EXHIBIT 10.9
[LOGO OF COMMUNITY NETWORKS]
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Existing Lease Abstract -- Switch Space
Building: 000 Xxxxxxxx Xxxxxx -- 0xx Xxxxx Xxxxxxxx
LeaseDate: June l6, 1999
Landlord: 224 Xxxxxxxx Associates, LLC
Tenant: Community Networks
Premises: Partial 4th Floor
Rentable Area: Approximately 8,000 RSF
Lease Term: Ten (10) Years and Three (3) Months
Lease Commencement: July 15, 1999
Lease Expiration: October 14, 2009
Rent Commencement: Three (3) Months from Lease Commencement
Base Rent: $12.00 pRSF (to increase by 2% per annum)
Electricity: Direct Meter
Real Estate Taxes: Tenant shall pay a 2% increase in the rental rate in lieu
of paying Real Estate Taxes.
Operating Expense: Tenant shall pay a 2% increase in the rental rate in lieu
of paying Operating Expenses.
Use: Telecommunications services, telephone switching stations
and uses incidental hereto.
Sublet/Assignment: Tenant may sublet all or a portion of the premises or
assign the lease with prior written consent of owner,
which may not be unreasonably withheld or delayed.
Termination Option(s): N/A
Expansion Option(s): Tenant shall have an ongoing Right of First Refusal on
any adjacent vacant space in the building.
Security Deposit: No Security Deposit is required of Tenant.
Renewal Option(s): Tenant shall have two consecutive five (5) year renewal
options.
Equis
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STANDARD
OFFICE SPACE LEASE
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The Syracuse Building
000 Xxxxxxxx Xxxxxx
Xxxxxxxx, Xxx Xxxx
LANDLORD: 224 Xxxxxxxx Associates, LLC
TENANT: Community Networks, Inc.
DATE OF LEASE: June 16, 1999
TABLE OF CONTENTS
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Article
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Page
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1. Premises......................
2. Term of Lease.....................
3. Xxxx, Xxxxx, Lease Year and Parking....................
4. Construction. Financing and Alterations...............
5. Use of Premises...............
6. Operating Costs...............
7. Energy Costs and Water..........
8. Repairs.............
9. Indemnity..............
10. Insurance................
11. Damage By Fire, Theft and Water Damage..............
12. Eminent Domain..............
13. Bankruptcy and Default Provisions..............
14. Mechanic's Liens............
15. Mortgages Assignments, Subleases and
Transfers of Tenant's Interest............
16. Subordination of Lease.............
17. Entry to Premises.................
18. Notices and Certificates..............
19. Covenant of Quiet Enjoyment...............
20. Services..............
21. Certain Rights Reserved to Landlord................
22. Miscellaneous Provisions...(Renewal Option, Signage, Existing
Tenant Obligation, Right of First Refusal, Additional Tenant
Improvements, Brokerage)...................
SCHEDULE OF EXHIBITS
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Exhibit "A" Floor Plan(s) Outlining Premises
Exhibit "B" Description/Plan of Land/Intentionally Omitted
Exhibit "C" Landlord's Work
Exhibit "D" Tenant's Work and Tenant's Insurance
Requirements
Exhibit "E" Rules and Regulations
STANDARD
OFFICE SPACE LEASE
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AGREEMENT made as of this 16th day of June, 1999, by and between the
following parties: 224 Xxxxxxxx Associates, LLC. a New York limited liability
company, having an office at 0 Xxxxxxx Xxxxxx, Xxxxxxxx, Xxx Xxxx 00000
("Landlord"), and Community Networks, Inc a corporation duly organized under the
laws of the State of New York having its principal office at 00-00 Xxxxx Xxxxxx,
Xxxx Xxxxxx Xxxx, XX 00000 Attention: Xxxxx Xxxxxxx (the "Tenant").
WITNESSETH:
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ARTICLE 1
Premises
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1.01 - Premises
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Landlord hereby leases to Tenant and Tenant hereby leases and hires
from Landlord those certain premises in AS IS condition except as otherwise
expressly provided herein the building commonly known as "The Syracuse Building"
(the "Building") which is located at 000 Xxxxxxxx Xxxxxx xx xxx Xxxx xx
Xxxxxxxx, Xxxxxx of Onondaga and State of New York, which premises are outlined
on the plan attached as Exhibit "A" (the "Premises"), together with the right to
use, in common with others, the Building Commons Areas and Outside Common Areas
as hereinafter defined. For purposes of this Paragraph 1.01, the sum of the
square feet in the Premises and Tenant's share of Building Common Areas (as
defined in Paragraph 1.02 hereof) shall be the aggregate of 8,000 square feet on
the fourth floor of the Building. The Premises shall include the area bounded
by: the center line of any walls common to adjacent tenants, the Building Common
Area side of any wall adjoining Building Common Areas (but not the surface
thereof), the line established by the exterior face of the exterior walls of the
Building and the exterior face of any windows in the exterior walls of the
Building, the concrete floor surface of the Premises and the lower surface of
the next higher floor (or roof). Landlord reserves unto itself, its successors
and assigns, the right to install, maintain, use, repair and replace pipes,
ducts, conduits, wires and structural elements leading through the Premises in
locations which will not materially interfere with Xxxxxx's use of the Premises.
Except as set forth herein, no right to use any part of the exterior of the
Building and no casement for light or air are included in the lease of the
Premises hereby made.
1.02 - Definition of Building Common Areas
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"Building Common Areas" shall be defined to mean all areas. space,
equipment, signs and special services provided by Landlord specifically for the
Building or for the common or joint use and benefit of all the tenants in the
Building, their employees, agents, customers, visitors and other invitees,
including without limitation hallways, corridors, trash rooms, mechanical and
electrical rooms, storage rooms, stairways, entrances, elevators, rest rooms,
lobbies, stairs, loading docks, pedestrian walks, roofs and basements, janitor's
and storage closets within the Building and all other common rooms and common
facilities within the Building.
1.03 - Definition of Outside Common Areas
-----------------------------------------
The term "Outside Common Areas" is defined to mean the land described
on Exhibit "B" attached hereto and made a part hereof, or such
portion thereof as may from time to time devoted to uses associated with the
Building, and any adjacent or contiguous land which may from time to time be
devoted to such uses, together with such improvements as may from time to time
be erected upon or under any of such lands, including, but not limited to,
surface and subsurface parking areas, lighting facilities, utility lines,
sidewalks, covered walkways, underground walkways, driveways, plazas, courts,
sidewalks, retaining walls, access roads, truck serviceways, landscaped areas,
signs, and equipment.
ARTICLE 2
Term of Lease
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2.01 - Term
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The term of this Lease shall be for TEN (10) years and THREE (3)
months.
2.02 - Term Commencement
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The term of this Lease shalt commence on completion of Landlord's work
which will be the 15th day of July 1999, and shall end on the 14th day of
October 2009; provided LL has substantially completed Xxxxxxxx's work. If
Landlord has not substantially completed Xxxxxxxx's work the term commencement
date is the date the Landlord has substantially completed Xxxxxxxx's work. The
date of commencement of the term of this Lease is herein referred to as the
"Term Commencement Date." The word "term" shalt, unless otherwise expressly
provided to the contrary, be deemed to include the Initial and any renewal term.
2.03 - Rent Commencement
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The rent shall commence three (3) months after the term commencement
date.
2.04 - Condition of Premises
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Xxxxxx's taking possession shall be conclusive evidence as against
Tenant that the Premises were in good order and satisfactory condition when
Xxxxxx took possession, subject to latent defects and punch list items. At the
expiration or sooner termination of this Lease, Tenant shalt return the Premises
broomclean and in as good condition as when Xxxxxx took possession, ordinary
wear and loss by fire or other casualty excepted, failing which the Landlord may
restore the Premises to such condition and Tenant shall pay the cost thereof.
ARTICLE 3
Rent, Taxes, Lease
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Year end Parking
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3.01 - Fixed Annual Rent
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Tenant agrees to pay to Landlord at the offices of Landlord, or at
such other place designated by Landlord, without any prior demand therefor and
without any deduction or set-off whatsoever, except as set forth in this lease,
as fixed annual rent, the sum of $96,000.00 per annum (computed as follows:
8,000 square feet at $12.00 per square foot), payable in equal monthly
Installments of $8,000.00 each (the "fixed monthly rent"), payable in advance
upon the first day of each calendar month during the term hereof. The monthly
installments shall be deemed to have been paid upon such first day only if
actually received by such first day.
If the term shall commence or expire upon a day other than the first
(or in the case of termination the last) day of a calendar month. Tenant shall
pay, upon the Term Commencement Date, and on the first day of the last calendar
month, a pro rata portion of the fixed monthly rent and additional rent for the
first and last fractional calendar month, respectively, prorated on a per diem
basis with respect to such fractional calendar month based upon the actual
number of days in those months.
The fixed annual rent shalt increase by two percent (2%) per annum commencing on
the first anniversary of the rent commencement.
3.02 - Taxes
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(a) Landlord shall in the first instance, during the term of this
Lease, pay to the public officers charged with the collection thereof, all
Building Taxes as hereinafter defined.
The term "Building Taxes" shall be deemed to include (i) all real
property taxes (which shall be deemed to include all property taxes and
assessments, water and sewer rents, rates and charges, parking and environmental
surcharges and any other governmental charges, general and special, ordinary and
extraordinary), which may be levied or assessed by any lawful authority against
the Building, the Building Common Areas and the Outside Common Areas. The amount
required to be paid by Landlord pursuant to any Payment-in-Lieu-of-Tax Agreement
between Landlord and any taxing authority having jurisdiction over the Building
shall, for purposes of this Lease, be deemed to be a real property tax
obligation and included within the definition of Building Taxes.
(b) Tenant shall at all times be responsible for and pay, before
delinquency, all municipal, county, state or federal taxes assessed against its
leasehold interest or any fixtures, furnishings, equipment, stock-in-trade or
other personal property of any kind owned, installed or used in or on the
Premises.
(c) Tenant shall not be responsible to pay for any building (real
estate) taxes.
3.03 - Past Due Rent
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If, during the term of this Lease, Tenant shall fail to pay any installment
of the fixed monthly rent or additional rent or any other charge hereunder
within ten (10) days after the same is due and payable, then interest at the
rate of two percent (2%) per month shall accrue from and after the date on which
such sum was due and payable, and such interest, together with a late charge of
$50.00 for each past-due payment to cover the extra expense of handling such
delinquency, shall be paid to Landlord as additional rent and liquidated damages
at the time of payment of such past-due sum. Landlord shall have the right to
apply any payments made by Tenant first to any deficiency in the payment of the
interest and Late Charge provided for herein. Nothing contained in this
Paragraph 3.03 shall be construed to be a limitation of or in substitution of
Landlord's rights and remedies under Article 13 of this Lease.
3.04 - Definition of Lease Year and Partial Lease Year
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The term "lease year" is defined to mean a period of twelve (12)
consecutive calendar months, the first full lease year commencing on the first
day of the first full calendar month following the Term Commencement Date (if
other than on the first day of a month), and each succeeding lease year
commencing on the anniversary of the commencement of the first full lease year.
Any portion of the term which is less than a lease year shall be deemed a
"partial lease year" and computations requiring proration shall be pro-rated on
a per diem basis using 365 day year.
3.05 - Security Deposit
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Intentionally Deleted
ARTICLE 4
Construction, Financing and
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Alterations
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4.01 - Landlord's Obligation
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Xxxxxxxx has constructed the Premises for Tenant's use and occupancy
and Landlord shall have no further obligation to construct the Premises, except
as otherwise provided in ExhibIt "C" attached hereto and made a part hereof,
4.02 - Financing
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If Landlord can obtain mortgage financing or refinancing only upon the
basis of modifications of the terms and provisions of this Lease, then Tenant
shall not unreasonably withold or delay it's consent thereto, provided, the
lease modifications referred to herein shall not relate to those provisions
pertaining to length of the term of the lease, amount of rent, additional rent,
and other charges.
In the event of a refinancing or a bona fide sale of the Building by
the Landlord. Tenant shall, promptly upon request therefor, provide to Landlord
a balance sheet, and a statement of income and expenses for Xxxxxx's last fiscal
year, for which a statement has been prepared.
4.03 - Tenant's Obligation
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Subject to Landlord's work, Tenant is leasing the Premises in AS IS
CONDITION and Tenant shall perform such work therein as is described in Exhibit
"D" attached hereto and made a part hereof.
4.04 - Alterations, Additions and Improvements
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Tenant shall not make any alterations, additions or improvements in or to
the Premises without the prior written consent of Landlord, which consent shall
not be unreasonably witheld or delayed, and then only by contractors approved by
Landlord which approval shall not be unreasonably witheld or delayed. Landlord
represents to Tenant and Tenant acknowledges the existence of certain covenants
affecting the Building and the Premises including those portions of the
architecturally or historically significant interior features of the Building
which may limit the construction of, or removal, as the ease may be, of certain
alterations, additions or improvements in or to the Premises, notwithstanding
the requirement of consent thereto by Landlord. If Landlord shall grant its
consent, Tenant shall provide Landlord with certificates evidencing the
insurance coverages and limits required by Exhibit "F" to the commencement of
any such work. Tenant shall not make nor permit any defacement, injury or waste
in, so or about said Premises or any part of the Building. Tenant agrees that
any improvements as may be installed within the Premises by Tenant pursuant to
this paragraph 4.04 shall, at the option of Landlord, remain as part of the
Premises at the expiration of the Lease or any extension or renewal thereof
except any equipment installed by Tenant that is a part of Tenant's operation.
Landlord, however, shall have the right to require Tenant to remove any
alterations, additions or improvements so made. Tenant shall, at its expense,
repair or cause to be repaired any damage to the Premises caused by such
removal.
4.05 - Signs, Awnings and Canopies
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Tenant will not place or maintain or suffer to be placed or maintained
on or in an exterior door, wall or window of the Premises any sign, awning or
canopy, decoration, lettering or advertising matter without first obtaining the
written consent of Landlord thereto, which consent shall not be unreasonably
witheld or delayed. In the event such consent is received, then Tenant shall
maintain such sign, awning, canopy, decoration, lettering or advertising matter
as may be approved in good condition and repair at all times during the term of
this Lease.
ARTICLE 5
Use of Premises
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5.01 - Use of Premises
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Tenant shall occupy and use the Premises during the term for its
telecommunication services, telephone switching stations and uses incidental
thereto and no other purpose whatsoever. Xxxxxx further agrees to comply with
the rules and regulations set forth in Exhibit "E" attached hereto and made a
part hereof and with such reasonable modifications thereof and additions thereto
as Landlord may hereafter from time to time make for the Building, the Building
Common Areas or the Outside Common Areas. Landlord shall not be responsible for
the nonobservance by any other tenant of any said rules and regulations and
shall not be responsible to Tenant for any violation of the rules and
regulations, or the covenants or agreements contained in any other lease, by any
other tenant of the Building, or its agents or employees.
ARTICLE 6
Operating Costs
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6.01 - Definitions
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Not Applicable
6.02 - Tenant to Share Increases in Operating Costs
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Not Applicable
ARTICLE 7
Energy Costs and
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Water
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7.01 - Definitions
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As used in this Lease, "Premises Electrical Energy Cost" shall mean
the cost of the electrical energy consumed by the lighting fixtures and
electrical convenience outlets within the Premises only. As used in this Lease,
"Energy Costs and Water" shall mean (i) the cost of all energy, including
electrical, oil, gas, solar, steam and any other energy and the cost of all
water used in or at the Building, the Building Common Areas and the Outside
Common Areas, excluding the Premises.
7.02 - Charge for Premises Electrical Energy Costs
--------------------------------------------------
Xxxxxx agrees to pay to Landlord, as additional rent, monthly within
ten (10) days after receipt of Landlord's estimate therefor (and thereafter on
the first day of each month without invoice), a charge for Premises Electrical
Energy Costs at a usage based upon plans and specifications for the Premises
during the hours set forth in Paragraph 20.01 of this Lease. Landlord reserves
the right to survey and calculate Tenant's connected electrical load and hours
of usage thereof from time to time during the term
and to adjust the monthly charge herein set forth by the amount of electrical
energy usage exceeding the walls per square root and hours herein set forth.
Xxxxxx agrees to pay to Landlord, as additional rent, the amount of such monthly
charge, as adjusted, within ten (10) days following Xxxxxx's receipt of notice
of the adjustment and on the first day of each calendar month thereafter. A
check meter will be installed to provide an accurate measure of Tenant's
electrical usage.
ARTICLE 8 Repairs
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8.01 - Repairs
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Tenant shall give to Landlord prompt written notice of any damage to, or
defective condition in any part of or appurtenance to the Building's plumbing,
electrical, heating, ventilating, air-conditioning or other systems serving,
located in, or passing through the Premises. Subject to the provisions of
Article 11 of this Lease, Tenant shall, at Xxxxxx's own expense, keep the
Premises, including everything therein (except the heating and air-conditioning
systems), in good order, condition and repair during the term. Landlord shall
maintain the heating, ventilating and air-conditioning systems throughout the
Building (including the Premises) and the outside walls, outside windows,
floors, and roof of the Building in good order and repair. Repairs made by
Landlord required solely and directly due to negligence or fault of Tenant, its
contractors, agents or employees shall be made at Tenant's expense plus a 10%
administrative charge.
Tenant, at Tenant's expense, shall comply with all laws or ordinances, and
all rules and regulations of all governmental authorities and of all insurance
bodies at any time in force, applicable to the Premises or to Tenant's use
thereof, except that Tenant shall not hereby be under any obligation to comply
with any law, ordinance, rule or regulation requiring any structural alteration
of the Premises or with respect to the Premises, unless such alteration is
required by reason of a condition which has been created by, or at the instance
of, Tenant, or is required by reason of a breach of any of Tenant's covenants
and agreements hereunder. All repairs made by Tenant shall be made using
contractors approved by Landlord which approval shall not be unreasonably
withheld or delayed.
ARTICLE 9 Indemnity
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9.01 - Indemnification by Tenant
--------------------------------
Tenant does hereby Indemnify and shall defend Landlord (and such other
persons as are in privity of estate with Landlord) and save it harmless from and
against any and all claims, actions, damages, liability and expense in
connection with loss of life, personal injury and/or damage to property arising
from or out of any occurrence in, upon or at the Premises, from out of the
occupancy or use by Tenant of the Premises or any part thereof, or occasioned
wholly or in part by any act or omission of Tenant, its agents, contractors,
employees, lessees or concessionaires. In case Landlord and such other persons
as are in privity of estate with Landlord) shall, without fault on its part be
made a party to any litigation commenced by or against Tenant, then Xxxxxx
agrees to protect and hold Landlord harmless and to pay all costs, expenses and
reasonable attorney's fees incurred or paid by Landlord in connection with such
litigation. Xxxxxx agrees also to pay all costs, expenses and reasonable
attorney's fees that may be incurred or paid by Landlord in enforcing the
covenants and agreements in this Lease.
ARTICLE 10 Insurance
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10.01 - Liability Insurance
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At all during the term of this Lease, Tenant shall, at its sole cost and
expense, for the mutual benefit of Landlord and Tenant, maintain personal
injury, death or property damage occurring on, in or about the Premises during
the term of this Lease in an amount of not less than Two Million Dollars
($2,000,000.00) with respect to personal injury, death or property damage and
including contractual indemnity coverage. In the event that Tenant shall not
have delivered to Landlord a policy or certificate evidencing such insurance
fifteen (15) days prior to the Term Commencement Date and fifteen (15) days
prior to the expiration dates of each expiring policy, Landlord upon ten (10)
days notice to Tenant may obtain such insurance as it may reasonably require to
protect its interest. The cost for such policies shall be paid by Tenant to
Landlord as additional rent upon demand, plus ten percent (10%) administrative
charge. All insurance policies required hereunder shall be issued by insurers of
recognized responsibility and licensed to conduct business in the State of New
York.
10.02 - All Risks and Difference in Condition Insurance
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At all times during the term of this Lease, Landlord shall keep the
Building Insured for the benefit of Landlord against loss or damage by risks now
or hereafter embraced by "All Risks," "Difference in Conditions", and loss of
rent coverages, and against such other risks as Landlord from time to time
reasonably may designate in amounts sufficient to prevent Landlord from becoming
a coinsurer.
In any event, the amount applicable to "All Risks" shall be ninety percent
(90%) of the then full replacement cost (being the cost of replacing the
Building, exclusive of the costs of excavations and footings below the lowest
grade level). Such full replacement cost shall be determined From time to time
(but not more frequently than once in any twelve (12) calendar months) by an
appraiser, architect or other person or firm designated by Landlord.
The parties agree that Landlord shall not provide any insurance coverage
for Tenant's merchandise, trade fixtures, furnishings, equipment and other
personal property of Tenant.
10.03 - Insurance on Common Areas
-----------------------------------
At all times during the term of this Lease, Landlord shall keep the
Common Areas insured for personal injury and property damage liability, "All
Risk" property coverage, "Difference in Conditions," workers' compensation,
employee's liability and any other casualty or risk insurance which Landlord
or Landlord's insurance carrier deems necessary or appropriate.
10.04 - Waiver of Subrogation
-------------------------------
Each of the parties shall have a waiver of subrogation clause attached to,
and made a part of, its insurance policy or policies in the following or
equivalent form:
Waiver of Subrogation Clause
This insurance shall not be invalid should the insured waive in writing,
prior to a loss, any or all rights of recovery against any party for loss
occurring to the property described herein. Notice is hereby accepted that the
insured has agreed in writing, prior to a loss, to waive any and all of its
rights of recovery from (the Landlord or the Tenant as the case may be).
ARTICLE 11 Damage by Fire Theft and Water Damage
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11.01 - Untenantability
-----------------------
If the Premises are made untenantable in whole or in part by fire or other
casualty, the fixed monthly rent, additional rent and other charges, until
repairs shall be made or the Lease terminated as hereinafter provided, shall be
apportioned on a per diem basis according to the part or the Premises which is
usable by Tenant. If such damage shall be so extensive that the Premises cannot
be restored by Landlord within a period of nine (9) months, Landlord or Tenant
shall have the right to cancel this Lease by notice to the other given at any
time within thirty (30) days after the date of such damage. If a portion of the
Building other than the Premises shall be so damaged that in the reasonable
opinion of Landlord the Building should be restored in such a way as to alter
the Premises materially, Landlord may cancel this Lease by notice to Tenant
given at any time within thirty (30) days after the date of such damage. In the
event of giving effective notice pursuant to this paragraph, this Lease and the
term and the estate hereby granted shall expire on the date fifteen (15) days
after the giving of such notice as fully and complete as if such date were the
date hereinbefore set for the expiration of the term of this Lease. If this
Lease is not so terminated, Landlord will promptly, (talking into account the
time necessary to effectuate a satisfactory settlement with Landlord's insurance
company) restore the damage insured by Landlord pursuant to Paragraph 10.02.
Tenant hereby expressly waives the provisions of Section 227 of the New York
Real Property Law and agrees that the foregoing provisions of this Paragraph
11.01 shall govern and control in lieu thereof.
11.02 - Loss or Property and Water Damage
-----------------------------------------
Landlord shall not be responsible to Tenant for any loss or theft or damage
of or to any property left with any employee of Landlord, however occurring.
Landlord shall net be liable for any damage caused by water, rain, snow or ice,
or by breakage, stoppage or leakage of water, gas, heating, air conditioning,
sewer or other pipes or conduits, or arising from any other cause, in, upon,
about or adjacent to the Premises, or the Building in which said Premises are
located.
ARTICLE 12 Eminent Domain
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12.01 - Eminent Domain
--------------------
(a) In the event that title to the whole or any part of the Premises shall
be lawfully condemned or taken in any manner for any public or quasi-public use,
this Lease and the term and estate hereby granted shall forthwith cease and
terminate as of the date of vesting of title and Landlord shall be entitled to
receive the entire award for the real property. Tenant hereby assigning to
Landlord Xxxxxx's interest therein, if any, provided Tenant may make a claim for
the value of its property and Tenant's expenses incurred.
(b) In the event that title to a part of the Building other than the
Premises shall be so condemned or taken and if in the opinion of Landlord, the
Building should be restored in such a way as to alter the Premises materially,
Landlord may terminate this Lease and the term and estate hereby granted by
notifying Tenant of such termination within sixty (60) days following the date
of vesting of title, and this Lease and the term and estate hereby granted shall
expire on the date specified in the notice of termination, which date shall be
not less than sixty (60) days after the giving of such notice, as fully and
completely as if such date were the date hereinbefore set for the expiration of
the term of this Lease, and the fixed monthly rent, additional rent, and other
charges hereunder shall be apportioned as if such
date. In such event, Tenant shall not be entitled to any portion of Landlord's
award hereunder, if any, nor shall Tenant have any claim against Landlord for
the value of the unexpired portion of the term.
ARTICLE 13
Bankruptcy and
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Default Provisions
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13.01 - Conditional Limitations
-------------------------------
This Lease and the demised term are subject to the limitation that if, at
any time prior to or during the term, any one or more of the following events
(herein called an "event of default") shall occur, that is to say:
(a) If Tenant shall make an assignment for the benefit of its creditors; or
(b) If the leasehold estate hereby created shall be taken on execution or
by other process of law; or
(c) If any petition shall be filed against Tenant in any court, whether or
not pursuant to any statute of the United States or of any State, in any
bankruptcy, reorganization, composition, extension, arrangement, or insolvency
proceedings, and Tenant shall thereafter be adjudicated bankrupt, or such
petition shall be approved by the court, or the court shall assume jurisdiction
of the subject matter and if such proceedings shall not be dismissed within
thirty (30) days after the institution of the same; or if any such petition
shall be so filed by the Tenant; or
(d) If in any proceedings a receiver or trustee be appointed for Tenant's
property, and such receivership or trusteeship shall not be vacated or set
aside within thirty (30) days after the appointment of such receiver or
trustee; or
(e) If Tenant shall vacate or abandon the Premises and permit the same to
remain unoccupied or closed for business for more than thirty (30) days; or
(f) If Tenant shall fail to pay any installment of the fixed monthly rent
or any part thereof when the same shall become due and payable, and such failure
shall continue for ten (10) days after notice from Landlord; or
(g) If Tenant shall fail to pay any other charge required to be paid by
Tenant hereunder, and failure shall continue for ten (10) days after notice
thereof from Landlord to Tenant; or
(h) If Tenant shall fail to perform or observe any other requirement of
this Lease (not hereinbefore in this paragraph specifically referred to) on the
part of Tenant to be performed or observed, and such failure shall continue for
thirty (30) days after notice thereof from Landlord to Tenant, provided if not
susceptible of cure, Tenant not in default if it commences cure within thirty
(30) days and diligently pursues cure; then, upon the happening of any one or
more of the aforementioned events of default, and the expiration of the period
of time prescribed above, Landlord may give Tenant a notice (hereinafter
called "notice of termination") of its intention to end the term of this Lease
at the expiration of five (5) days from the date of service of such notice of
termination, and at the expiration of such five (5) days, provided the default
has not been cured, this Lease and the term hereof, as well as all of the right,
title and interest of Tenant hereunder, shall wholly cease and expire in the
same manner and with the same force and effect as if the date of expiration of
such five (5) day period were the date originally specified herein for the
expiration of this Lease and the demised term, and Tenant shall then
quit and surrender the Premises to Landlord, but Xxxxxx shall remain liable as
hereinafter provided.
13.02 - Landlord's Remedies
---------------------------
(a) If this Lease shall be terminated as in Paragraph 13.01 provided,
Landlord or Landlord's agents or employees may immediately or at any time
thereafter re-enter the Premises and remove therefrom Tenant, its agents,
employees, licensees, and any subtenants and other persons, firms or
corporations, and all or any of its or their property therefrom either by
summary dispossess proceedings or by any suitable action or proceeding at law or
by force or otherwise, without being liable to indictment, prosecution or
damages therefor, and repossess and enjoy said Premises, together with all
alterations, additions and improvements thereto.
(b) In case of any such termination, re-entry or dispossess by summary
proceedings or otherwise, the rents and all other charges required to be paid up
to the time of such termination, re-entry or dispossess, shall be paid by
Xxxxxx and Tenant shall also pay to Landlord all reasonable expenses which
Landlord may then or thereafter incur for legal expenses, attorneys' fees,
brokerage commissions and all other costs paid or incurred by Landlord for
restoring the Premises to good order and condition and for altering and
otherwise preparing the same for reletting and for reletting thereof. Landlord
may, at any time and from time to time, relet the Premises, in whole or in
part, for any rental then obtainable either in its own name or as agent of
Tenant, for a term of terms which, at Landlord's option, may be for the
remainder of the then current term of this Lease or for any longer or shorter
period.
(c) If this Lease be terminated as aforesaid. Tenant nevertheless covenants
and agrees, notwithstanding any entry or reentry by Landlord whether by summary
proceedings, termination, or otherwise, to pay and be liable for on the days
originally fixed herein for the payment thereof, amounts equal to the several
installments of fixed monthly rent, additional rent and other charges as they
would, under the terms of this Lease, become due if this Lease had not been
terminated or if Landlord had not entered or reentered as aforesaid, and
whether the Premises be relet or remain vacant in whole or in part or for a
period less than the remainder of the term, and for the whole thereof, but in
the event the Premises be relet by Landlord. Tenant shall be entitled to a
credit in the net amount of rent received by Landlord in reletting the Premises
after deduction of all reasonable expenses and costs incurred or paid as
aforesaid in reletting the Premises and in collecting the rent in connection
therewith.
(d) Tenant hereby expressly waives, so far as permitted by law, the service
of any notice of Intention to re-enter provided for in any statute, or of the
institution of legal proceedings to that end, and Tenant, for and on behalf of
itself and all persons claiming through or under Tenant also waives any and all
right of redemption or re-entry or repossession under present or future laws
including specifically but without limitation Section 761 of the New York Real
Property Actions and Proceedings law including any amendments hereafter, or to
restore the operation of this Lease. In case Tenant shall be dispossessed by a
judgment or by warrant of any court or judge or in case of re-entry or
repossession by Landlord or in case or any expiration or termination of this
Lease, Landlord and Xxxxxx, so far as permitted by law, waive and will waive
trial by jury in any action, proceeding or counterclaim brought by either of the
parties hereto against the other on any matters whatsoever arising out of or in
any way connected with this Lease, the relationship of Landlord and Tenant.
Tenant's use or occupancy of said Premises, or any claim or injury or damage.
The terms "enter," "entry," or "re-entry" as used in this Lease are not
restricted to their technical legal meaning.
(e) No failure by Xxxxxxxx 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
and condition. No waiver of any breach shall affect or alter this Lease, but
each and every covenant, agreement, term and condition of this Lease shall
continue in full force and effect with respect to any other than existing or
subsequent breach thereof. No payment by Tenant or receipt by Landlord of a
lesser amount than the monthly installments of rent or additional rent
stipulated in this Lease shall be deemed to be other than on account of the
earliest stipulated rent nor shall any endorsement or statement on any check or
letter accompanying a cheek for payment of rent be deemed any accord and
satisfaction, and Landlord may accept such check or payment without prejudice to
Landlord's right to recover the balance of such rent or to pursue any other
remedy provided by this Lease.
(f) In the event of any breach or threatened breach by Tenant of any of the
covenants, agreements, terms or conditions contained in this Lease, Landlord
shall be entitled to enjoin such breach or threatened breach and shall have the
right to invoke any right and remedy allowed at law or in equity or by statute
or otherwise.
(g) Each right and remedy of Landlord provided for in this Lease shall be
cumulative and shall be in addition to every other right or remedy provided for
in this Lease or now or hereafter existing at law or in equity or by statute or
otherwise.
ARTICLE 14
Mechanic's Liens
-----------------
14.01 - Mechanic's Liens
------------------------
Xxxxxx agrees to pay when due all sums of money that may become due for, or
purporting to be due for, any labor, services, materials, supplies, or equipment
alleged to have been furnished or to be furnished to or for Tenant in, upon or
about the Premises and/or Landlord's interest therein. If any mechanic's lien
shall be filed against the Premises or the Building based upon any act of Tenant
or anyone claiming through Tenant, Tenant, after notice thereof from Landlord
(or any person in privity of estate with Landlord) forthwith shall commence such
action by bonding, deposit, payment or otherwise, as will remove or satisfy such
lien within fifteen (15) days. In the event Tenant does not remove or satisfy
said lien with said fifteen (15) day period, Landlord shall have the right to do
so by posting a bond or undertaking and Xxxxxx agrees to reimburse Landlord for
any and all expenses incurred by Landlord in connection therewith within five
(5) days after receipt by Tenant of Landlord's invoice therefor. These expenses
include, but are not limited to filing fees, legal fees and bond premiums.
However, nothing in this Article 14 shall be deemed or construed as (a)
Landlord's consent to any person, firm or corporation for the performance of any
work or services or the supply of any materials to the Premises, or (b) giving
Tenant or any other person, firm or corporation any right to contract for or to
perform or supply any work, services or materials that would permit or give rise
to a lien against the Premises or the Building.
ARTICLE 15
Mortgages, Assignments, Subleases and Transfers of Tenant's Interest
--------------------------------------------------------------------
15.01 - Limitation on Tenant's Rights
-------------------------------------
Except as hereinafter otherwise provided, during the term of this Lease, In
each case, without the prior written consent of Landlord first had
and received, which consent shall not be unreasonably withheld or delayed,
neither this Lease nor the interest of Tenant In this Lease, or in any sublease,
or in any rentals under any sublease shall be sold, assigned, transferred,
mortgaged, pledged, hypothecated or otherwise disposed of, whether by operation
of law or otherwise, nor shall the Premises be sublet.
It is understood and agreed between the parties that, should Tenant request
Landlord's consent to a proposed assignment of this Lease or a subletting of
all or any portion of the Premises, Landlord will, in addition to any other
requirements which may be imposed as conditions to Landlord's consent, require
that Tenant execute and deliver to Landlord an agreement whereby Tenant
obligates itself, as additional rent, to pay over to Landlord fifty percent
(50%) of all net rental profits, additional rent and any other consideration
paid by such assignee or sublessee to Tenant, excluding any amount paid for
Tenant's equipment and personal property, pursuant to such assignment or
sublease which is in excess of rent and additional rent due and payable from
time to time from Tenant to Landlord pursuant to this Lease.
No consent by Landlord to an assignment of this Lease and no assignment
made as hereinafter permitted, shall be effective until there shall have been
delivered to Landlord (a) an agreement, in recordable form, executed by Xxxxxx
and the proposed assignee, wherein and whereby such assignee assumes due
performance of the obligation on Tenant's part to be performed under this Lease
to the end of the term hereof, and (b) the written consent of such assignment of
the holder of any fee or leasehold mortgage to which this Lease is then subject
shall have been obtained and delivered to Landlord if so required by the terms
of such fee or leasehold mortgage.
In the event Tenant sublets or assigns this lease the Tenant will be
released from its obligation and the sub-tenant or assignee will assume all
obligations for this lease.
Tenant has the right to assign this lease without consent to affiliates,
subsidiaries or successors, assuming the assignee has equal or greater
financial strength as Tenant. Tenant must still notify Landlord of such
potential assignment.
Any assignment, mortgage, pledge, sublease or hypothecation of this Lease,
or of the interest of Tenant hereunder, without full compliance with any and all
requirements set forth in this Lease shall be a breach of this Lease and a
default hereunder.
15.02 - Effect of Landlord's Consent
------------------------------------
Any consent Landlord sale, assignment, sublease, mortgage, pledge,
hypothecation, or transfer of this Lease, shall apply only to the specific
transaction thereby authorized and shall not relieve Tenant from the requirement
of obtaining prior written consent of Landlord to any further sale, assignment,
sublease, mortgage, pledge, hypothecation, or transfer of this Lease. In
instances where the consent of Xxxxxxxx is required hereunder to any proposed
assignment or sublease of this Lease, or to the mortgaging, pledging or
hypothecation of this Lease, contemporaneously with the request of Tenant
therefor Tenant shall submit in writing information reasonably sufficient to
enable Landlord to decide with respect thereto. Xxxxxxxx shall reply to Tenant
within ten (10) days after receipt of the request as aforementioned.
With respect to any of the consents requested by Xxxxxx under the
provisions of this Article 15, whether or not the Landlord shall have consented
thereto, Tenant shall pay to the Landlord all reasonable counsel fees and other
out-of-pocket expenses incurred by the Landlord in connection therewith.
ARTICLE 16 Subordination of Lease
---------------------------------
16.01 - Subordination to Mortgages and Ground Leases/Non-Disturbance
--------------------------------------------------------------------
This Lease and all the rights of Tenant hereunder are and shall be
automatically subject and subordinate to the lien of any ground or underlying
leases and to any mortgage or mortgages, whether fee or leasehold mortgages,
which may now or hereafter affect the Premises or the Building or the land under
the Building and to all renewals, modifications, consolidations, replacements
and extensions thereof, and advances thereunder. In order to confirm such
subordination, Xxxxxx shall execute and deliver such instruments as may be
requested by any ground lessor or mortgagee and in the event Tenant fails to
do so within ten (10) days after written demand therefor, Xxxxxx does hereby
make, constitute and irrevocably appoint Landlord as its attorney-in-fact to
execute same in Its name and on its behalf.
Landlord will use its best efforts to provide Tenant with a non-
disturbance agreement from any existing or future lender of the building.
16.02 - Other Agreed Matters
--------------------------------
Tenant will not do, suffer or permit any act, happening or occurrence or
any condition to occur or remain which may be prohibited under the terms or
provisions of any ground or underlying lease or mortgage to which this Lease is
subject or which will create a default thereunder except that Tenant shall not
be obligated to pay the principal indebtedness or any installment thereof or
interest thereon. Landlord represents that Xxxxxx's use hereunder is not
prohibited.
So long as any such mortgage or lease shall remain a lien on the Premises,
Xxxxxx agrees simultaneously with the giving of any notice of default to
Landlord which is required to be given by this Lease to give a duplicate copy
thereof to any mortgagee or ground lessor, notice of whose name and address have
been given to Tenant. Further, Xxxxxx agrees that if Landlord defaults in the
performing of any of Its covenants under this Lease and if such default allows
Tenant to cancel or surrender said Lease, the mortgagee or ground lessor may
cure said default with the same effect as if cured by Xxxxxxxx, and if
necessary, enter upon the Premises for the purpose of curing any such default,
provided that the mortgagee or ground lessor must cure the default within the
time which Landlord is obligated to cure such default In the Lease. The giving
of any such notice to Landlord shall not be properly given under the terms of
this Lease and shall not be of any force and effect until a duplicate copy
thereof shall also have been given to the mortgagee or ground lessor pursuant to
this paragraph.
ARTICLE 17 Entry to Premises
----------------------------
17.01 - Entry to Premises by Landlord
-------------------------------------
Provided that at all times Landlord will minimize the interference with
Xxxxxx's business, Landlord shall have the right to enter the Premises at all
reasonable times for the purpose of:
(a) Inspecting the same, and
(b) making any repairs to the Premises and performing any work therein that
may be necessary by reason of Xxxxxx's default under the terms of this Lease
continuing beyond the applicable periods of grace,
(c) exhibiting the Premises for the purpose of sale, ground lease or
mortgage, and
(d) exhibiting the Premises to prospective tenants within six (6) months
prior to the expiration of the term hereof.
ARTICLE 18 Notices and Certificates
-----------------------------------
18.01 - Notices
---------------
Any notice. statement, certificate, request or demand required or permitted
to be given in this Lease shall be in writing sent by recognized overnight
courrier service providing for a receipt upon delivery, or by registered or
certified mail, postage prepaid, return receipt requested, addressed, as the
case may be, to Landlord at the mailing address shown at the beginning of this
Lease, and to Tenant at the address shown at the beginning of this Lease or to
such other addresses as Landlord or Tenant shall designate in the manner herein
provided. Such notice, statement, certificate, request or demand shall be deemed
to have been given one business day after the date deposited with such courrier
or three business days after being mailed as aforesaid in any post office or
branch post office regularly maintained by the United States Government, except
for notice of change of address or revocation of a prior notice, which shall
only be effective upon receipt.
At any time or times when Xxxxxx's interest herein shall be vested in
more than one person, firm or corporation, jointly in common or in severally, a
notice given by Landlord to any one such person, firm or corporation shall be
conclusively deemed to have been given to all such persons, firms or
corporations. Any notice by Tenant pursuant to the provisions hereof shall be
void and ineffective unless signed by all such persons, firms and
corporations, unless all such persons, firms and corporations shall have
previously given notice to Landlord, signed by each of them designating and
authorizing one or more of them to give the notice referred to, and such notice
shall then be unrevoked by any notice to Landlord.
Notices must be mailed to the following addresses and shall only be sent to
another address if requested in writing by party changing address:
TENANT: Community Networks, Inc
Attn: Xxxxx Xxxxxxx
00-00 Xxxxx Xxxxxx
Xxxx Xxxxxx Xxxx, XX 00000
LANDLORD: 000 Xxxxxxxx Xxxxxx Associates
Attn: Xxxx Xxxxxxxxxx
0 Xxxxxxx Xxxxxx
Xxxxxxxx, XX 00000
18 02 - Certificate by Tenant
-----------------------------
Within fifteen (15) days after request by Landlord, Tenant from time to
time and without charge shall deliver to Landlord or to a person, firm or
corporation, specified by Landlord, a duly executed and acknowledged instrument
certifying:
(a) that this Lease is unmodified and in full force and effect, or if
there has been any modification, that the Lease is in full force and effect, as
modified, and identifying the date of any such modification; and
(b) whether Xxxxxx knows or does not know, as the case may be, of any
default by Landlord in the performance by Landlord of the terms,
covenants, and conditions of this Lease, and specifying the nature of such
defaults, if any; and
(c) whether or not there are any then existing set-offs or defenses by
Tenant to the enforcement by Landlord of the terms, covenants and conditions
of this Lease and any modification thereof, and if so, specifying them; and
(d) the date to which the fixed monthly rent has been paid.
ARTICLE 19
Covenant of Outlet
------------------
Employment
----------
19.01 - Covenant of Quiet Enjoyment
-----------------------------------
Tenant, subject to the terms and provisions of this Lease, on payment of
the rent and observing, keeping and performing all the terms and provisions of
this Lease on its part to be observed, kept and performed shall lawfully,
peaceably and quietly have, hold and enjoy the Premises during the term hereof
on and after the Term Commencement Date without hindrance or ejection, by
Landlord and any persons lawfully claiming under Landlord, subject nevertheless
to terms and conditions of this Lease and to any ground or underlying lease
and/or mortgage(s): but it is understood and agreed that this covenant, and
any and all covenants of Landlord contained in this Lease shall be binding
upon Landlord and its successors only with respect to breaches occurring during
its and their respective ownership of Xxxxxxxx's interest hereunder.
ARTICLE 20
Services
--------
20.01 - Services
----------------
During the term of this Lease, while Tenant is not in default hereunder
beyond the applicable notice and cure period hereunder, w Landlord shall furnish
to the Premises electricity, lighting, heating, ventilating, air conditioning,
elevator service, and water to the plumbing fixtures, if any, on Monday through
Friday from 8:00 A.M. to 6:00 P.M. and on Saturday from 9:00 AM. to 1:00 P.M.,
principal legal holidays excepted. The following temperature ranges shall be
maintained during the term of this lease: from 73 degrees to 75 degrees when
outside temperatures are 80 degrees or higher, and settings shall range from
70 degrees to 73 degrees when outside temperatures are 32 degrees or lower. Use
of these services by Tenant outside these days and hours could result in an
additional charge to Tenant which shall be paid by Tenant to Landlord, as
additional rent, within fifteen (15) days following the receipt of an invoice.
Landlord shall also furnish janitorial service consisting of cleaning floors and
removing waste paper each business day. Tenant shall have twenty-four (24) hour
per day, seven (7) day per week access to the building and tenant premises.
20.02 - Interruption of Service
-------------------------------
No diminution or abatement of rent or other compensation shall be claimed
or allowed for inconvenience or discomfort arising from the making of repairs or
improvements to the Building or its appurtenances. There shall be no diminution
or abatement of rent or any other compensation for interruption or curtailment
of any service or utility herein expressly or impliedly agreed to be furnished
by Landlord when such interruption or curtailment shall be due to accident,
alterations, repairs desirable or necessary, or to inability or difficulty in
securing supplies or labor, or to some other cause not gross negligence on the
part of Landlord. No such interruption or curtailment shall be deemed a
constructive eviction. Tenant
agrees that Landlord shall not be responsible for interruption of utility
service caused by any utility company or governmental regulatory agency.
ARTICLE 21
Certain Rights
--------------
Reserved to Landlord
----------------------
21.01 - Certain Rights Reserved to Landlord
-------------------------------------------
Landlord reserves the following rights:
(a) To name the Building and to change the name or street address of the
Building;
(b) To install and maintain a sign or signs on the exterior or interior or
the Building:
(c) To designate all sources furnishing sign painting, and lettering, ice,
drinking water, towels, toilet supplies, shoe shining, vending machines, mobile
vending service, catering, and like services used on the Premises;
(d) During the last ninety (90) days of the term, if during or prior to
that time Tenant vacates the Premises, to decorate, remodel, repair, alter or
otherwise prepare the Premises for reoccupancy, including the placing of a
notice of reasonable size on or in the Premises offering said Premises "For
Rent" or "For Lease", all without affecting Tenant's obligation to pay rental
for the Premises;
(e) To constantly have pass keys to the Premises;
(f) At any time in the event of an emergency, or otherwise at reasonable
times, to take any and all measures, including inspections, repairs,
alterations, additions and improvements to the Premises or to the Building, as
may be necessary or desirable for the safety, protection or preservation of the
Premises or the Building or the Landlord's interests, or as may be necessary or
desirable in the operations or improvement of the Building or in order to comply
with all laws, orders and requirements of governmental or other authority: and
(g) At any reasonable time and from time to time throughout the term of the
Lease show the Premises to persons wishing to purchase the Building.
Nothing in this Lease shall imply any duty on the part of the Landlord to do
work which, under any of the provisions of this Lease Tenant may be required to
perform, and the performance thereof by Landlord shall not constitute a
constructive eviction nor a waiver of Tenant's default in failing to so perform.
In the event Landlord performs or causes any such work to be performed, Tenant
shall pay the cost thereof to Landlord forthwith as additional rent upon receipt
of Landlord's invoice therefor. No exercise by Landlord of any rights provided
in this paragraph 21.01 or elsewhere in this Lease shall entitle Tenant to any
damages for inconvenience, disturbance, loss of business or other damage to
Tenant occasioned thereby nor to any abatement of rent or additional rent.
ARTICLE 22
Miscellaneous
-------------
Provisions
----------
22.01 - Holdover
----------------
Should Tenant continue to occupy the Premises after the expiration of the
term hereof or after a forfeiture incurred, whether with or against the consent
of Landlord, such tenancy shall be from month-to-month,
and such month-to-month tenancy shall be under all the terms, covenants and
conditions of this Lease, and at double the rent reserved herein. However, if
Xxxxxx notifies Landlord in writing upon three months prior notice, Tenant may
holdover for three months at the Tenant's then escalated rent. Tenant shall pay
125% of their then escalated rent thereafter.
22.02 - Limitation on Personal Liability
----------------------------------------
(a) It is understood and agreed that Tenant shall look solely to the estate
and property of Landlord in the Building for the satisfaction of Xxxxxx's
remedies for the collection or a judgment (or other judicial process) requiring
the payment of money by Landlord in the event of any default or breach by
Landlord with respect to any of the terms, covenant, and conditions of this
Lease to be observed and/or performed by Landlord and any other obligation of
Landlord created by or under this Lease and no other property or assets of
Landlord or of its partners, beneficiaries, co-tenants, shareholders, or
principals (as the case may be) shall be subject to levy, execution or other
enforcement procedures.
(b) The term "Landlord," as used in subparagraph 22.02(a) above and
throughout this Lease, so far as covenants and agreements on the part or the
Landlord are concerned, shall be limited to mean and include only the owner or
owners at the time in question of the Building and Lease. Further, in the event
of any transfer or transfers of the title to the said Lease and/or the Building,
Landlord herein named (and in case of any subsequent transfers or conveyances,
the then grantor), including each of its partners, beneficiaries, co-tenants,
shareholders, or principals (as the case may be), shall, be automatically freed
and relieved from and after the date of such transfer and conveyance of all
liability as respects the performance of any covenants and agreements on the
part of Landlord. Landlord or the grantor shall turn over to the grantee all
monies and security, if any, then held by Landlord or such grantor on behalf of
Tenant and shall assign to such grantee all right, title and interest of
Landlord or such grantor thereto, it being intended that the covenants and
agreements contained in this Lease on the part of Landlord to be performed
shall, subject as aforesaid, be binding on Landlord, its successors and assigns.
22.03 - No Representations by Landlord
--------------------------------------
Landlord or Landlord's agents have made no representations or promises
with respect to the Building, the land upon which the Building is erected or
the Premises except as herein expressly set forth in the provisions of this
Lease.
22.04 - Xxxxx Xxxxxxx
---------------------
All covenants in this Lease which are binding upon Tenant shall be
construed to be equally applicable to and binding upon Tenant's agents,
employees and others claiming the right to be in the Premises or in the Building
through or under Tenant.
If more than one individual, firm or corporation shall join as Tenant,
the singular context shall be construed to be plural wherever necessary and the
covenants of Tenant shall be the joint and several obligations of each party
signing as Tenant, and, when the parties signing as Tenant are partners, shall
be the joint and several obligations of the firm and of the individual members
thereof..
22.05 - Vaults, Vault Space, Etc.
--------------------------------
No vaults, vault space or space not within the property line of the
Building is leased hereunder, anything contained in or indicated on any sketch,
blueprint or plan, or anything contained elsewhere in this Lease to the contrary
notwithstanding. Landlord makes no representations as to the location of the
property line of the Building. All vaults and vault space and all
space not within the property line of the Building, which Tenant may be
permitted to use and/or occupy, is to be used and/or occupied under a revocable
license, and if any such license be revoked, or if the amount of such space be
diminished or required by any Federal, State, Municipal Authority or public
utility, Landlord shall not be subject to any liability nor shall Tenant be
entitled to any compensation or diminution or abatement of rent, nor shall such
revocation, diminution or requisition be deemed constructive or actual
eviction. Any fee or charge of municipal authorities for such vault shall be
paid by Tenant.
22.06 - Failure to Give Possession
----------------------------------
If Landlord shall not be able to turn space over substantially completed
to Tenant by July 15, 1999, then for each day of delay at substantial completion
Tenant shall receive three (3) additional days of rent abatement.
22.07 - Force Majeure
---------------------
The period of time during which either party is prevented or delayed, in
the performance or the making of any improvements or repairs or fulfilling any
obligation other than the payment of fixed monthly rent or additional rent
required under this Lease due to unavoidable delays caused by fire, catastrophe,
strikes or labor trouble, civil commotion, Acts of God or the public enemy,
governmental prohibitions or regulation or inability to obtain materials by
reason thereof, or other causes beyond such party's reasonable control, shall be
added to such party's time for performance thereof, and such party shall have no
liability by reason thereof.
22.08 - Attornment by Tenant
------------------------------
If at any time during the term of this Lease Landlord hereunder shall be
the holder of a leasehold estate covering premises which include the Premises
and if such leasehold estate shall be cancelled or otherwise terminated prior to
the expiration date thereof and prior to the expiration of the term of this
Lease or in the event of the surrender thereof whether voluntary, involuntary or
by operation of law, Tenant shall make full and complete attornment to the
lessor of such leasehold estate for the balance of the term of this Lease upon
the same covenants and conditions as are contained herein so as to establish
direct privity between such lessor and Tenant and with the same force and effect
as though this Lease was made directly from such lessor to the Tenant. Tenant
shall make all rent payments thereafter directly to such, lessor. In the event
any proceedings are brought for the foreclosure of, or in the event of
conveyance by deed in lieu of foreclosure of, or in the event of exercises of
the power of sale under any mortgage or deed or trust made by Landlord covering
the leases Premises, or in the event Landlord sells, conveys or otherwise
transfers its interest in the Building or any portion thereof containing the
leased Premises, Tenant shall attorn to and hereby covenants and agrees to
execute an instrument in writing reasonably satisfactory to the new owner
whereby Tenant attorns to such successor in interest and recognizes such
successor as the Landlord under this Lease.
22.09 - Landlord May Pay Tenant's Obligations
---------------------------------------------
All costs and expenses which Xxxxxx assumes or agrees to pay under the
provisions of this Lease shall at Landlord's election be treated as additional
rent, and in the event of nonpayment, Landlord shall have all the rights and
remedies herein provided for in case of nonpayment of rent or of a breach of
covenant. If Tenant shall default, beyond the applicable notice and cure period,
in making any payment required to be made by Tenant (other than the payment of
rent as provided by Article 3 above) or shall default in performing any term,
covenant or condition of this Lease on the part of Tenant to be performed which
shall involve the expenditure of money by Tenant, Landlord at Landlord's option
may, but shall not be obligated to,
make such payment or, on behalf of Tenant, expend such sum as may be necessary
to perform and fulfill such term, covenant or condition, and any and all sums so
expended by Landlord, with interest thereon at the rate of one and one-half
percent (1-1/2%) per month from the date of such expenditure, shall be and be
deemed to be additional rent, in addition to the rent provided in Article 3 and
shall be repaid by Tenant to Landlord on demand, but no such payment or
expenditures by Landlord shall be deemed a waiver of Tenant's default nor shall
it affect any other remedy of Landlord by reason of such default.
22.10 - Effect of Captions
--------------------------
The captions or legends on this Lease are inserted only for convenient
reference or identification of the particular paragraphs. They are in no way
intended to describe, interpret, define or limit the scope, extent or intent of
this Lease, or any paragraph or provision thereof.
22.11 - Tenant Authorized to Do Business in New York
----------------------------------------------------
Tenant represents and covenants that it is and throughout the term of this
Lease shall be authorized to do business in the State of New York.
22.12 - Execution in Counterparts
---------------------------------
This Lease may be executed in one or more counterparts, any one or all of
which shall constitute but one agreement.
22.13 - Memorandum of Lease
---------------------------
Xxxxxx agrees, if requested by Xxxxxxxx, to execute a Memorandum of Lease
in recordable form pursuant to Section 291-c of the Real Property Law. of the
State of New York.
22.14 - Law Governing, Effect and Gender
----------------------------------------
This Lease shall be construed in accordance with the laws of the State of
New York and shall be binding upon the parties hereto and their respective legal
representatives, successors and assigns except as expressly provided otherwise.
Use of the neuter gender shall be deemed to include the masculine or feminine,
as the sense requires. Any reference to successors and assigns of Tenant is not
intended to constitute a consent to any assignment by Xxxxxx but has reference
only to those Instances in which Xxxxxxxx may later give consent to a particular
assignment as required by the provisions of Article 15 hereof.
22.15 - Amendments
------------------
The parties hereto mutually agree that so long as a mortgage or any
extension thereof shall be a lien upon the Premises, they will not reduce the
rents from that provided for in this Lease, provide for payments of rents prior
to the time herein provided for, nor terminate said Lease, except as set forth
herein, prior to the end of the term, except as otherwise provided in this
Lease, without first obtaining the consent of the mortgagee in writing, and that
any such proposed modification or termination without said mortgagee's consent
shall be void as against said mortgagee.
22.16 - Complete Agreement
--------------------------
This Lease contains and embraces the entire Agreement between the parties
hereto and it or any part of it may not be changed, altered, modified,
limited, terminated, or extended orally or by any agreement between the parties
unless such agreement be expressed in writing, signed and acknowledged by the
parties hereto, their legal representative, successors or assigns, except as may
be expressly otherwise provided herein.
22.17 - Invalidity of Particular Provisions
-------------------------------------------
If any term or provision of this Lease or the application thereof to any
person or circumstances shall to any extent, be invalid or unenforceable, the
remainder of this Lease, or the application of such term or provision to persons
or circumstances other than those as to which it is held invalid or
unenforceable, shall not be affected thereby and each term and provision of this
Lease shall be valid and be enforced to the fullest extent permitted by law.
22.18 - Execution of Lease by Landlord
--------------------------------------
The submission of this document for examination and negotiation does not
constitute an offer to lease, or a reservation of, or option for, the Premises
and this document becomes effective and binding only upon the execution and
delivery hereof by Landlord and by Xxxxxx. All negotiations, considerations,
representations and understandings between Landlord and Tenant are incorporated
herein and may be modified or altered only by agreement in writing between
Landlord and Tenant, and no act or omission of any employee or other agent of
Landlord shall alter, change or modify any of the provisions hereof.
22.19 - Relationship of the Parties
-----------------------------------
Nothing contained herein shall be deemed or construed by the parties hereto
nor by any third party as creating the relationship of principal and agent or
of partnership or of joint venture between the parties hereto, it being
understood and agreed that neither the method of computation of rent nor any
other provision herein contained, nor any acts of the parties hereto, shall be
deemed to create any relationship between the parties hereto other than Landlord
and Tenant.
22.20 - Renewal Option
----------------------
Tenant shall have two (2) consecutive five (5) year lease renewal options
for up to 100% of Tenant's space then under lease at the lesser of 90% of fair
market or the then escalated rate. At the exercise of each option, the space
will be repainted and recarpeted at Landlord's expense. Replacement costs
including Landlord concessions and marketing time will be utilized to determine
fair market rent in each renewal period.
22.21 - Existing Tenant Obligation
----------------------------------
Landlord shall assume Community Network's, Inc. current lease obligations
at 000 Xxxxx Xxxxxx Xxxxxx, Xxxxxxxx, XX from the time of rent commencement at
000 Xxxxxxxx Xxxxxx, Community Networks current lease at 000 X.Xxxxxx Xxxxxx
expires 12/31/00. In the event Community Networks, Inc. is released from any or
all of it's rent obligation at 000 X.Xxxxxx Xxxxxx prior to lease expiration,
then Landlord will cover only whatever obligation is left, if any.
22.22 - Exterior Building Signage
---------------------------------
Xxxxxxxx will agree to work with Xxxxxx, and Tenant at Tenant's sole cost
and expense, will be allowed to install a sign on the building. Location, size
style, and design must all be approved by Landlord, which approval shall not be
unreasonably withheld or delayed.
22.23 - Right of First Refusal
------------------------------
Tenant shall have an ongoing Right of First Refusal on adjacent vacant
space in the building. Should Tenant exercise a
refusal right, the rental rate shall be at the same terms and conditions of the
other offer.
22.24 - Additional Tenant Improvements
--------------------------------------
Tenant, at Tenant's option, shall have the right to amortize up to an
additional $10.00 per rentable square feet over the entire lease term at an
interest rate of nine percent (9%). This allowance may be applied towards any
hard or soft, construction or moving-related costs, included but not limited to
construction, furniture, telecommunications, professional fees or moving
expenses.
22.25 - Brokerage
-----------------
Landlord and Xxxxxx represent that Equis of N.Y. is the sole brokerage
company related to this lease agreement and Landlord will pay Equis of N.Y. a
real estate commission per a separate agreement between Equis or N.Y. and
Landlord.
22.26 - Other Provisions
------------------------
Landlord will use its best efforts to provide Tenant with a nondisturbance
agreement from the lendor of the building.
Landlord shall provide a pad space outside the building approximately 10
feet by 10 feet for tenant's gas emergency generator and day tank.
IN WITNESS WHEREOF, Xxxxxxxx and Xxxxxx have executed this Lease as of
the day and year first above written.
LANDLORD:
--------
244 Xxxxxxxx Associates, LLC.
Date: 6/25/99 By: Xxxx Xxxxxxxxxx
---------------------------------------- ----------------------------
Date: 6/25/99 By: [SIGNATURE ILLEGIBLE]
---------------------------------------- ----------------------------
TENANT
------
Community Networks, Inc.
Date: 6/16/99 By: Xxxxx Xxxxxxx
---------------------------------------- ----------------------------
Date: 6/16/99 By: [SIGNATURE ILLEGIBLE]
---------------------------------------- ----------------------------
STATE OF NEW YORK )
COUNTY OF ONONDAGA )SS.:
On this 25th day of June, 1999, before me personally came Xxxxxxx
[ILLEGIBLE], to me personally known, who, being by me duly sworn, did depose and
say that he resides in Liverpool, New York; that he is a Partner of 224 Xxxxxxxx
Associates, LLC, that he is known to me to be one of the partners of the
Partnership that executed the within instrument; and he is acknowledged to me
that he executed the same on behalf of and in the name of such Partnership as
Landlord.
/s/ Xxxxxxx Xxxxx
-----------------------------
Notary Public
XXXXXXX XXXXX
NOTARY PUBLIC, State of New York
Qualified in Onondaga County
Reg. No. 01F1505053373
My Commission Expires 12/13/99
STATE OF NEW YORK )
COUNTY OF QUEENS )SS.:
On this 16th day of June, 1999, before me personally came Xxxxx X.
Xxxxxxx, to me personally known, who, being by me duly sworn, did depose and say
that he resides at 00 Xxxxxxxxx Xx. Mt. Xxxxx, NY 10543 and who acknowledges
that he executed the within instrument as Tenant.
/s/ Xxxxxx X. Xxxxx
-----------------------------
Notary Public
Notary Public
State of New York
Xxxxxx X. Xxxxx
ID #01BR6019598
Exp. Feb, 08, 2001
STATE OF NEW YORK )
COUNTY OF )SS.:
On this __ day of __________, 199_, before me personally came________
________,to me personally known, who, being by me duly sworn, did depose and say
that he resides in ___________________________; that he is the________________
___________________ of ____________________________, the corporation described
in, and which executed the within instrument; that he signed his name thereto by
order of the Board of Directors of said corporation.
-----------------------------
Notary Public
EXHIBIT "A"
FLOOR PLAN(S)
--------------
OUTLINING PREMISES
------------------
EXHIBIT "C"
LANDLORD'S WORK
---------------
Landlord will provide Tenant with a twenty-five dollar ($25.00/sq.ft.) per
square foot buildout allowance for the demised space.
In addition, to the $25.00/sq.ft. allowance, Landlord shall do the following
work as Base Building Work:
. Deliver the premises demised and secure in
broom clean condition and ready for new
tenant construction.
. Comply with ADA and local building life
safety codes throughout the lease term.
. Provide pad space (10 x 10) for tenant's gas
emergency generator and access to same from
designated platform, size of pad space may
vary.
. Provide access way for an electrical conduit
from generator to Tenant's ATC switch
located at the Tenants service breaker as
designated by the Landlord.
. Provide the right and access to install
horizontal and vertical conduit for fiber
optics and for MCM Ground, subject to
Landlord's approval, which shall not be
unreasonably withheld.
. Provide freight elevator access capable of
handeling Tenant's switch and battery items.
If freight elevator and area is not capable
of this requirement than Landlord will be
responsible for renting a crane and booming
the equipment into the demised premises.
Tenant and Landlord shall agree on rating
certification of crane.
. Provide a minimum of 125 lbs. per square
foot floor loading to the demised premises.
. From existing building electric service
Landlord will provide Tenant with 800 amp
service.
Tenant and Landlord agree that Landlord will upgrade electric capacity by 1200
amps. This coat shall be divided accordingly, 2/3 of the cost to Tenant and 1/3
of the cost to Landlord. Xxxxxxxx's cost is not part of the Base Building Work.
In conjunction with Xxxxxxxx's work to be done by July 15, 1999, Landlord
will upgrade the forth floor loading, beyond the 125 lbs. per square foot, in
designated areas. This cost shall not be part of Landlord's Base Building Work.
A floor plan is to be provided by Xxxxxx as to the layout of the switch room.
EXHIBIT "D"
TENANT'S WORK and
-----------------
TENANT'S INSURANCE REQUIREMENTS
-------------------------------
TENANT'S WORK
-------------
Tenant to take the space in as is condition accept for the Base Building items
listed in Landlord's work in Exhibit "C". Tenant will be responsible for all
construction on the demised premises and will use the landlord's buildout
allowance to do the same. Any cost above and beyond the landlord's buildout
allowance will be at the cost of the tenant.
In fulfillment of its obligations pursuant to Paragraph 4.03 of this
Lease, Tenant shall carry, at its own expense, and shall name Landlord as
additional insured upon the following insurance coverages in the following
amounts:
(a) Comprehensive General Liability including completed operations,
explosions, collapse and underground operations, if any; broad form property
damage including completed operations, protective liability, contractual
liability and indemnity:
$1,000,000 - Each Occurrence
(b) Personal Injury (with employment exclusion deleted and
contractual exclusion deleted):
$1,000,000 - Occurrence and Aggregate
(c) Auto Liability (including non-owned and hired vehicles):
$250,000/$500,000 - Bodily Injury
$250,000 - Property Damage
(d) Statutory Worker's Compensation, Employers' Liability an
Disability Benefits:
Unlimited
(e) Excess Liability, Umbrella Form: $1,000,000 and any other special
insurance as required by Landlord so as to fully protect Landlord against loss
or damage throughout the period during the Tenant's Work is being performed.
EXHIBIT E
RULES AND REGULATIONS
(a) Tenant shall not exhibit, sell or offer for sale on the Premise or in
the Building any article or thing except those articles and things essentially
connected with the stated use of the Promises by the Tenant without the advance
consent of Landlord, nor shall Tenant install or permit to be installed any
vending machines in the Premises, other than those vending machines used soley
by employees, customers, or visitors.
(b) Tenant will not make or permit to be made any use of the Premises or
any part thereof which would violate any of the covenants, agreements, terms,
provisions and conditions of this Lease or which directly or Indirectly may be
dangerous to life, limb, or property, or which may invalidate or increase the
premium cost of any policy of insurance carried on the Building or covering its
operation, or which will suffer or permit the Premises or any part thereof to
be used in any manner including storage therein which, in the judgement of
Landlord, shall in any way impair the character, reputation or appearance of the
Building as a high quality office building, or which will impair or interfere
with or tend to impair or interfere with any of the services performed by
Landlord for the Building.
(c) Tenant shall not display, inscribe, print, paint, maintain or affix on
any place in or about the Building any sign, notice, legend, direction, figure
or advertisement, without consent of Landlord, which consent shall not be
unreasonably withheld. The listing of any name other than that of Tenant,
whether at the doors of the Premises, on the Building directory, or otherwise,
shall not operate to vest any right or interest in this Lease or in the
Premises or be deemed to be the written consent of Landlord mentioned in Article
12, it being expressly understood that any such listing is a privilege extended
by Landlord revocable at will by written notice to Tenant. Tenant will be
allowed to place a sign on the outside sign directly below Xxx's Cafe sign.
Landlord must approve of the size and color. Approval by Landlord not to be
unreasonably withheld.
(d) Tenant shall not advertise the business, profession or activities of
Tenant conducted in the Building in any manner which violates the letter or
spirit of any code of ethics adopted by any recognized association or
organization pertaining to such business, profession or activities, and shall
not use the name of the Building for any purpose other than that of the
business address of Tenant, and shall never use any picture or likeness of the
Building in any circulars, notices, advertisements or correspondence without the
Landlord's consent.
(e) No additional locks or similar devices shall be attached to any door
or window other than those provided in Exhibit A, attached hereto, without
Landlord's written consent. No keys for any door other than those provided by
the Landlord shall be made. If more than one key per employee for one lock is
desired, Landlord will provide the same upon payment by Xxxxxx. All keys must be
returned to Landlord at the expiration or termination of this Lease.
(f) All persons entering or leaving the Building between the hours of 6
p.m. and 8 a.m. Monday through Friday, or any time on Saturdays, Sundays or
holidays, may be required to do so under such regulations as Landlord may
impose. Landlord may exclude or expel any peddler, unless specifically otherwise
provided in the lease.
(g) Tenant shall not overload any floor. Landlord may direct the time and
manner of delivery, routing and removal of all items that are delivered to the
Building for the Tenant's use and may specify the location of safes and other
heavy articles. Fire proof files are located on Exhibit A, attached hereto.
(h) Unless Landlord gives advance written notice, Tenant shall not install
or operate any steam or internal combustion engine, machinery, refrigerating or
heating device or air-conditioning apparatus in or about the Premises, or carry
on any mechanical business herein, or use the Premises for housing
accommodations or lodging or sleeping purposes, or do any cooking therein or use
any illumination other than electric light, or use or permit to be brought into
the building any flammable fluids such as gasoline, kerosene, naphta, bonzing
and solvents, or any explosives, radioactive materials or other articles deemed
extra-hazardous to life, limb or property except in a manner which would violate
any ordinance or regulation or any condition imposed by the standard fire
insurance policy issued for office buildings in the municipality where the
Building is located, or do or permit anything to be done, or keep or permit
anything to be kept, in the Premises, which would increase the fire or other
casualty insurance rate on the Building or the
property therein, or which would result in insurance companies of good standing
refusing to insure the Building or any such property in amounts reasonably
satisfactory to Landlord, Tenant shall not use the Premises for any illegal or
immortal purpose. Tenant is allowed to have a microwave, soda machine,
refrigerator, dishwasher and coffee pot in office space for it's sole use.
(i) Tenant shall cooperate fully with Landlord to assure the effective
operation of the Building's air-conditioning system, including the closing of
blinds and drapes, and if windows are operable to keep them closed when the air-
conditioning system is in use. Landlord shall provide, heating and air
conditioning according to the standard Ashrac conditions, except in the two
designated areas as noted on Exhibit D which need additional cooling.
(j) Tenant shall not contract for any work or service which might involve
the employment of labor unreasonably incompatible with the Building employees or
employees of contractor doing work or performing services by and on behalf of
Landlord, during the times when the Landlord is doing work.
(k) The sidewalks, halls, passages, exits, entrances, elevators and
stairways shall not be obstructed by Tenant or used for any purpose other than
for ingress to and egress from its Premises. The halls, passages, exits,
entrances, elevators, stairways and roof are not for the use of the general
public and Landlord shall in all cases retain the right to control and prevent
access thereto by all persons whose presence, in the judgement of Landlord,
shall be prejudicial to the safety, character, reputation and interests of the
Building and Its tenants, provided that nothing herein contained shall be
construed to prevent such access to persons with whom Tenant normally deals, in
the ordinary course of Tenant's business unless such persons arc engaged in
illegal activities. No tenant and no employees or invites or any tenant shall go
upon the roof or into the mechanical rooms of the Building.
(l) Tenant shall not use, keep or permit to be used or kept any foul or
noxious gas or substance in the Premises, or permit or suffer the Premises to be
occupied or used in a manner offensive or objectionable to Landlord or other
occupants of the Building by reason or noise, odors and/or vibrations, or
interfere in any way with other tenants or those, having business herein, nor
shall any animals or birds be brought in or kept in or about the Premises of
the Building.
(m) With respect to the Premises Tenant shall see that the doors and
windows, if operable, are closed and securely locked before leaving the Building
and must observe strict care and caution that all water faucets or water
apparatus are entirely shut off before Tenant or Tenant's employees leave the
Building, and that all electricity shall likewise be carefully shut off so as to
prevent waste or damage, exception being that certain computers be loft on 24
hours per day 7 days per week due to the nature of Tenant's business. The
building hours are from 7 a.m. no 6 p.m. Monday thru Friday. After these hours
Tenant will have access Into the building with a "card-key" system.
(n) There shall not be used in any space, or in the public halls of the
Building, either by any tenant or by jobbers or others, in the delivery or
receipt of merchandise, any hand trucks, except those equipped with rubber tires
and side guards. All removals, or, the, carrying in or out of any safes,
freight, furniture or bulky matter of any description must take place during the
hours which the Landlord or its Manager may reasonably determine from time to
time, The Landlord reserves the right to exclude from the Building all freight
which violates any or the Rules and Regulations or the Lease of which these
Rules and Regulations are a part.
(o) Tenant shall have the non-exclusive right in common with others to
whom Landlord has or may hereafter grant rights, to use the Building Common
Areas and the Outside Common Areas as designated from time to time by
Landlord, subject to such reasonable regulations as Landlord may impose. All
parking areas in or about (per Exhibit C) the Building provided by Landlord
shall be subject to the exclusive control and management of the Landlord, unless
specifically otherwise provided in the lease. Landlord shall have the right
to reasonably designate from time to time, specific areas in which cars owned or
used by Tenant. Its permitted officers, partners, employees, clients, visitors
and agents must be parked. If Landlord shall designate such specific parking
areas and if any car of Tenant or its permitted officers, partners, employees or
agents of Tenant is parked In any other portion of the parking area, then Tenant
shall pay to Landlord after being warned by Landlord in writing one prior time,
upon demand, the sum of Ten Dollars ($10.00) for each such car for each day, or
part thereof, such car is so parked, and Tenant hereby authorizes Landlord to
tow or cause any such car to be towed to the then designated parking area and
agrees to reimburse Landlord for the cost thereof, upon demand.
