LEASE AGREEMENT
Between
Rensselaer Polytechnic Institute
(Landlord)
and
Avant Garde Computer Systems, Inc.
(Tenant)
Space: 2,780 square feet
000 Xxxxxx Xxxx
Xxxx, Xxx Xxxx 00000
Date: October 1, 1986
Address of Tenant
to which Notices shall be sent:
000 Xxxxxx Xxxx
Xxxx, Xxx Xxxx 00000
TABLE OF CONTENTS
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Paragraph Page
Number Number
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SUMMARY
1 PREMISES 1
2 TERM 1
3 BASE RENT 1
4 SECURITY DEPOSIT 1
5 ADDITIONAL PAYMENTS 2-4
6 USE 4
7 LANDLORD'S MAINTENANCE 5
8 TENANT'S MAINTENANCE 5
9 PARKING 6
10 ALTERATIONS 6
11 SIGNS 6
12 INSPECTION 7
13 ASSIGNMENT AND SUBLETTING 7
14 FIRE AND CASUALTY 8-9
15 LIABILITY 9-10
16 CONDEMNATION 10
17 HOLDING OVER 10
18 QUIET ENJOYMENT 10-11
19 DEFAULT 11
20 LANDLORD'S REMEDIES 11-12
21 MORTGAGE SUBORDINATION 12
22 NEW OWNER 12
23 MECHANIC'S LIENS 13
24 NOTICES 13
25 BUSINESS INTERRUPTION 13
26 DELIVERY OF GOODS 13
27 NONDISCRIMINATION 13
28 WAIVER OF JURY 14
29 LANDLORD REFUSAL TO CONSENT 14
30 WAIVER OF REDEMPTION 14
31 ENTIRE AGREEMENT 14
32 DESIGN AND OPERATIONS MANUAL 14
33 XXX FINANCING 14
34 CAPTIONS, DELETIONS, DEFINITIONS 15
SUMMARY PAGE
This page summarizes operational information from the body of the lease for
the convenience of the Landlord. In the event of a conflict between information
contained herein and that contained in the body of the lease, the terms of the
body of the lease shall prevail:
1. Tenant: Avant Garde Computer Systems, Inc.
2. Space: 2,780 square feet, 000 Xxxxxx Xxxx at Rensselaer Technology Park
3. Term: 3 years
4. Base Rent and Operating Costs:
a. Base Rent Per Annum Monthly in
Advance
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(1) 10/1/86-10/1/87 = $22,935.00 $1,911.00 $8.25 sf
(2) 10/1/87-10/1/88 = 23,630.00 1,969.00 8.50 sf
(3) 10/1/88-10/1/89 = 25,020.00 2,085.00 9.00 sf
b. Operating Costs Per Annum
(1) 10/1/86 - 10/1/87 = $5,560.00 (Est) $2.00 sf
(2) 10/1/87 - 10/1/88 = As Adjusted
(3) 10/1/88 - 10/1/89 = As Adjusted
5. Special Features:
A) Tenant relocation or expansion - see addendum.
B) Renewal - see addendum.
LEASE AGREEMENT
This agreement between Rensselaer Polytechnic Institute
("Landlord") and Avant Garde Computer Systems, Inc. ("Tenant").
1. PREMISES: Landlord hereby leases to Tenant premises at the Rensselaer
Technology Park ("Park") more particularly described on Exhibit "A" attached
hereto and incorporated herein ("premises"). Lease of the premises is subject to
the terms and conditions of this agreement. 2,780 square feet have been
attributed to premises. Whenever reference is made herein to Tenant's pro rata
share based upon square feet of premises, this number shall define square feet
of premises.
2. TERM: The term of the lease shall start on October 1, 1986 and end on
September 30, 1989.
A. Landlord has made no representations as to the repair of the
premises, or promises to alter, remodel or improve premises, except as set forth
in Schedule "A" herein. Tenant's taking possession of premises shall
conclusively show that premises are in good and satisfactory condition.
B. If premises are not ready for occupancy on the date that this lease
is due to commence (because construction has not been completed, or because
premises are not vacant, or for any other reason) Landlord shall not be in
default. Tenant shall accept possession of premises when Landlord is able to
deliver same. The term of this lease shall then begin on the date of delivery,
but the end of the lease term shall remain the same. Landlord hereby waives
payment of rent covering any period prior to tendering of possession of premises
to Tenant. On the date the lease term begins, Tenant shall execute and deliver
to Landlord a letter of acceptance of delivery of premises.
3. BASE RENT: Tenant shall pay annual rent of $22,935.00 in equal monthly
installments of $1,911.00 (payable monthly in advance) for the first year of
this Lease. See addendum for subsequent year(s) base rent.
4. SECURITY DEPOSIT: Tenant shall deposit with Landlord one month's base
rent as security for the full and faithful performance by Tenant of all required
obligations of this lease. The security deposit shall be returned to Tenant
after the expiration of this lease if Tenant has fully and faithfully complied
with all of its obligations. If Tenant does not fully comply with the conditions
of this Lease, Landlord may use the security to pay any amounts owed by Tenant,
including damages. If the security is insufficient, Tenant shall upon notice
promptly pay all further amounts due.
5. ADDITIONAL PAYMENTS: In addition to base rent, Tenant shall pay the
following as additional rent:
A. Tenant shall pay its pro rata share of disbursements paid by
Landlord for building and appurtenant grounds including (without limitation)
Tenant's proportional share of: 1) real property taxes, including all taxes,
assessments, special assessments, levies and government charges of any kind and
nature whatever (collectively, "taxes") levied, assessed or payable against
building and appurtenant grounds; 2) insurance; 3) repair, maintenance,
janitorial and cleaning, including supplies of areas for which Tenant is not
directly responsible; 4) landscape maintenance including regular mowing of
grass, trimming, weed removal and general landscaping of appurtenant grounds; 5)
snow plowing; 6) common area utilities, including (without limitation) parking
area lighting; 7) water and sewer charges; 8) management and administration
expenses; 9) parking lot maintenance and cleaning; 10) and other operating
costs.
B. Tenant shall repay Landlord for additional operating costs directly
attributable to Tenant within thirty days of statement rendered by Landlord.
These shall include (without limitation): extra fire insurance premiums and
unusual water usage charges caused by Tenant's use of premises.
C. Disbursements paid by Landlord for building and appurtenant grounds
(other than those directly attributable to Tenant) shall be proportioned among
all tenants of the building. This shall be calculated as follows: the total
reimbursements paid by Landlord for building and appurtenant grounds shall be
divided by the number of square feet in building in which premises are located.
The resulting amount shall be multiplied by the number of square feet attributed
herein to premises, and the product shall be Tenant's pro rata share of
Landlord's disbursements.
D. Tenant shall pay Landlord additional rent due hereunder in monthly
installments as follows:
i. Tenant shall pay such costs according to Landlord's estimate
of what they will be, which Landlord shall calculate once a
year. Payment shall be made monthly in advance, together
with basic rental payments.
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ii. For the first year of this Lease, Landlord has estimated
such disbursements as $2.00 per square foot. This sum
includes only costs set forth in paragraph 5A herein.
iii. After the close of Landlord's fiscal year, Landlord shall
prepare a statement of actual costs (currently called Report
of Actual Operating Costs) for the building in which the
premises are located and appurtenant grounds.
iv. A copy of the Report will be furnished to Tenant, and will
set forth Tenant's pro rata share of such actual operating
costs, as well as any additional operating costs for which
the Tenant is responsible pursuant to paragraph 5B herein
for which Tenant has not already repaid Landlord.
v. Tenant shall receive a credit against its share of such
costs for additional rent actually paid by it to Landlord.
If the sum of Tenant's additional rent payments hereunder is
less than the disbursements actually made by Landlord, the
Tenant will be billed for the additional amounts for which
he is responsible. Tenant shall pay such xxxx within thirty
(30) days after it is rendered. If the sum of Tenant's
additional rental payments is greater than the actual
disbursements made by Landlord, Tenant shall receive a
credit against its next month or months additional rental
obligation.
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E. Tenant is responsible for paying all charges for its own use of
utilities, which shall be separately metered. Landlord shall, at its own
expense, have an electric meter installed in Tenant's name at premises, and
Tenant shall, pay its electric bills directly to Niagara Mohawk. Premises
heating, air conditioning and ventilation are included in Tenant's separately
billed utilities.
F. If Tenant fails to pay rent or additional rent when due, Tenant
shall pay Landlord a late charge of five (5%) percent of such overdue payment.
Such late charge shall be in addition to (and not in limitation of) all of
Landlord's other rights and remedies hereunder or at law. Such charge shall not
be considered liquidated damages.
6. USE:
A. The premises shall only be used for: receiving, research,
development, testing, storing, shipping and selling (other than retail)
technology related products, materials and merchandise (collectively,
"Products") made and/or distributed by Tenant, and ordinary and necessary
incidental activities. Outside storage (including, without limitation, all
motor vehicles such as trucks or trailers) is prohibited without Landlord's
prior written consent. Tenant shall at its own cost and expense obtain any and
all licenses and permits necessary for its use of premises.
B. Tenant shall comply with all governmental laws, ordinances,
regulations, rules, orders and directives (collectively, "regulations"),
including (without limitation) all environmental, energy and zoning regulations.
Tenant at its sole expense shall promptly comply with all regulations for the
correction, prevention and abatement of nuisances in, upon, or connected with
premises.
C. Tenant shall not permit any objectionable, unpleasant or dangerous
odors, smoke, dust, gas, emission, noise or vibrations to emanate from premises,
nor permit any activity upon premises which would constitute a nuisance or would
disturb or endanger any other tenant of the Park.
D. Without Landlord's prior written consent, Tenant shall not receive,
store or otherwise handle any product, material or merchandise which is
explosive or highly inflammable or which has been listed by EPA as being an
actual or suspected carcinogen. Tenant shall not permit premises to be used in
any manner which would render the insurance thereon void or in the judgment of
the insurer make the insurance risk more hazardous than previously (causing an
increase in premiums) or cause the State Board of Insurance or other insurance
authority to disallow any sprinkler credits.
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7. LANDLORD'S MAINTENANCE: Landlord shall at its expense maintain only the
roof, foundation and the structural soundness of the exterior walls (including
windows, glass, plate glass, door or entries) of the building in good repair,
reasonable wear and tear excepted. Provided, however, Tenant shall repair and
pay for any damage caused by Tenant or Tenant's employees, agents or invitees,
or caused by Tenant's default hereunder. Tenant shall immediately give Landlord
written notice of any defects or need for repairs for which Landlord is
responsible, after which Landlord shall have reasonable time to determine
whether such repair is needed, and, if so, to repair. Landlord's liability
hereunder shall be limited to the cost of such repairs, maintenance or curing of
defect.
8. TENANT'S MAINTENANCE:
A. Tenant shall, at its own cost and expense, keep and maintain all
parts of the premises (except those for which Landlord is expressly responsible
under the terms of this Lease) clean and in good condition. In the event Tenant
fails to carry out required maintenance, and upon written notice from Landlord,
Tenant authorizes Landlord to arrange for, at Tenant's expense, Tenant's
required cleaning, repair and replacement of premises, including (without
limitation): windows, glass and plate glass, doors, any special office entry,
interior walls and finished work, floors and floor covering, downspouts,
gutters, heating and air conditioning systems, dock boards, truck doors, dock
bumpers, paving, plumbing work and fixtures, termite and pest extermination,
regular removal of trash and debris, keeping the whole of premises in clean and
sanitary condition. Tenant shall not be obliged to repair any damage caused by
fire, tornado or other casualty covered by the insurance to be maintained by
Landlord pursuant hereto, except that Tenant shall, at Tenant's own expense,
repair all damages caused by the negligence of the Tenant or its employees,
agents or invitees.
B. Tenant shall not damage any wall or disturb the integrity and
support provided by any wall. Tenant shall, at its own cost and expense promptly
repair any damage or injury to any part of the building or grounds caused by
Tenant or its employee, agents or invitees.
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9. PARKING: Parking shall be available on a "first-come, first-served"
basis in the parking area adjacent to premises, shared by all tenants of that
building and Landlord. Landlord may require that all cars shall be marked with a
parking decal provided by Landlord. Tenant shall instruct all of its officers,
employees and agents not to park in spaces marked for visitor parking.
10. ALTERATIONS:
A. Tenant shall not make any alterations, additions or improvement to
the premises (including without limitation roof and wall penetrations)
(collectively, "alterations") without the prior written consent of Landlord.
Tenant may, without the consent of Landlord, but at its own cost and expense and
in a good workmanlike manner erect such shelves, bins, machinery and fixtures as
it may deem advisable, so long as such comply with all regulations and do not
alter the basic character of, or overload or damage, the building or
improvements.
B. All alterations, additions and improvements erected by Tenant shall
be Tenant's property during the term of this Lease. Prior to expiration of this
Lease, Tenant shall (unless Landlord otherwise elects as provided herein) remove
all alterations, additions and improvements erected by Tenant and restore
premises to their original condition by the date of lease termination or upon
earlier vacating of premises. However, Landlord shall have the right to elect,
during the thirty (30) days prior to termination or earlier vacating of
premises, that any such alterations, additions and improvements shall become the
property of Landlord as of the date of termination or upon earlier vacating of
premises, and that they shall not be removed by Tenant.
C. All removals and restoration to original condition shall be
accomplished in a good workmanlike manner so as not to damage the primary
structure or structural quality of premises or building.
11. SIGNS: Tenant shall not erect any signs upon or within premises without
prior written approval of the Landlord. This prohibition shall extend, without
limitation, to space within premises visible from the outside of the building.
Landlord shall not unreasonably withhold its approval if the proposed sign is
consistent with the Park design and operations manual as the same may be changed
from time to time.
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12. INSPECTION: Landlord, its agents and representatives, shall have the
right to enter and inspect premises:
A. any time during business hours for the purpose of ascertaining
the condition of the premises or in order to make such repairs as may be
herein required of or permitted to Landlord; and
B. any time in the event of an emergency, to be determined in
Landlord's sole discretion; and
C. during the one-hundred and twenty (120) days in advance of
expiration of this Lease, at any time during business hours to show premises.
During such one-hundred and twenty (120) days, Landlord shall have the right
to erect on premises a suitable sign stating that premises are available.
D. Tenant shall meet with Landlord on premises for a joint
inspection of premises thirty (30) days prior to vacating. If Tenant fails to
arrange for such joint inspection, Landlord's inspection at or after Tenant's
vacating premises shall conclusively determine Tenant's responsibility for
repairs and restoration.
E. Landlord shall at all times have a key to all locks to premises.
Tenant shall not change or install any locks without Landlord's prior approval
for consistency with Landlord's master key.
13. ASSIGNMENT AND SUBLETTING:
A. Tenant shall not assign this Lease or sublet the whole or any
part of premises without prior written consent of Landlord. If Landlord
consents to such, Tenant shall remain directly, primarily and fully
responsible and liable for the payment of the rent herein specified and for
compliance with all its other obligations hereunder.
B. In the event of default (defined at paragraph 19 herein), if
premises or any part thereof have been assigned or sublet, Landlord, in
addition to any other remedies provided herein or by law, may at its option
collect directly from such assignee or subtenant all rents becoming due to
Tenant under such assignment or sublease and apply such rent against any sums
due to Landlord from Tenant hereunder. Such collections, if any, shall not be
a novation or a release of Tenant from any performance of Tenant's obligation
hereunder except so much of rent due as is so collected.
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14. FIRE AND CASUALTY:
A. Landlord shall maintain standard fire and extended coverage
insurance covering the building at which premises are a part in an amount of not
less than eighty (80%) percent (or for such greater percentage as may be
necessary to comply with the provisions of any co-insurance clauses of the
policy) of the "replacement cost" thereof as such term is defined in the
Replacement Cost Endorsement to be attached thereto. Such coverage shall insure
against the perils of fire, lightning, and extended coverage, such coverages and
endorsements to be as defined, provided and limited in the standard bureau forms
prescribed by the insurance regulatory authority for New York State. Subject to
the other provisions in this paragraph 14, such insurance shall be for the sole
benefit of Landlord and under its sole control.
B. If premises should be damaged or destroyed by fire, wind or other
casualty, Tenant shall give Landlord immediate written notice thereof. If
premises have been destroyed, or in Landlord's sole judgment damaged beyond
usability, Landlord may, in its sole discretion, terminate this lease and the
rent shall be abated during the unexpired portion of this lease (effective upon
the date of the occurrence of such damage or destruction). No damages shall be
payable to Tenant if Landlord so terminates.
C. If Landlord does not choose to terminate, but rather decides to
repair or rebuild premises, the rent payable hereunder during the period in
which premises are not tenantable shall be reduced to such extent as may be fair
and reasonable under all the circumstances during such period of repair or
rebuilding. At the completion of such repair or rebuilding, rent shall resume
for the full amount herein set forth for the remainder of the term of the lease.
D. If holder of an instrument (defined at paragraph 21 herein)
requires that the insurance proceeds be applied to pay off the indebtedness
evidenced by that instrument, Landlord shall have the right to terminate this
Lease by delivering written notice of termination to Tenant within fifteen (15)
days after such requirement is made by any such holder. In such event, all
rights and obligations hereunder shall cease and terminate, except for any
payments previously due and owing from Tenant to Landlord.
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E. To the extent that either party has insurance payable to it under
any policy of insurance (directly or by subrogation), the other party is hereby
released from any claim for loss or damage to property caused by fire or other
peril, but only if the releaser's insurance policy (or policies) contains a
clause or endorsement to the effect that any such release shall not adversely
effect or impair the policy or prejudice the right of the releaser to recover
under the policy.
This release shall be effective even if the loss or damage is caused
by fault or negligence of the party released, or anyone for whom it is
responsible, but this release is effective only to the extent and limit of the
proceeds payable under the releaser's insurance policy.
15. LIABILITY:
A. Covenant not to xxx. Tenant shall not commence an action, interpose
a counterclaim, or implead Landlord for any injury to person or damage to
property on or about premises resulting from and/or caused in part or whole by:
1) the negligence or misconduct of Tenant, its directors, officers, agents,
servants or employees, or of any other person entering upon premises for
Tenant's purposes; or 2) Tenant's failure to repair; or 3) leakage of gas, oil,
water or steam or electricity emanating from premises prior to or within 2
working days after notification to Landlord by Tenant or Tenant's agent.
B. Indemnification. Tenant shall at all times indemnify and hold
harmless Landlord, its Trustees, officers, employees and agents, from any loss,
liability , claims, suits, costs, expenses (including, without limitation,
attorneys fees) and damages, (actual or punitive), arising out of any personal
injury or property damage associated with premises, except for personal injury
or property damage caused by gross negligence of Landlord or (but only if Tenant
has duly notified Landlord of the need for repair) failure of Landlord to repair
any part of premises which Landlord is obligated to repair and maintain
hereunder.
C. Insurance. Tenant shall procure and maintain throughout the term of
this Lease a policy or policies of insurance at its sole cost and expense,
insuring Tenant against all claims, demands or actions arising out of or in
connection with: (i) premises; (ii) the condition of premises; (iii) Tenant's
operations, maintenance and use of premises; and (iv) all assumed contractual
liability.
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The limits of such policy or policies shall be in aggregate amounts of no less
than Two Million ($2,000,000) Dollars. Tenant shall name Landlord and Tenant as
insured. All such policies shall be procured by Tenant from responsible
insurance companies satisfactory to Landlord. Evidence of such insurance shall
be provided to Landlord prior to commencement date of this Lease.
16. CONDEMNATION: In the event premises, or any portion thereof, shall be
taken by Eminent Domain (or by private purchase in lieu thereof):
A. the proceeds of such taking or purchase shall exclusively belong to
Landlord.
B. This Lease shall not terminate so long as Tenant can still carry on
its business on premises but rental shall xxxxx in proportion to space taken.
C. This lease shall terminate if it is impossible (by reason of such
taking or purchase) for Tenant to still carry on its business on premises.
17. HOLDING OVER: At the termination of this Lease Tenant shall yield up
immediate possession to Landlord. If Landlord agrees in writing that Tenant may
hold over after the expiration or termination of this Lease, the hold over
tenancy shall be subject to termination by Landlord at any time upon not less
than five (5) days advance written notice, or by Tenant at any time upon not
less than thirty (30) days advance written notice. All other terms and
provisions of this Lease shall be applicable during the hold over tenancy,
except that Tenant shall pay Landlord as rental through the period of any hold
over an amount equal to one and one-half times the base rent and additional rent
in effect on termination date. Such rental shall be computed on a daily basis
for each day of the hold over period. No holding over by Tenant, whether with or
without consent of Landlord, shall extend this Lease except as otherwise
expressly provided herein. This paragraph may not be interpreted for any purpose
as a consent by Landlord to any hold over by Tenant.
18. QUIET ENJOYMENT: Subject to all rights of mortgagees, as set forth in
paragraph 21 herein Landlord covenants that:
A. It now has, or will have before Tenant takes possession of the
premises, good title to the premises. Such title is or shall be free and clear
of all liens and encumbrances, except for liens for current taxes not yet due,
such mortgage or mortgages as are permitted by the terms of this Lease,
regulations as defined herein, and easements, restrictions and other conditions
for record.
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B. Landlord has full right and authority to enter into this Lease.
C. Tenant, upon paying rent as required, and performing its other
obligations, shall peaceably and quietly have, hold and enjoy the premises for
the term without hindrance or molestation from Landlord.
19. DEFAULT: The following shall be events of default by Tenant under this
Lease:
A. Tenant's failure to pay any installment of rent or additional
payments, required by this lease when due, and such failure continues for a
period of fifteen (15) days from the due date.
B. Tenant becoming insolvent, making a transfer in fraud of creditors,
or making an assignment for the benefit of creditors.
C. Tenant filing a petition under any bankruptcy law of the United
States or any state, or Tenant being placed in bankruptcy proceedings or
adjudged bankrupt or insolvent in proceedings filed against Tenant.
D. Receiver or trustee or similar officer being appointed for all or
substantially all of Tenant's assets.
E. Tenant failing to comply with any other teem, provision or covenant
of this Lease and not curing such within ten (10) days after written notice
thereof.
20. LANDLORD'S REMEDIES: If Tenant defaults Landlord may pursue any one or
more of the following remedies without any notice or demand whatsoever:
A. Terminate the Lease. In such event, Tenant shall immediately
surrender the premises to Landlord. If Tenant fails to do so, Landlord may,
without limiting any other remedy which it may have for possession or arrearages
in rent, enter upon and take possession of the premises and remove Tenant and
any other person that may be occupying premises without being liable for
prosecution or any claim of damages therefor. In such event, Tenant agrees to
pay to Landlord on demand the amount of all loss and damage which Landlord may
suffer by reason of such termination, including without limitation Landlord's
inability to relet the premises on terms satisfactory to Landlord.
B. In the event of a termination and removal as set forth herein7
Landlord may:
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1) relet the premises and receive rent therefor. Tenant shall pay
to Landlord on demand any deficiency between rent under this Lease and the
reletting. If Landlord relets the premises at a greater rental, such excess
shall be the sole property of Landlord, and Tenant hereby waives any claim to
such relet excess rent; and
2) perform Tenant's obligations under the terms of this Lease.
Tenant agrees to reimburse landlord on demand for any expenses which Landlord
incurs in fulfilling Tenant's obligations.
C. Exercise of any of the remedies set forth herein or otherwise
provided by law, shall not constitute a forfeiture or waiver of any rent or
other payments due to Landlord, or of any damages accruing to Landlord; nor
shall any act of Landlord hereunder be deemed an acceptance of surrender of
premises. Only a writing signed by Landlord shall constitute a valid acceptance
of surrender of premises.
D. Landlord's acceptance of any rent or other payments hereunder after
a default by Tenant shall not be deemed a waiver of such default unless Landlord
so notifies Tenant in writing. Forbearance by Landlord to enforce a remedy shall
not be a waiver of default or Landlord's right to enforce any remedy with
respect to that default or any later default. Tenant shall pay Landlord's
reasonable attorneys fees in the enforcement or defense of any of Landlord's
rights or remedies hereunder.
21. MORTGAGE SUBORDINATION: Tenant accepts this Lease subject and
subordinate to any mortgage(s) and/or deed(s) of trust, mortgage modifications,
extensions and additions (collectively, "instruments") now or at any time
hereafter constituting a lien or charge upon the premises or improvements
thereon. Tenant shall at any time hereafter and as often as requested to do so
on demand execute any documents which may be required by any holder of an
instrument for the purpose of subjecting and subordinating this Lease to the
lien of any such instrument.
22. NEW OWNER: If Landlord shall sell, assign, or convey its right, title
and interest in premises to another (called herein "new owner"), this Lease
shall continue in full force and effect; Tenant shall in all respects recognize
the new owner as its Landlord under this Lease, paying all rents and complying
with all terms of this Lease. In such event, Landlord shall turn over Tenant's
security deposit, if any, to the new owner. Landlord's liability to return same
to Tenant shall then cease, and the new owner shall then be obligated to return
security deposit to Tenant subject to the terms and conditions of this Lease.
The new owner shall have all of Landlord's rights and shall assume all of
Landlord's obligations hereunder.
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23. MECHANIC'S LIENS: Tenant shall have no authority, express or implied,
to create, place or allow any lien or encumbrance of any kind or nature
whatsoever upon, or in any manner to bind, the interest of Landlord in the
premises. Payments under this Lease shall not be chargeable by any third party,
including any who may furnish materials or perform labor for any construction or
repairs. Any claim or lien shall affect and attach to, if at all, only the
leasehold interest granted to Tenant by this agreement. Tenant shall pay all
sums legally due and payable by it on account of any labor performed on
premises. Tenant shall indemnify and hold Landlord harmless from any and all
loss, costs or expense (including, without limitation, reasonable legal fees)
based on or arising out of asserted claims or liens against the leasehold estate
or against the right, title and interest of Landlord in premises.
24. NOTICES: Tenant shall send all rent or required notices by
hand-delivery or be registered mail to Landlord at 000 Xxxxxx Xxxx, Xxxx, Xxx
Xxxx, 00000. Landlord shall provide any notice to Tenant by hand-delivery or
registered mail at the address set forth on the title page hereof, or as Tenant
may otherwise designate in writing. Any notice or payment made shall be deemed
delivered when actually received and not when deposited in the mail.
25. BUSINESS INTERRUPTION: Landlord shall not be responsible to Tenant for
any damages or inconvenience caused by interruption of business or inability to
occupy premises for any reason whatsoever.
26. DELIVERY OF GOODS: All deliveries to and shipments from Tenant are the
sole responsibility of Tenant. Tenant shall provide that such do not disrupt any
other tenant of the Park. Landlord, in its sole discretion, may reasonably
regulate such deliveries and shipments to prevent disturbance to other tenants
of the Park.
27. NONDISCRIMINATION: Tenant shall not discriminate against any employee
or applicant for employment because of race, color, religion, sex or national
origin or in any other way prohibited by law. Tenant shall act affirmatively to
ensure that applicants are employed, and employees treated during employment,
without regard to race, color, religion, sex or national origin or other
discrimination prohibited by law. Such nondiscrimination shall include, without
limitation: employment, promotion, demotion, transfer, recruitment, advertising,
lay-off, termination, rates of pay or other forms of compensation, selection of
training, including apprenticeship.
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28. WAIVER OF JURY: Landlord and Tenant waive trial by Jury in any
matter-pertaining to this Lease (except for a personal injury or property damage
claim).
29. LANDLORD REFUSAL TO CONSENT: If Landlord is required to give reasonable
consent in any matter hereunder (rather than such consent being in Landlord's
sole discretion), and Landlord refuses to consent, Tenant's sole remedy shall be
to apply to an appropriate court to request that Landlord be directed to give
its consent. Tenant agrees not to make any claim against Landlord for money or
subtract any sum from rent based on Landlord's refusal to consent.
30. WAIVER OF REDEMPTION: Tenant waives all rights to redeem under any law
of the State of New York.
31. ENTIRE AGREEMENT: Both parties have read this Lease and understand that
it sets forth their entire agreement. This Lease may be changed only by an
agreement in writing duly signed and acknowledged and delivered to each party.
32. DESIGN AND OPERATIONS MANUAL: Tenant has read the design and operations
manual of the Rensselaer Technology Park, which is hereby incorporated by
reference. Tenant shall comply with all applicable provisions of said manual as
it now exists or may be revised from time to time.
33. XXX FINANCING: Tenant hereby certifies to Landlord that:
A. Other than the North Greenbush Industrial Agency's 1985 Industrial
Development Revenue Bonds ("Bonds"), no other bonds, notes or other obligations
the interest on which is exempt from federal taxation under Section 103 of the
Internal Revenue Code are outstanding, the proceeds of which have been used to
finance facilities located in whole or in part in the Town of North Greenbush,
Rensselaer County, New York, or to finance facilities which are contiguous to or
integrated with facilities located in the Rensselaer Technology Park in the Town
of North Greenbush, Rensselaer County, New York, and where a Principal User of
such facilities or Beneficiary of such bonds, notes or other obligations is also
Tenant or one or more related persons.
B. Notwithstanding any other provisions of this Lease, Tenant shall be
bound by the representations contained in this paragraph; Landlord shall have
full remedies for breach and damages. Tenant certifies that its Federal Employer
Identification number (or social security number if an individual) is
00-0000000.
-14-
34. CAPTIONS, DELETIONS, DEFINITIONS: Headings and captions used in this
Lease are for the convenience of reference only, and are not deemed to modify
any of the legal rights of the parties, such deletion may not be used in
interpreting the rights of the parties hereunder. Each party shall then have all
rights which it would have had, at law or otherwise, as if such deleted
provision had never been a part hereof.
TENANT LANDLORD
Avant Garde Computer Systems, Inc. RENSSELAER POLYTECHNIC
------------------------------------ INSTITUTE
BY: /s/ Xxxxx Xxxxxxxx BY: /s/ Xxxx Xxxxxx
--------------------------------- -----------------
POSITION: President POSITION: Vice President for Finance
-------------------------- --------------------------
DATED: 9/16/86 DATED: 9/25/86
------------------------------ -----------------------------
BY: /s/ Xxxxxxx X. Xxxxxxxxx
------------------------
POSITION: Director/RTP
------------------
DATED: 9/26/86
---------------------
-15-
SCHEDULE "A"
In addition to the provision of standard ceilings at 9 foot heights,
lighting, perimeter walls, HVAC secondary ducts and diffusers, and 100 AMP
electric service,
(a) Landlord will provide the sum of $11,120.00 as an amount to offset total
other modification costs.
(b) Tenant agrees to reimburse Landlord for unamortized portion of modification
expense per Landlord's modification allowance based on a three-year
straight-line amortization schedule should Tenant occupy the space described in
Exhibit A for a period of time less than three years, or fail to occupy
additional or other space at 000 Xxxxxx Xxxx, or another facility located at
Rensselaer Technology Park.
(c) Tenant agrees to reimburse Landlord for modification costs in excess of the
amount provided by Landlord according to the following payment schedule:
Upon receipt of Landlord's xxxx.
ADDENDUM
Tenant relocation or expansion
Landlord reserves the right to relocate Tenant into comparable Premises any time
after the first year of the lease term upon Tenant's receipt of written
notification, which shall be given at least 90 days prior to planned relocation
date. Landlord agrees to reimburse Tenant for all reasonable, direct,
move-related expenses.
Upon notification of Landlord by Tenant (in writing 90 days in advance) of
Tenant's need to occupy additional or new space at Rensselaer Technology Park,
Landlord will make every reasonable effort to provide such additional or new
space providing such space is at least 100% larger than the premises described
in this Lease and such space is available.
Renewa1
Tenant will notify Landlord in writing 90 days before the expiration of this
Lease of its intent to renew this Lease. Lease costs will be negotiated at the
time Tenant notifies Landlord of its intent to renew this Lease. Tenant and
Landlord agree that reasonable efforts will be made to arrive at mutually
agreeable rates at least 30 days prior to the expiration of this Lease.
AMENDMENT TO LEASE AGREEMENT
This Amendment to Lease Agreement (the "Amendment") is made as of February
1, 1996, between Rensselaer Polytechnic Institute, ("Landlord"), and IFS
International, Inc. ("Tenant").
RECITALS
1. Landlord and Tenant have previously entered into a Lease Agreement, (the
"Lease") dated August 1, 1995 and executed by Landlord on September 25, 1995 and
by Tenant on September 15, 1995, pursuant to which Landlord leased to Tenant
6717 square feet of premises known as 000 Xxxxxx Xxxx in the Rensselaer
Technology Park, more particularly described in Exhibit "A" to the Lease, for a
term commencing August 1, 1995 and ending July 31, 1999.
2. Landlord and Tenant now desire to change certain terms of the Lease,
pursuant to paragraph "31" thereof, as more particularly set forth in this
Amendment.
NOW THEREFORE, in consideration of the foregoing recitals Landlord and
Tenant agree as follows:
1. Paragraph "1" of the Lease is amended to provide that the premises shall
henceforth consist of 8459 square feet described on Exhibit "B" attached to this
Amendment including the 6717 square feet described in Exhibit "A" to the Lease
and an additional 1742 square feet at 000 Xxxxxx Xxxx as shown on Exhibit "B."
2. Paragraph "3" of the Lease is amended to provide that the annual base
rent rate per square foot for the additional 1742 square foot space shall
correspond to the base rent rate of the original 6717 square feet during the
remaining period in the Lease from February 1, 1996 to July 31, 1999. The
additional rent for the 8459 square feet shall be billed at the same rate and in
the same manner as specified in the Lease Agreement. Tenant shall pay annual
rent in equal monthly installments payable in advance on the first day of the
month. See the attached Schedule "B" for base rent and additional rent.
Additional rent is the Tenant's pro-rated share of disbursements paid by
Landlord for such operating costs as real property taxes, insurance, repair,
maintenance, janitorial expenses, etc. This rent is based on actual expenditures
for which Tenant shall receive a full accounting annually. If the sum of
tenant's additional rental payments is greater than the actual disbursements
made by Landlord, Tenant shall receive a credit against its next month's or
months' additional rental obligation. If the sum of Tenant's additional rent
payments hereunder is less than the disbursements actually made by Landlord, the
Tenant will be billed for the additional amounts for which it is responsible.
3. Tenant is responsible for paying all charges for its own use of
utilities, which are separately metered; however Tenant shall continue to pay
Landlord a utility fee on the first day of the month for its prorated share of
utility expenses (adjusted annually on the basis of actual costs and an
assessment of user requirements) on 3272 square feet comprising the 1530 square
feet, part of its originally leased 6717 square feet, and the additional 1742
square feet of this Lease Amendment. During the period of February 1 to July 31,
1996 the estimated share of utility expenses shall continue at the annual rate
of $2.00 per square foot. Tenant shall have electric and gas meters assigned to
its name and shall pay its electric and gas bills directly to the utility
company. Premises lighting, outlets, heating, air conditioning and ventilation
are included in Tenant's separately billed utilities.
4. Improvements required for expansion shall be undertaken as shown on
Exhibit "B" which reflects modifications agreed upon between Landlord and Tenant
for both the originally leased 6717 square foot premises and the 1742 square
foot addition. Any additional modifications shall be at Tenant's expense. All
telephone and computer cabling shall be done at Tenant's expense as well as any
specialized electrical connections.
5. Landlord and Tenant hereby confirm and ratify all other provisions of
the Lease except those provisions explicitly changed hereby.
6. Insofar as any provision of this Amendment to is inconsistent with any
provision of the Lease, the provisions of this Amendment control and render any
inconsistent provisions of no force and effect.
7. In all other respects the Lease remains unchanged and in full force and
effect.
8. Executed counterparts of this Amendment have been delivered to Landlord
and Tenant.
In Witness Whereof Landlord and Tenant have executed and acknowledged this
Amendment on the dates hereinafter set forth.
TENANT LANDLORD
IFS INTERNATIONAL, INC. RENSSELAER POLYTECHNIC INSTITUTE
By: ________________________ By: ____________________________
Position: __________________ Position: ______________________
Dated: _____________________ Dated: _________________________
By: __________________________________________
Position: Director. Rensselaer Technology Park
------------------------------------
Dated: _______________________________________
SCHEDULE "B"
SCHEDULE OF MONTHLY PAYMENTS
IFS International, Inc.
8459 square feet
2/1/96-7/13/96
--------------
Base Rent $ 82,475.00 $ 6,873.00
Additional Rent 24,531.00 2,044.00
Utilities (3272 sf) 6,544.00 545.00
----------- ---------
Total $113,550.00 $ 9,462.00
8/1/96-7/31/97
--------------
Base Rent $ 82,475.00 $ 6,873.00
Additional Rent To be based on actual costs for fiscal year 1995-96
Utilities To be based on actual costs for fiscal year 1995-96
8/1/97-7/31/98
--------------
Base Rent $ 82,475.00 $ 6,873.00
Additional Rent To be based on actual costs for fiscal year 1996-97
Utilities To be based on actual costs for fiscal year 1996-97
8/1/98-7/31/99
--------------
Base Rent $ 83,744.00 $ 6,979.00
Additional Rent To be based on actual costs for fiscal year 1997-98
Utilities To be based on actual costs for fiscal year 1997-98
