survive
the termination of this Lease.
25. RIGHT TO SHOW PREMISES. Lessor may show the Premises to
prospective
purchasers and mortgagees; and, during the six months prior to
termination of this Lease, to
prospective tenants, all during Lessee's regular business hours
on reasonable notice to Lessee.
26. SECURITY Lessee shall pay Lessor Thirteen Thousand
Thirty Seven and 17/100 ($13,037.17) Dollars as a security
deposit upon execution of this Lease. Additionally, within two
(2) weeks of the execution herewith, Lessee shall furnish to
Lessor a sight draft letter or credit issued by a bank approved
in advance by Lessor in form as attached hereto in the amount of
One Hundred Thousand ($100,000.00) Dollars. Lessee's failure to
deliver such letter of credit within the time specified shall
constitute a default by Lessee hereunder, and, in addition to any
other rights or remedies to which Lessor shall be entitled,
Lessor shall have the right to immediately discontinue any and
all work on the Demised Premises, including preparation therefor
and, if Lessee cures such default within a period of time
satisfactory to Lessor, Lessor's time to complete the work shall
be extended for the time of such delay. Such letter of credit
shall be for a term of not less than one year and shall be
renewed at least thirty (30) days prior to the expiration of each
letter of credit. If Lessee is not then in default under this
lease each annual renewal of the letter of credit shall be in
amount reducing thirty thousand ($30,000.) Dollars per year. If
not renewed within the time specified, time being of the essence,
Lessor may draw down the full proceeds of the letter of credit
and hold the proceeds as an additional security deposit.
Additionally, upon default by Lessee, Lessor may either draw
sufficient funds from the letter of credit to cover such default
or may use the cash security therefor and, upon the occurrence
of any default by Lessee, Lessee may not further reduce the
amount of any further or future letters of credit, all of which
shall then be in the amount outstanding at the time of the
default. Upon the occurrence of any event of default by
Lessee, Lessor may, from time to time, without prejudice to any
other remedy, use the security deposit to the extent necessary to
make good any arrears of the Rent or to pay any other sums owed
to Lessor, or to pay the cost of any damage, injury, expense, or
liability caused by any event of default by Lessee hereunder. In
the event this lease is terminated for Lessee's default, Lessor
may utilize such security deposit not only to cover the cost the
preceding listed items of damage, but also to reimburse Lessor
for the unamortized cost of improvements furnished by Lessor for
Lessee and the unamortized portion of brokers' commissions paid
by Lessor for this lease. Any remaining balance of the security
deposit shall be returned by Lessor to Lessee within thirty (30)
days after the termination or expiration of this Lease. The
security deposit shall not be considered an advance payment of
rental or a measure of Lessor's damages in case of default by
Lessee. Lessee shall not be entitled to receive and shall not
receive any interest on the security deposit, and Lessor may
co-mingle the same with other monies of Lessor. In the event
Lessor applies the security deposit or any portion thereof to the
payment of any sum described above and this lease is not
terminated, Lessee shall immediately deposit with Lessor an
amount of money equal to the amount so applied and such amount
shall be deemed to be part of the security deposit.
27. NO OTHER REPRESENTATION. No representations or promises
shall be binding on the
parties hereto except those representations and promises
contained herein or in some future writing signed by the party
making such representation(s) or promise(s).
28. QUIET ENJOYMENT. Lessor covenants that if, and so long
as, Lessee pays the rent, and any additional rent as
herein provided, and performs the covenants hereof, Lessor shall
do nothing to affect Lessee's right to peaceably and quietly
have, hold and enjoy the Premises for the term herein mentioned,
subject to the provisions of this Lease.
29. INDEMNITY. Lessee hereby indemnifies and saves harmless
Lessor and its agents against
and from (a) any and all claims (i) arising from (x) the conduct
or management by Lessee or its
employees, agents, invitees or servants, or (y) any work or thing
whatsoever done, or any condition created (other than by Lessor
for Lessor's or Lessee's account) in or about the Demised
Premises during the term of this Lease or during the period of
time, if any, prior to the Commencement Date that Lessee may have
been given access to the Demised Premises, or (ii) arising from
any negligent, wilful or otherwise wrongful act or omission of
the Lessee, its agents, employees, invitees or servants, and, (b)
all costs, expenses and liabilities incurred in or in connection
with each such claim or action or proceeding brought thereon,
including the defense thereof, including attorneys fees and court
costs at all levels. In case any action or proceeding be brought
against Lessor by reason of any such claim, the Lessee, upon
notice from Lessor, shall resist and defend such action or
proceeding at Lessee's cost. Lessor retains the right, in any
such action or proceeding, to be represented by attorneys of its
own choosing, at Lessee's expense. Lessee will not perform or
have performed any work or repair to the Demised Premises without
Lessor's prior written consent. Notwithstanding the foregoing,
if Lessor has approved the counsel to be utilized by Lessor for
the defense of Lessor and Lessee, then, unless Lessor has a
conflict of interest with Lessee, Lessor shall not have the
right to utilize separate counsel which will be paid for by
Lessee.
30. PARAGRAPH HEADINGS. The paragraph headings in this
Lease and position of its
provisions are intended for convenience only and shall not be
taken into consideration in any
construction or interpretation of this Lease or any of its
provisions.
31. APPLICABILITY TO HEIRS AND ASSIGNS. The provisions of
this Lease shall apply to, bind and inure to the benefit of
Lessor and lessee, and their respective heirs, successors, legal
representatives and assigns. It is understood that the term
"Lessor" as used in this Lease means only the owner, a mortgagee
in possession or a term lessee of the Building, for the period of
time for which they are in ownership or in possession, as the
case may be, so that in the event of any sale of the Building or
of any lease thereof, or if a mortgagee shall take possession of
the Premises, the Lessor named herein shall be and hereby is
entirely freed and relieved of all covenants and obligations of
Lessor hereunder accruing thereafter, and it shall be deemed
without further agreement that the purchaser, the term lessee of
the building, or the mortgagee in possession has assumed and
agreed to carry out any and all covenants and obligations of
Lessor hereunder.
32. SUBORDINATION This lease and all rights of Lessee
therein, and all interest or estate of
Lessee in the Demised Premises, or any portion thereof, shall be
subject and subordinate to all ground or underlying leases
("Superior Leases") and to all mortgages, ("Superior Mortgages"),
which now or at any time hereafter affect the real property of
which the Demised Premises, or any portion thereof, forms a part
and to any replacements, renewals, amendments, modifications,
spreaders, or extensions thereof, and to each and every advance
made under any such mortgage.
33. LESSOR'S LIABILITY FOR LOSS OF PROPERTY. Lessor shall
not be liable for any loss of property from any cause whatsoever,
including but not limited to theft or burglary from the Demised
Premises. Lessee agrees not to make the claim for any such loss
at any time unless such loss arises from the negligence of
Lessor, its agents or servants.
34. PARTIAL INVALIDITY. If any of the provisions of this
Lease, or the applications thereof to any person or
circumstances, shall to any extent, be invalid or unenforceable,
the remainder of this Lease, or the application of such provision
or provisions to persons or circumstances other than those as to
whom or which it is held invalid or unenforceable, shall not be
affected thereby, and every provision of this Lease shall be
valid and enforceable to the fullest extent permitted by law.
35. BROKER. Each party hereto warrants and represents to
the other that no real estate broker and/or salesman has been
involved in this lease other than CB Richard Ellis, on behalf of
Lessor, and Atlantic Property Services on behalf of Lessee and
each party agrees to indemnify and hold the other harmless from
and against any and all claims of any other real estate broker
and/or salesman due to acts of the indemnifying party or its
representatives. Lessor agrees to pay the commission due the
named brokers.
36. PERSONAL LIABILITY Notwithstanding anything to the
contrary provided in this Lease, it is specifically understood
and agreed, with respect to any of the terms, covenants and
conditions of this Lease, that Lessee shall look solely to the
equity of the Lessor or the then lessor in the Building for the
satisfaction of each and every remedy of Lessee and if
applicable, the proceeds of insurance or condemnation awards upon
the Premises.
37. NO OPTION. The submission of this Lease Agreement for
examination does not constitute a reservation of, or option for,
the Premises, and this Lease Agreement becomes effective as a
Lease Agreement only upon execution and delivery thereof by
Lessor and Lessee.
This provision does not relate to the Option contained in Exhibit
E of this Lease, which arises after the Lease goes into effect.
38. DEFINITIONS.
(A) Proportionate Share. Lessee's
Proportionate Share wherever that phrase is used, shall be twelve
and 14/100 Percent (12.14 %) percent (subject to adjustment in
accordance with any results of remeasuring as provided in
Paragraph 1. hereof).
((B) Common Facilities. Common Facilities
shall means the parking areas and all general Building facilities
that service more than one Building lessee. Lessor may at any
time close temporarily any Common Facility to make repairs or
changes therein or to effect construction, repairs or changes
within the Building, or to discourage non-lessee parking, and may
do such other acts in and to the Common Facility as in its
judgment may be desirable to improve the convenience thereof.
(C) Force Majeure. Force Majeure shall mean
and include those situations beyond either party's control,
including by way of example and not by way of limitation, acts of
God;
accidents; repairs; strikes; shortages of labor, supplies or
materials; inclement weather; or
where applicable, the passage of time while waiting for an
adjustment of insurance proceeds.
39. SIGNS. (A) Lessee may not place or install such signs
and/or awnings in, on or about the
Demised Premises (including, without limitation, both the
interior and exterior surfaces of windows and doors) without
Lessor s prior written approval which will not be unreasonably
with held or delayed. Subject to Lessor's reasonable approval,
Lessee may place signage on the interior doors of the Demised
Premises. Lessee shall be entitled to listing on the Building
Directory in accordance with Lessor's standard provisions
therefor. If so approved and provided such signs and/or awnings
do not violate any laws, covenants and restrictions, ordinances,
rules or regulations promulgated by any governmental body having
jurisdiction, and are maintained at all times in good condition
by Lessee at its own cost and expense and in accordance with the
covenants and restrictions of the Stony Brook Technology Center
Association, Lessee may maintain such approved, non violating
signs and/or awnings.
40. NOTICES. Any notice by either party to the other shall
be in writing and shall be deemed to have been duly given only if
delivered personally or sent by registered mail or certified mail
in a
postpaid envelope addressed, if to Lessee, at the above described
Building; if to Lessor, at Lessor's address as set forth above;
or, to either at such other address as Lessee or Lessor,
respectively, may designate in writing. Notice shall be deemed
to have been duly given, if delivered personally, on delivery
thereof, and if mailed, upon the tenth (10) day after the mailing
thereof.
41. ACCORD AND SATISFACTION. No payment by Lessee or
receipt by Lessor of a lesser
amount than the rent and additional charges payable hereunder
shall be deemed to be other than a
payment on account of the earliest stipulated basic rent and
additional rent, nor shall any endorsement or statement on any
check or any letter accompanying any check or payment for rent or
additional rent be deemed an accord and satisfaction, and Lessor
may accept such check or payment without prejudice to Lessor's
right to recover the balance of such rent and additional rent or
pursue any other remedy provided herein or by law.
42. EFFECT OF WAIVERS. No failure by Lessor to insist upon
the strict performance of any
covenant, agreement, term or condition of this Lease, or to
exercise any right or remedy consequent upon a breach thereof,
and no acceptance of full or partial rent during the continuance
of any such breach, shall constitute a waiver of any such breach
or of such covenant, agreement, term or condition. No consent or
waiver, express or implied, by Lessor to or of any breach of any
covenant, condition or duty of Lessee shall be construed as a
consent or waiver to or of any other breach of the same or any
other covenant, condition or duty, unless in writing signed by
Lessor.
43. WAIVER OF TRIAL BY JURY. Lessor and Lessee shall and do
hereby waive trial by jury in any action, proceeding or
counterclaim brought by either of the parties hereto against the
other in any matter arising out of or in any way connected with
this lease, the relationship of lessor and lessee, Lessee's use
and occupancy of the Demised Premises, any claim of injury or
damage and any emergency or any other statutory remedy. Lessee
shall not impose any counterclaim or counterclaims in a
summary proceeding or in action based on non-payment of any sums
due to Lessor hereunder.
JB SQUARED LLC , LESSOR INTERNET COMMERCE
CORPORATION , LESSEE
By: ____________________________ By:____________________________
James Coughlan, a member
Donald Gordon, Chief Operating Officer
EXHIBIT SCHEDULE
EXHIBIT A - Premises Occupied
EXHIBIT B - Description of Lessor s Work At Lessee's Expense
EXHIBIT C - Rules and Regulations
EXHIBIT D - Lessor's Form of Standard Storage Lease
EXHIBIT - Right of First Offer
EXHIBIT C
RULES AND REGULATIONS
1. The sidewalks, entrances, passages, courts,
elevators, vestibules, stairways, corridors, or halls, to the
extent they exist ,shall not be obstructed or encumbered by any
lessee or used for any purpose other than ingress and egress to
and from the Demised Premises.
2. No awnings or other projections shall be
attached to the outside walls of the Building without the prior
written consent of the Lessor. No curtains, blinds, shades,, or
screens shall be attached to or hung in, or used in connection
with , any window or door of the Demised Premises, without
written consent of the Lessor. Such awnings, projections,
curtains, blinds, shades, screens or other such fixtures must be
of quality, type , design and color, and attached in the manner
approved by Lessor. All electrical fixtures hung in offices or
spaces along the perimeter of the Demised Premises must be
fluorescent, of a perimeter of the Demised Premises
must be fluorescent, of a quality , type, design and bulb color
approved by the Lessor.
3. No sign, advertisement, notice or other lettering
shall be exhibited, inscribed, painted or affixed by any Lessee
on any part of the outside or inside of the Demised Premises or
Building without the prior written consent of the Lessor. In the
event of the violation of the foregoing by any Lessee, Lessor may
remove same without any liability, and may charge the expense
incurred by such removal to the Lessee or Lessees violating
this rule.
4. No showcases or other articles shall be put in
front of or affixed to any part of the exterior of the Building.
5. 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, or
other substances shall be thrown therein. All damages resulting
from any misuse of the fixtures shall be borne be the Lessee who,
or whose servants, employees, agents, visitors or licensees,
shall have caused the same.
6. No Lessee shall mark, paint, drill into, or in any
way deface any part of the demised Premises or the Building. No
boring, cutting or stringing of wires shall be permitted, except
with the prior written consent of the Lessor, and as the Lessor
may direct. No Lessor shall lay linoleum, or other similar floor
covering, so that the same shall come in direct contact with the
floor of the Demised Premises, and, if linoleum or other similar
floor covering is desired to be used as an interlining of builder
s deadening, felt shall be affixed to the floor, by a
paste or other material, soluble in water, the use of cement or
other similar adhesive material being expressly prohibited.
7. No Lessee shall 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. No Lessee shall
throw anything out of the doors, windows or skylights or down the
passageways.
8. No Lessee, or any of Lessee s servants, employees,
agents, visitors or licensees, shall at any time bring or keep
upon the Demised Premises any inflammable, combustible or
explosive fluid, chemical or substance.
9. No additional locks or bolts of any kind shall be
placed upon any of the doors or windows by any Lessee, nor shall
any changes be made in existing locks or the mechanism thereof
without prior written approval of Lessor. Each Lessee must, upon
the termination of his tenancy, restore to the Lessor all the
keys of stores, offices and toilet rooms, either furnished to, or
otherwise procured by, such Lessee, and in the event of the loss
of any keys, so furnished, such Lessee shall pay to the Lessor
the cost thereof.
10. Lessor shall have the right to prohibit any
advertising by any Lessee which, in Lessor s
opinion, tends to impair the reputation of the Building and upon
written notice from Lessor, Lessee shall refrain from or
discontinue such advertising.
11. Each Lessee shall , at its expense, provide
artificial light for the employees of the Lessor or its
contractor while making repairs or alterations in the Demised
Premises.
12. The requirements of Lessees will be attended to
only upon application of the Lessor.
Employees shall not perform any work or do anything outside of
their regular duties, unless under special instructions from the
office of the Lessor.
13. Canvassing, soliciting and peddling in the Building
are prohibited and each Lessee shall
cooperate to prevent the same.
14.Lessee 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 Demised Premises.
EXHIBIT "B"
Tenant Construction at Lessee's Expense
Scope of Work
1996
___________________________________
GENERAL NOTES
Total Tenant Construction Cost: ($ , . ) ,
Dollars, to be paid by Lessee prior to Lessee
taking possession of the Demised Premises but after substantial
completion of the stated work.
EXHIBIT D
THIS LEASE made by and between JB SQUARED, LLC, a New York
limited liability company, with an office at Suite 100, 45
Research Way, East Setauket, New York 11733, hereinafter
designated as Lessor, and
., a , with an office at
, , New York hereinafter designated as LESSEE.
W I T_N E_S S E T H :
That the Lessor, for and in consideration of the covenants,
agreements and stipulations of the Lessee, hereinafter expressed,
does hereby demise and lease unto the Lessee the basement
premises outlined in red on Schedule A-1 attached hereto
comprising approximately square feet and situated in East
Setauket, New York, being commonly known as Lakeview Executive
Center
45 Research Way
East Setauket, New York 11733
The premises shall be used for storage only. Notwithstanding
the foregoing, Lessee may not store, nor permit the storage of,
any hazardous, dangerous, toxic, medical or any licensed or
regulated materials at the premises, nor permit same to be
brought in or out of the premises. If, despite the foregoing,
any escape, disposal, release, storage, or use of any
biologically or chemically active or hazardous, toxic, medical or
dangerous substance occurs, any costs, damage, fines, penalties,
interest, or other liability in connection therewith shall be the
responsibility of the Lessee including without limitation any
damages, clean-up or remediation costs and loss of property
value. Without limitation, hazardous substances and materials
shall include those described in the Comprehensive Environmental
Response, Compensation and Liability Act of 1980, as amended, 42
U.S.C. Section 9601 ct seq., the Resource Conservation and
Recovery Act, as amended 42 U.S.C., Section 6901 et seq., any
applicable state or local laws and the regulations adopted under
these acts. If any lender or governmental agency shall ever
require testing to ascertain whether or not there has been any
release of hazardous materials due to the acts or omissions of
Lessee or any of its agents or employees, then the costs thereof
shall be reimbursed by Lessee to Lessor upon demand as additional
charges. In addition, Lessee shall execute affidavits,
representations and the like from time to time at Lessor's
request concerning Lessee's best knowledge and belief regarding
the presence of hazardous substances or materials on the property
of which the premises are a part. In all events, Lessee does
hereby indemnify and agree to hold Lessor harmless from any
presence, maintenance, use, release or storage of hazardous,
toxic, medical or dangerous materials in the premises occurring
while Lessee is in possession, or elsewhere in or about the
property of which the premises is a part if caused by Lessee or
persons acting under Lessee (either by acts or omissions). These
covenants shall survive the expiration or earlier termination of
this lease. Lessee hereby indemnifies and saves harmless Lessor
and its agents against and from (a) any and all claims (i)
arising from (x) the conduct or management by Lessee or its
employees, agents, invitees or servants, or (y) any work or thing
whatsoever done, or any condition created (other than by Lessor
for Lessor's or Lessee's account) in or about the premises during
the term of this Lease or during the period of time, if any,
prior to the Commencement Date that Lessee may have been given
access to the premises, or (ii) arising from any negligent,
wilful or otherwise wrongful act or omission of the Lessee, its
agents, employees, invitees or servants, and, (b) all costs,
expenses and liabilities incurred in or in connection with
each such claim or action or proceeding brought thereon,
including the defense thereof, including attorneys fees and court
costs at all levels. In case any action or proceeding be brought
against Lessor by reason of any such claim, the Lessee, upon
notice from Lessor, shall resist and defend such action or
proceeding at Lessee's cost. Lessor retains the right, in any
such action or proceeding, to be represented by attorneys of its
own choosing, at Lessee's expense. Lessee will not perform
or have performed any work or repair to the premises without
Lessor's prior written consent, which consent shall not be
unreasonably withheld.
1. The Premises are leased for a term of ( ) years
commencing on (the "Commencement Date"), and
to end at 12:00 midnight on the day preceding the ( )
of the Commencement Date.
2. (a) The Lessee shall pay to the Lessor basic rent in the
amount of Thousand Hundred and /100 ($ , . )
Dollars (herein "Rent" or "Basic Rent") per annum. Said rent
shall be payable in monthly installments, in advance on the first
day of each month during such period without any set off, counter
claim or deduction whatsoever except that the Lessee shall pay
the First Monthly installment on the execution hereof. In the
event the Lessee shall fail to pay the Basic Rent and any
additional rent reserved and provided for herein within ten (10)
days after the same shall become due, the Lessee shall pay to the
Lessor, as further additional rent, a late fee equal to five (5%)
percent of each rental installment then due and any other
payments due hereunder, as partial payment for Lessor's costs in
connection with such late payments, plus interest on the unpaid
amounts at the highest rate permitted by law, in addition to such
installment(s) and other payment(s) then due payable as follows:
a. Upon the signing of this lease, Hundred and /100 ($
00) Dollars, representing the first month's rent.
b. Thereafter, commencing on the first day of second month
of the term, equal monthly installments of Hundred and /100
($ .00) Dollars, payable on the first day of each month, to
and including the first day of the last month of the term.
3. The said Lessor covenants with the Lessee that Lessor has
good right to lease said premises in manner aforesaid, and that
Lessor will suffer and permit said Lessee (Lessee keeping all the
covenants on Lessee's part, as hereinafter contained) to occupy,
possess and enjoy said premises during the term aforesaid,
without hindrance or molestation from Lessor or any person
claiming by, from or under Lessor.
4. The said Lessee covenants with the said Lessor, to hire
said premises and to pay the rent therefor as aforesaid, that
Lessee will commit no waste, nor suffer the same to be committed
thereon, nor injure nor misuse the same; nor make alterations
therein, nor use the same for any purpose but that hereinbefore
authorized, without written permission from said Lessor but will
deliver up the same at the expiration or sooner termination of
the tenancy in as good condition as they are now in, ordinary
wear, damages by the elements or other unavoidable casualties
excepted, and Lessee may not assign or underlet the whole of said
leased premises without the prior written consent of Lessor, at
Lessor's sole discretion. Lessee further agrees to observe and
be bound by the Rule and Regulations attached hereto as Exhibit
C and made a part hereof, and to additions and amendments thereto
adopted by Lessor.
5. The said Lessee agrees that the said Lessor and the
Lessor's agents or other representatives shall have the right to
enter into and upon said premises, or any part thereof, in case
of an emergency at all hours for the purpose of making such
repairs or alterations therein as may be necessary for the safety
and preservation thereof.
6. It is further agreed that if (i) the said rent shall
remain unpaid ten (10) days after the same shall become payable
as aforesaid, or (ii) if the said Lessee shall assign this lease,
or underlet or otherwise dispose of the whole or any part of said
demised premises, without the consent of the Lessor in writing,
or use the same for any purpose but that hereinbefore authorized
or make any alteration therein, without the consent of the Lessor
in writing, or shall commit waste or suffer the same to be
committed on said premises, or injure or misuse the same, or
otherwise violate the provisions of this lease then in any of
such cases, at the option of the Lessor, this lease shall
thereupon, by virtue of this express stipulation therein expire
and terminate, and the Lessor may, at any time thereafter, re-
enter said premises, and the same have and possess as of Lessor's
former estate, and without such re-entry, may recover possession
thereof in the manner prescribed by the statute relating to
summary process: it being understood that no demand for rent, and
no re-entry for condition broken, as at common law, shall be
necessary to enable the Lessor to recover such possession
pursuant to said statute relating to summary process, but that
all right to any such demand or any such re-entry is hereby
expressly waived by the said Lessee.
7. After default made in any of the covenants herein
contained, the acceptance of rent or failure to re-enter by the
Lessor shall not be held to be a waiver of the Lessor's right to
terminate the lease, and the Lessor may re-enter and take
possession of said premises the same as if no rent had been
accepted after such default.
8. Whenever this lease shall terminate either by lapse of
time or by virtue of any of the express stipulations therein, the
said Lessee hereby waives all right to any notice to quit
possession, as prescribed by the statute relating to summary
process. The Lessee hereby waives a jury trial in any summary
proceeding brought by the Lessor.
9. In case the said Lessee shall, with the written consent
of the said Lessor endorsed herein, or on the duplicate hereof,
at any time hold over the said premises, beyond the period above
specified as the termination of this lease, then the said Lessee
shall hold said premises upon the same terms, and under the same
stipulation and agreements as are in this lease contained, and no
holding over by said Lessee shall operate to renew this lease
without such written consent of said Lessor.
10. Lessee shall comply with, and conform to all the Laws of
the State of New York, and by all applicable by-laws, rules and
regulations of any Town or County, relating to Zoning, Health,
Nuisance, Fire, etc., so far as the use of the premises hereby
leased are, or may be concerned; and to save the Lessor harmless
from all fines, penalties and costs for violation of or
non-compliance with the same.
11. It is further agreed that between the parties to these
presents, that in case the building or buildings erected on the
premises hereby leased shall be partially damaged by fire or
otherwise, the same shall be repaired as speedily as possible at
the expense of the said Lessor; that in case the damage shall be
so extensive as to render the building or demised premises
untenantable for Lessee's purposes, the rent shall cease until
such time as the demised premises or the building shall be put in
complete repair; but in the case of the total destruction of the
premises, by fire or otherwise, the rent shall be paid up to the
time of such destruction and then and from thenceforth this lease
shall cease and come to an end. In the event of partial damage,
in the event the premises are not restored so as to be
untenantable for Lessee's purposes within one hundred twenty
(120) days after said damage, then Lessee may, upon written
notice to Lessor, within ten (10) days of said one hundred twenty
(120) days, terminate this lease.
12. Lessee further covenants and agrees that no
accumulations of boxes, barrels, packages, waste paper, or other
articles shall be permitted in or upon the driveways, parking
areas, walks, or other common areas and such areas shall not be
obstructed in any manner by Lessee.
13. The Lessee shall carry public liability and property
damage insurance in a company satisfactory to the Lessor covering
the premises leased herein in the following amounts: One Million
($1,000,000.00) Dollars each person and One Million
($1,000,000.00) Dollars each incident; and the Lessee agrees to
pay and assume any responsibility for personal injury or loss of
life or property damage sustained in or about the premises, in
any manner resulting from the occupation of the Lessee, his
agents, servants, employees, licensees or invitees. The Lessee
shall cause the Lessor to be named as a party to the policy of
insurance and furnish the Lessor with a duplicate certificate or
memorandum of such insurance.
14. It is further agreed that this instrument shall not be
a lien against said premises in respect to any mortgages, or any
amendments, modifications, replacements, consolidations,
spreaders or extensions thereof, that are now on or that
hereinafter may be placed against said premises, and that the
recording of such mortgage or mortgages, or amendments,
modifications replacements, consolidations, spreaders or
extensions thereof shall have preference and precedence and be
superior and prior to the lien of this lease, irrespective of the
date of recording and the Lessee agrees to execute any such
instrument without cost, which may be deemed necessary or
desirable to further effect the subordination of this lease to
any such mortgage or mortgages.
15. The Lessor and Lessee agrees to pay the reasonable
attorney's fees and costs incurred by the other party in the
enforcement of any of the terms of this lease as a result of
default by the Lessor or Lessee, as the case may be.
16. Lessor or its agents shall not be liable for any damage
to property of Lessee or of others entrusted to employees of the
building, nor for the loss of or damage to any property of Lessee
by theft or otherwise. Lessor or his agents shall not be liable
for any damage to property of Lessee resulting from fire,
explosion, falling plaster, steam, glass, electricity, water,
rain or snow or leaks from any part of said building or from the
pipes, appliances or plumbing works or from the roof, street or
subsurface or from any other place or by dampness or by any other
cause of whatsoever nature, nor shall Lessor or his agents be
liable for any such damage caused by other Lessees or persons in
said building or caused by operations in construction of any
private, public or quasi-public work; nor shall Lessor be liable
for any latent defect in the demised premises or in the building
of which they form a part.
17. In the event the whole of the demised premises are taken
for public or quasi-public purposes by the government of the
United States, the State of New York, the County of Suffolk, the
Town of Brookhaven, or any government, agency thereof, or power
whatsoever, or by any corporation under the right of eminent
domain, or should the whole of the demised premises be condemned
by any court, city, county, state, or governmental authority or
office, department or bureau of any city, county, state, or of
the United States, then in any such event this lease shall
terminate as of the date title to the demised premises vests in
the condemning authority. For the purposes hereof, such date of
vesting in the condemnor terminating this lease shall operate as
though it were the date originally intended by the parties for
expiration of the tenancy created hereunder, and the rent
reserved herein shall be adjusted in the light of the
condemnation, so that Lessee shall pay rent to Lessor only up to
the date of vesting in the condemnor. Any prepaid or advance
rental paid by Lessee to Lessor for that part of the term
extending beyond the date which the title vests in the condemnor
shall be refunded within thirty (30) days after Lessor has
received an award of just compensation from the condemning
authority for the taking of the demised premises, provided Lessee
shall have duly performed all the covenants and conditions of
this lease by it to be performed. In the event that only a
portion of the demised premises is taken as specified above,
Lessor shall have the right to terminate this lease as of the
date title thereto vests in the condemnor by giving to Lessee
written notice of such termination; but should Lessor not so
terminate this lease when a portion of the demised premises is so
taken, this lease shall terminate as to the part taken, and the
rent reserved herein shall be adjusted for the remainder of the
demised premises so that Lessee shall be required to pay for the
balance of the term that portion of the rent reserved herein
which the value of the portion of the demised premises remaining
after condemnation bears to the value of the demised premises
immediately prior to the date of condemnation. The rental shall
be apportioned as aforesaid by agreement between the parties or
by arbitration or legal proceedings, but pending such
determination or adjudication Lessee shall pay at the time and in
the manner above provided the rental herein reserved, and all
other charges herein required to be paid by Lessee, without
deduction, and on such determination or legal adjudication,
Lessee shall be entitled to credit for any excess rentals paid.
In the event of a partial taking, Lessee shall have the right to
terminate this lease upon written notice to Lessor if the
premises cannot be used for their intended purpose.
In none of the above events shall Lessee receive any portion
of, or make any claim against, any award made to Lessor by the
condemning authority in respect to the condemnation of the
demised premises, the Lessee hereby waives and relinquishes any
and all claims against such award and all other claim or claims
for compensation or damages against Lessor that may be occasioned
by the taking of the demised premises or any part thereto under
the power of eminent domain.
18. All words used in any gender shall extend to and include
all genders, and singular words shall include plural words where
appropriate.
19. As a material inducement to the Lessor to execute and
deliver this lease, the Lessee agrees that, except as expressly
provided in this Lease, if any, it will accept the premises in
its as is condition, WITH ALL FAULTS. Lessee acknowledges that
neither Lessor nor any of its purported representatives or agents
has made (and Lessor hereby disclaims any and all)
representations and warranties of any kind or character as to the
condition of the premises either express or implied, including
without limitation, warranties of fitness for any purpose or any
particular use or commercial habitability.
20. Lessor shall, during the term of this lease, during
business days and business hours, unless precluded from doing so
by strikes, war or natural disaster, provide the premises with
heat and electricity and shall keep the sidewalk in front of the
building clear of ice and snow. Lessor shall provide Lessee with
access to the building twenty four hours a day (except for causes
beyond Lessor's control). Lessee shall be liable for any loss or
damage caused by its or its agents, employees, contractors or
invitees' negligence or wilful misconduct.
21. Notices required hereunder shall be sent to Lessor:
JB SQUARED, LLC
Suite 100
45 Research Way
East Setauket, New York 11733
with copy to:
Morton R. Ruden, Esq.
3 Sylvan Road South
Westport, Connecticut 06880
Lessee:
ATTENTION:
Lender:
22. This Agreement shall be binding upon and inure to the
benefit of the successors and assigns of the parties hereto.
23. The parties recognize that broker negotiated the
leasing of the premises herein described. This lease is
consummated by the Lessor in reliance on the representation of
the Lessee that no other broker or agent brought the premises to
the Lessee's attention or was, in any way, a procuring cause of
this lease. The Lessor represents to the Lessee that no other
broker or agent has any exclusive leasing listing on the
premises. The Lessee hereby agrees to indemnify and hold harmless
the Lessor against any liability by reason of the claim of any
broker or agent for a commission on account of this lease,
provided that it is adjudged by a court of competent jurisdiction
that a commission is due by reason of such broker or agent
calling the premises to Lessee's attention or interesting Lessee
therein, said indemnity to include all costs of defending any
such claims, including reasonable attorney's fees.
IN WITNESS WHEREOF, THE PARTIES HERETO HAVE EXECUTED THIS LEASE
THE DAY AND YEAR FIRST ABOVE WRITTEN.
JB SQUARED, LLC, LESSOR , LESSEE
By: ____________________________
By:____________________________
EXHIBIT SCHEDULE
EXHIBIT A - Premises Occupied
EXHIBIT B - Description of Lessor's Work at Lessee's Expense
EXHIBIT C - Rules and Regulations
EXHIBIT D - Lessor's Form of Standard Storage Lease
EXHIBIT E - Right Of First Offer
EXHIBIT "B"
Tenant Construction at Lessee's Expense
Scope of Work
1999
___________________________________
EXHIBIT C
RULES AND REGULATIONS
1. The sidewalks, entrances, passages, courts,
elevators, vestibules, stairways, corridors, or halls, to the
extent they exist ,shall not be obstructed or encumbered by any
lessee or used for any purpose other than ingress and egress to
and from the Demised Premises.
2. No awnings or other projections shall be attached
to the outside walls of the Building without the prior written
consent of the Lessor. No curtains, blinds, shades,, or screens
shall be attached to or hung in, or used in connection with ,
any window or door of the Demised Premises, without written
consent of the Lessor. Such awnings, projections, curtains,
blinds, shades, screens or other such fixtures must be of
quality, type , design and color, and attached in the manner
approved by Lessor. All electrical fixtures hung in offices or
spaces along the perimeter of the Demised Premises must be
fluorescent, of a perimeter of the Demised Premises must be
fluorescent, of a quality , type, design and bulb color approved
by the Lessor.
3. No sign, advertisement, notice or other lettering shall
be exhibited, inscribed, painted or affixed by any Lessee on any
part of the outside or inside of the Demised Premises or Building
without the prior written consent of the Lessor. In the event of
the violation of the foregoing by any Lessee, Lessor may remove
same without any liability, and may charge the expense incurred
by such removal to the Lessee or Lessees violating this rule.
4. No showcases or other articles shall be put in front of
or affixed to any part of the exterior of the Building.
5. 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, or other
substances shall be thrown therein. All damages resulting from
any misuse of the fixtures shall be borne be the Lessee who, or
whose servants, employees, agents, visitors or licensees, shall
have caused the same.
6. No Lessee shall mark, paint, drill into, or in any way
deface any part of the demised Premises or the Building. No
boring, cutting or stringing of wires shall be permitted, except
with the prior written consent of the Lessor, and as the Lessor
may direct. No Lessor shall lay linoleum, or other similar floor
covering, so that the same shall come in direct contact with the
floor of the Demised Premises, and, if linoleum or other similar
floor covering is desired to be used as an interlining of
builder's deadening, felt shall be affixed to the floor, by a
paste or other material, soluble in water, the use of cement or
other similar adhesive material being expressly prohibited.
7. No Lessee shall 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. No Lessee shall
throw anything out of the doors, windows or skylights or down the
passageways.
8. No Lessee, or any of Lessee's servants, employees,
agents, visitors or licensees, shall at any time bring or keep
upon the Demised Premises any inflammable, combustible or
explosive fluid, chemical or substance.
9. No additional locks or bolts of any kind shall be
placed upon any of the doors or windows by any Lessee, nor shall
any changes be made in existing locks or the mechanism thereof
without prior written approval of Lessor. Each Lessee must, upon
the termination of his tenancy, restore to the Lessor all the
keys of stores, offices and toilet rooms, either furnished to, or
otherwise procured by, such Lessee, and in the event of the loss
of any keys, so furnished, such Lessee shall pay to the Lessor
the cost thereof.
10. Lessor shall have the right to prohibit any advertising
by any Lessee which, in Lessor's opinion, tends to impair the
reputation of the Building and upon written notice from Lessor,
Lessee shall refrain from or discontinue such advertising.
11. Each Lessee shall , at its expense, provide artificial
light for the employees of the Lessor or its contractor while
making repairs or alterations in the Demised Premises.
12. The requirements of Lessees will be attended to only
upon application of the Lessor. Employees shall not perform any
work or do anything outside of their regular duties, unless under
special instructions from the office of the Lessor.
13. Canvassing, soliciting and peddling in the Building are
prohibited and each Lessee shall cooperate to prevent the same.
14. Lessee 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 Demised Premises.
EXHIBIT E
SUBORDINATED RIGHT OF FIRST OFFER
If at any time during the first year of the term of
this lease only, after the Commencement Date the Lessor shall
wish to offer for rent any vacant space in the Building
immediately adjacent to the Demised Premises (excluding however,
any offer, arising out of or relating to an expansion option,
renewal option, first right to lease, or other right granted to a
Lessee of the Building or any offer by then current Lessee of
such space whether or not pursuant to a renewal or expansion
option), the Lessor shall submit written notice thereof to the
Lessee. Upon receipt of the aforesaid notice from Lessor, the
Lessee shall have the right (the "Right of First Offer"),
exercisable at any time within fifteen (15) calendar days from
the date of such notice, to lease said portion of the said floor
that is the subject of the Offer at ninety five (95%) percent of
the then Market Base Rental Rate (and with the right to ninety
five [95%] percent of Lessor's then work letter pro rated for
balance of the term of the lease term for such additional space )
and Lessor's initial notice to Lessee shall set forth the Market
Base Rental Rate and work letter offering for such space . If
the Lessee elects to exercise the Right of First Offer, it shall,
prior to the end of said fifteen (15) calendar day period,
deliver written notice of such exercise to the Lessor, and the
leasing of said space shall commence on the last day of said
fifteen (15) calendar day period and shall be evidenced by a
lease modification agreement executed by Lessee modifying htis
lease to reflect the additional space and new terms and the term
shall be for the balance of the term of the lease to which this
Rider is attached.. If the Lessee shall not exercise such Right
of First Offer within the said fifteen (15) calendar day period
or shall fail to deliver written notice of such exercise as
provided above, the Lessor shall be free to lease said space, or
any portion thereof to any third party at any rate and upon any
terms and for any period of time acceptable to Lessor at any time
or times thereafter . Lessee shall not have the right to assign
its right of first refusal to any sublessee of the Premises or
assignee of this lease, nor may any such sublessee or assignee
exercise such right of first refusal. With reference to the time
periods set forth above for Lessee to act, time shall be of the
essence.
Market Base Rental Rate. Whenever used in this lease,
the term "Market Base Rental Rate" shall mean Lessor's
determination of the annual net rental rate per square foot
(exclusive of expense pass-through additions for Operating Costs
and Real Estate Taxes) of rentable space then being asked by
Lessee within the Building.
