SECOND LEASE MODIFICATION AND
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EXTENSION AGREEMENT
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SECOND LEASE MODIFICATION AND EXTENSION AGREEMENT ("this
Second Amendment") made as of this 29th day of June, 2000, between ONE STATION
PLACE, LIMITED PARTNERSHIP, a Connecticut limited partnership with an office c/o
W&M Properties of Connecticut, Inc., ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ (hereinafter called "Landlord"), and SMARTSERV ONLINE, INC. (formerly
known as SmartPhone Communications, Inc.), a Delaware corporation with an office
at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ("Tenant")
W I T N E S S T H:
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Landlord and Tenant are the landlord and tenant, respectively,
under a certain Lease dated as of March 4, 1994 as amended by that certain Lease
Modification and Extension Agreement dated as of February 6, 1996 (the "First
Amendment") (together, the "Lease"), which Lease covers 6,306 rentable square
feet of space (the "Existing Space") on the fifth (5th) floor in the building
known as Metro Center, One Station Place, Stamford, Connecticut, (the
"Building"),
The Lease term is currently scheduled to expire on October 31,
2002.
The parties hereto wish to extend the term of the Lease and
amend the Lease so as to add to the Existing Space two units aggregating 4,127
rentable square feet of space located on the first (1st) floor of the Building,
as more particularly shown on the floor plan attached as Schedule I hereto and
made a part hereof. One such unit comprises 2,200 rentable square feet and is
shown as outlined in red on Schedule I (the "First Additional Space") and the
second such unit consists of 1,927 rentable square feet and is shown as outlined
in blue on Schedule I (the "Second Additional Space").
In connection with the leasing of such units, the parties have
agreed to make various modifications to the Lease, as hereinafter set forth:
NOW, THEREFORE, in consideration of the mutual premises herein
contained, and for other good and valuable consideration, the receipt of which
is hereby acknowledged, the parties hereto agree that the Lease be, and that the
same hereby is modified and amended as follows:
1. In modification of the "WITNESSETH" section of the Lease,
the term of the Lease is hereby extended through October 31, 2010 or until such
term shall sooner cease and terminate as elsewhere provided in the Lease as
modified by this Second Amendment.
2. In modification of Exhibit A-2 and Section 1.06 of the
Lease of March 4, 1994 and Section 2 of the First Amendment, the following
provisions shall apply:
(i) Commencing on the earlier of (a) August 1, 2000 and (b)
the date that Tenant accepts possession of the First Additional Space (such
earlier date being the "First Additional Space Commencement Date"), the demised
premises shall be deemed to consist of 8,506 rentable square feet and the First
Additional Space shall be deemed part of the demised premises for all purposes
under the Lease.
(ii) Commencing on the earlier of (a) October 1, 2000 and (b)
the date that Tenant accepts possession of the Second Additional Space (such
earlier date being the "Second Additional Space Commencement Date"), the demised
premises shall be deemed to consist of 10,433 rentable square feet and the
Second Additional Space shall be deemed part of the demised premises for all
purposes under the Lease.
Landlord shall, in accordance with the foregoing, fix each of
the First Additional Space Commencement Date and Second Additional Space
Commencement Date (each an "Additional Space Commencement Date") and notify
Tenant of the dates so fixed. When each such Additional Space Commencement Date
has so been determined, the parties hereto shall, within thirty (30) days
thereafter, at Landlord's request, execute a written agreement confirming such
date as the relevant Additional Space Commencement Date. Any failure of the
parties to execute such written agreement shall not affect the validity of
either the First Additional Space Commencement Date or Second Additional Space
Commencement Date as fixed and determined by Landlord, as aforesaid.
3. In modification of Section 1.01 of the Lease, from and
after the date of this Second Amendment, the fixed annual rent (excluding
electricity) for the demised premises shall be:
(i) with respect to the Existing Space:
(a) from the date of this Second Amendment through
October 31, 2002, at the rates set forth in Section 3 of the
First Amendment;
(b) from November 1, 2002 through October 31, 2003, the
sum of $245,934.00 per annum;
(c) from November 1, 2003 through October 31, 2004, the
sum of $252,240.00 per annum;
(d) from November 1, 2004 through October 31, 2005, the
sum of $258,546.00 per annum;
(e) from November 1, 2005 through October 31, 2006, the
sum of $264,852.00 per annum;
(f) from November 1, 2006 through October 31, 2007, the
sum of $271,158.00 per annum;
(g) from November 1, 2007 through October 31, 2008, the
sum of $277,464.00 per annum;
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(h) from November 1, 2008 through October 31, 2009, the
sum of $283,770.00 per annum; and
(i) from November 1, 2009 through October 31, 2010, the
sum of $290,076.00 per annum.
(ii) with respect to the First Additional Space:
(a) from the First Additional Space Commencement Date
through July 31, 2001, the sum of $83,600.00 per annum, the
first monthly installment of which is being paid upon the
execution hereof;
(b) from August 1, 2001 through July 31, 2002, the sum
of $85,800.00 per annum;
(c) from August 1, 2002 through July 31, 2003, the sum
of $88,000.00 per annum;
(d) from August 1, 2003 through July 31, 2004, the sum
of $90,200.00 per annum;
(e) from August 1, 2004 through July 31, 2005, the sum
of $92,400.00 per annum;
(f) from August 1, 2005 through July 31, 2006, the sum
of $94,600.00 per annum;
(g) from August 1, 2006 through July 31, 2007, the sum
of $96,800.00 per annum;
(h) from August 1, 2007 through July 31, 2008, the sum
of $99,000.00 per annum;
(i) from August 1, 2008 through July 31, 2009, the sum
of $101,200.00 per annum;
(j) from August 1, 2009 through July 31, 2010, the sum
of $103,400.00 per annum; and
(k) from August 1, 2010 through October 31, 2010, the
sum of $26,400.00 for all three months.
(iii) with respect to the Second Additional Space:
(a) from the Second Additional Space Commencement Date
through September 30, 2001, the sum of $73,226.00 per annum,
the first monthly installment of which is being paid upon the
execution hereof;
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(b) from October 1, 2001 through September 30, 2002,
the sum of $75,153.00 per annum;
(c) from October 1, 2002 through September 30, 2003,
the sum of $77,080.00 per annum;
(d) from October 1, 2003 through September 30, 2004,
the sum of $79,007.00 per annum;
(e) from October 1, 2004 through September 30, 2005,
the sum of $80,934.00 per annum;
(f) from October 1, 2005 through September 30, 2006,
the sum of $82,861.00 per annum;
(g) from October 1, 2006 through September 30, 2007,
the sum of $84,788.00 per annum;
(h) from October 1, 2007 through September 30, 2008,
the sum of $86,715.00 per annum;
(i) from October 1, 2008 through September 30, 2009,
the sum of $88,642.00 per annum;
(j) from October 1, 2009 through September 30, 2010,
the sum of $90,569.00 per annum; and
(k) from October 1, 2010 through October 31, 2010, the
sum of $7,708.00.
4. Notwithstanding anything herein set forth to the contrary,
if Landlord shall fail to tender possession of the First Additional Space or the
Second Additional Space by the relevant Additional Space Commencement Date, then
Tenant shall receive a credit of one (1) day's fixed annual rent for each day
that such tendering of possession is so delayed.
5. Section 4 of the First Amendment shall be of no force or
effect from and after November 1, 2002.
6. In modification of Section 4.03 of the Lease, from and
after the Second Additional Space Commencement Date, so long as Tenant is not in
default beyond any grace period under the terms, covenants and conditions of the
Lease, as hereby amended, Landlord will provide Tenant with access to the
parking area for the parking of an aggregate of twenty-six (26) automobiles at
no charge. Two (2) of said parking spaces shall be marked reserved for Tenant's
exclusive use.
7. Article 5 of the Lease shall apply to the entire demised
premises throughout the term with the following modifications to apply, as
follows:
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(i) With respect to the First Additional Space and the
Second Additional Space:
(a) the "Tax Base Factor" shall mean the real estate
taxes for the period beginning on July 1, 2000 and ending on
June 30, 2001; and
(b) the term "comparative year" shall mean the fiscal
(tax) year commencing July 1, 2001 and ending June 30 2002,
and each subsequent period of twelve months, or such other
period of twelve months as hereafter may be adopted by the
governmental authority as the fiscal (tax) year for real
estate tax purposes.
(ii) With respect to the First Additional Space The
Percentage shall be deemed to be .79%.
(iii) With respect to the Second Additional Space The
Percentage shall be deemed to be .69%.
(iv) With respect to the Existing Space, commencing on
November 1, 2002, The Percentage shall remain unchanged and:
(a) the "Tax Base Factor" shall mean the real estate
taxes for the period beginning on July 1, 2000 and ending on
June 30, 2001; and
(b) the term "comparative year" shall mean the fiscal
(tax) year commencing July 1, 2001 and ending June 30 2002,
and each subsequent period of twelve months, or such other
period of twelve months as hereafter may be adopted by the
governmental authority as the fiscal (tax) year for real
estate tax purposes.
8. Article 6 of the Lease shall apply to the entire demised
premises throughout the term with the following modifications to apply, as
follows:
(i) With respect to the First Additional Space and the
Second Additional Space:
(a) the "Expense Base Factor" shall mean the expenses
for the calendar year 2000; and
(b) the term "comparative year" shall mean the calendar
year 2001 and each subsequent period of twelve months.
(ii) With respect to the First Additional Space The
Percentage shall be deemed to be .79%.
(iii) With respect to the Second Additional Space The
Percentage shall be deemed to be .69%.
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(iv) With respect to the Existing Space, commencing on
November 1, 2002, The Percentage shall remain unchanged and:
(a) the "Expense Base Factor" shall mean the expenses
for the calendar year 2000; and
(b) the term "comparative year" shall mean the calendar
year 2001 and each subsequent period of twelve months.
9. Article 7 shall apply to the entire demised premises
throughout the term. In modification of Article 7 of the Lease (Electricity),
effective as of each of the First and Second Additional Space Commencement
Dates, ERIF shall also be charged with respect to the First Additional Space and
Second Additional Space at an initial rate of $2.19 per rentable square foot.
10. Tenant agrees to accept possession of the First Additional
Space in its "as is" condition on the First Additional Space Commencement Date.
The Existing Space shall be accepted in its "as is" condition on November 1,
2002. Landlord shall have no obligation to perform any work or contribute any
moneys for work or installations in either of such premises. Tenant agrees to
accept possession of the Second Additional Space in its "as is" condition on the
Second Additional Space Commencement Date. Landlord shall have no obligation to
perform any work or contribute any moneys for work or installations in the
Second Additional Premises, except as provided in Section 11 of this Second
Amendment.
11. Article 33 is hereby deleted from the Lease. Provided that
Tenant shall not then be in default of any obligations on its part to be
performed under the Lease, Landlord shall contribute up to $14,452.50
("Landlord's Contribution") for such leasehold improvements as Tenant may desire
to make to the Second Additional Space, only, and further provided that such
leasehold improvements are performed in accordance with terms of Article 8 of
the Lease. Landlord's Contribution shall be paid to the general contractor.
Tenant agrees to be responsible for and to pay all costs in excess of Landlord's
Contribution for all such work and the entire cost of such work not included in
Landlord's Contribution shall be payable fifteen (15) business days after
demand. Landlord and Tenant agree that the general contractor for all such work
shall be W & M Construction Corporation. The cost of such work shall include,
without limitation, the costs of labor, materials and general conditions, plus
ten percent (10%) of the cost of such work for overhead and seven percent (7%)
of the cost of such work (including overhead) for profit.
12. Tenant represents and warrants that it neither consulted
nor negotiated with any broker or finder with regard to this Second Amendment of
the leasing of the First or Second Additional Space other than ▇▇▇▇▇▇▇ &
▇▇▇▇▇▇▇▇▇ of CT., Inc. and W&M Properties of Connecticut, Inc. Tenant agrees to
indemnify, defend and save Landlord harmless from and against any claims for
fees or commissions by anyone with whom Tenant has dealt in connection with this
Second Amendment and/or the leasing of the First or Second Additional Space or
otherwise in connection with this Second Amendment other than ▇▇▇▇▇▇▇ &
Wakefield of CT., Inc. and W&M Properties of Connecticut, Inc. Landlord agrees
to pay any commission or fee due to ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ of CT. Inc. and W&M
Properties of Connecticut, Inc. for leasing
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of the First or Second Additional Space and for the extension of the term of the
Lease pursuant to separate agreement.
13. Each party hereby represents that, to the best of its
knowledge, the other party is in full compliance with the Lease and is not in
default of any of its respective obligations under the Lease.
14. In further modification of the second paragraph of Article
35 of the Lease as modified by the First Amendment, the security deposit shall
be increased as of the date hereof by $131,548.13 to an aggregate of
$202,490.63. If said increase is to be accounted for by a letter of credit, then
the letter of credit heretofore delivered to Landlord as security under the
Lease shall be likewise increased and its expiry date shall be extended until
November 30, 2010. An endorsement to said letter of credit effecting such
modifications is being delivered simultaneously herewith to Landlord.
15. Article 50 and Article 51 are hereby deleted from the
Lease.
16. Tenant shall have a right that may be exercised once
during each of the first five (5) calendar years from and after the first
additional space commencement date to notify Landlord, in writing, that Tenant
desires to lease additional first or fifth floor space adjacent to and
contiguous with any portion of the demised premises (also specifying which
portion). If, after receipt of such Tenant's notice, any such space shall during
such calendar year become vacant and available for leasing (i.e., not then under
offer to a proposed tenant or subject to the renewal or expansion option of
another tenant or subject to the right or privilege of any then existing tenant,
subtenant or other occupant to renew and extend its occupancy of such space),
then provided that Tenant is not then in default of any obligation on its part
to be performed under the Lease as amended by this Second Amendment, Landlord
shall notify Tenant of the availability of such space for leasing. If Tenant
shall notify Landlord within five (5) business days after Landlord's notice that
Tenant is interested in leasing such available space, then Landlord and Tenant
shall negotiate for not more than ten (10) days the terms of a lease for such
available space. The terms of lease for such available space shall not be
dependent upon the terms or the form of the Lease as amended by this Second
Amendment. If (i) Tenant shall not have timely given any notice heretofore
referred to in this Section 16 or (ii) if Landlord and Tenant have not executed
a lease for such available space within ten day period, time being of the
essence with respect to all time periods, then Landlord shall be free to enter
into a lease of such available space with any other person upon such terms as
Landlord in its absolute discretion may find acceptable. The provisions of this
Section 16 are personal to the named Tenant herein and may not be assigned to or
exercised by any other person. Nothing herein shall be deemed to limit, restrict
or prohibit Landlord from granting any tenant an option to renew the term of its
lease or a right of first refusal or right of offer or option to match any offer
for such space (including, without limitation, any offer made pursuant to this
Section 16). Notwithstanding anything heretofore set forth to the contrary,
space shall not be deemed to have become available for leasing if Landlord and
the then current or proposed new tenant, subtenant or other occupant of any such
space are negotiating the terms of a new or renewal lease for such space.
17. The demised premises are deemed to be one unit consisting
of the Existing Space, the First Additional Space and the Second Additional
Space and neither the separate
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payment schedules for the Existing Space, First Additional Space and Second
Additional Space nor the fact that the demised premises shall be located on
non-contiguous floors shall give rise to a claim that the demised premises are
not one unit for the purposes of the Lease or that a default in paying rent with
regard to any such space is not a default under the Lease as to the whole of the
demised premises.
18. Except as herein modified, all of the terms, covenants and
conditions of the lease are and shall remain in full force and are hereby
ratified and confirmed.
19. All terms used but not defined herein shall have the
meanings set forth in the Lease.
20. The provisions of the WITNESSETH paragraphs are
incorporated into the body of this Second Amendment and Landlord and Tenant
shall be bound by such provisions.
21. This Second Amendment shall be binding upon and inure to
the benefit of the parties hereto and their respective legal representatives,
successors and permitted assigns.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the day and year first above written.
ONE STATION PLACE, LIMITED PARTNERSHIP,
Landlord
WITNESS: By: W&M Properties of Connecticut, Inc., Agent
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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(as to Landlord) Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇,
Title: Executive Vice President
SMARTSERV ONLINE, INC.,
Tenant
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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(as to Tenant) Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President, Chief
Accounting Officer
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STATE OF CONNECTICUT }
} ss:
COUNTY OF FAIRFIELD }
On this ___ day of July, 2000, before me, personally appeared
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, who acknowledged himself to be the Executive Vice President
of W&M Properties of Connecticut, Inc., a Connecticut corporation, Agent for ONE
STATION PLACE, LIMITED PARTNERSHIP, a Connecticut partnership, and that he being
authorized to do so, executed the foregoing instrument for the purposes therein
contained by signing as such officer of W&M Properties of Connecticut, Inc., as
agent for and on behalf of said Partnership.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
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Notary Public
My Commission Expires:
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STATE OF CONNECTICUT }
} ss:
COUNTY OF FAIRFIELD }
On this ___ day of June, 2000, before me, personally appeared
, who acknowledged himself to be of SMARTSERV ONLINE, INC., a Delaware
corporation, and that he/she being authorized so to do, executed the foregoing
instrument for the purposes therein contained by signing on behalf of said
_______________ and that he/she as such ________________, being authorized so to
do, executed the foregoing instrument for the purposes therein contained by
signing on behalf of said corporation as ____________________.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
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Notary Public
My Commission Expires:
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