EXHIBIT 10.8
STANDARD
OFFICE SPACE LEASE
------------------
The Syracuse Building
000 Xxxxxxxx Xxxxxx
Xxxxxxxx, Xxx Xxxx
LANDLORD: 224 Xxxxxxxx Associates, LLC
TENANT: Community Networks, Inc.
DATE OF LEASE: June 16, 1999
TABLE OF CONTENTS
Page
----
ARTICLE 1 Premises............................................. 1
ARTICLE 2 Term of Lease....................................... 2
ARTICLE 3 Rent, Taxes, Lease Year and Parking.................. 3
ARTICLE 4 Construction, Financing an Alterations............... 4
ARTICLE 5 Use of Premises..................................... 4
ARTICLE 6 Operating Costs..................................... 5
ARTICLE 7 Energy Costs and Water............................... 5
ARTICLE 8 Repairs.............................................. 6
ARTICLE 9 Indemnity............................................ 6
ARTICLE 10 Insurance............................................ 7
ARTICLE 11 Damage by Fire, Theft and Water Damage............... 7
ARTICLE 12 Eminent Domain....................................... 7
ARTICLE 13 Bankruptcy and Default Provisions.................... 7
ARTICLE 14 Mechanic's Liens..................................... 10
ARTICLE 15 Mortgages, Assignments, Subleasesand Transfers of
Tenant'.............................................. 10
ARTICLE 16 Subordination of Lease............................... 12
ARTICLE 17 Entry to Premises.................................... 13
ARTICLE 18 Notices and Certificates............................. 14
ARTICLE 19 Covenant of Quiet Enjoyment.......................... 15
ARTICLE 20 Services............................................. 15
i
ARTICLE 21 Certain Rights Reserved to Landlord.................. 16
ARTICLE 22 Miscellaneous Provisions............................. 00
XXXXXXX "X" XXXXX PLAN(S)........................................ 26
EXHIBIT "C" LANDLORD'S WORK...................................... 27
EXHIBIT "D" TENANT'S WORK and TENANT'S INSURANCE
REQUIREMENTS..................................... 28
EXHIBIT E RULES AND REGULATIONS................................ 30
2ND EXHIBIT "C" LANDLORD'S WORK...................................... 34
2ND EXHIBIT "D" TENANT'S WORK and TENANT'S INSURANCE
REQUIREMENTS..................................... 35
EXHIBIT "F" GUARANTY OF LEASE.................................... 36
JF REAL ESTATE, INC., LEASE MODIFICATION AGREEMENT NO. 1................ 40
ii
STANDARD
OFFICE SPACE LEASE
000 XXXXXXXX XXXXXX, 0XX XXXXX
XXXXXXXX, XXX XXXX
------------------
AGREEMENT made as of this 16 day of June, 1999, by and between the
following parties: 224 Xxxxxxxx Associates, LLC, a New York limited liability
company, having an office at 0 Xxxxxxx Xxxxxx, Xxxxxxxx, Xxx Xxxx 00000
("Landlord"), and Community Networks, Inc corporation duly organized under the
laws of the State of New York having its principal office at 00-00 Xxxxx Xxxxxx,
Xxxx Xxxxxx Xxxx, XX 00000 Attention: Xxxxx Xxxxxxx (the "Tenant").
WITNESSETH:
----------
ARTICLE 1
Premises
--------
1.01 - Premises
----- --------
Landlord hereby leases to Tenant and Tenant hereby leases and hires
from Landlord those certain premises in AS IS condition except as otherwise
expressly provided herein the building commonly known as "The Syracuse Building"
(the "Building") which is located at 000 Xxxxxxxx Xxxxxx in the City of
Syracuse, County of Onondaga and State of New York, which premises are outlined
on the plan attached as Exhibit "A" (the "Premises"), together with the right to
use, in common with others, the Building Commons Areas and Outside Common Areas
as hereinafter defined. For purposes of this Paragraph 1.01, the sum of the
square feet in the Premises and Tenant's share of Building Common Areas (as
defined Paragraph 1.02 hereof) shall be the aggregate of 8,000 square feet on
the sixth floor of the Building. The Premises shall include the area bounded
by: the center line of any walls common to adjacent tenants, the Building
Common Area side of any wall adjoining Building Common Areas (but not the
surface thereof), the line established by the exterior face of the exterior
walls of the Building and the exterior face of any windows in the exterior walls
of the Building, the concrete floor surface of the Premises and the lower
surface of the next higher floor (or roof). Landlord reserves unto itself, its
successors and assigns, the right to install, maintain, use, repair and replace
pipes, ducts, conduits, wires and structural elements leading through the
Premises in locations which will not materially interfere with Tenant's use of
the Premises. Except as set forth herein, 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 may from time to time devoted to uses associated with the Building, and any
adjacent or contiguous land which may from time to time be devoted to such uses,
together with such improvements as may from time to time be erected upon or
under any of such lands, including, but not limited to, surface and subsurface
parking areas, lighting facilities, utility lines, sidewalks, covered walkways,
underground walkways, driveways, plazas, courts, sidewalks, retaining walls,
access roads, truck service ways, landscaped areas, signs, and equipment.
ARTICLE 2
Term of Lease
--------------
2.01 - Term
----- ----
The term of this Lease shall be for TEN (10) years and THREE (3)
months.
2.02 - Term Commencement
----- -----------------
The term of this Lease shall commence on completion of Landlord's work
which will be the 15th day of July 1999, and shall end on the 14th day of
October 2009; provided LL has substantially completed Landlord's work. If
Landlord has not substantially completed Landlord's work the term commencement
date is the date the Landlord has substantially completed Landlord's work. The
date of commencement of the term of this Lease is herein referred to as the
"Term Commencement Date." The word "term" shall, unless otherwise expressly
provided to the contrary, be deemed to include the initial and any renewal term.
2.03 - Rent Commencement
----- -----------------
The rent shall commence three (3) months after the term commencement
date.
2.04 - Condition of Premises
----- ---------------------
Tenant's taking possession shall be conclusive evidence as against
Tenant that the Premises were in good order and satisfactory condition when
Tenant took possession, subject to latent defects and punch list items. At the
expiration or sooner termination of this Lease, Tenant shall return the Premises
broomclean 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
2
the Premises to such condition and Tenant shall pay the cost thereof.
ARTICLE 3
Rent, Taxes, Lease Year and Parking
-----------------------------------
3.01 - Fixed Annual 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, except as set forth in this lease,
as fixed annual rent, the sum of $96,000.00 per annum (computed as follows:
8,000 square feet at $12.00 per square foot), payable in equal monthly
installments of $8,000.00 each (the "fixed monthly rent"), payable in advance
upon the first day of each calendar month during the term hereof. The monthly
installments shall be deemed to have been paid upon such first day only if
actually received by such first day.
If the term shall commence or expire upon a day other than the first
(or in the case of termination the last) day of a calendar month, Tenant shall
pay, upon the Term Commencement Date, and on the first day of the last [text
missing] a per diem basis with respect to such fractional calendar month based
upon the actual number of days in those months.
The fixed annual rent shall increase by two percent (2%) per annum commencing on
the first anniversary of the rent commencement.
3.02 - Taxes
----- -----
(a) Landlord shall in the first instance, during the term of this
Lease, pay to the public officers charged with the collection thereof, all
Building Taxes as hereinafter defined.
The term "Building Taxes" shall be deemed to include (i) all real
property taxes (which shall be deemed to include all property taxes and
assessments, water and sewer rents, rates and charges, parking and environmental
surcharges and any other governmental charges, general and special, ordinary and
extraordinary), which may be levied or assessed by any lawful authority against
the Building, the Building Common Areas and the Outside Common Areas. The
amount required to be paid by Landlord pursuant to any Payment-in-Lieu-of-Tax
Agreement between Landlord and any taxing authority having jurisdiction over the
Building shall, for the purpose of this Lease, be deemed to be a real property
tax obligation and included within the definition of Building Taxes.
(b) Tenant shall at all times be responsible for and pay, before
delinquency, all municipal, county, state or federal taxes assessed against its
leasehold interest or any fixtures, furnishings, equipment, stock-in-trade or
other personal property of any kind owned, installed or used in or on the
Premises.
3
(c) Tenant shall not be responsible to pay for any building (real
estate) taxes.
3.03 - Past Due Rent
----- -------------
If, during the term of this Lease, Tenant shall fail to pay any
installment of the fixed monthly rent or additional rent or any other charge
hereunder within ten (10) days after the same is due and payable, then interest
at the rate of two percent (2%) per month shall accrue from and after the date
on which such sum was due and payable, and such interest, together with a late
charge of $50.00 for each past-due payment to cover the extra expense of
handling such delinquency, shall be paid to Landlord as additional rent and
liquidated damages at the time of payment of such past-due sum. Landlord shall
have the right to apply any payments made by Tenant first to any deficiency in
the payment of the interest and Late Charge provided for herein. Nothing
contained in this Paragraph 3.03 shall be construed to be a limitation of or in
substitution of Landlord's rights and remedies under Article 13 of this Lease.
3.04 - Definition of Lease Year and Partial Lease Year
----- -----------------------------------------------
The term "lease year" is defined to mean a period of twelve (12)
consecutive calendar months, the first full lease year commencing on the first
day of the first full calendar month following the Term Commencement Date (if
other than on the first day of a month), and each succeeding lease year
commencing on the anniversary of the commencement of the first full lease year.
Any portion of the term which is less than a lease year shall be deemed a
"partial lease year" and computations requiring proration shall be pro-rated on
a per diem basis using 365 day year.
3.05 - Security Deposit
----- ----------------
Intentionally Deleted
ARTICLE 4
Construction, Financing and Alterations
---------------------------------------
4.01 - Landlord's Obligation
---- ---------------------
Landlord has constructed the Premises for Tenant's use and occupancy
and Landlord shall have no further obligation to construct the Premises, except
as otherwise provided in Exhibit "C" attached hereto and made a part hereof.
4.02 - Financing
---- ---------
If Landlord can obtain mortgage financing or refinancing only upon the
basis of modifications of the terms and provisions of this Lease, then Tenant
shall not unreasonably withold or delay it's consent thereto, provided, the
lease modifications referred to herein shall not relate to those provisions
pertaining to length of the term of the lease, amount of rent, additional rent,
and other charges.
In the event of a refinancing or a bona fide sale of the Building by
the Landlord, Tenant shall, promptly upon request therefor, provide to Landlord
a balance sheet, and a statement of income and expenses for Tenant's last fiscal
year, for which a statement has been prepared.
4.03 - Tenant's Obligation
---- -------------------
Subject to Landlord's work, Tenant is leasing the Premises in AS IS
CONDITION and Tenant shall perform such work therein as is described in Exhibit
"D" attached hereto and made a part hereof.
4.04 - Alterations, Additions and Improvements
---- ---------------------------------------
Tenant shall not make any alterations, additions or improvements in or
to the Premises without the prior written consent of Landlord, which consent
shall not be unreasonably witheld or delayed, and then only by contractors
approved by Landlord which approval shall not be unreasonably witheld or
delayed. Landlord represents to Tenant and Tenant acknowledges the existence of
certain covenants affecting the Building and the Premises including those
portions of the architecturally or historically significant interior features of
the Building which may limit the construction of, or removal, as the case may
be, of certain alterations, additions or improvements in or to the Premises,
notwithstanding the requirement of consent thereto by Landlord. If Landlord
shall grant its consent, Tenant shall provide Landlord with certificates
evidencing the insurance coverages and limits required by Exhibit "F" to the
commencement of any such work. Tenant shall not make nor permit any defacement,
injury or waste in, to or about said Premises or any part of the Building.
Tenant agrees that any improvements as may be installed within the Premises by
Tenant pursuant to this paragraph 4.04 shall, at the option of Landlord, remain
as part of the Premises at the expiration of the Lease or any extension or
renewal thereof except any equipment installed by Tenant that is a part of
Tenant's operation. Landlord, however, shall have the right to require Tenant to
remove any alterations, additions or improvements so made. Tenant shall, at its
expense, repair or cause to be repaired any damage to the Premises caused by
such removal.
4.05 - Signs, Awnings and Canopies
---- ---------------------------
Tenant will not place or maintain or suffer to be placed or maintained
on or in an exterior door, wall or window of the Premises any sign, awning or
canopy, decoration, lettering or advertising matter without first obtaining the
written consent of Landlord thereto, which consent shall not be unreasonably
witheld or delayed. In the event such consent is received, then Tenant
shall maintain such sign, awning, canopy, decoration, lettering or advertising
matter as may be approved in good condition and repair at all times during the
term of this Lease.
ARTICLE 5
Use of Premises
---------------
5.01 - Use of Premises
----- ---------------
Tenant shall occupy and use the Premises during the term for its
telecommunication sale and services and uses incidental thereto and no other
purpose whatsoever. Tenant further agrees
4
to comply with the rules and regulations set forth in Exhibit "E" attached
hereto and made a part hereof and with such reasonable modifications thereof and
additions thereto as Landlord may hereafter from time to time make for the
Building, the Building Common Areas or the Outside Common Areas. Landlord shall
not be responsible for the nonobservance by any other tenant of any said rules
and regulations and shall not be responsible to Tenant for any violation of the
rules and regulations, or the covenants or agreements contained in any other
lease, by any other tenant of the Building, or its agents or employees.
ARTICLE 6
Operating Costs
---------------
6.01 - Definitions
----- -----------
Not Applicable.
6.02 - Tenant to Share Increases in Operating Costs
----- --------------------------------------------
Not Applicable.
ARTICLE 7
Energy Costs and Water
----------------------
7.01 - Definitions
----- -----------
As used in this Lease, "Premises Electrical Energy Cost" shall mean
the cost of the electrical energy consumed by the lighting fixtures and
electrical convenience outlets within the Premises only. As used in this Lease,
"Energy Costs and Water" shall mean (i) the cost of all energy, including
electrical, oil, gas, solar, steam and any other energy and the cost of all
water used in or at the Building, the Building Common Areas and the Outside
Common Areas, excluding the Premises.
7.02 - Charge for Premises Electrical Energy Costs
----- -------------------------------------------
Tenant agrees to pay to Landlord, as additional rent, monthly within
ten (10) days after receipt of Landlord's estimate therefor (and thereafter on
the first day of each month without invoice), a charge for Premises Electrical
Energy Costs at a usage based upon plans and specifications for the Premises
during the hours set forth in Paragraph 20.01 of this Lease. Landlord reserves
the right to survey and calculate Tenant's connected electrical load and
hours of usage thereof from time to time during the term and to adjust the
monthly charge herein set forth by the amount of electrical energy usage
exceeding the waits per square foot and hours herein set forth. Tenant agrees to
pay to Landlord, as additional rent, the amount of such monthly charge, as
adjusted, within ten (10) days following Tenant's receipt of notice of the
adjustment and on the first day of each calendar month thereafter. A check meter
will be installed to provide an accurate measure of Tenant's electrical usage.
5
ARTICLE 8
Repairs
-------
8.01 - Repairs
----- -------
Tenant shall give to Landlord prompt written notice of any damage to,
or defective condition in any part of or appurtenance to the Building's
plumbing, electrical, heating, ventilating, air-conditioning or other systems
serving, located in, or passing through the Premises. Subject to the provisions
of Article 11 of this Lease, Tenant shall, at 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
maintain the heating, ventilating and air-conditioning walls, outside windows,
floors, and roof of the Building in good order and repair. Repairs made by
Landlord required solely and directly due to negligence or fault of Tenant, its
contractors, agents or employees shall be made at Tenant's expense plus a 10%
administrative charge.
Tenant, at Tenant's expense, shall comply with all laws or ordinances,
and all rules and regulations of all governmental authorities and of all
insurance bodies at any time in force, applicable to the Premises or to Tenant's
use thereof, except that Tenant shall not hereby be under any obligation to
comply with any law, ordinance, rule or regulation requiring any structural
alteration of the Premises or with respect to the Premises, unless such
alteration is required by reason of a condition which has been created by, or at
the instance of, Tenant, or is required by reason of a breach of any of Tenant's
covenants and agreements hereunder. All repairs made by Tenant shall be made
using contractors approved by Landlord which approval shall not be unreasonably
withheld or delayed.
ARTICLE 9
Indemnity
---------
9.01 - Indemnification by Tenant
----- -------------------------
Tenant does hereby indemnify and shall defend Landlord (and such other
persons as are in privity of estate with Landlord) and save it harmless from and
against any and all claims, actions, damages, liability and expense in
connection with loss of life, personal injury and/or damage to property arising
from or out of any occurrence in, upon or at the Premises, from or out of the
occupancy or use by Tenant of the Premises or any part thereof, or occasioned
wholly or in part by any act or omission of Tenant, its agents, contractors,
employees, lessees or concessionaires. In case Landlord (and such other persons
as are in privity of estate with Landlord) shall, without fault on its part, be
made a party to any litigation commenced by or against Tenant, then 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. Tenant agrees also to pay all costs, expenses and reasonable
attorney's fees that may be incurred or paid by Landlord in enforcing the
covenants and agreements in this Lease.
6
ARTICLE 10
Insurance
---------
10.01 - Liability Insurance
----------------------------
At all times during the term of this Lease, Tenant shall, at its sole
cost and expense, for the mutual benefit of Landlord and Tenant, maintain
personal injury, death or property damage occurring on, in or about the Premises
during the term of this Lease in an amount of not less than Two Million Dollars
($2,000,000.00) with respect to personal injury, death or property damage and
including contractual indemnity coverage. In the event that Tenant shall not
have delivered to Landlord a policy or certificate evidencing such insurance
fifteen (15) days prior to the Term Commencement Date and fifteen (15) days
prior to the expiration dates of each expiring policy. Landlord upon ten (10)
days notice to Tenant may obtain such insurance as it may reasonably require to
protect its interest. The cost for such policies shall be paid by Tenant to
Landlord as additional rent upon demand, plus ten percent (10%) administrative
charge. All insurance policies required hereunder shall be issued by insurers
of recognized responsibility and licensed to conduct business in the State of
New York.
10.02 - All Risks and Difference in 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 form time to time
(but not more frequently than once in any twelve (12) calender months) by an
appraiser, architect or other person or firm designated by Landlord.
The parties agree that Landlord shall not provide any insurance
coverage for Tenant's merchandise, trade fixtures, furnishings, equipment and
other personal property of Tenant.
10.03 - Insurance on Common Areas
----------------------------------
At all time during the term of this Lease, Landlord shall keep the
Common Areas insured for personal injury and property damage liability, "All
Risk" property coverage. "Difference in Conditions," workers' compensation,
employee's liability and any other casualty or risk insurance which Landlord or
Landlord's insurance carrier deems necessary or appropriate.
10.04 - Waiver of Subrogation
------------------------------
Each of the parties shall have a waiver of subrogation clause attached
to, and made a part of, its insurance policy or policies in the following or
equivalent form:
Waiver of Subrogation Clause
This insurance shall not be invalid should the insured waive in
writing, prior to a loss, any or all rights of recovery against any party for
loss occurring to the property described herein. Notice is hereby accepted that
the insured has agreed in writing, prior to a loss, to waive any and all of its
rights of recovery from (the Landlord or the Tenant as the case may be).
ARTICLE 11
Damage by Fire, Theft and Water Damage
--------------------------------------
11.01 - Untenantability
------------------------
If the Premises are made untenantable in whole or in part by fire or
other casualty, the fixed monthly rent, additional rent and other charges, until
repairs shall be made or the Lease terminated as hereinafter provided, shall be
apportioned on a per diem basis according to the part of the Premises which is
usable by Tenant. If such damage shall be so extensive that the Premises cannot
be restored by Landlord within a period of nine (9) months, Landlord or Tenant
shall have the right to cancel this Lease by notice to the other given at any
time within thirty (30) days after the date of such damage. If a portion of the
Building other than the Premises shall be so damaged that in the reasonable
opinion of Landlord the Building shall be restored in such a way as to alter the
Premises materially, Landlord may cancel this Lease by notice to Tenant given at
any time within thirty (30) days after the date of such damage. In the event of
giving effective notice pursuant to this paragraph, this Lease and the term and
the estate hereby granted shall expire on the date fifteen (15) days after the
giving of such notice as fully and 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 effectuate a satisfactory settlement with Landlord's insurance
company) restore the damage insured by Landlord pursuant to Paragraph 10.02.
Tenant hereby expressly waives the provisions of Section 227 of the New York
Real Property Law and agrees that the foregoing provisions of this Paragraph
11.01 shall govern and control in lieu thereof.
11.02 - Loss of Property and Water Damage
------------------------------------------
Landlord shall not be responsible to Tenant for any loss or theft or
damage of or to any property left with any employee of Landlord, however
occurring. Landlord shall 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 in which said
Premises are located.
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 for the real property. Tenant
hereby assigning to Landlord Tenant's interest therein, if any, provided Tenant
may make a claim for the value of its property and Tenant's expenses Incurred.
(b) In the event that title to a part of the Building other than the
Premises shall be so condemned or taken and if in the opinion of Landlord, the
Building should be restored in such a way as to alter the Premises materially,
Landlord may terminate this Lease and the term and estate hereby granted by
notifying Tenant of such termination within sixty (60) days following the date
of vesting of title, and this Lease and the term and estate hereby granted shall
expire on the date specified in the notice of termination, which date shall be
not less than sixty (60) days after the giving of such notice, as fully and
completely as if such date were the date hereinbefore set for the expiration of
the term of this Lease, and the fixed monthly rent, additional rent, and other
charges hereunder shall be apportioned as if such date. In such event. Tenant
shall not be entitled to any portion of Landlord's award hereunder. if any, nor
shall Tenant have any claim against Landlord for the value of the unexpired
portion of the term.
ARTICLE 13
Bankruptcy and Default Provisions
---------------------------------
13.01 - Conditional Limitations
--------------------------------
This Lease and the demised term are subject to the limitation that if,
at any time prior to or during the term, any one or more of the following events
(herein called an "event of default") shall occur, that is to say:
(a) If Tenant shall make an assignment for the benefit of its
creditors: or
(b) If the leasehold estate hereby created shall be taken on
execution or by other process of law; or
(c) If any petition shall be filed against Tenant in any court,
whether or not pursuant to any statute of the United States or of any State, in
any bankruptcy, reorganization, composition, extension, arrangement, or
insolvency proceedings, and Tenant shall thereafter be adjudicated bankrupt, or
such petition shall be approved by the court, or the court shall assume
jurisdiction of the subject matter and if such proceedings shall not be
dismissed within thirty (30) days after the institution of the same; or if any
such petition shall be so filed by the Tenant; or
7
(d) If in any proceedings a receiver or trustee be appointed for
Tenant's property, and such receivership or trusteeship shall not be vacated or
set aside within thirty (30) days after the appointment of each receiver or
trustee; or
(e) If Tenant shall vacate or abandon the Premises and permit the
same to remain unoccupied or closed for business for more than thirty (30) days;
or
(f) If Tenant shall fail to pay any installment of the fixed monthly
rent or any part thereof when the same shall become due and payable, and such
failure shall continue for ten (10) days after notice thereof from Landlord; or
(g) If Tenant shall fail to pay any other charge required to be paid
by Tenant hereunder, and failure shall continue for ten (10) days after notice
thereof from Landlord to Tenant: or
(h) If Tenant shall fail to perform or observe any other requirement
of this Lease (not hereinbefore in this paragraph specifically referred to) on
the part of Tenant to be performed or observed, and such failure shall continue
for thirty (30) days after notice thereof from Landlord to Tenant, provided if
not susceptible of cure, Tenant not in default if it commences cure within
thirty (30) days and diligently pursues cure; then, upon the happening of any
one or more of the aforementioned events of default, and the expiration of the
period of time prescribed above, Landlord may give Tenant a notice (hereinafter
called "notice of termination") of its intention to end the term of this Lease
at the expiration of five (5) days from the date of service of such notice of
termination, and at the expiration of such five (5) days, provided the default,
has not been cured, this Lease and the term hereof, as well as all of the right,
title and interest of Tenant hereunder, shall wholly cease and expire in the
same manner and with the same force and effect as if the date of expiration of
such five (5) day period were the date originally specified herein for the
expiration of this Lease and the demised term, and Tenant shall then quit and
surrender the Premises to Landlord, but Tenant shall remain liable as
hereinafter provided.
13.02 - Landlord's Remedies
---------------------------
(a) If this Lease shall be terminated as in Paragraph 13.01 provided,
Landlord or Landlord's agents or employees may immediately or at any time
thereafter re-enter the Premises and remove therefrom Tenant, its agents,
employees, licensees, and any subtenants and other persons, firms or
corporations, and all or any of its or their property therefrom either by
summary dispossess proceedings or by any suitable action or proceeding at law or
by force or otherwise, without being liable to indictment, prosecution or
damages therefor, and repossess and enjoy said Premises, together with all
alterations, additions and improvements thereto.
(b) In case of any such termination, re-entry or dispossess by summary
proceedings or otherwise, the rents and all other charges required to be paid up
to the time of such termination, re-entry or dispossess, shall be paid by Tenant
and Tenant shall also pay to Landlord all reasonable expenses which Landlord may
then or thereafter incur for legal expenses, attorneys' fees, brokerage
commissions and all other costs paid or incurred by Landlord for restoring the
8
Premises to good order and condition and for altering and otherwise preparing
the same for reletting and for reletting thereof. Landlord may, at any time and
from time to time, relet the Premises, in whole or in part, for any rental then
obtainable either in its own name or as agent of Tenant, for a term of terms
which, at Landlord's option, may be for the remainder of the then current term
of this Lease or for any longer or shorter period.
(c) If this Lease be terminated as aforesaid, Tenant nevertheless
covenants and agrees, notwithstanding any entry or reentry by Landlord whether
by summary proceedings, termination, or otherwise, to pay and be liable for on
the days originally fixed herein for the payment thereof, amounts equal to the
several installments of fixed monthly rent, additional rent and other charges as
they would, under the terms of this Lease, become due if this Lease had not been
terminated or if Landlord had not entered or re-entered as aforesaid, and
whether the Premises be relet or remain vacant in whole or in part or for a
period less than the remainder of the term, and for the whole thereof, but in
the event the Premises be relet by Landlord, Tenant shall be entitled to a
credit in the net amount of rent received by Landlord in reletting the Premises
after deduction of all reasonable expenses and costs incurred or paid as
aforesaid in reletting the Premises and in collecting the rent in connection
therewith.
(d) Tenant hereby expressly waives, so far as permitted by law, the
service of any notice of intention to re-enter provided for in any statute, or
of the institution of legal proceedings to that end, and Tenant, for and on
behalf of itself and all persons claiming through or under Tenant also waives
any and all right of redemption or re-entry or repossession under present or
future laws including specifically but without limitation Section 761 of the New
York Real Property Actions and Proceedings law including any amendments
hereafter, or to restore the operation of this Lease. In case Tenant shall be
dispossessed by a judgment or by warrant of any court or judge or in case of re-
entry or repossession by Landlord or in case 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 or injury or
damage. The terms "enter," "entry," or "re-entry" as used in this Lease are not
restricted to their technical legal meaning.
(e) No failure by 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 and condition.
No waiver of any breach shall affect or alter this Lease, but each and every
covenant, agreement, term and condition of this Lease shall continue in full
force and effect with respect to any other than existing or subsequent breach
thereof. No payment by Tenant or receipt by Landlord of a lesser amount than
the monthly installments of rent or additional rent stipulated in this Lease
shall be deemed to be other than on account of the earliest stipulated rent nor
shall any endorsement or statement on any check or letter accompanying a 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.
9
(f) In the event of any breach or threatened breach by Tenant of any
of the covenants, agreements, terms or conditions contained in this Lease,
Landlord shall be entitled to enjoin such breach or threatened breach and shall
have the right to invoke any right and remedy allowed at law or in equity or by
statute or otherwise.
(g) Each right and remedy of Landlord provided for in this Lease shall
be cumulative and shall be in addition to every other right or remedy provided
for in this Lease or now or hereafter existing at law or in equity or by statute
or otherwise.
ARTICLE 14
Mechanic's Liens
----------------
14.01 - Mechanic's Liens
------------------------
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)
forthwith shall commence such action by bonding, deposit, payment or otherwise,
as will remove or satisfy such lien within fifteen (15) days. In the event
tenant does not remove or satisfy said lien with said fifteen (15) day period,
Landlord shall have the right to do so by posting a bond or undertaking and
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 include, but are not limited to
filing fees, legal fees and bond premiums. However, nothing in this Article 14
shall be deemed or construed as (a) Landlord's consent to any person, firm or
corporation for the performance of any work or services or the supply of any
materials to the Premises, or (b) giving Tenant or any other person, firm or
corporation any right to contract for or to perform or supply any work, services
or materials that would permit or give rise to a lien against the Premises or
the Building.
ARTICLE 15
Mortgages, Assignments, Subleases and Transfers of Tenant's Interest
--------------------------------- ----------------------------------
15.01 - Limitation on Tenant's Rights
-------------------------------------
Except as hereinafter otherwise provided, during the term of this
Lease, in each case, without the prior written consent of Landlord first had and
received, which consent shall not be unreasonably withheld or delayed, neither
this Lease nor the interest of Tenant in this Lease, or in any sublease, or in
any rentals under any sublease shall be sold, assigned, transferred, mortgaged,
10
pledged, hypothecated or otherwise disposed of, whether by operation of law or
otherwise, nor shall the Premises be sublet.
It is understood and agreed between the parties that, should Tenant
request Landlord's consent to a proposed assignment of this Lease or a
subletting of all or any portion of the Premises, Landlord will, in addition to
any other requirements which may be imposed as conditions to Landlord's consent,
require that Tenant execute and deliver to Landlord an agreement whereby Tenant
obligates itself, as additional rent, to pay over to Landlord fifty percent
(50%) of all net rental profits, additional rent and any other consideration
paid by such assignee or sublessee to Tenant, excluding any amount paid for
Tenant's equipment and personal property, pursuant to such assignment or
sublease which is in excess of rent and additional rent due and payable from
time to time from Tenant to landlord pursuant to this Lease.
No consent by Landlord to an assignment of this Lease and no
assignment made as hereinafter permitted, shall be effective until there shall
have been delivered to Landlord (a) an agreement, in recordable form, executed
by Tenant and the proposed assignee, wherein and whereby such assignee assumes
due performance of the obligation on Tenant's part to be performed under this
Lease to the end of the term hereof, and (b) the written consent of such
assignment of the holder of any fee or leasehold mortgage to which this Lease is
then subject shall have been obtained and delivered to Landlord if so required
by the terms of such fee or leasehold mortgage.
In the event Tenant sublets or assigns this lease the, Tenant will be
released form its obligation and the sub-tenant or assignee will assume all
obligations for this lease.
Tenant has the right to assign this lease without consent to
affiliates, subsidiaries or successors, assuming the assignee has equal or
greater financial strength as Tenant. Tenant must still notify Landlord of such
potential assignment.
Any assignment, mortgage, pledge, sublease or hypothecation of this
Lease, or of the interest of Tenant hereunder, without full compliance with any
and all requirements set forth in this Lease shall be a breach of this Lease and
a default hereunder.
15.02 - Effect of Landlord's Consent
------------------------------------
Any consent by Landlord to a sale, assignment, sublease, mortgage,
pledge, hypothecation, or transfer of this Lease, shall apply only to the
specific transaction thereby authorized and shall not relieve Tenant from the
requirement of obtaining prior written consent of Landlord to any further sale,
assignment, sublease, mortgage, pledge, hypothecation, or transfer of this
Lease. In instances where the consent of 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
therefore Tenant shall submit in writing information reasonably sufficient to
enable Landlord to decide with respect thereto. Landlord shall reply to Tenant
within ten (10) days after receipt of the request as aforementioned.
With respect to any of the consents requested by Tenant under he
provisions of this
11
Article 15, whether or not the Landlord shall have consented thereto, Tenant
shall pay to the Landlord all reasonable counsel fees and other out-of-pocket
expenses incurred by the Landlord in connection therewith.
ARTICLE 16
Subordination of Lease
----------------------
16.01 - Subordination to Mortgages and Ground Leases/Non-Disturbance
--------------------------------------------------------------------
This Lease and all the rights of Tenant hereunder are and shall be
automatically subject and subordinate to the lien of any ground or underlying
leases and to any mortgage or mortgages, whether fee or leasehold mortgages,
which may now or hereafter affect the Premises or the Building or the land under
the Building and to all renewals, modifications, consolidations, replacements
and extensions thereof, and advances thereunder. In order to confirm such
subordination, Tenant shall execute and deliver such instruments as may be
requested by any ground lessor or mortgagee and in the event Tenant fails to do
so within ten (10) days after written demand therefor, Tenant does hereby make,
constitute and irrevocably appoint Landlord as its attorney-in-fact to execute
same in its name and on its behalf.
12
Landlord will use its best efforts to provide Tenant with a non-
disturbance agreement from any existing or future lender of the building.
16.02 - Other Agreed Matters
----------------------------
Tenant will not do, suffer or permit any act, happening or occurrence
or any condition to occur or remain which may be prohibited under the terms or
provisions of any ground or underlying lease or mortgage to which this Lese is
subject or which will create a default thereunder except that Tenant shall not
be obligated to pay the principal indebtedness or any installment thereof or
interest thereon. Landlord represents that Tenant's use hereunder is not
prohibited.
So long as any such mortgage or lese shall remain a lien on the
Premises, Tenant agrees simultaneously with the giving of any notice of default
to Landlord which is required to be given by this Lease to give a duplicate copy
thereof to any mortgagee or ground lessor, notice of whose name and address have
been given to Tenant. Further, 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 which Landlord is obligated to cure such default in the Lease. The giving
of any such notice to Landlord shall not be properly given under the terms of
this Lease and shall not be of any force and effect until a duplicate copy
thereof shall also have been given to the mortgagee or ground lessor pursuant to
this paragraph.
ARTICLE 17
Entry to Premises
-----------------
17.01 - Entry to Premises by Landlord
-------------------------------------
Provided that at all times Landlord will minimize the interference
with Tenant's business, Landlord shall have the right to enter the Premises at
all reasonable times for the purpose of:
(a) Inspecting the same, and
(b) making any repairs to the Premises and performing any work
therein that may be necessary by reason of Tenant's default under the terms of
this Lease continuing beyond the applicable periods of grace,
(c) exhibiting the Premises for the purpose of sale, ground lease or
mortgage, and
13
(d) exhibiting the Premises to prospective tenants within six (6)
months prior to the expiration of the term hereof.
ARTICLE 18
Notices and Certificates
------------------------
18.01 - Notices
---------------
Any notice, statement, certificate, request or demand required or
permitted to be given in this Lease shall be in writing sent by recognized
overnight courier service providing for a receipt upon delivery, or by
registered or certified mail, postage prepaid, return receipt requested,
addressed, as the case may be, to Landlord at the mailing address shown at the
beginning of this Lease, and to Tenant at the address shown at the beginning of
this Lease or to such other addresses as Landlord or Tenant shall designate in
the manner herein provided. Such notice, statement, certificate, request or
demand shall be deemed to have been given one business day after the date
deposited with such courier or three business days after being mailed as
aforesaid in any post office or branch post office regularly maintained by the
United States Government, except for notice of change of address or revocation
of a prior notice, which shall only be effective upon receipt.
At any time or times when Tenant's interest herein shall be vested in
more than one person, firm or corporation, jointly in common or in severally, a
notice given by Landlord to any one such person, firm or corporation shall be
conclusively deemed to have been given to all such persons, firms or
corporations. Any notice by Tenant pursuant to the provisions hereof shall be
void and ineffective unless signed by all such persons, firms and corporations,
unless all such persons, firms and corporations shall have previously given
notice to Landlord, signed by each of them designating and authorizing one or
more of them to give the notice referred to, and such notice shall then be
unrevoked by any notice to Landlord.
Notices must be mailed to the following addresses and shall only be
sent to another address if requested in writing by party changing address:
TENANT: Community Networks, Inc.
Attn: Xxxxx Xxxxxxx
00-00 Xxxxx Xxxxxx
Xxxx Xxxxxx Xxxx, XX 00000
LANDLORD: 000 Xxxxxxxx Xxxxxx Associates
Attn: Xxxx Xxxxxxxxxx
0 Xxxxxxx Xxxxxx
Xxxxxxxx, XX 00000
14
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.
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 terms and conditions of this Lease and to any ground or underlying lease
and/or mortgage(s); but it is understood and agreed that this covenant, and any
and all covenants of Landlord contained in this Lease shall be binding upon
Landlord and its successors only with respect to breaches occurring during its
and their respective ownership of Landlord's interest hereunder.
ARTICLE 20
Services
--------
20.01 - Services
----------------
During the term of this Lease, while Tenant is not in default
hereunder beyond the
15
applicable notice and cure period hereunder, Landlord shall furnish to the
Premises electricity, lighting, heating, ventilating, air conditioning, elevator
service, and water to the plumbing fixtures, if any, on Monday through Friday
from 8:00 A.M. to 6:00 P.M. and on Saturday from 9:00 A.M. to 1:00 P.M.,
principal legal holidays excepted. The following temperature ranges shall be
maintained during the term of this lease: from 73 degrees to 75 degrees when
outside temperatures are 80 degrees or higher, and settings shall range from 70
degrees to 73 degrees when outside temperatures are 32 degrees or lower. Use of
these services by Tenant outside these days and hours could result in an
additional charge to Tenant which shall be paid by Tenant to Landlord, as
additional rent, within fifteen (15) days following the receipt of an invoice.
Landlord shall also furnish janitorial service consisting of cleaning floors and
removing waste paper each business day. Tenant shall have twenty-four (24) hour
per day, seven (7) day per week access to the building and tenant premises.
20.02 - Interruption of Service
-------------------------------
No diminution or abatement of rent or other compensation shall be
claimed or allowed for inconvenience or discomfort arising from the making of
repairs or improvements to the Building or its appurtenances. There shall be no
diminution or abatement of rent or any other compensation for interruption or
curtailment of any service or utility herein expressly or impliedly agreed to be
furnished by Landlord when such interruption or curtailment shall be due to
accident, alterations, repairs desirable or necessary, or to inability or
difficulty in securing supplies or labor, or to some other cause not gross
negligence on the part of Landlord. No such interruption or curtailment shall
be deemed a constructive eviction. Tenant agrees that Landlord shall not be
responsible for interruption of utility service caused by any utility company or
governmental regulatory agency.
ARTICLE 21
Certain Rights Reserved to Landlord
-----------------------------------
21.01 - Certain Rights Reserved to Landlord
-------------------------------------------
Landlord reserves the following rights:
(a) To name the Building and to change the name or street address of
the Building;
(b) To install and maintain a sign or signs on the exterior or
interior 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;
16
(d) During the last ninety (90) days of the term, if during or prior
to that time Tenant vacates the Premises, to decorate, remodel, repair, alter or
otherwise prepare the Premises for reoccupancy, including the placing of a
notice of reasonable size on or in the Premises offering said Premises "For
Rent" or "For Lease", all without affecting Tenant's obligation to pay rental
for the Premises;
(e) To constantly have pass keys to the Premises;
(f) At any time in the event of an emergency, or otherwise at
reasonable times, to take any and all measures, including inspections, repairs,
alterations, additions and improvements to the Premises or to the Building, as
may be necessary or desirable for the safety, protection or preservation of the
Premises or the Building or the Landlord's interests, or as may be necessary or
desirable in the operations or improvement of the Building or in order to comply
with all laws, orders and requirements of governmental or other authority; and
(g) At any reasonable time and from time to time throughout the term
of the Lease show the Premises to persons wishing to purchase the Building.
Nothing in this Lease shall imply any duty on the part of the Landlord
to do work which, under any of the provisions of this Lease Tenant may be
required to perform, and the performance thereof by Landlord shall not
constitute a constructive eviction nor a waiver of Tenant's default in failing
to so perform. In the event Landlord performs or causes any such work to be
performed, Tenant shall pay the cost thereof to landlord forthwith as additional
rent upon receipt of Landlord's invoice therefor. No exercise by Landlord of
any rights provided in this paragraph 21.01 or elsewhere in this Lease shall
entitle Tenant to any damages for inconvenience, disturbance, loss of business
or other damage to Tenant occasioned thereby nor to any abatement of rent or
additional rent.
ARTICLE 22
Miscellaneous Provisions
------------------------
22.01 - Holdover
----------------
Should Tenant continue to occupy the Premises after the expiration of
the term hereof or after a forfeiture incurred, whether with or against the
consent of Landlord, such tenancy shall be from month-to-month, and such month-
to-month tenancy shall be under all the terms, covenants and conditions of this
Lease, and at double the rent reserved herein. However, if Tenant notifies
Landlord in writing upon three months prior notice, Tenant may holdover for
three months at the Tenant's then escalated rent. Tenant shall pay 125% of
their then escalated rent thereafter.
17
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, beneficiaries, co-tenants, shareholders, or
principals (as the case may be) shall be subject to levy, execution or other
enforcement procedures.
(b) The term "Landlord," as used in subparagraph 22.02(a) above and
throughout this Lease, so far as covenants and agreements on the part of the
Landlord are concerned, shall be limited to mean and include only the owner or
owners at the time in question of the Building and Lease. Further, in the event
of any transfer or transfers of the title to the said Lease and/or the Building,
Landlord herein named (and in case of any subsequent transfers or conveyances,
the then grantor), including each of its partners, beneficiaries, co-tenants,
shareholders, or principals (as the case may be), shall be automatically freed
and relieved from and after the date of such transfer and conveyance of all
liability as respects the performance of any covenants and agreements on the
part of Landlord. Landlord or the grantor shall turn over to the grantee all
monies and security, if any, then held by Landlord or such grantor on behalf of
Tenant and shall assign to such grantee all right, title and interest of
Landlord or such grantor thereto, it being intended that the covenants and
agreements contained in this Lease on the part of Landlord to be performed
shall, subject as aforesaid, be binding on Landlord, its successors and assigns.
22.03 - No Representation by Landlord
-------------------------------------
Landlord or Landlord's agents have made no representations or promises
with respect to the Building, the land upon which the Building is erected or the
Premises except as herein expressly set forth in the provisions of this Lease.
22.04 - 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, shall
be the joint and several obligations of the firm and of the individual members
thereof.
18
22.05 - Vaults, Vault Space, Etc.
---------------------------------
No vaults, vault space or space not within the property line of the
Building is leased hereunder, anything contained in or indicated on any sketch,
blueprint or plan, or anything contained elsewhere in this Lease to the contrary
notwithstanding. Landlord makes no representations as to the location of the
property line of the Building. All vaults and vault space and all space not
within the property line of the Building, which Tenant may be permitted to use
and/or occupy, is to be used and/or occupied under a revocable license, and if
any such license be revoked, or if the amount of such space be diminished or
required by any Federal, State, Municipal Authority or public utility, Landlord
shall not be subject to any liability nor shall Tenant be entitled to any
compensation or diminution or abatement of rent, nor shall such revocation,
diminution or requisition be deemed constructive or actual eviction. Any fee or
charge of municipal authorities for such vault shall be paid by Tenant.
22.06 - Failure to Give Possession
----------------------------------
If Landlord shall not be able to turn space over substantially
completed to Tenant by October 1, 1999, then for each day of delay of
substantial completion Tenant shall receive three (3) additional days of rent
abatement.
22.07 - Force Majeure
---------------------
The period of time during which either party is prevented or delayed,
in the performance or the making of any improvements or repairs or fulfilling
any obligation other than the payment of fixed monthly rent or additional rent
required under this Lease due to unavoidable delays caused by fire, catastrophe,
strikes or labor trouble, civil commotion, Acts of God or the public enemy,
governmental prohibitions or regulation or inability to obtain materials by
reason thereof, or other causes beyond such party's reasonable control, shall be
added to such party's time for performance thereof, and such party shall have no
liability by reason thereof.
22.08 - Attornment by Tenant
----------------------------
If at any time during the term of this Lease Landlord hereunder shall
be the holder of a leasehold estate covering premises which include the Premises
and if such leasehold estate shall be canceled or otherwise terminated prior to
the expiration date thereof and prior to the expiration of the term of this
Lease or in the event of the surrender thereof whether voluntary, involuntary or
by operation of law, Tenant shall make full and complete attornment to the
lessor of such leasehold estate for the balance of the term of this Lease upon
the same covenants and conditions as are contained herein so as to establish
direct privity between such lessor and Tenant and with the same force and effect
as though this Lease was made directly from such lessor to the Tenant. Tenant
shall make all rent payments thereafter directly to such lessor. In the event
any proceedings are brought for the foreclosure of, or in the event of
conveyance by deed in lieu of foreclosure of, or in the event of exercises of
the power of sale under any mortgage or deed of trust made by Landlord covering
the leases Premises, or in the event Landlord sells, conveys or otherwise
transfers its interest in the Building or any portion thereof containing the
leased Premises, Tenant shall attorn to and hereby
19
covenants and agrees to execute an instrument in writing reasonably satisfactory
to the new owner whereby Tenant attorns to such successor in interest and
recognizes such successor as the Landlord under this Lease.
22.09 - Landlord May Pay Tenant's Obligations
---------------------------------------------
All costs and expenses which 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 nonpayment, Landlord shall have all the rights and
remedies herein provided for in case of nonpayment of rent or of a breach of
covenant. If Tenant shall default, beyond the applicable notice and cure
period, in making any payment required to be made by Tenant (other than the
payment of rent as provided by Article 3 above) or shall default in performing
any term, covenant or condition of this Lease on the part of Tenant to be
performed which shall involve the expenditure of money by Tenant, Landlord at
Landlord's option may, but shall not be obligated to, make such payment or, on
behalf of Tenant, expend such sum as may be necessary to perform and fulfill
such term, covenant or condition, and any and all sums so expended by Landlord,
with interest thereon at the rate of one and one-half percent (1-1/2%) per month
from the date of such expenditure, shall be and be deemed to be additional rent,
in addition to the rent provided in Article 3 and shall be repaid by Tenant to
Landlord on demand, but no such payment or expenditures by Landlord shall be
deemed a waiver of Tenant's default nor shall it affect any other remedy for
Landlord by reason of such default.
22.10 - Effect of Captions
--------------------------
The captions or legends on this Lease are inserted only for convenient
reference or identification of the particular paragraphs. They are in no way
intended to describe, interpret, define or limit the scope, extent or intent of
this Lease, or any paragraph or provision thereof.
22.11 - Tenant Authorized to Do Business in New York
----------------------------------------------------
Tenant represents and covenants that it is and throughout the term of
this Lease shall be authorized to do business in the State of New York.
22.12 - Execution in Counterparts
---------------------------------
This Lease may be executed in one or more counterparts, any one or all
of which shall constitute but one agreement.
22.13 - Memorandum of Lease
---------------------------
Tenant agrees, if requested by Landlord, to execute a Memorandum of
Lease in recordable form pursuant to Section 291-c of the Real Property Law of
the State of New York.
20
22.14 - Law Governing, Effect and Gender
----------------------------------------
This Lease shall be construed in accordance with the laws of the State
of New York and shall be binding upon the parties hereto and their respective
legal representatives, successors and assigns except as expressly provided
otherwise. Use of the neuter gender shall be deemed to include the masculine or
feminine, as the sense requires. Any reference to successors and assigns of
Tenant is not intended to constitute a consent to any assignment by 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.
22.15 - Amendments
------------------
The parties hereto mutually agree that so long as a mortgage or any
extension thereof shall be a lien upon the Premises, they will not reduce the
rents from that provided for in this Lease, provide for payments of rents prior
to the time herein provided for, nor terminate said Lease, except as set forth
herein, prior to the end of the term, except as otherwise provided in this
Lease, without first obtaining the consent of the mortgagee in writing, and that
any such proposed modification or termination without said mortgagee's consent
shall be void as against said mortgagee.
22.16 - Complete Agreement
--------------------------
This Lease contains and embraces the entire Agreement between the
parties hereto and it or any part of it may not be changed, altered, modified,
limited, terminated, or extended orally or by any agreement between the parties
unless such agreement be expressed in writing, signed and acknowledged by the
parties hereto, their legal representative, successors or assigns, except as may
be expressly otherwise provided herein.
22.17 - Invalidity of Particular Provisions
-------------------------------------------
If any term or provision of this Lease or the application thereof to
any person or circumstances shall to any extent, be invalid or unenforceable,
the remainder of this Lease, or the application of such term or provision to
persons or circumstances other than those as to which it is held invalid or
unenforceable, shall not be affected thereby and each term and provision of this
Lease shall be valid and be enforced to the fullest extent permitted by law.
22.18 - Execution of Lease by Landlord
--------------------------------------
The submission of this document for examination and negotiation does
not constitute an offer to lease, or a reservation of, or option for, the
Premises and this document becomes effective and binding only upon the execution
and delivery hereof by Landlord and by Tenant. All negotiations,
considerations, representations and understandings between Landlord and Tenant
are incorporated herein and may be modified or altered only by agreement in
writing between Landlord and Tenant, and no act or omission of any employee or
other agent of Landlord shall alter, change or modify any of the provisions
hereof.
21
22.19 - Relationship of the Parties
-----------------------------------
Nothing contained herein shall be deemed or construed by the parties
hereto nor by any third party as creating the relationship of principal and
agent or of partnership or of joint venture between the parties hereto, it being
understood and agreed that neither the method of computation of rent nor any
other provision herein contained, nor any acts of the parties hereto, shall be
deemed to create any relationship between the parties hereto other than Landlord
and Tenant.
22.20 - Renewal Option
----------------------
Tenant shall have two (2) consecutive five (5) year lease renewal
options for up to 100% of Tenant's space then under lease at the lesser of 90%
of fair market or the then escalated rate. At the exercise of each option, the
space will be repainted and recarpeted at Landlord's expense. Replacement costs
including Landlord concessions and marketing time will be utilized to determine
fair market rent in each renewal period.
22.21 - Existing Tenant Obligation
----------------------------------
Landlord shall assume Community Network's, Inc. current lease
obligations at 000 Xxxxx Xxxxxx Xxxxxx, Xxxxxxxx, XX from the time of rent
commencement at 000 Xxxxxxxx Xxxxxx. Community Networks current lease at 000 X.
Xxxxxx Xxxxxx expires 12/31/00. In the event Community Networks, Inc. Is
released from any or all of its rent obligation at 000 X. Xxxxxx Xxxxxx prior to
lease expiration, then Landlord will cover only whatever obligation is left, if
any.
22.22 - Exterior Building Signage
---------------------------------
Landlord will agree to work with Tenant, and Tenant at Tenant's sole
cost and expense will be allowed to install a sign on the building. Location,
size, style, and design must all be approved by Landlord, which approval shall
not be unreasonably withheld or delayed.
22.23 - Right of First Refusal
------------------------------
Tenant shall have an ongoing Right of First Refusal on adjacent vacant
space in the building. Should Tenant exercise a refusal right, the rental rate
shall be at the same terms and conditions of the other offer.
22.24 - Additional Tenant Improvements
--------------------------------------
Tenant, at Tenant's option, shall have the right to amortize up to an
additional $10.00 per rentable square feet over the entire lease term at an
interest rate of nine percent (9%). This allowance may be applied towards any
hard or soft, construction or moving-related costs, included but not limited to
construction furniture, telecommunications, professional fees or moving
expenses.
22.25 - Brokerage
-----------------
Landlord and Tenant represent that Equis of N.Y. is the sole brokerage
company related to this lease agreement and Landlord will pay Equis of N.Y. a
real estate commission per a separate agreement between Equis of N.Y. and
Landlord.
22
22.26 - Other Provisions
------------------------
Landlord will use its best efforts to provide Tenant with a
nondisturbance agreement from the lendor of the building.
Landlord shall provide a pad space outside the building approximately
10 feet by 10 feet for tenant's gas emergency generator and day tank.
23
IN WITNESS WHEREOF, Landlord and Tenant have executed this Lease as of
the day and year first above written.
LANDLORD:
--------
224 Xxxxxxxx Associates, LLC
Date: /s/ By: /s/
----------------------- --------------------------------
General Partner
Date: 6/25/99 By: /s/
----------------------- --------------------------------
General Partner
TENANT:
------
Community Networks, Inc.
Date: 6/16/99 By: /s/ Xxxxx Xxxxxxx- V P Admin.
------------------------- --------------------------------
Date: 6/16/99 By: /s/
-------------------------- --------------------------------
00
XXXXX XX XXX XXXX )
ss.:
COUNTY OF ONONDAGA )
On this 25th day of June, 1999, before me personally came Xxxxxxx
Xxxxxxx, to me personally known, who, being by me duly sworn, did depose and say
that he resides in Liverpool, New York; that he is a Partner of 224 Xxxxxxxx
Associates, LLC, that he is known to me to be one of the partners of the
Partnership that executed the within instrument; and he acknowledged to me that
he executed the same on behalf of and in the name of such Partnership as
Landlord.
/s/ Xxxxxxx Xxxxx
-------------------------------------
Notary Public
STATE OF NEW YORK )
ss.:
COUNTY OF QUEENS )
On this 16th day of June, 1999, before me personally came Xxxxx X.
Xxxxxxx, to me personally known, who, being by me duly sown, did depose and say
that he resides at 00 Xxxxxxxxx Xxxx, Xx. Xxxxx, Xxx Xxxx; and who acknowledges
that he executed the within instrument as Tenant.
/s/ Xxxxxxx X. Xxxxx
--------------------------------------
Notary Public
State of New York
Xxxxxx X. Xxxxx
ID# 01BR6019598
Exp. Feb. 08, 0000
XXXXX XX XXX XXXX )
ss.:
COUNTY OF )
On this ___ day of ____________, 199__, before me personally came
__________________________, to me personally known, who, being by me duly sworn,
did depose and say that he resides in ______________________; that he is the
_____________________ of _____________________________________, the corporation
described in, and which executed the within instrument; that he signed his name
thereto by order of the Board of Directors of said corporation.
-------------------------------
Notary Public
25
EXHIBIT "A"
FLOOR PLAN(S)
-------------
OUTLINING PREMISES
------------------
26
EXHIBIT "C"
LANDLORD'S WORK
---------------
Landlord will provide Tenant with a twenty-five dollar ($25.00/sq.ft.) per
square foot buildout allowance for the demised space.
In addition to the $25.00/ sq.ft. allowance, Landlord shall do the following
work as Base Building Work:
. Deliver the premises demised and secure in broom
clean condition and ready for new tenant
construction.
. Comply with ADA and local building life safety codes
throughout the lease term.
. Provide pad space (10 x 10) for tenant's gas
emergency generator and access to same from
designated platform, size of pad space may vary.
. Provide access way for an electrical conduit from
generator to Tenant's ATC switch located at the
Tenants service breaker as designated by the
Landlord.
. Provide the right and access to install horizontal
and vertical conduit for fiber optics and for MCM
Ground, subject to Landlord's approval, which shall
not be unreasonably withheld.
. Provide freight elevator access capable of handcling
Tenant's switch and battery items. If freight
elevator and area is not capable of this requirement
then Landlord will be responsible for renting a crane
and booming the equipment into the demised premises.
Tenant and Landlord shall agree on rating
certification of crane.
. Provide a minimum of 125 lbs. per square foot floor
loading to the demised premises.
. From existing building electric service Landlord will
provide Tenant with 800 amp service.
Tenant and Landlord agree that Landlord will upgrade electric capacity by 1200
amps. This cost shall be divided accordingly, 2/3 of the cost to Tenant and 1/3
of the cost to Landlord. Landlord's cost is not part of the Base Building Work.
In conjunction with Landlord's work to be done by July 15, 1999, Landlord will
upgrade the fourth floor loading, beyond the 126 lbs. per square foot, in
designated areas. This cost shall not be part of Landlord's Base Building Work.
A floor plan is to be provided by Tenant as to the layout of the switch room.
27
EXHIBIT "D"
TENANT'S WORK and
TENANT'S INSURANCE REQUIREMENTS
-------------------------------
TENANT'S WORK
-------------
Tenant to take the space in as is condition accept for the Base
Building items listed in Landlord's work in Exhibit "C". Tenant will be
responsible for all construction on the demised premises and will use the
landlord's buildout allowance to do the same. Any cost above and beyond the
landlord's buildout allowance will be at the cost of the tenant.
In fulfillment of its obligation pursuant to paragraph 4.03 of this
Lease, Tenant shall carry, at its own expense, and shall name Landlord as
additional insured upon the following insurance coverages in the following
amounts:
(a) Comprehensive General Liability including completed operations,
explosions, collapse and underground operations, if any; broad form property
damage including completed operations, protective liability, contractual
liability and indemnity:
$1,000,000 - Each Occurrence
(b) Personal Injury (with employment exclusion deleted and
contractual exclusion deleted):
$1,000,000 - Occurrence and Aggregate
(c) Auto Liability (including non-owned and hired vehicles):
$250,000/$500,000 - Bodily Injury
$250,000 - Property Damage
(d) Statutory Worker's Compensation, Employers' Liability and
Disability Benefits:
Unlimited
(e) Excess Liability, Umbrella Form: $1,000,000 and any other
special insurance as required by Landlord so as to fully protect Landlord
against loss or damage throughout the period during which the Tenant's Work is
being performed.
All of such insurance shall be written by a casualty insurance company
authorized under the laws of New York State, and satisfactory to the Landlord.
Tenant shall furnish Landlord, prior to commencement of Tenant's Work,
certificates and certified copies of such policies showing that the said
insurance will not be canceled or changed until after at least thirty (30) days
written notice to Landlord. In the event of the failure of Tenant to furnish
and maintain such insurance, Landlord shall have the right to procure and
maintain the said insurance for and in the name of the
28
Tenant, and Tenant agrees to pay the cost thereof and to furnish all necessary
information to permit Landlord to procure and maintain such insurance for the
account of the Tenant. The cost of such policies shall be paid by Tenant to
Landlord as additional rent upon demand, plus 19% as an administrative charge.
Compliance by Tenant with the foregoing requirements to carry insurance and
furnish certificates shall not relieve Tenant from liability under any
provisions of this Lease.
29
EXHIBIT E
RULES AND REGULATIONS
---------------------
(a) Tenant shall not exhibit, sell or offer for sale on the Premise or
in the Building any article or thing except those articles and things
essentially connected with the stated use of the Premises by the Tenant without
the advance consent of Landlord, nor shall Tenant install or permit to be
installed any vending machines in the Premises, other than those vending
machines used solely by employees, customers, or visitors.
(b) Tenant will not make or permit to be made any use of the Premises
or any part thereof which would violate any of the covenants, agreements, terms,
provisions and conditions of this Lease or which directly or indirectly may be
dangerous to life, limb, or property, or which may invalidate or increase the
premium cost of any policy of insurance carried on the Building or covering its
operation, or which will suffer or permit the Premises or any part thereof to be
used in any manner including storage therein which, in the judgment of Landlord,
shall in any way impair the character, reputation or appearance of the Building
as a high quality office building, or which will impair or interfere with or
tend to impair or interfere with any of the services performed by Landlord for
the Building.
(c) Tenant shall not display, inscribe, print, paint, maintain or
affix on any place in or about the Building any sign, notice, legend, direction,
figure or advertisement, without consent of Landlord, which consent shall not be
unreasonably withheld. The listing of any name other than that of Tenant,
whether at the doors of the Premises, on the Building directory, or otherwise,
shall not operate to vest any right or interest in this Lease or in the Premises
or be deemed to be the written consent of Landlord mentioned in Article 12, it
being expressly understood that any such listing is a privilege extended by
Landlord revocable at will by written notice to Tenant. Tenant will be allowed
to place a sign on the outside sign directly below Eve's Cafe sign. Landlord
must approve of the size and color. Approval by Landlord not to be unreasonably
withheld.
(d) Tenant shall not advertise the business, profession or activities
of Tenant conducted in the Building in any manner which violates the letter or
spirit of any code of ethics adopted by any recognized association or
organization pertaining to such business, profession or activities, and shall
not use the name of the Building for any purpose other than that of the business
address of Tenant, and shall never use any picture or likeness of the Building
in any circulars, notices, advertisements or correspondence without the
Landlord's consent.
(e) No additional locks or similar devices shall be attached to any
door or window other than those provided in Exhibit A, attached hereto, without
Landlord's written consent. No keys for any door other than those provided by
the Landlord shall be made. If more than one key per employee for one lock is
desired, Landlord will provide the same upon payment by Tenant. All keys must
be returned to Landlord at the expiration or termination of this Lease.
(f) All persons entering or leaving the Building between the hours of
6 p.m. and 8 a.m., Monday through Friday, or any time on Saturdays, Sundays or
holidays, may be required to
30
do so under such regulations as Landlord may impose. Landlord may exclude or
expel any peddler, unless specifically otherwise provided in the lease.
(g) Tenant shall not overload any floor. Landlord may direct the time
and manner of delivery, routing and removal of all items that are delivered to
the Building for the Tenant's use and may specify the location of safes and
other heavy articles. Fire proof files are located on Exhibit A, attached
hereto.
(h) Unless Landlord gives advance written notice, Tenant shall not
install or operate any steam or internal combustion engine, machinery,
refrigerating or heating device or air-conditioning apparatus in or about the
Premises, or carry on any mechanical business herein, or use the Premises for
housing accommodations or lodging or sleeping purposes, or do any cooking
therein or use any illumination other than electric light, or use or permit to
be brought into the building any flammable fluids such as gasoline, kerosene,
naphtha, bonzing and solvents, or any explosives, radioactive materials or other
articles deemed extra-hazardous to life, limb or property except in a manner
which would violate any ordinance or regulation or any condition imposed by the
standard fire insurance policy issued for office buildings in the municipality
where the Building is located, or do or permit anything to be done, or keep or
permit anything to be kept, in the Premises, which would increase the fire or
other casualty insurance rate on the Building or the property therein, or which
would result in insurance companies of good standing refusing to insure the
Building or any such property in amounts reasonably satisfactory to Landlord.
Tenant shall not use the Premises for any illegal or immortal purpose. Tenant
is allowed to have a microwave, soda machine, refrigerator, dishwasher and
coffee pot in office space for it's sole use.
(i) Tenant shall cooperate fully Landlord to assure the effective
operation of the Building's air-conditioning system, including the closing of
blinds and drapes, and if windows are operable to keep them closed when the air-
conditioning system is in use. Landlord shall provide heating and air
conditioning according to the standard Ashrae conditions except in the two
designated areas as noted on Exhibit D which need additional cooling.
(j) Tenant shall not contract for any work or service which might
involve the employment of labor unreasonably incompatible with the Building
employees or employees of contractor doing work or performing services by and on
behalf of Landlord, during the times when the Landlord is doing work.
(k) The sidewalks, halls, passages, exits, entrances, elevators and
stairways shall not be obstructed by Tenant or used for any purpose other than
for ingress to and egress from its Premises. The halls, passages, exits,
entrances, elevators, stairways and roof are not for the use of the general
public and Landlord shall in all cases retain the right to control and prevent
access thereto by all persons whose presence, in the judgment of landlord, shall
be prejudicial to the safety, character, reputation and interests of the
Building and its tenants, provided that nothing herein contained shall be
construed to prevent such access to persons with whom Tenant normally deals in
the ordinary course of Tenant's business unless such persons are engaged in
illegal activities. No tenant and no employees or invites of any tenant shall
go upon the roof or into the mechanical rooms of the Building.
31
(l) Tenant shall not use, keep or permit to be used or kept any foul
or noxious gas or substance in the Premises, or permit or suffer the Premises to
be occupied or used in a manner offensive or objectionable to Landlord or other
occupants of the Building by reason or noise, odors and/or vibrations, or
interfere in any way with other tenants or those having business herein, nor
shall any animals or birds be brought in or kept in or about the Premises of
the Building.
(m) With respect to the Premises Tenant shall see that the doors and
windows, if operable, are closed and securely locked before leaving the Building
and must observe strict care and caution that all water faucets or water
apparatus are entirely shut off before Tenant or Tenant's employees leave the
Building, and that all electricity shall likewise be carefully shut off so as to
prevent waste or damage, exception being that certain computers be left on 24
hours per day 7 days per week due to the nature of Tenant's business. The
building hours are from 7 a.m. to 6 p.m. Monday thru Friday. After these hours
Tenant will have access into the building with a "card-key" system.
(n) There shall not be used in any space, or in the public halls of
the Building, either by any tenant or by jobbers or others, in the delivery or
receipt of merchandise, any hand trucks, except those equipped with rubber tires
and side guards. All removals, or the carrying in or out of any safes, freight,
furniture or bulky matter of any description must take place during the hours
which the Landlord or its Manager may reasonably determine from time to time.
The Landlord reserves the right to exclude from the Building all freight which
violates any of the Rules and Regulations of the Lease of which those Rules and
Regulations are a part.
(o) Tenant shall have the non-exclusive right in common with others to
whom Landlord has or may hereafter grant rights, to use the Building Common
Areas and the Outside Common Areas as designated from time to time by Landlord,
subject to such reasonable regulations as Landlord may impose. All parking
areas in or about (per Exhibit C) the building provided by Landlord shall be
subject to the exclusive control and management of the Landlord, unless
specifically otherwise provided in the lease. Landlord shall have the right to
reasonably designate, from time to time, specific areas in which cars owned or
used by Tenant, its permitted officers, partners, employees, clients, visitors
and agents must be parked. If Landlord shall designate such specific parking
areas and if any car of Tenant or its permitted officers, partners, employees or
agents of Tenant is parked in any other portion of the parking area, then Tenant
shall pay to Landlord after being warned by Landlord in writing one prior time,
upon demand, the sum of Ten Dollars ($10.00) for each such car for each day, or
part thereof, such car is so parked, and Tenant hereby authorizes Landlord to
tow or cause any such car to be towed to the then designated parking area and
agrees to reimburse Landlord for the cost thereof, upon demand, and to otherwise
indemnify and hold Landlord harmless with respect thereto. Tenant agrees to
abide by such regulations and to use its best efforts to cause its permitted
partners, officers, employees, agents, customers and visitors to conform
thereto. Landlord may at any time close temporarily any Building or Outside
Common Area to make repairs or changes, to prevent the acquisition of public
rights therein, or to discourage unauthorized parking, and may do such other
acts in and to such Common Areas as in its judgment may be desirable to improve
the convenience thereof. Landlord will use its best effort to work after
regular business hours and sincerely attempt to not interfere with Tenant's
business. Landlord must notify Tenant well in advance of any work that needs to
be done.
32
Tenant shall upon request furnish Landlord the license numbers and descriptions
of the cars operated by Tenant and its permitted partners, officers, agents and
employees. Tenant shall not at any time interfere with the rights of Landlord
and other tenants, its and their permitted officers, employees, agents,
customers, and visitors to use any part of the parking areas and other Common
Areas. Landlord may establish a system or systems of validation or other type of
operation, including without limitation a system of charges against nonvalidated
parking checks of users, charges based on impositions or taxes levied or
assessed by law or any governmental authority on the parking facilities within
the Common Areas, charges for parking if such parking facilities are used by law
or governmental authority in determining parking charges or taxes levied against
Landlord, and charges favoring carpooling if such charges are required by law or
governmental authority.
33
2ND EXHIBIT "C"
LANDLORD'S WORK
---------------
Landlord will provide Tenant with a twenty-five dollar ($25.00/sq.
ft.) per square foot buildout allowance for the demised space.
In addition to the $25.00/sq. ft. allowance, Landlord shall do the
following work as Base Building Work:
. Deliver the premises in broom clean condition and ready for
new tenant construction.
. Comply with ADA and local building life safety codes
throughout the lease term.
. Provide pad space (10 x 10) for tenant's gas emergency
generator and access to same from designated platform, size
of Pad space may vary.
. Provide access way for an electrical conduit from generator
to Tenant's ATC switch located at the Tenants service
breaker as designated by the Landlord.
. Provide the right and access to install horizontal and
vertical conduit for fiber optics and for MCM Ground,
subject to Landlord's approval, which shall not be
unreasonably withheld.
. Provide freight elevator access capable of handling Tenant's
switch and battery items. If freight elevator and area is
not capable of this requirement then Landlord will be
responsible for renting a crane and booming the equipment
into the demised premises. Tenant and Landlord shall agree
on rating certification of crane.
. Provide a minimum of 125 lbs. Per square foot floor loading
to the demised premises.
. Provide a To Be Determined amount of dedicated electrical
service to Tenant for Tenant's use.
In conjunction with Landlord's work to be done by July 15, 1999,
Landlord will upgrade the fourth floor loading, beyond the 125 lbs. Per square
foot, in designated areas. This cost shall not be part of Landlord's Base
Building Work. A floor plan is to be provided by Tenant as to the layout of the
switch room.
34
2ND EXHIBIT "D"
TENANT'S WORK and
TENANT'S INSURANCE REQUIREMENTS
-------------------------------
TENANT'S WORK
-------------
Tenant to take the space in as is condition except for the Base
Building items listed in Landlord's work in Exhibit "C". Tenant will be
responsible for all construction on the demised premises and will use the
landlord's buildout allowance to do the same. Any cost above and beyond the
landlord's buildout allowance will be at the cost of the tenant.
In fulfillment of its obligation pursuant to paragraph 4.03 of this
Lease, Tenant shall carry, at its own expense, and shall name Landlord as
additional insured upon the following insurance coverages in the following
amounts:
(a) Comprehensive General Liability including completed operations,
explosions, collapse and underground operations, if any; broad form property
damage including completed operations, protective liability, contractual
liability and indemnity:
$1,000,000 - Each Occurrence
(b) Personal Injury (with employment exclusion deleted and contractual
exclusion deleted):
$1,000,000 - Occurrence and Aggregate
(c) Auto Liability (including non-owned and hired vehicles):
$250,000/$500,000 - Bodily Injury
$250,000 - Property Damage
(d) Statutory Worker's Compensation, Employers' Liability and
Disability Benefits:
Unlimited
(e) Excess Liability, Umbrella Form: $1,000,000 and any other
special insurance as required by Landlord so as to fully protect Landlord
against loss or damage throughout the period during which the Tenant's Work is
being performed.
35
EXHIBIT "F"
GUARANTY OF LEASE
The undersigned Coaxicom, Inc.,____________________________________
______________________________________________________________________________
a corporation organized and existing under the laws of the State of Delaware
with principal office or residence at: 00-00 Xxxxx Xxxxxx, Xxxxx 000, Xxxx
Xxxxxx Xxxx (Queens), New York 11101, Attention: Xxxxx X. Xxxxxxx hereinafter
with its or his successors, assigns and legal representatives called the
"Guarantor", in consideration of the execution and delivery of the annexed and
foregoing Lease bearing date of June 17, 1999, a New York partnership, having
its office at ________________________________________________________________
_________________________________ (hereinafter referred to as "Landlord") has
leased to: ___________________________________________________________________
(Name of Tenant)
___________________________________________________________________
(Xxxxxx Xxxxxxx)
___________________________________________________________________
(hereinafter and in said Lease called "Tenant") certain premises in the Building
known as The Syracuse Building (224 Xxxxxxxx St.) as more fully described in
said Lease, and for other good and valuable consideration, the receipt and legal
sufficiency of which is hereby acknowledged, does hereby guarantee to Landlord
the full, prompt and punctual performance by Tenant of all of Tenant's
agreements, covenants and obligations under, and for the initial and any renewal
term of, said Lease, including the payment of all amounts that may be or become
payable by Tenant to or for the benefit of Landlord under said Lease.
Guarantor has been advised that Landlord requires, as a condition to
its execution of said Lease, that the undersigned guarantee the full, prompt and
punctual performance of Tenant's obligations under the Lease and Guarantor is
desirous that Landlord enter into said Lease with Tenant.
Guarantor hereby agrees with landlord that this Guaranty is
unconditional and irrevocable. Guarantor hereby consents to the jurisdiction of
the courts of the State of New York with venue located in Onondaga County and
hereby waives (a) notice of the acceptance or this Guaranty by Landlord; (b)
notice of default, demand or of non-payment of rent or any other monetary
obligation; (c) the right to require Landlord first to proceed against Tenant
prior to proceeding against Guarantor for enforcement of its or his obligation
under this Guaranty; (d) notice of any amendment or modification of the said
Lease or any of the provisions contained therein; (e) the benefit of any statute
of limitations affecting Guarantor's liability under this Guaranty, and (f) the
right to trial by jury in any action or proceeding that may be instituted by
Landlord against Guarantor hereunder.
Guarantor further agrees that: (i) the validity of this Guaranty and
its or his obligations hereunder shall in no wise be terminated, affected or
impaired by reason of the
36
assertion by Landlord against Tenant of any of the rights or remedies reserved
to Landlord pursuant to the terms of said Lease; (ii) Guarantor's obligation
hereunder, if there is more than one guarantor of Tenant's obligations under the
Lease, is joint and several with any other guarantor(s) and shall not be
discharged, either fully or partially, by any waiver, compromise, settlement,
release or termination of any other guarantor's obligations; and (iii) Guarantor
will pay Landlord all of Landlord's costs and expenses including, but not
limited to, attorneys' fees incurred in the enforcement of this Guaranty.
If the Lease is modified (including any assignment or sublet thereof)
in any respect by agreement between Landlord and Tenant, the obligations of
Guarantor hereunder shall continue to extend and apply with respect to the full,
prompt and punctual performance by Tenant of all of the agreements, covenants
and obligations under the Lease as so modified.
If the Lease shall be renewed, or its terms extended, for any period
beyond the dates specified in the Lease for the expiration of said term either
pursuant to any option granted under the Lease or otherwise, or if the Tenant
holds over beyond the term of the Lease, or beyond such earlier date that the
Lease may be terminated, the obligations of Guarantor hereunder shall extend and
apply with respect to the full, prompt and punctual performance by Tenant of all
of the agreements, covenant and obligations of the Lease as renewed or extended.
Neither Guarantor's obligation to make payment in accordance with the
terms of this Guaranty nor any remedy for the enforcement thereof shall be
impaired, modified, released, or limited in any way by any impairment,
modification, release or limitation of liability of Tenant or Tenant's estate in
bankruptcy resulting from the operation of any present or future provision of
the bankruptcy code of the United States or from the decision of any court
interpreting the same.
The use of the singular shall include the plural if the sense requires
and if more than one individual or entity signs this instrument, the liability
of each signing party shall be joint and several liability.
This Guaranty shall be binding on Guarantor, its or his successors,
assigns and legal representatives and for the benefit of Landlord, its
successors, assigns and legal representatives.
37
IN WITNESS WHEREOF, the undersigned has caused this instrument to be
duly executed on this 18 day of June, 1999.
/s/ Xxxxx X. Xxxxx
----------------------------------------
(Name of Guarantor)
VP - ADMIN
By: ____________________________________
(Duly Authorized Agent) (Title)
38
(Acknowledgment of GUARANTOR of Corporation)
STATE OF NEW YORK )
ss.:
COUNTY OF QUEENS )
On this 18 day of June, 1999 before me personally came Xxxxx X.
Xxxxxxx, to me personally known, who, being by me duly sworn, did depose and say
that he resides in 00 Xxxxxxxxx Xx. Xx. Xxxxx, Xxx Xxxx 00000 that he is the
Vice President of Administration of Coaxicom, Inc., the corporation described in
and which executed the within instrument; and that he signed his name thereto by
order of the Board of Directors of said corporation.
/s/ Xxxxxxx X. Xxxxx
------------------------------------
Notary Public
State of New York
Xxxxxxx X. Xxxxx
ID # 01BR6019598
Exp. Feb. 08, 2001
39
JF Real Estate, Inc.
LEASE MODIFICATION AGREEMENT NO. 1
THIS LEASE MODIFICATION AGREEMENT NO. 1, made this ___ day of July,
1999, by and between 224 Xxxxxxxx Associates, LLC, a New York general
Partnership, having its principal office at The Clinton Exchange, 0 Xxxxxxx
Xxxxxx, Xxxxxxxx, XX 00000 (hereinafter called LANDLORD) and Community Networks,
Inc., a corporation having their principal office at 00-00 Xxxxx Xxxxxx, Xxxx
Xxxxxx Xxxx, XX 00000 (hereinafter called TENANT),
WITNESSETH:
WHEREAS, Landlord and Tenant entered into a Lease dated on June 16,
1999 (the LEASE) for certain premises consisting of 8,000 square feet (the
PREMISES) on the sixth (6th) floor of the office building known as The Syracuse
Building, 000 Xxxxxxxx Xxxxxx, Xxxxxxxx, XX 00000 (the BUILDING); and
WHEREAS, the parties hereto are now desirous of entering into this
Lease Modification Agreement to provide for a relocation of Tenant's office
space from the sixth (6th) floor to the fifth (5th) floor under certain terms
and conditions;
NOW, THEREFORE, in consideration of the foregoing and other good and
valuable consideration, the receipt and legal sufficiency of which is hereby
acknowledged, the parties hereto agree to the following terms and conditions of
this Lease Modification Agreement:
1. The effective date of this Lease Modification Agreement shall be
the date listed above.
2. Landlord shall provide the same floor plan layout on the fifth
(5th) floor as has been agreed to on the sixth (6th) floor. The new location on
the fifth (5th) floor office space has the same dimensions and has the same
square footage as was on the sixth (6th) floor (directly below).
3. Except for the above stated amendments, the parties hereto agree
that all other terms, conditions, and provisions of the Lease dated on June 16,
1999 remain in full force and effect.
IN WITNESS WHEREOF, the parties hereto have executed this Lease
Modification Agreement as of the day and year first above written.
Tenant: Landlord:
COMMUNITY NETWORKS, INC. 224 XXXXXXXX ASSOCIATES, LLC
BY: /s/ Xxxxx X. Xxxxx BY: /s/ Xxxx Xxxxxxx
-------------------------- -------------------------------
Date 7/29/99 Date: 7/30/99
------------------------- -----------------------------
40
