Exhibit 10.27.1
STANDARD
OFFICE SPACE LEASE
Name of Office Building: WOODCLIFF III
Location of Office Building: 000 XXXXXXXXX XXXXX
XXXXXXXX, XXX XXXX 00000
Landlord: 000 XXXXXXXXX XXXXX COMPANY
Tenant: PAETEC COMMUNICATIONS, INC.
TABLE OF CONTENTS
ARTICLE 1............................................................... 2
Premises............................................................. 2
ARTICLE 2............................................................... 2
Term of Lease........................................................ 2
ARTICLE 3............................................................... 3
Rent, Taxes and Lease Year........................................... 3
ARTICLE 4............................................................... 5
Construction, Financing and Alterations.............................. 5
ARTICLE 5............................................................... 6
Use of Premises...................................................... 6
ARTICLE 6............................................................... 6
Operating Costs...................................................... 6
ARTICLE 7............................................................... 7
Energy Costs and Water............................................... 7
ARTICLE 8............................................................... 8
Repairs and Compliance............................................... 8
ARTICLE 9............................................................... 9
Indemnity............................................................ 9
ARTICLE 10.............................................................. 10
Insurance............................................................ 10
ARTICLE 11.............................................................. 11
Fire and Other Casualties............................................ 11
ARTICLE 12.............................................................. 11
Eminent Domain....................................................... 11
ARTICLE 13.............................................................. 12
Bankruptcy and Default Provisions.................................... 12
ARTICLE 14.............................................................. 14
Mechanic's Liens..................................................... 14
ARTICLE 15.............................................................. 14
Mortgages, Assignments, Subleases and Transfers of Tenant's Interest. 14
ARTICLE 16.............................................................. 15
Subordination of Lease............................................... 15
ARTICLE 17.............................................................. 16
Entry to Premises.................................................... 16
ARTICLE 18.............................................................. 16
Notices and Certificates............................................. 16
ARTICLE 19.............................................................. 16
Covenant of Quiet Enjoyment.......................................... 16
ARTICLE 20.............................................................. 17
Services............................................................. 17
ARTICLE 21.............................................................. 17
Certain Rights Reserved to Landlord.................................. 17
ARTICLE 22.............................................................. 17
Miscellaneous Provisions............................................. 17
STANDARD
OFFICE SPACE LEASE
This Lease made effective as of the 10TH DAY OF JULY, 1998, is by and between
the following parties:
Landlord: 000 XXXXXXXXX XXXXX COMPANY
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a partnership organized and existing under the laws of the State of New York
with its mailing address for notices and a principal office at:
c/o THE WIDEWATERS GROUP, INC.
0000 XXXXXXXXXX XXXXXXX
X.X. XXX 0
XXXXXX, XXX XXXX 00000-0000
Attention: (Lease Administration)
hereinafter referred to as the "Landlord", and
Tenant: PAETEC COMMUNICATIONS, INC.
------------------------------
(Correct Legal Name of Tenant)
a corporation organized and existing under the laws of the State of New York
with its principal office at:
000 XXXXXXXXX XXXXX
-------------------
XXXXXXXX, XXX XXXX 00000
-------------------------
ATTN: Xx. Xxxxxx X. Xxxxxxxx, President
----- ---------------------------------
(Person or Office to Receive Notices)
Fed. Tax ID # 16 - 1551095
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hereinafter referred to as the "Tenant."
Landlord has appointed The Widewaters Group, Inc. the Managing Agent, and
Landlord has granted to The Widewaters Group, Inc. the authority to rent,
operate and manage the Building on behalf of and in the name of Landlord.
1
WITNESSETH:
ARTICLE 1
Premises
1.01 - Premises
Landlord hereby leases to Tenant and Tenant hereby leases and hires
from Landlord those certain premises in the WOODCLIFF III Office Building
(hereinafter called the "Building") which is located in the County of Monroe and
State of New York, which premises are located on the first (1st) and second
(2nd) floor(s) of the Building and are outlined on the floor plan(s) attached
hereto and made a part hereof as Exhibit "A" (said premises being hereinafter
called the "Premises"), together with the right to use, in common with others,
the Building Common Areas and Outside Common Areas as hereinafter defined. For
purposes of this Section 1.01, the sum of the square feet in the Premises and
Tenant's share of Building Common Areas (as defined in Section 1.02 hereof)
shall be 8,397 leasable square feet from the Term Commencement Date through the
day prior to the "Delivery Date" of the "Expansion Premises" (as such terms are
defined in Section 22.27, below, and 16,452 leaseable square feet from and after
the Delivery Date. 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, the
concrete floor surface 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 Tenant's use of the Premises. No right to use any part of the
exterior of the Building and no easement for light or air are included in the
lease of the Premises hereby made.
1.02 - Definition of Building Common Areas
"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
is from time to time devoted to uses associated with the Building, and any
adjacent, contiguous or other land which may from time to time be devoted to
uses associated with the Building, together with such improvements as may from
time to time be erected upon or under any of such lands, including, but not
limited to, parking areas, lighting facilities, utility lines, sidewalks,
covered walkways, underground walkways, driveways, plazas, courts, retaining
walls, access roads, truck serviceways and landscaped areas, signs and
equipment.
ARTICLE 2
Term of Lease
2.01 - Term
The initial term of this Lease shall commence as of July 10, 1998
("Term Commencement Date"), and shall expire on December 31, 1999 ("Expiration
Date"), unless earlier termination pursuant to the terms hereof."
The word "term" shall, unless otherwise expressly provided to the contrary,
be deemed to include the initial and any renewal term.
2.02 - INTENTIONALLY DELETED.
2.03 - INTENTIONALLY DELETED.
2.04 - Condition of Premises
Tenant's taking possession shall be conclusive evidence as against
Tenant that the Premises was in good order and satisfactory condition when
Tenant took possession. At the termination of this Lease, Tenant shall return
the Premises broom clean and in as good condition as when Tenant 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.
2.05 - Tenant's Trade Fixtures and Personal Property
Upon the expiration or sooner termination of this Lease, Tenant shall
remove all of its trade fixtures and other property from the Premises and shall
promptly repair any damage caused to the Premises or to the Building by such
removal. If the Tenant fails to so remove any trade fixtures or other property
of Tenant prior to vacating the Premises, such fixtures and/or other property
shall be deemed abandoned by Tenant and shall become the property of Landlord
or, at Landlord's option, Landlord may cause the fixtures or property to be
removed at Tenant's expense.
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ARTICLE 3
Rent, Taxes and Lease Year
3.01 - Fixed Monthly Rent
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, fixed monthly rent in accordance with the
following schedule:
MONTH OF INITIAL TERM: FIXED MONTHLY RENT:
---------------------- -------------------
Term Commencement Date through
the day prior to the Delivery
Date of the Expansion Premises: $12,788.96
Delivery Date through the end of
the initial term of this
Lease, inclusive: $25,878.34
(sometimes referred to herein as "Fixed Monthly Rent"), payable in advance upon
the first day of each calendar month during the term hereof. The monthly
installment shall be deemed to have been paid upon such first day only if
actually received by such first day.
If the term or payment of rent shall commence or terminate 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 or the date payment of rent
shall commence, and on the first day of the last calendar month, a pro rata
portion of the Fixed Monthly Rent for the first and last fractional calendar
month, respectively, prorated on a per diem basis with respect to such
fractional calendar month(s).
3.02 - Taxes
(a) Landlord shall, in the first instance, pay during the term of this Lease,
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, plus (ii)
twelve percent (12%) of such real property taxes for overhead expenses. The
amounts required to be paid by Landlord or any tenant or occupant of the
Building pursuant to any Payment in Lieu of Tax Agreement entered into with a
taxing authority having jurisdiction over the Building shall be considered for
the purposes of this Lease to be included within the definition of Building
Taxes.
(b) During the term of this Lease, Tenant agrees to pay to Landlord as
Additional Rent, Tenant's Allocable Share (computed pursuant to Section
22.10(b) hereof) of the amount by which Building Taxes payable by Landlord
under Section 3.02(a) above for each lease year exceeds said Building Taxes
payable during the Tax Base Year as hereinafter defined. The term "Tax
Base Year" for purposes of this Lease shall mean the 1997-1998 school tax
year for School Taxes and the 1998 calendar year for State, Town and County
Taxes. At the beginning of each lease year, Landlord will submit to Tenant
Landlord's estimate of the increases in Building Taxes for the following
lease year. Within ten (10) days after receipt of such estimate, (and
thereafter on the first day of each month without invoice) Tenant shall pay
to Landlord an amount equal to one twelfth (1/12) of Tenant's Allocable
Share of such estimated increase. At the end of each lease year or partial
lease year, Landlord will furnish to Tenant a statement setting forth the
actual Building Taxes payable during such lease year, comparing such actual
Building Taxes with the Building Taxes for the Tax Base Year and also
comparing Tenant's Allocable Share of the increase as estimated by Landlord
and paid by Tenant with Tenant's Allocable share of the actual increase in
Building Taxes for such lease year. Any overpayment or underpayment by
Tenant shall be promptly adjusted by payment within fifteen (15) days of
the balance of any underpayment for such year by Tenant to Landlord, or by
Landlord to Tenant of the balance of any overpayment for such year, or at
Landlord's election by applying such overpayment by Tenant as a credit to
the next succeeding monthly installments of increases in Building Taxes, or
to offset any then existing monetary default by Tenant under this Lease. A
copy of a tax xxxx or assessment xxxx submitted by Landlord to Tenant shall
at all times be sufficient evidence of the amount of Building Taxes levied
or assessed against the property to which such xxxx relates.
(c) 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.
(d) Should any governmental taxing authority acting under any present or future
law, ordinance or regulation, levy, assess or impose a tax, excise,
surcharge and/or assessment (other than a tax on net rental income or
franchise tax) upon or against the rents payable by Tenant to Landlord, or
upon or against the Building, the Building Common Areas or the Outside
Common Areas, either by way of substitution for or in addition to any
existing tax on land or buildings or otherwise, Tenant shall be responsible
for and shall pay Tenant's Allocable Share of such tax, excise, surcharge
and/or assessment in the manner provided in Subsection (b) above.
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(e) Landlord may seek a reduction in the assessed valuation (for real estate
tax purposes) of the Building in which the Premises is situate by
administrative or legal proceeding. Tenant shall pay to Landlord Tenant's
Allocable Share of Landlord's costs for said proceedings including but not
limited to, special counsel, counsel's reimbursable expenses, and special
appraisers if required, Tenant's Allocable Share of Landlord's costs being
computed under Section 22.1(b). In the event that the assessed valuation
of the Building is reduced as aforementioned or in any other manner, all
future computations of Tenant's Allocable Share of Building Taxes shall be
made with respect to the new assessed valuation. Upon receipt of any
refund resulting from any proceeding for which Tenant has paid Tenant's
Allocable Share of Landlord's costs and has paid Tenant's Allocable Share
of excess Building Taxes under Section 3.02(b) above, Landlord shall
recompute the amount that would have been due from Tenant and pay to Tenant
the amount by which Building Taxes originally paid by Tenant exceed such
recomputed amount.
(f) Should any alteration or improvement performed by Tenant during the term of
this Lease cause an increase in assessment, Tenant shall pay to Landlord
the cost of all taxes resulting from such increase in assessment. Any
amount paid separately hereunder by Tenant to Landlord shall be in addition
to any amounts paid by Tenant pursuant to Section 3.02(b) above.
3.03 - Past Due Rent
If, during the term of this Lease, Tenant shall fail to pay any installment of
Fixed Monthly Rent or Additional Rent or any other charge hereunder when the
same is due and payable, Tenant shall pay to Landlord, in addition to such
installment of Fixed Monthly Rent or Additional Rents or any other charge,
without notice or demand by Landlord, a sum equal to one-tenth (1/10) of the
payment due, said additional sum payable as herein required being the agreed
liquidated damages for Tenant's late payment of any installment not paid when
due; provided, however, that Tenant shall not be obligated to pay the foregoing
liquidated damages with respect to the first two (2) late payments hereunder
during any twelve (12) month period: provided that Landlord receives said
payment within five (5) of Landlord's notice that the same is past due. If
Tenant's failure to pay any such installment continues for more than thirty (30)
days from the original date such installment was due, Landlord shall have the
right to impose as additional liquidated damages a sum equal to one-tenth (1/10)
of the amount then due. Nothing contained in this Section 3.03 shall be
construed to be a limitation of or in substitution of Landlord's rights and
remedies under Article 13. Any payments by Tenant to Landlord shall first be
applied to satisfy any past due rent charges under this Section before being
applied for any other purpose. Tenant shall pay to Landlord an administrative
fee of $100.00 for each and every check submitted by Tenant which is dishonored.
If Landlord receives from Tenant two or more checks which have been dishonored,
all checks from Tenant thereafter shall, at Landlord's option, be either
certified or cashier's checks.
3.04 - Definition of Lease Year and Partial Lease Year
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
January following the Term Commencement Date, 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 a 365 day year.
Landlord reserves the right to designate and change the beginning and ending
day of the lease year, notice of which shall be given to Tenant.
3.05 - Security Deposit
Tenant agrees to deposit with Landlord, upon Tenant's execution and return of
this Lease, the sum of $12,788.96 as security for the faithful performance and
observance by Tenant of the terms, provisions and conditions of this Lease.
Landlord acknowledges receipt of an installment of the deposit equal to
$5,297.50. The balance, being $7,491.46 shall be paid by Tenant pursuant to the
first sentence of this Section 3.05. It is agreed that in the event Tenant
defaults in respect of any of the terms, provisions and conditions of this
Lease, including, but not limited to, the payment of Fixed Monthly Rent and
Additional Rent, Landlord may use, apply or retain the whole or any part of the
security so deposited, to the extent required, for the payment of any Fixed
Monthly Rent and Additional Rent or any other sum as to which Tenant is in
default, or for any sum which Landlord may expend or may be required to expend
by reason of Tenant's default in respect of any of the terms, covenants and
conditions of this Lease, including but not limited to, any damages or
deficiency in the re-letting of the Premises, whether such damages or deficiency
occurred before or after summary proceedings or other re-entry by Landlord. If
Landlord uses, applies or retains any part of the security so deposited, Tenant
shall promptly replenish the security deposit to its full original amount upon
demand by Landlord. In the event that Tenant shall fully and faithfully comply
with all of the terms, provisions, covenants and conditions of this Lease, the
security shall be returned to Tenant after the date fixed as the end of the term
of the Lease, after surrender of the Premises to Landlord in accordance with
Sections 2.04 and 2.05, and within sixty (60) days of Tenant's request. In the
event of a sale of the land and Building or leasing of the entire Building,
Landlord shall have the right to transfer the security to the vendee or lessee
and Landlord shall thereupon be released by Tenant from all liability for the
return of such security; and Tenant agrees to look to the new Landlord solely
for the return of said security; and it is agreed that the provisions hereof
shall apply to every transfer or assignment made of the security to a new
Landlord. Tenant further covenants that it will not assign or encumber or
attempt to assign or encumber the monies deposited herein as security, and that
neither Landlord not its successors or assigns shall be bound by any such
assignment, encumbrance, attempted assignment or attempted encumbrance.
4
3.06 - Place for Payments
(a) Tenant shall deliver to Landlord all payments of Fixed Monthly Rent,
Additional Rent, and other sums at the office of Landlord shown on page 1 of
this Lease or such other place as may be designated by Landlord. Checks should
be made payable to The Widewaters Group, Inc.
(b) At the request of Landlord and at Landlord's sole option, Tenant shall,
during the term of this Lease:
(i) open and maintain an account in a financial institution ("Tenant's
financial institution") which is authorized to transmit entries to
an Automated Clearing House of a member of the National Automated
Clearing House Association;
(ii) execute promptly any and all agreements and authorizations and
supply any and all information, necessary to provide for
automatic payment of Fixed Monthly Rent, Additional Rent, and
other sums by electronic funds transfer from Tenant's financial
institution to a financial institution designated by Landlord;
and
(iii) take all actions necessary to insure that any and all such
payments will be received by Landlord's financial institution from
Tenant`s financial institution by the dates due as specified in
this Lease.
Tenant agrees to maintain an account containing sufficient funds at all times
during the term of this Lease. In the event such account fails to contain
sufficient funds necessary to pay amounts then due, such that said amounts
become delinquent, the outstanding amounts shall be subject to liquidated
damages as set forth in Section 3.03 of this Lease. Nothing contained in this
Section 3.06(b) shall relieve Tenant of the obligation to pay by the dates due,
any and all such payments payable by Tenant under this Lease.
ARTICLE 4
Construction, Financing and Alterations
4.01 - Landlord's Obligation
Landlord shall, at its cost and expense (except as otherwise specified),
construct the Premises for Tenant's use and occupancy in accordance with plans
and specifications prepared by Landlord or Landlord's architect, incorporating
in such construction all items of work described in Exhibit "C" attached hereto
and made a part hereof. Any work in addition to any of the items specifically
enumerated in said Exhibit "C" shall be performed by Tenant at its own cost and
expense, or if Landlord installs or constructs any of such additional work in
the Premises at Tenant's request it shall be paid for by Tenant within fifteen
(15) days after receipt of a xxxx therefor.
4.02 - Financing
If Landlord can obtain mortgage financing or refinancing only upon the basis
of modifications of the terms and provisions of this Lease, Landlord shall have
the right to cancel this Lease if Tenant refuses to approve in writing any such
modifications within thirty (30) days after Landlord's request therefor. 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. If such right to cancel is exercised, this Lease shall
thereafter be null and void, any money or prepaid rent deposited hereunder shall
be returned to Tenant, and neither party shall have any liability to the other
by reason of such cancellation.
In the event of a refinancing or a bona fide sale of the Building by
Landlord, Tenant shall, immediately upon request therefor, provide to Landlord a
balance sheet and a statement of income and expenses for Tenant's last fiscal
year.
5
4.03 - Tenant's Obligation
In the event Tenant shall perform any alterations, additions or improvements
to the Premises pursuant to Section 4.04, below, Tenant shall perform such work
at its cost and expense and in full compliance with all provisions as described
in Exhibit "D" attached hereto and made a part hereof (herein referred to as
"Tenant's Work"). Tenant acknowledges its ability to perform such work and no
delay in its performance shall cause or be deemed to cause any delay or
postponement of the Term Commencement Date.
Tenant agrees, at Tenant's expense, to obtain and maintain for so long as
Tenant's Work continues, insurances of the types and in the amounts set forth in
Exhibit "D" to fully protect Landlord as well as Tenant from and against any and
all liability for death or personal injury or damage to property caused in or
about the Premises by reason of the performance of Tenant's Work. Tenant shall
furnish to Landlord certificates evidencing said coverage prior to the
commencement of Tenant's Work.
4.04 - Alterations, Additions and Improvements
Tenant shall not make any alterations, additions or improvements in or to the
Premises without the prior written consent of Landlord, and then only by
contractors approved by Landlord. If Landlord shall grant its consent, Tenant
shall provide Landlord with certificates evidencing the insurance coverages and
limits required by Exhibit "D" prior to the commencement of any such work.
Tenant shall not make nor permit any defacement, injury or waste in, to or about
the Premises or any part of the Building. Tenant agrees that any improvements
as may be installed within the Premises by Tenant pursuant to this Section 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. 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.
ARTICLE 5
Use of Premises
5.01 - Use of Premises
Tenant agrees to use the Premises for general office purposes and for no
other purpose whatsoever. Tenant 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 non-
observance by any other tenant of any of 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
6.01 - Definitions
The term "Operating Costs" shall be deemed to include (i) the costs of
operating, managing, and maintaining the Building, the Building Common Areas and
the Outside Common Areas, including, but without limiting the generality of the
foregoing, the cost of: gardening and landscaping; parking lot repair,
maintenance and line restriping; janitorial and cleaning services (which shall
be deemed to include labor, materials and supplies for cleaning any office space
in the Building, whether or not leased to tenants, including the Premises);
insurance premiums; repairs to the Building and roof; painting and caulking;
refinishing; glass repair; the maintenance and repair of lighting, utilities,
sanitary control facilities, and heating, ventilating and air-conditioning
systems and equipment; removal of snow, ice, trash, waste and refuse in
compliance with any and all recycling laws, rules and regulations imposed by the
municipality in which the Building is located and specifically excluding any
hazardous or toxic wastes (including but not limited to petroleum products,
medical waste, etc.) which shall be disposed of by Tenant at Tenant's own cost
and expense; traffic control and policing; fire and security protection; the
cost, as reasonably amortized by Landlord, with annual interest at the prime
rate in existence at the time of completion of the improvement, of any capital
improvement made after calendar year 1998 in compliance with the requirements of
any federal, state or local law or governmental regulation; the cost, as
reasonably amortized by Landlord, with interest at the rate of ten percent (10
%) per annum, of any other capital improvement made after calendar year 1998;
maintenance, replacement and rental of signs and equipment; depreciation of the
capital cost of any machinery, equipment and vehicles used in connection with
the operation and maintenance of the Outside Common Areas and Building Common
Areas; repair and/or replacement of on-site water lines, sanitary and storm
sewer lines; rental and other charges paid to third parties; personnel costs;
holiday and other decorations; and related costs to implement such services,
plus (ii) twelve percent (12%) of the foregoing for overhead expenses.
Operating Costs shall not include franchise or income taxes imposed on
Landlord, except to the extent hereinbefore provided, or the cost to Landlord
for any work or service performed in any instance for any tenant (including
Tenant) at the cost of such tenant, or the cost of improvements performed for
tenants as Landlord's work.
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6.02 - Tenant to Share Increases in Operating Costs
(a) Tenant agrees to pay to Landlord, as Additional Rent, monthly (or less
frequently as Landlord shall determine) within ten (10) days after receipt of
Landlord's estimate therefor (and thereafter on the first day of each month
without invoice) an amount equal to one twelfth (1/12) of Tenant's Allocable
Share (computed pursuant to Section 22.10(a) hereof) of the estimated amount by
which Operating Costs for each lease year exceed the Operating Costs for the
Base Period as hereinafter defined. The "Base Period" for purposes of this
Lease shall mean that period consisting of twelve (12) consecutive calendar
months, the first of which shall be May of 1998 In determining the amount of
Operating Costs for any lease year or partial lease year (including the Base
Period), (1) if less than 100% of the square feet leasable in the Building shall
have been occupied by tenants at any time during a lease year or partial lease
year, Operating Costs shall be deemed, for purposes of this Article 6, to be
increased to an amount equal to like operating costs which would normally be
expected to be incurred, had such occupancy been 100% during the entire period,
or (2) if Landlord is not furnishing any particular work or service (the cost of
which if performed by Landlord would constitute Operating Costs) to a tenant who
has undertaken to perform such work or service in lieu of the performance
thereof by Landlord, Operating Costs shall be deemed for the purposes of this
Article to be increased by an amount equal to the additional Operating Costs
which would reasonably have been incurred during such period by Landlord if it
had at its own expense furnished such work or service to such tenant.
(b) Following the end of each lease year (or partial lease year), Landlord
shall furnish to Tenant a comparative statement showing Tenant's Allocable Share
of the Operating Costs during such year and the amounts paid by Tenant (based on
Landlord's estimate of increases in Operating Costs) attributable to such year.
Any overpayment or underpayment by Tenant shall be promptly adjusted by payment,
within fifteen (15) days, of the balance of any underpayment for such year by
Tenant to Landlord, or by Landlord to Tenant of the balance of any overpayment
for such year, or at Landlord's election by applying such overpayment by Tenant
as a credit to succeeding monthly installments of increases in Operating Costs,
or to offset any then existing monetary default by Tenant under this Lease.
Landlord and Tenant shall use commercially reasonable efforts to minimize such
costs of operation, management and maintenance in a manner consistent with
generally accepted office building practices.
(c) Tenant covenants and agrees to promptly pay Landlord as Additional Rent,
upon demand, the amount of any increase in costs for trash removal from the
Premises or any other part of the Building that results by reason of Tenant's
extraordinary trash removal requirements, including but not limited to the
removal of Tenant's purged files, the disposal of boxes, and any governmental
fines resulting from Tenant's non-compliance with local recycling laws, rules or
regulations.
ARTICLE 7
Energy Costs and Water
7.01 - Definitions
As used in this Lease, "Building Utilities" shall mean the cost of all
energy of any kind and water which is consumed for the purposes of operating the
Building, Building Common Areas, and Outside Common Areas, during the Normal
Operating Hours for the Building as set forth in Section 20.01 of this Lease,
except for the cost of electric energy paid by tenants of the Building. "Tenant
Electric Energy" shall mean the cost of all electric energy which is consumed by
all electrically operated equipment within the Premises, including but not
limited to heating, ventilating and air conditioning equipment, lighting
fixtures, and electrical convenience plugs and outlets etc., during all hours of
each day. "Tenant Extra Energy" shall mean the cost of all energy, other than
Tenant Electric Energy, consumed in the operation of the Building, Building
Common Areas and Outside Common Areas, during hours which are in addition to the
Normal Operating Hours for the Building. Building Utilities, Tenant Electric
Energy and Tenant Extra Energy shall include an additional twelve percent (12%)
of such costs for overhead expenses.
7.02 - Tenant to Share Increases in Building Utilities
(a) Tenant agrees to pay Landlord as Additional Rent, monthly, within ten
(10) days after receipt of Landlord's estimate therefore (and thereafter on the
first day of each month, without invoice) an amount equal to one-twelfth (1/12)
of Tenant's Allocable Share (computed under Section 22.10(a) hereof) of the
estimated amount by which Building Utilities for each lease year exceed the Base
Amount as hereinafter defined. The term "Base Amount" for purposes of this
Lease shall be (i) the amount computed by applying the electrical rate in effect
during the month following the month in which the Tenant first takes occupancy
of the Building or any part thereof to the total kilowatt hours of usage
(computed monthly) during the twelve (12) consecutive month period commencing
with May of 1998, plus (ii) twelve percent (12%) of such costs for overhead
expenses. In determining the amount of Building Utilities for the purpose of
this Article 7 for any lease year or partial lease year, (1) if less than 100%
of the square feet leasable in the Building shall have been occupied by tenants
at any time during a lease year or partial lease year (including the period used
in determining the Base Amount), Building Utilities shall be deemed for the
purposes of this Article to be increased to an amount equal to the like Building
Utilities which would normally be expected to be incurred, had such occupancy
been 100% during the entire period, or (2) if Landlord is not furnishing any
particular work or service (the cost of which if performed by Landlord would
constitute Building Utilities) to a tenant who has undertaken to perform such
work or service in lieu of the performance thereof by Landlord, Building
Utilities shall be deemed for the purposes of this Article to be increased by an
amount equal to the additional Building Utilities which would reasonably have
been incurred during such period by Landlord if it had at its own expense
furnished such work or service to such tenant.
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(b) Following the end of each lease year (or partial lease year), Landlord
shall furnish to Tenant a comparative statement showing Tenant's Allocable Share
of the Building Utilities during such year and the amounts paid by Tenant (based
on Landlord's estimates of increases in the Building Utilities) attributable to
such year. Any overpayment or underpayment by Tenant shall be promptly adjusted
by payment, within thirty (30) days, of the balance of any underpayment for such
year by Tenant to Landlord, or by Landlord to Tenant of the balance of any
overpayment for such year, or at Landlord's election by applying such
overpayment for such year as a credit to succeeding monthly installments of
increases in Building Utilities, or to offset any then existing monetary default
by Tenant under this Lease. Landlord and Tenant shall use their commercially
reasonable efforts to minimize Building Utilities.
7.03 - Charge for Tenant Electric Energy
Tenant agrees to pay to Landlord, as Additional Rent, an annual charge for
Tenant Electric Energy equal to thirty-five cents ($0.35) per leaseable square
foot of Premises, payable in twelve (12) equal consecutive monthly installments,
each payable in advance on the first day of each calendar month during the term
hereof. The monthly charge for Tenant Electric Energy as herein set forth was
estimated by Landlord based upon an estimate of Tenant's metered usage and
current utility rates, plus twelve percent (12%) of such costs for overhead
expenses. Following the end of each lease year (or partial lease year),
Landlord shall furnish to Tenant a comparative statement showing Tenant's actual
consumption of electric energy and the amounts paid by Tenant for the same under
this Section 7.03 attributable to such year. Based on Tenant's actual usage,
any overpayment or underpayment by Tenant shall be promptly adjusted by payment,
within thirty (30) days, of the balance of any underpayment for such year by
Tenant to Landlord, or by Landlord to Tenant of the balance of any overpayment
for such year, or at Landlord's election by applying such overpayment by Tenant
as a credit to succeeding monthly installments of amounts due pursuant to this
Section 7.03, or to offset any then existing monetary default by Tenant under
this Lease.
7.04 - Charge for Tenant Extra Energy
In the event Tenant shall occupy and/or use the Premises during hours which
are in addition to the Normal Operating Hours for the Building, Tenant agrees to
pay to Landlord, as Additional Rent, the Tenant Extra Energy consumed during
such period of time, as estimated by Landlord based upon energy requirements
considering Tenant's use of the Premises, and its location, size, and equipment
contained therein, plus twelve percent (12%) of such costs for overhead
expenses, within ten (10) days following Tenant's receipt of Landlord's invoice
therefor.
ARTICLE 8
Repairs and Compliance
8.01 - Repairs
Tenant shall give to Landlord prompt notice of any damage to, or defective
condition in any part of or appurtenance to the Building's plumbing, electrical,
heating, air-conditioning or other systems serving, located in, or passing
through the Premises. Subject to the provisions of Article 11, Tenant shall, at
Tenant'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, as part of the Operating Costs set forth in
Article 6, maintain the heating and air-conditioning systems throughout the
Building (including the Premises) and the outside walls, outside windows, roof
and foundation of the Building containing the Premises in good order and repair.
Repairs made by Landlord required due to negligence or fault of Tenant, its
contractors, agents or employees shall be made at Tenant's expense, plus
nineteen percent (19%) administrative charge.
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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 or in connection with 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. If Tenant fails
or neglects to comply with any laws or ordinances, rules and regulations of any
governmental authority or insurance body as herein required of Tenant, then
Landlord or its agents may enter the Premises and make said repairs and comply
with any laws or ordinances, or the rules and regulations of any governmental
authority or insurance body at the cost and expense of the Tenant, plus a
nineteen percent (19%) administrative charge, and in case Tenant fails to pay
therefor upon notice within five (5) days thereafter, the said cost and expenses
shall be added to the next month's installment of Fixed Monthly Rent and be due
and payable as such or Landlord may deduct the same from any balance remaining
in Landlord's hands. This provision is in addition to the right of Landlord to
terminate this Lease by reason of default on the part of Tenant.
8.02 - Hazardous Materials
Tenant shall, at all times, comply with all local and federal laws, rules
and regulations governing the use, handling and disposal of Hazardous Materials
in the Premises including, but not limited to Section 1004 of the Federal
Resource Conservation and Recovery Act, 42 U.S.C. Section 6901 et. seq. (42
U.S.C. Section 6903) and any additions, amendments, or modifications thereto.
As used herein, the term "Hazardous Materials" shall mean any hazardous or toxic
substance, material or waste including but not limited to petroleum products,
which is, or becomes, regulated by any local or state government authority in
which the Premises is located or the United States Government. Landlord and its
agents shall have the right, but not the duty, to inspect the Premises at any
time to determine whether Tenant is complying with the terms of this Section.
If Tenant is not in compliance with this Section, Landlord shall have the right
to immediately enter upon the Premises and take whatever actions reasonably
necessary to comply including, but not limited to, the removal from the Premises
of any Hazardous Materials and the restoration of the Premises to a clean, neat,
attractive, healthy and sanitary condition. Tenant shall pay all such costs
incurred by Landlord within ten (10) days of receipt of a xxxx therefor, plus
nineteen percent (19%) administrative charge.
ARTICLE 9
Indemnity
9.01 - Indemnification
(a) Tenant does hereby agree to indemnify Landlord, Landlord's managing
agent, and such other persons as are in privity of estate with Landlord, defend
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 or out of the occupancy or use by Tenant of the Premises, the
Building Common Areas and/or Outside Common Areas or any part thereof, or
occasioned wholly or in part by any act or omission of Tenant, its agents,
contractors, employees, lessees or concessionaires. However, nothing herein
shall be deemed to relieve Landlord of liability for its acts, omissions or
negligence or the acts, omissions or negligence of Landlord's agents, employees
or contractors and Landlord hereby indemnifies and agrees to hold Tenant
harmless from and against any and all claims, actions, damages, liability and
expense in connection with the loss of life, personal injury and/or damage to
property arising from or out of such acts, omissions or negligence.
(b) 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 Tenant 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. If either
party seeks the enforcement of the covenants, obligations and/or agreements of
the other under this Lease and shall prevail, said prevailing party shall be
entitled to recover all costs, expenses and reasonable attorneys' fees that may
be thereby incurred or paid, regardless of whether the action proceeding is
prosecuted to judgment.
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ARTICLE 10
Insurance
10.01 - Liability Insurance
At all times during the term of this Lease, Tenant shall, at its sole cost
and expense, maintain personal injury and property damage liability insurance,
naming the Landlord and its managing agent as additionally insured parties,
against claims for personal injury, death or property damage occurring on, in or
about the Premises during the term of this Lease of not less than Two Million
Dollars ($2,000,000.00) with respect to personal injury, death or property
damage, and including contractual liability 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 may obtain
such insurance as it may reasonably require to protect its interest, and the
cost for such policies shall be paid by Tenant to Landlord as Additional Rent
upon demand, plus nineteen percent (19%) administrative charge.
10.02 - All Risks and Difference in Conditions Insurance
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.
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,
employer's liability and any other casualty or risk insurance which Landlord or
Landlord's insurance carrier deems necessary or appropriate.
10.04 - Increase in Fire Insurance Premium
Tenant covenants and agrees to promptly pay to Landlord as Additional Rent,
upon demand, the amount of any increase in the rate of insurance on the Premises
or on any part of the Building that (but for Tenant's act(s) or Tenant's
permitting certain activities to take place which result in an increase in said
rate of insurance) would otherwise have been in effect.
10.05 - Waiver of Subrogation
Each party hereto hereby waives on behalf of the insurers of such party's
property, any and all claims or rights of subrogation of any such insurer
against the other party hereto for loss of or damage to the property so insured
other than loss or damage resulting from the willful act of such other party,
and each party hereby agrees to maintain insurance upon its property, it being
understood, however, (a) that such waiver shall be ineffective as to any insurer
whose policy of insurance does not authorize such waiver, (b) that it shall be
the obligation of each party seeking the benefit of the foregoing waiver to
request the other party (i) to submit copies of its insurance, and (ii) in case
such waiver results in an additional charge from the insurer thereunder, the
additional charge for such waiver shall be paid by the party requesting the
benefit of said waiver; and (c) that no party shall be liable to the other under
clause (b) hereof except for willful failure to comply with any request pursuant
to said clause (b).
10.06 - Tenant's Property
At all times during the term of this Lease, Tenant shall, at Tenant's sole
cost and expense, carry "all-risk" insurance coverage for Tenant's trade
fixtures, furnishings, equipment and other personal property of Tenant.
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ARTICLE 11
Fire and Other Casualties
11.01 - Untenantability
If the Premises is 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 of the Premises which is
usable by Tenant, if, but only if, such fire or other casualty not be caused by
Tenant's fixtures or equipment or by fault or negligence of Tenant, its
contractors, agents or employees. If such damage shall be so extensive that the
Premises cannot be restored by Landlord within a period of nine (9) months,
either party 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, except
that if such fire or casualty be due to Tenant's fixtures or equipment or due to
Tenant's fault or negligence Tenant shall have no right to cancel. If a portion
of the Building other than the Premises shall be so damaged that in the 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 Section, 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 completely 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 (taking into account the time
necessary to obtain required permits and approvals and the time necessary to
effectuate a satisfactory settlement with Landlord's insurance company) restore
the damage insured by Landlord pursuant to Section 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 Section 11.01 shall govern and
control in lieu thereof.
11.02 - Loss of Property and Water Damage
Landlord shall not be responsible to Tenant for any loss or theft of
property in or from the Premises, or for any loss or theft or damage of or to
any property left with any employee of Landlord, however occurring. Landlord
shall not 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, except to the extent the same are
shown to have resulted from Landlord's negligence or willful misconduct, or the
negligence or willful misconduct of Landlord's agents, employees or
contractors.
ARTICLE 12
Eminent Domain
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, Tenant hereby assigning to Landlord Tenant's interest
therein, if any.
(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,
or in the event that title to all or a material part of the Outside Common Areas
shall be so condemned or taken, 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 of 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.
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ARTICLE 13
Bankruptcy and Default Provisions
13.01 - Conditional Limitations
(a) 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:
(i) If Tenant shall make an assignment for the benefit of its
creditors; or
(ii) If the leasehold estate hereby created shall be taken on
execution or by other process of law; or
(iii) 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 ninety (90) days after the institution of the
same, or if any such petition shall be so filed by the Tenant;
or
(iv) 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 ninety (90) days after the
appointment of such receiver or trustee; or
(v) 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
(vi) If Tenant shall be in default of any other lease of premises in
the Building or office park in which the Building is located; or
(vii) 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 five (5) days
following Tenant's receipt of notice from Landlord; or
(viii) If Tenant shall fail to pay any other charge required to be
paid by Tenant hereunder, and such failure shall continue for
five (5) days after Tenant's receipt of notice from Landlord; or
(ix) If Tenant shall fail to timely deliver to Landlord any
Subordination Agreement or any Estoppel Certificate, as required
hereunder; or
(x) Tenant fails to perform or observe any other requirement of this
Lease (not hereinbefore specifically referred to) on the part of
Tenant to be performed or observed and such failure continues
for thirty (30) days after receipt of notice from Landlord to
Tenant.
(b) This Lease and the term are expressly subject to the conditional
limitation that upon the happening of any one or more of the aforementioned
events of default, Landlord, in addition to the other rights and remedies it may
have, shall have the right to immediately declare this Lease terminated and the
term ended, in which event all of the right, title and interest of Tenant
hereunder shall wholly cease and expire upon service by Landlord of a Notice of
Termination. Tenant shall then quit and surrender the Premises to Landlord in
the manner and under the conditions as provided for under this Lease, but Tenant
shall remain liable as hereinafter provided.
(c) If the Landlord shall not be permitted to terminate this Lease as
hereinabove provided because of Title 11 of the United States Code, as amended,
relating to Bankruptcy (the "Bankruptcy Code"), then Tenant or any trustee for
Tenant agrees promptly, within no more than fifteen (15) days after the request
of Landlord to the Bankruptcy Court to assume or reject this Lease and Tenant
agrees not to seek or request any extension or adjournment of any application to
assume or reject this Lease so made by Landlord. In such event, Tenant or any
trustee for Tenant may only assume this Lease if it (1) cures or provides
adequate assurance that the trustee will promptly cure any default hereunder,
(2) compensates or provides adequate assurance that the Tenant will promptly
compensate Landlord for any actual pecuniary loss to Landlord resulting from
Tenant's default, and (3) provides adequate assurance of future performance
under this Lease by Tenant. In no event after the assumption of this Lease by
Tenant or any trustee for Tenant shall any then existing default remain uncured
for a period in excess of ten (10) days. Adequate assurance of future
performance of this Lease shall include, without limitation, adequate assurance
(a) of the source of the Fixed Monthly Rent required to be paid to Landlord
hereunder, and (b) that the assumption or any permitted assignment of this Lease
will not constitute a breach of any provision of this Lease.
13.02 - Landlord's Remedies
(a) If this Lease shall be terminated as provided in Section 13.01, 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 the Premises, together with all
alterations, additions and improvements thereto.
(b) In case of any such termination, re-entry or dispossession 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 dispossession, shall be paid by
Tenant, and Tenant shall also pay to Landlord all 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 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 or 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.
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(c) If this Lease be terminated as aforesaid, Tenant nevertheless covenants
and agrees, notwithstanding any entry or re-entry 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 re-entered as aforesaid, whether
the Premises be relet or remain vacant in whole or in part for a period less
than the remainder of the term or for the whole thereof, but in the event the
Premises be relet by Landlord, Tenant shall be entitled to a credit (but not in
excess of the Fixed Monthly Rent, and Additional Rent reserved under the terms
of this Lease) in the net amount of rent received by Landlord in reletting the
Premises after deduction of all expenses and costs incurred or paid as aforesaid
in reletting the Premises and in collecting the rent in connection therewith.
As an alternative, at the election of Landlord, Tenant shall pay to Landlord as
damages, such a sum as at the time of such termination represents: (i) the
unamortized costs of Landlord's leasehold improvements (including, but not
limited to, any costs of design materials and construction) within the Premises
and any brokerage and/or other fees paid by Landlord in connection with this
Lease, as such costs shall have been amortized over the term of the Lease at an
interest rate of ten percent (10%), and (ii) the amount of the then present
value of the total Fixed Monthly Rent and Additional Rent and other benefits
which would have accrued to Landlord under this Lease for the remainder of the
term (including all renewal terms whether or not Tenant had elected to renew) if
the Lease terms had been fully complied with by Tenant.
(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
rights 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 Proceeding Law including any amendments hereafter made
thereto, and Tenant further waives any and all rights to restore the operation
of this Lease and further waives any right under Article 63 of the Civil
Practice Law and Rules. 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 of any expiration or termination of this Lease, Landlord
and Tenant, 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 of 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 Landlord to insist upon the strict performance of any
covenant, agreement, term or condition of this Lease or to exercise any right or
remedy consequent upon a breach thereof, and no acceptance of full or partial
rent during the continuance of any such breach, shall constitute a waiver of any
such breach or of such covenant, agreement, term or condition. No 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 then 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 check 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 or remedy allowed at law or in equity or by statute or
otherwise.
(g) Each right or 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.
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ARTICLE 14
Mechanic's Liens
14.01 - Mechanic's Liens
Tenant 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),
shall forthwith take whatever action by bonding, deposit, payment or otherwise,
as will remove or satisfy such lien within five (5) days. In the event Tenant
does not remove or satisfy said lien within said five (5) day period, Landlord
shall have the right to do so by posting a bond or undertaking, and Tenant
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 shall include, but not be 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,
neither this Lease nor the interest of Tenant in this Lease or in the Premises,
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, unless Landlord's prior written
consent is obtained in each case, nor shall the Premises be sublet in any case
unless such prior written consent is obtained.
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 the amount, if
any, of all rent, Additional Rent and any other consideration paid by such
assignee or sublessee to Tenant pursuant to such assignment or sublease which is
in excess of the rent and Additional Rent due and payable from time to time from
Tenant to Landlord pursuant to this Lease.
Should Tenant request Landlord's consent to a proposed assignment of this
Lease or a subletting of all or part of the Premises, Landlord shall have the
right at Landlord's option to recapture the Premises by written notice given to
Tenant within thirty (30) days after Landlord's receipt of Tenant's request for
Landlord's consent. If Landlord exercises its right to recapture the Premises,
or any part thereof, this Lease shall be cancelled and terminated as of the date
that is proposed by Tenant for the requested assignment or subletting as fully
and effectively as if such date were the date originally specified herein for
the expiration of this Lease. If this Lease shall be cancelled with respect to
less than the entire Premises, the Fixed Monthly Rent reserved herein shall be
prorated on the basis of the number of leaseable square feet retained by Tenant
in proportion to the number of leaseable square feet contained in the Premises,
and this Lease shall continue thereafter in full force and effect with respect
to the portion of the Premises retained by Tenant, and the parties shall execute
an amendment of this Lease to provide for the reduction in square footage and
rental.
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 Tenant
and the proposed assignee, wherein and whereby such assignee assumes due
performance of the obligations on Tenant's part to be performed under this Lease
to the end of the term hereof, and (b) the written consent to such assignment by
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.
Notwithstanding the assumption by such assignee of due performance, Tenant
shall continue to be fully responsible for the due performance of Tenant's
obligations hereunder in the same manner and to the same extent as if no such
assignment had been made.
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, shall be null and void, and shall confer no rights upon any
third party.
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15.02 - Effect of Landlord's Consent
Any consent by Landlord to a sale, assignment, sublease, mortgage, pledging,
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 the 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 Landlord 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 including, but not limited to,
(i) the name and address of the proposed transferee, (ii) a current financial
statement of the proposed transferee, (iii) the consideration to be paid by the
proposed transferee to Tenant, and (iv) the use intended to be made of the
Premises by the proposed transferee. Landlord shall reply to Tenant within ten
(10) days after receipt of the request and information as aforementioned.
With respect to any of the consents requested by Tenant under the provisions
of this Article 15, whether or not the Landlord shall have consented thereto,
Tenant shall pay to Landlord all reasonable counsel fees and other out-of-pocket
expenses incurred by the Landlord in connection therewith.
15.03 - Sale of Stock or Partnership Interest
Tenant agrees that if (i) Tenant or any Guarantor of Tenant's obligations
under this Lease is a corporation and there shall be a sale of stock
constituting a controlling interest in Tenant or any Guarantor of Tenant's
obligations under this Lease (whether such sale occurs at one time or at
intervals so that, in the aggregate, over the term of this Lease, such a sale
shall have occurred), or (ii) Tenant or any Guarantor of Tenant's obligations
under this Lease is a partnership or other legal business entity and there shall
be a sale of a partnership or ownership interest constituting a controlling
interest in Tenant or any Guarantor of Tenant's obligations under this Lease
(whether such sale occurs at one time or at intervals so that, in the aggregate,
over the term of this Lease, such a sale shall have occurred), then and in any
of such events, Landlord shall have the right, at its sole election, to deem
such sale a default pursuant to Article 13 of this Lease and to cancel and
terminate this Lease at any time thereafter by giving notice of Landlord's
intention to do so and this Lease shall terminate upon the expiration of thirty
(30) days after such notice of intention from Landlord to Tenant, but Tenant
shall remain liable for its obligations under this Lease as provided in Article
13 hereof.
The term "sale" shall include any transfer of the stock, partnership and/or
ownership interest in Tenant or its Guarantor, as the case may be, other than a
transfer by operation of law occurring upon the death of a stockholder or
partner and the devolution of the stock or interest held by such stockholder or
partner or member or other owner to his legal representative, heirs or legatees,
but shall not include a stock offering whereby an aggregate of greater than
fifty percent (50%) of Tenant's stock shall be offered publicly, to parties who
are non-stockholders as of the date of this Lease, through a recognized security
exchange.
ARTICLE 16
Subordination of Lease
16.01 - Subordination to Mortgages and Ground Leases
This Lease and all the rights of Tenant hereunder are and shall be 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. However, Tenant agrees to execute and deliver
to Landlord, within fifteen (15) days after request therefor, such instrument(s)
as may be requested by any such ground lessor, mortgagee, or trustee for such
purposes (any such instrument(s) are hereinafter referred to as "Subordination
Agreement"). In the event Tenant fails to execute and deliver any such
Subordination Agreement within the fifteen (15) day period Tenant does hereby
make, constitute and irrevocably appoint Landlord as its attorney-in-fact for
the purpose of executing any such Subordination Agreement in Tenant's name,
place and stead.
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.
So long as any such mortgage or lease shall remain a lien on the Premises,
Tenant agrees simultaneously with the giving of any notice 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, Tenant 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 Landlord, 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 in which
Landlord is obligated to cure such default under this Lease. The giving of any
such notice to Landlord shall not be properly given under the terms of this
Lease and shall be of no force and effect until a duplicate copy thereof shall
also have been given to the mortgagee or ground lessor pursuant to this Section.
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ARTICLE 17
Entry to Premises
17.01 - Entry to Premises by Landlord
Landlord shall have the right to enter the Premises at all reasonable times
for the purposes of:
(a) inspecting the same, and/or
(b) making any repairs to the Premises and performing any work
therein that may be necessary by reason of Tenant's default under
the terms of this Lease continuing beyond any applicable period
of grace, and/or
(c) exhibiting the Premises for the purpose of sale, ground lease or
mortgage.
ARTICLE 18
Notices and Certificates
18.01 - Notices and Certificates
Any notice, statement, certificate, request or demand required or permitted
to be given under this Lease shall be in writing sent either by an overnight
express mail service (such as Federal Express) or by registered or certified
mail, postage prepaid, return receipt requested, addressed, as the case may be,
to Landlord in care of the Managing Agent (see Page 1) at the 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 on the date mailed as aforesaid by
such express mail service or on the date deposited 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 or refusal to accept receipt of such notice. Anything
contained in the foregoing to the contrary notwithstanding, any notice of change
of address, in order to be effective, must be express and clearly state that the
correspondence is intended to be a notice of change of address.
At any time or times when Tenant's interest herein shall be vested in more
than one person, firm or corporation, jointly, in common or in severalty, 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.
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 Tenant 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.
Any such instrument(s) is sometimes referred to herein as "Estoppel
Certificate".
ARTICLE 19
Covenant of Quiet Enjoyment
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 the 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
other 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 Landlord's interest hereunder.
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ARTICLE 20
Services
20.01 - Services
During the term of this Lease, while Tenant is not in default hereunder,
Landlord shall furnish to the Premises electricity, lighting, heating,
ventilating, air conditioning, elevator service and water to the plumbing
fixtures (collectively, "Services"), if any, on Monday through Friday from 8
a.m. to 6 p.m., principal legal holidays excepted (herein referred to as the
"Normal Operating Hours"). Landlord agrees that the Services shall be available
to Tenant during hours other than Normal Operating Hours upon Tenant's
reasonable prior request. The cost of any such additional Services shall be
paid for by Tenant in accordance with the provisions of Section 7.04, above.
Landlord shall also furnish janitorial services consisting of cleaning floors,
removing waste paper each business day and window cleaning.
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 Premises, 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 resulting
from 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 of 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 the 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 operation or improvement of the Building or in
order to comply with all laws, orders and requirements of
governmental or other authority;
(g) At any reasonable time and from time to time throughout the term
of the Lease to show the Premises to persons wishing to rent same
or to purchase the Building.
ARTICLE 22
Miscellaneous Provisions
22.01 - Occupancy After Expiration of Term
(a) Should Tenant continue to occupy the Premises after the expiration or
earlier termination of the term, such tenancy shall be from month-to-month, and
such month-to-month tenancy shall be under the same terms, covenants and
conditions as set forth in this Lease, except that the Tenant shall pay double
the Fixed Monthly Rent reserved herein.
(b) The aforementioned month-to-month tenancy may be terminated by either
party notifying the other of its intention to terminate the month-to-month
tenancy at least one calendar month prior to the last day of the term. Tenant's
continued occupancy of the Premises after the expiration of the time period
specified in said notice to terminate shall confer no rights whatsoever upon
Tenant, who shall then be deemed a holdover tenant. Tenant hereby consents in
advance to the immediate entry of an order and warrant of eviction, together
with judgment for unpaid rent or Additional Rent due and owing under the terms
of this Lease, or for compensation due and owing to the Landlord for Tenant's
use and occupation of the Premises during the time of occupancy as a holdover
Tenant, by any court of competent jurisdiction. Tenant shall indemnify and save
harmless Landlord from any claim, damage, expense, attorney fee, or loss which
Landlord may incur by reason of such holding over, including without limitation,
any claim of a succeeding tenant, or any loss by Landlord with respect to a lost
opportunity to re-let Premises.
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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 Tenant's
remedies for the collection of 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, covenants 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, members, 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 Subsection 22.02(a) above and throughout
this Lease, so far as covenants and agreements on the part of 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 Lease and/or the Building, Landlord
herein named (and in case of any subsequent transfers or conveyances, the then
grantor), including each of its members, 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, Landlord thereby being relieved of and from all responsibility for such
monies and security, 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 and 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, and no rights, easements, or
licenses are acquired by Tenant by implication or otherwise except as expressly
set forth in the provisions of this Lease.
22.04 - Lease Binding
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,
it shall be the joint and several obligations of the firm and of the individual
members thereof.
22.05 - Failure to Give Possession
Notwithstanding anything to the contrary contained in this Lease, Landlord
shall not in any manner be liable to Tenant for damages or any other claim
resulting from failure to construct the Building as shown on Exhibit "A" or to
deliver the Premises or for any delay in commencing or completing any work
Landlord is to perform or is authorized by Tenant to perform under Exhibit C,
and Tenant hereby waives any such liability whatsoever and any right it may have
to terminate this Lease. Provided that in the event Landlord fails to construct
the Building as shown on Exhibit "A" within one (1) year after the date hereof,
then Landlord shall have the option to terminate this Lease upon notice to
Tenant.
(a) If Landlord shall be unable to give possession of the Premises on the
Term Commencement Date by reason of the fact that the Premises is located in a
building being constructed which has not been sufficiently completed to make the
Premises ready for occupancy or by reason of the fact that a certificate of
occupancy has not been procured or for any other reason, then Landlord shall not
be subject to any liability for the failure to give possession on said date.
Under such circumstances the rent reserved and covenanted to be paid herein
shall not commence until possession of the Premises is given or the Premises is
available for occupancy by Tenant. Notwithstanding the forgoing, if the Term
Commencement Date shall not have occurred within two (2) years after the date
hereof, then this Lease shall automatically become null and void. In either
case, Landlord shall reimburse Tenant for any advance rent paid or security
deposit posted, and except for items which have been theretofore accrued and not
yet paid and both parties hereto shall be relieved of all obligations hereunder,
in which event each party will, at the other's request, execute an instrument in
recordable form containing a release and surrender of all right, title and
interest in and to this Lease.
(b) If the Building is not in the course of construction, and Landlord is
unable to give possession of the Premises on the Term Commencement Date by
reason of the holding over or retention of possession by any tenant, tenants, or
occupants, or for any other reason, or if repairs, improvements or decoration of
the Premises or of the Building are not completed, such inability by Landlord
shall not constitute a default under this Lease but the Term Commencement Date
shall be postponed until such date as such holdover tenant or occupant shall
give up possession of the Premises, and/or the repairs, improvements or
decorations have been completed, and the term of this Lease shall be deemed to
commence on such Term Commencement Date as postponed (and the expiration date of
the term of the Lease shall be extended by the same period as the Term
Commencement Date is postponed).
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22.06 - Relocation of Tenant
Landlord shall have the right to relocate Tenant to other premises
substantially similar in size as the Premises (but not to premises containing
less leaseable square feet than the Premises without Tenant's consent) and
located within any building in the office park ("Office Park") in which the
Building is located upon sixty (60) days' written notice to Tenant. Such
relocation shall be at Landlord's cost and expense and shall in no way affect
the obligations or duties of either party hereunder. If Landlord relocates the
Premises to another building in the Office Park, Landlord covenants and agrees
that the entire Premises shall be so located, it being the intention of the
parties that the Premises not be located in more than one (1) building at any
given time.
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 or
labor, 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 the Building is sold through a
mortgage foreclosure proceeding, or if 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
purchaser at the foreclosure sale or 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 purchaser or
lessor and Tenant and with the same force and effect as though this Lease was
made directly from such purchaser or lessor to Tenant. Tenant shall make all
rent payments thereafter directly to such purchaser or lessor.
22.09 - Landlord May Pay Tenant's Obligations
All costs and expenses which Tenant 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 non-payment, Landlord shall have all the rights and
remedies herein provided for in case of non-payment of rent or of a breach of
covenant. If Tenant shall default 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 sums 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 - Definition of "Tenant's Allocable Share"
(a) For purposes of determining Tenant's Allocable Share herein, except as
provided in Subsection (b) below, such share shall be the percentage resulting
from dividing the number of square feet set forth in Section 1.01 above, by the
total number of square feet leased in the Building as of the beginning of each
lease year or partial lease year.
(b) For purposes of determining Tenant's Allocable Share for Section 3.02,
such share shall be the percentage resulting from dividing the number of square
feet set forth in Section 1.01 above, by the total number of square feet
leasable in the Building as of the beginning of each lease year or partial lease
year.
22.11 - Division of Costs
Landlord may construct and operate other office buildings located within the
office park in which the Building is located. Tenant agrees that Landlord may
treat the Building and the adjacent office buildings as one unit for the purpose
of purchasing and providing energy and water, insurance and the common services
included within Operating Costs. Landlord shall equitably divide such costs
between the Building and the adjacent office buildings for each lease year (or
partial lease year) and the allocation of such costs shall be subject to
verification by Tenant at Landlord's offices.
22.12 - Effect of Captions
The captions or legends on this Lease are inserted only for convenient
reference or identification of the particular Sections. They are in no way
intended to describe, interpret, define or limit the scope, or extent or intent
of this Lease, or any Section or provision thereof.
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22.13 - Tenant Authorized to Do Business
Tenant represents and covenants that it is and throughout the term of this
Lease shall be authorized to do business in the state in which the Building is
located. In the event Tenant hereunder is a corporation, the persons executing
this Lease on behalf of the Tenant hereby covenant and warrant that: the Tenant
is a duly constituted corporation qualified to do business in the state in which
the Building is located, all Tenant's franchise and corporate taxes have been
paid to date; all future forms, reports, fees and other documents necessary for
Tenant to comply with applicable laws will be filed by Tenant when due; and such
persons are duly authorized by the governing body of such corporation to execute
and deliver this Lease on behalf of the corporation.
22.14 - Execution in Counterparts
This Lease may be executed in one or more counterparts, any one or all of
which shall constitute but one agreement.
22.15 - Memorandum of Lease
Upon request by either party, Landlord and Tenant agree to execute a
Memorandum or Notice of Lease in recordable form pursuant to applicable state
law. Upon the expiration or earlier termination or this Lease, the party who
shall have recorded such Memorandum or Notice of Lease shall promptly execute
any necessary instrument and remove the Memorandum or Notice of Lease from the
public records, and upon failure to do so, the other party, upon ten (10) days
prior notice to the party who recorded the aforesaid instrument, is hereby
appointed attorney-in-fact to execute any such instrument in the recording
party's name, place and stead. The requesting party shall pay for all recording
fees and attorney's fees in connection with the preparation and recording of the
Memorandum or Notice of Lease.
22.16 - Law Governing, Effect and Gender
This Lease shall be construed in accordance with the laws of the state in
which the Building is located and shall be binding upon the parties hereto and
their respective legal representatives, successors and assigns except as
expressly provided otherwise. Should any provisions of this Lease require
judicial interpretation, it is agreed that the court interpreting or construing
the same shall not apply a presumption that the terms of any such provisions
shall be more strictly construed against one party or the other by reason of the
rule of construction that a document is to be construed most strictly against
the party who itself or its agent prepared the same, it being agreed that the
agents of all parties have participated in the preparation of this Lease. 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 Tenant but has reference
only to those instances in which Landlord may later give consent to a particular
assignment as required by the provisions of Article 15 hereof.
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22.17 - Security Agreement
Tenant hereby grants to Landlord a security interest in all appliances,
equipment, fixtures, improvements, now or hereafter located in the Premises, and
all proceeds and accounts receivable therefrom, to secure the payment of the
Tenant's obligation set forth in this Lease. Such security interest will be
deemed to apply to all of the foregoing, notwithstanding that Tenant may have
reimbursed Landlord for all or any portion of the costs of the same in Exhibit
"C" of this Lease. Tenant authorizes Landlord to sign a Financing Statement as
may be required under the Uniform Commercial Code to perfect such security
interest. Upon the occurrence of any event of default pursuant to Section
15.01, Landlord shall be entitled to exercise all of the rights and remedies of
a secured party under the Uniform Commercial Code. Reasonable attorney's fees
of the Landlord in enforcing any right or exercising any remedy under this
Security Agreement shall be deemed a part of the obligation secured hereby.
22.18 - Amendments
Except as may be specifically provided otherwise in any mortgage on the
Building, 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, provided for payments of rents prior
to time set forth herein, not terminate said Lease 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.
22.19 - Brokerage
Tenant warrants that it has had no dealings with any broker or agent in
connection with this Lease and covenants and agrees to pay any commission,
compensation or charge claimed by any real estate broker, salesman or agent with
respect to this Lease or the negotiation thereof, and Tenant further covenants
to hold harmless and indemnify Landlord from and against any and all costs,
expense or liability in connection therewith.
22.20 - 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.
22.21 - Arbitration
Any controversy or claims arising or relative to any matter in connection
with this Lease, with reference to which this Lease shall expressly provide that
this section governs, shall be settled by arbitration in the City of Syracuse,
New York, in accordance with the rules of the American Arbitration Association
or its successor organization, and judgment upon the award rendered by the
arbitrators may be entered in any court having jurisdiction hereof.
22.22 - Joint and Several Liability
If Tenant or Tenant's Guarantor (if any) is a partnership or other business
organization, the members of which are subject to personal liability, the
liability of each such member, or Guarantor, where there is more than one
Guarantor, shall be deemed to be joint and several. Any present or future
partner of Tenant or Tenant's Guarantor(s) who is no longer a partner of Tenant
or its Guarantor(s) at the time of any default under this Lease shall,
nevertheless, remain liable for the obligations of Tenant under this Lease, as
if any such partner had been a partner on the date of such default.
22.23 - 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.
22.24 - 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 shall be effective and binding only upon such date that this
lease shall have been executed and delivered by both Landlord and Tenant ("Lease
Date"). All negotiations, considerations, representations and understandings
between Landlord and Tenant are incorporated herein and may be modified or
altered only by an agreement in writing between Landlord and Tenant, and no act
or omission of any employee or other agent of Landlord shall later, change or
modify any of the provisions hereof. Notwithstanding the fact that the term of
this Lease shall commence on the Term Commencement Date, this lease and all of
the obligations of Landlord and Tenant are binding and are and shall be in full
force and effect from and after the Lease Date.
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22.25 - 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.
22.26 - Other Provisions
There are attached hereto and incorporated herein the following additional
provisions (insert below the Section number and heading of any additional
provisions; if there are none, write "NONE"):
Section 22.27 - Expansion Premises
22.27 - Expansion Premises
Landlord hereby agrees to deliver to Tenant, and Tenant shall accept,
possession of additional premises shown on Exhibit "A" as the "Expansion
Premises" consisting of approximately 8,055 leaseable square feet ("Expansion
-----
Premises") upon such date that Landlord delivers written notice to Tenant that
the Expansion Premises are available for Tenant's occupancy. The date of said
notice is herein referred to as "Delivery Date", and the delivery of said notice
shall constitute delivery of the Expansion Premises by Landlord without need for
further act or writing by either Landlord or Tenant. Tenant shall accept
possession of the Expansion Premises in their AS IS condition. Notwithstanding
-- --
the foregoing, Landlord agrees to deliver the Expansion Premises to Tenant in
reasonably good and tenantable condition, broom clean, normal wear and tear due
to occupancy of its prior tenant accepted.
As of the Delivery Date, the term "Premises" as defined in Section 1.01,
above, and as used throughout this Lease, shall for all purposes automatically
be deemed to mean and include the Expansion Premises.
THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK.
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IN WITNESS WHEREOF, the parties hereto have executed this Lease and made the
same effective as of the date first above written.
Landlord: TENANT:
000 Xxxxxxxxx Xxxxx Company PAETEC COMMUNICATIONS, INC.
By:/s/ Xxxxxx X. Xxxxxxx By: /s/ Xxxxxx X. Xxxxxxxx
--------------------------------- ------------------------------
Xxxxxx X. Xxxxxxx Printed name: Xxxxxx X. Xxxxxxxx
Member of the Executive Committee --------------------
Title: President / CEO
---------------
(Acknowledgment of Landlord)
STATE OF NEW YORK ]
SS.:
COUNTY OF ONONDAGA ]
On this 7 day of Aug., 1998, before me personally came Xxxxxx X.
Xxxxxxx, to me personally known, who, being by me duly sworn, did depose and say
that he resides at Onondaga County, New York, that he is a Member of the
Executive Committee of the entity described in and which executed the within
Lease as Landlord; and who acknowledged to me that he executed the same on
behalf of and in the name of such entity.
/s/ Xxxxxxxx X. Xxxxx
------------------------------
NOTARY PUBLIC
XXXXXXXX X. XXXXX
Notary Public, State of New York
Qualified in Onondaga County
No. 5014751
My Commission Expires July 6, 1999
(Acknowledgment of Tenant)
STATE OF NEW YORK, ]
SS.:
COUNTY OF MONROE ]
On this 3rd day of August, 1998, before me personally came XXXXXX
X. XXXXXXXX, to me personally known, who, being by me duly sworn, did depose and
say that he resides at Victor, New York, that he is the Chief Executive Officer
of PaeTec Communications, Inc., the corporation described in and which executed
the within Lease as Tenant; and who further acknowledged to me that he executed
said Lease for, on behalf and in the name of said corporation by order of the
Board of Directors thereof.
/s/ Xxxxxx X. Xxxxxxx
-------------------------------
NOTARY PUBLIC
XXXXXX X. XXXXXXX
Notary Public, State of New York
Monroe County
My Commissioin Expires Sept. 30, 1998
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TABLE OF EXHIBITS
Exhibit A............................................................Floor Plan
Exhibit B........................................Legal Description or Site Plan
of Outside Common Areas
Exhibit C.......................................................Landlord's Work
Exhibit D.........................................................Tenant's Work
Exhibit E.................................................Rules and Regulations
Exhibit F.................................................INTENTIONALLY DELETED
Exhibit G.................................................INTENTIONALLY DELETED
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