EXHIBIT 10.7
SALINA PLACE
LEASE
THIS AGREEMENT made this the 9 day of January, 1997 by and between
RAILROAD STREET PARTNERSHIP, a general partnership organized under the laws of
the State of New York, having its principal address at X.X. Xxx 000, Xxxxxxxx,
Xxx Xxxx 00000 (hereinafter referred to as "Landlord"), and
Briar Joy Development Corp.
d/b/a SCC Telecommunications
000 Xxxx Xxxxxxxxxx Xxxxxx
Xxxxxxxx, XX 00000
(hereinafter referred to as "Tenant"), herein set forth as follows:
ARTICLE 1 - Premises
1.01 - Premises
Landlord hereby leases to Tenant and Tenant hereby leases and rents from
Landlord those certain premises in the Salina Place office building development
(hereinafter called the "Building") which is located at 000-000 Xxxxx Xxxxxx
Xxxxxx in the City of Syracuse, in the County of Onondaga and State of New York,
which premises are on the second floor(s) of the Building and are outlined on
the floor plan(s) attached hereto and made a part hereof as Exhibit "A" (said
premises being hereinafter called the "Premises"), together with the right to
use, in common with others, the Building Common Areas, as defined in Section
1.02 hereof. The gross leasable area of the Premises, including Tenant's share
of Building Common Areas, is determined to be 4,163 square feet. The Premises
shall include the area bounded by: the center line of any walls common to
adjacent tenants, the Building Common Area side of any wall adjoining Building
Common Areas (but not the surface thereof), the line established by the exterior
face of the exterior walls of the Building, the floor surface and the lower
surface of the next higher floor (or roof). Landlord reserves unto itself, its
successors and assigns, the right to install, maintain, use, repair and replace
pipes, ducts, conduits, wires and structural elements leading throughout the
Premises in locations which will not materially interfere with Tenant's use of
the Premises. No right to use any part of the exterior of the Building and no
easement for light or air are included in the lease of the Premises hereby made.
1.02 - Definition of Building Common Areas and Building Common Facilities
"Building Common Areas" and "Building Common Facilities" are defined
jointly to mean all areas, space equipment, common utility, electrical and
mechanical lines, pipes or ducts, signs and special services provided by
Landlord specifically for the Building or for the common or joint use and
benefit of 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, alley ways, roofs and basements,
janitor's storage closets and all other common rooms and common facilities
within the Building or appurtenant thereto.
ARTICLE 2 - Terms of Lease
2.01 - Term
The initial term of this Lease shall be Three years and Seven months (3
years 7 month).
2.02 - Commencement and Stipulation of Term
The term of this Lease shall commence on June 1, 1997 and shall terminate
on Dec. 31, 2000.
The date of commencement of the term of this Lease as set forth above 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. The parties agree to execute and deliver a
written Stipulation of Term Agreement in the form attached hereto as Exhibit "F"
expressing the commencement and expiration dates of the term hereof when such
dates have been determined.
ARTICLE 3 - Rent, Taxes and Lease Year
3.01 - Fixed Monthly Rent
Tenant agrees to pay to Landlord at the offices of Landlord, or at such
other place designated by Landlord, without any prior demand thereof and without
any deduction or set-off whatsoever, and as fixed monthly rent, the sum of page
2a [information on page 4 of this document] Dollars ($______________________)
(sometimes referred to herein as "fixed monthly rent"), payable in advance upon
the first day of each calendar month during the term hereof. The monthly
installment shall be deemed to have been paid upon such first day only if
actually received by such first day.
If the term shall commence or terminate upon a day other than the first
(or in the case of termination the last) day of a calendar month. Tenant shall
pay, upon the Term Commencement Date, and on the first day of the last calendar
month of the term, a pro-rata portion of the fixed monthly rent for the first
and last fractional calendar month, respectively, prorated on a per diem basis
with respect to such fractional calendar month.
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3.02 - Taxes
(a) The term "Building Taxes" shall be deemed to include (i) all real
property taxes (which shall be deemed to include all property taxes and
assessment, water and sewer rents, rates and charges, parking and environmental
surcharges and any other governmental charges, general and special, ordinary and
extraordinary, and any payments required to be made to the City of Syracuse
pursuant to a "Payment in Lieu of Taxes" agreement) which may be levied or
assessed by any lawful authority against the Building, the Building Common Areas
or the Building Common Facilities.
(b) During the term of this Lease, Tenant agrees to pay to Landlord, as
additional rent, Tenant's Allocable Share (computed pursuant to Section 22.09
hereof) of the amount by which Building Taxes payable by Landlord for each lease
year exceeds the Building Taxes payable during the Tax Base Year as hereinafter
defined (said excess amount hereinafter called "increases in building Taxes").
The term "Tax Base Year" shall mean the period of January 1, 19 ______ through
December 31, 19 ______. At the beginning of each lease year, Landlord will
submit to Tenant Landlord's estimate of the increases in Building Taxes
anticipated for that lease year. Within ten (10) days after receipt of such
estimate, (and thereafter on the first day of each month without invoice) Tenant
shall pay to Landlord an amount equal to one twelfth (1/12) to Tenant's
Allocable Share of such estimated increases in Building Taxes. Following the
end of each lease year (or partial lease year), Landlord will furnish to Tenant
a comparative statement showing Tenant's Allocable Share of the actual increase
in Building Taxes payable for such lease year and the amounts paid by Tenant
(based on Landlord's estimate of increases in Building Taxes) attributable to
such lease year. Any overpayment or underpayment by Tenant shall be promptly
adjusted by payment, within fifteen (15) days, of the balance of any
underpayment for such year, or by applying any overpayment as a credit to the
next succeeding monthly installments of increases in Building Taxes.
(c) Should any governmental taxing authority acting under any present or
future law, ordinance or regulation, levy, assess or impose a tax, excise,
surcharge and/or assessment (other than a tax on net rental income or franchise
tax) upon or against the rents payable by Tenant to Landlord, or upon or against
the Building, the Building Common Areas or Building Common Facilities, either by
way of substitution for or in addition to any existing tax on land or buildings
or otherwise, Tenant shall be responsible for and shall pay Tenant's Allocable
Share of such tax, excise, surcharge and/or assessment in the manner provided in
subparagraph (b) above.
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3.01 Fixed Monthly Rent
Period Monthly Annual S.F.
06/01/97 - 12/31/97 $4,163.00 $49,956.00= $12.00/s.f.
01/01/98 - 12/31/98 $4,856.83 $58,282.00= $14.00/s.f.
01/01/99 - 12/31/99 $5,550.67 $66,608.00= $16.00/s.f.
01/01/00 - 12/31/00 $6,244.50 $74,934.00= $18.00/s.f.
(d) Landlord may seek a reduction in the assessed valuation (for real
estate tax purposes) of the Building by administrative or legal proceeding.
Tenant shall pay to Landlord Tenant's Allocable Share of Landlord's cost for
said proceedings including but not limited to special counsel, counsel's
reimbursable expenses, and special appraiser if required. Tenant's Allocable
Share of Landlord's costs being computed under Section 22.09. Upon receipt of
any refund relating to any period for which Tenant has paid Tenant's Allocable
Share of increases in Building Taxes under Section 3.02(b) above. Landlord
shall (after deducting Landlord's unreimbursed costs to obtain such refund)
recompute the amount that would have been due from Tenant (after subtracting
such refund) and pay to Tenant the amount by which the share of increases in
Building Taxes originally paid by Tenant exceed such recomputed amount.
3.03 - Past Due Rent
If during the term of this Lease, Tenant shall fail to pay the fixed
monthly minimum rent or additional rent when the same is due and payable, then
interest at the monthly rate of 2.0% shall accrue from and after the date on
which any such sum shall be due and payable and such interest shall be paid to
Landlord, as additional rent, at the time of payment of the delinquent sum.
Landlord shall have the right to apply any payments made by Tenant first to any
deficiency in the payment of the interest provided for hereunder.
3.04 - Definition of Lease Year and Partial Lease Year
The term "lease year" is defined to mean a period of twelve (12)
consecutive months, the first full lease year commencing on the first day of
January following the Term Commencement Date, and each succeeding lease year
commencing on the anniversary of the commencement of the first full lease year.
Any portion of the term which is less than a lease year shall be deemed a
"partial lease year" and computation requiring proration shall be pro-rated on a
per diem basis using a 365 day year.
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3.05 - Additional Rent
All rents, charges, costs, expenses, reimbursements, fees, interest and
other payments to be made by Tenant to Landlord under this Lease, other than
fixed monthly rent, shall be deemed to be "additional rent". In the event of
non-payment of any additional rent, Landlord shall have all the rights and
remedies provided for herein or otherwise available in case of non-payment of
rent or of a breach of covenant.
ARTICLE 4 - Construction of Improvements and Alterations
4.01 - Landlord's Work
Landlord, at its own cost and expense, shall perform all items of
Landlord's Work described in Exhibit "B" attached hereto and made a part hereof.
Any work in addition to the items specifically enumerated in said Exhibit "B"
shall be performed by Tenant at its own cost and expense.
4.02 - Tenant's Work
Tenant shall at its cost and expense perform the Tenant's Work described
in Exhibit "C" attached and made a part hereof in accordance with plans and
specifications for such work approved by Landlord's architect.
Tenant acknowledges its ability to perform Tenant's Work and no delay in
its performance shall cause or be deemed to cause any delay or postponement in
the commencement of the term of this Lease.
Any equipment or work which Landlord installs or constructs on Tenant's
behalf and at Tenant's cost shall be paid for by Tenant, as additional rent,
within fifteen (15) days after receipt of Landlord's invoice therefor.
4.03 - Alterations
Tenant shall make no alterations, additions or improvements in or to the
Premises, including, but not limited to, an air conditioning, heating,
electrical or plumbing system, unit or part thereof or other apparatus of like
or other nature, without Landlord's prior written consent. All alterations,
additions or improvements upon the Premises, made by either party, including all
paneling, decorations, partitions, railing, mezzanine floors, galleries and the
like shall unless Landlord expressly elects otherwise (which election shall be
made by giving a written notice to Tenant not less than thirty (30) days prior
to the expiration or other termination of the term of this Lease) become the
property of Landlord, and shall remain upon, and be surrendered with said
Premises as a part thereof at the end of the term. In the event the Landlord
shall elect otherwise, then such alterations, decorations, installations,
additions or improvements made by Tenant upon the Premises
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as the Landlord shall select shall be removed by the Tenant, and Tenant shall
prior to the expiration of the term repair any damage caused by such removal and
restore the Premises to their original condition, at Tenant's own cost and
expense.
4.04 - 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, window shade or blind, decoration, lettering or advertising matter or
other thing of any kind without first obtaining Landlord's written approval.
Tenant further agrees to maintain such sign, awning, canopy, window shade or
blind, decoration, lettering, advertising matter or other thing as may be
approved in good condition and repair at all times.
ARTICLE 5 - Use of Premises
5.01 - Use of Premises
Tenant agrees to occupy and use the Premises for the following purpose
and for no other purpose whatsoever: long distance cellular and paging sales and
service. Tenant further agrees to comply with the rules and regulations set
forth in Exhibit "D" attached hereto and made a part hereof, and with such
reasonable modification thereof and additions thereto as Landlord may make, from
time to time. Landlord shall not be responsible for the non-observance 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
"Operating Costs" shall mean the total costs and expense incurred in
operating, managing and maintaining the Building, the Building Common Areas and
the Building Common Facilities, including but without limiting the generality of
the foregoing, the costs and expense of: planting, maintaining, replanting and
replacing flowers, plants and landscaping; parking area or sidewalk repair and
maintenance; water and sewerage charges; janitorial and cleaning services
(including labor, materials and supplies); insurance premiums; operation and
maintenance of lighting, sanitary control facilities, heating, ventilating and
air conditioning, elevators and Common Area equipment and utility systems;
repairs to the Building, the Building Common Areas and the Building Common
Facilities; painting and caulking; refinishing, glass and window cleaning and
repair; removal of snow, ice, trash, garbage and other refuse; fire protection
and sprinkler maintenance, security costs; depreciation of the capital cost of
and any rental for the leasing of any fixture, machinery or equipment (including
lighting, heating and air conditioning) or vehicles used in connection with use,
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operation or maintenance of the Building Common Areas and the Building Common
Facilities; repair and placement of water lines, sanitary and storm lines and
other utility systems serving the Building, all charges for utility service
related to the Building Common Areas and the Building Common Facilities;
personnel and management costs, fees for audits and accounting, permits and
licenses and other governmental impositions or surcharges; holiday and other
decorations, and a charge equal to eighteen percent (18%) of the Operating Costs
and the Building Taxes.
Operating Costs shall not include commissions or expenses for obtaining
leases, or the cost to prepare or renovate space for new tenancies.
6.02 - Increases In Operating Costs
During the term of this Lease, Tenant agrees to pay to Landlord, as
additional rent, Tenant's Allocable Share (computed pursuant to Section 22.09
hereof) of the amount by which Operating Costs for each lease year exceed the
Operating Costs for the Base Period as hereinafter defined (said excess amount
hereinafter called "increase in Operating Costs"). The "Operating Costs for the
Base Period" shall mean the amount of Operating Costs actually incurred during
the period from January 1, 1997 through December 31, 1997. At the beginning of
each lease year, Landlord will submit to Tenant Landlord's estimate of the
increase in Operating Costs anticipated for that lease year. Within ten (10)
days after receipt of such estimate, (and thereafter on the first day of each
month without invoice) Tenant shall pay to Landlord an amount equal to one
twelfth (1/12) of Tenant's Allocable Share of such estimated increases in
Operating Costs. Following the end of each lease year (or partial lease year),
Landlord shall furnish to Tenant a comparative statement showing Tenant's
Allocable Share of the actual increases in Operating Costs incurred during such
lease year and the amounts paid by Tenant (based on Landlord's estimate of
increases in Operating Costs) attributable to such year. Any overpayment or
underpayment by Tenant shall be promptly adjusted by payment by Tenant, within
fifteen (15) days, of the balance of any underpayment for such year or by
applying any overpayment as a credit to succeeding monthly installments of
increases in Operating Costs. All the Operating Costs shall be subject to audit
by Tenant upon reasonable notice, and Landlord and Tenant shall use their best
efforts to minimize such costs of operation, management and maintenance in a
manner consistent with generally accepted office building practices.
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ARTICLE 7 - Utility Costs
7.01 - Utility Costs
[THIS SECTION DELETED]
7.02 - Periodic Adjustments
The charges in Section 7.01 above, shall be adjusted periodically based
upon changes in usage, peak demand load, and changes in the cost of the utility
services following the date of this Lease, including but not limited to the
number of hours during which the Premises is used, connected load,
recalculations, water rate changes, rate changes imposed by utility companies,
and rate changes imposed by fuel companies (including, but not limited to, fuel
adjustment rates).
ARTICLE 8 - Repairs
8.01 - Repairs
Tenant shall, at Tenant's own expense, keep the Premises, including
everything therein, including all glass in windows and doors but excluding the
heating and air-conditioning systems, in good order, condition and repair during
the term. Landlord shall, as part of the Operating Costs set forth in Article 6,
maintain the heating and air-conditioning systems throughout the Building
(including the Premises) and the Common Area and Common Facilities of the
Building in good order and repair. Repairs made by Landlord required due to
negligence or fault of Tenant, its contractors, agents or employees shall be
made at Tenant's expense.
ARTICLE 9 - Indemnity
9.01 - Indemnity
Tenant does hereby indemnify 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 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,
concessionaires or invitees. In case Landlord (and such other persons as are in
privity of estate with Landlord) shall 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 to pay all
costs, expenses and reasonable attorneys' fees that may be incurred or paid by
Landlord in enforcing the covenants and agreements in this Lease.
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ARTICLE 10 - Insurance
10.01 - Liability Insurance
At all times during the term of this Lease, Tenant, at its sole cost and
expense for the mutual benefit of Landlord and Tenant shall maintain personal
injury and property damage liability insurance against claims for personal
injury, death or property damage occurring on, in or about the Premises during
the term of this Lease of not less than One Million Dollars ($1,000,000.00) with
respect to personal injury, death or property damage and including contractual
indemnity coverage. Tenant's insurance policies shall name Landlord as an
additional insured as its interests may appear. In the event that Tenant shall
not have delivered to Landlord a policy or certificate evidencing such insurance
fifteen (15) days prior to the Term Commencement date and fifteen (15) days
prior to the expiration dates of each expiring policy, Landlord may obtain such
insurance as it may reasonably require to protect its interest. The cost for
such policies shall be paid by Tenant to Landlord as additional rent upon
demand. All insurance policies required hereunder shall be issued by insurers
of recognized responsibility which are licensed to do business in the State of
New York.
10.02 - Waiver of Subrogation
Each party hereto hereby waives on behalf of itself and the insurers of
such party's property any and all claims or rights of subrogation of any such
insurer against the other party hereto for loss of or damage to the property so
insured, and each party hereby agrees to maintain insurance upon its property
and to have a waiver of subrogation clause made a part of its insurance policies
in the standard form authorized by the New York State Insurance Department.
ARTICLE 11 - Damage by Fire or Casualty, Theft and Water Damage
11.01 - Untenantability
If the Premises are damaged by fire or other casualty such that the
Premises are made untenantable in whole or in part, then until repairs shall be
made or the Lease terminated as hereinafter provided, the fixed monthly rent
shall be apportioned on a per diem basis according to the part of the Premises
which is usable by Tenant. If the Building shall be so damaged that in the
opinion of Landlord the Building should not be restored or the Building should
be restored in such a way as to alter the Premises materially, Landlord may
cancel this Lease by notice to Tenant given at any time within sixty (60) days
after the date of such damage. 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.
Tenant hereby expressly waives the provision of Section 227 of the New York Real
Property Law and agrees that the foregoing provisions of this Section 11.01
shall govern and control in lieu thereof.
11.02 - Loss of Property and Water Damage
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Landlord shall not be responsible to Tenant for any loss or theft of
property in or from the Premises, or for any loss or theft or damage of or to
any property left with any employee of Landlord, however occurring. Landlord
shall not be liable for any damage caused by water, rain, snow or ice, or by
breakage, stoppage or leakage of water, gas, heating, air-conditioning, sewer or
other pipes or conduits, or arising from any other cause, in, upon, about or
adjacent to the Premises, or the Building in which said Premises are located.
ARTICLE 12 - Eminent Domain
12.01 - Eminent Domain
(a) In the event that any part of the Premises shall be condemned or
taken in any manner for any public or quasi-public use, at the option of
Landlord, or automatically if the whole of the Premises be so taken, this Lease
shall forthwith cease and terminate as of the date when possession of the
property so taken shall be required or when title shall vest in the taking
authority, whichever occurs first, and rent shall be paid up to that date.
Landlord shall be entitled to receive the entire award. Tenant hereby assigning
to Landlord Tenant's interest therein, if any. Tenant shall not be entitled to
any portion of the award with respect to any condemnation, nor shall Tenant have
any claim for the value of the unexpired portion of the term.
(b) In the event that title to a part of the Building other than the
Premises shall be 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.
ARTICLE 13 - Landlord's Remedies
13.01 - Conditional Limitations and Events of Default
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 processes of law;
(c) If any petition shall be filed against Tenant 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
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assume jurisdiction of the subject matter and if such proceedings shall
not be dismissed within ninety (90) days after the institution of the
same; or if any such petition shall be so filed by the Tenant; or
(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 ninety (90) days after the appointment of
such receiver or trustee; or
(e) If there is a transfer or attempted transfer of this Lease or of
Tenant's interest therein or any sublease of the Premises or any portion
thereon in violation of the restrictions set forth in this Lease; or
(f) If Tenant shall fail to pay any installment of the fixed monthly
rent, or additional rent or any portion thereof when the same shall
become due and payable, and such failure shall continue for ten (10)
days after written notice from Landlord; or
(g) If Tenant shall vacate or abandon the Premises and permit same to
remain unoccupied or closed for business (other than temporarily in
connection with making permitted repairs or alterations); 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 twenty (20) days after written notice thereof from
Landlord to Tenant;
then, upon the happening of any one or more of the aforementioned events of
default, 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, 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 the demised term of this Lease, and Tenant shall then quit
and surrender the Premises to Landlord, but Tenant shall remain liable as herein
provided.
13.02 - Landlord's Remedies
(a) If this Lease shall be terminated as in Section 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, self-help 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. Landlord, in the
event
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of such re-entry and repossession, may store Tenant's property in a public
warehouse or elsewhere at the cost of and for the account of Tenant.
(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 expenses which Landlord may then or
thereafter incur for legal expenses, attorney's fees, brokerage commissions and
all other costs paid or incurred by Landlord for restoring the Premises to good
order and condition and for altering and otherwise preparing the same for
reletting and for reletting thereof. Landlord may, at any time and from time to
time, relet the Premises, in whole or in part, for any rental then obtainable
either in its own name or as agent of Tenant, for a term or terms which, at
Landlord's option, may be for the remainder of the then current term of this
Lease or for any longer or shorter period.
(c) If this Lease be terminated as aforesaid, Tenant nevertheless
covenants and agrees notwithstanding any entry or re-entry by Landlord, whether
by summary proceedings, termination or otherwise, to pay and be liable for on
the days originally fixed herein for the payment thereof, the installments of
fixed monthly rent, additional rent and other charges, as under the terms of
this Lease would become due if this Lease had not been terminated or if Landlord
had not entered or re-entered as aforesaid, and regardless whether the Premises
be relet or remain vacant in whole or in part. In the event the Premises be
relet by the Landlord, Tenant shall be entitled to a credit (but not in excess
of the rent or other charges reserved under the terms of this Lease) in the net
amount of rent received by Landlord in reletting the Premises after deduction of
all expenses and costs incurred in reletting the Premises and in collecting the
rent in connection therewith. As an alternative, at the election of Landlord,
Tenant shall pay to Landlord as damages such a sum as at the time of such
termination represents the amount of excess, if any, of the then present value
of the total fixed monthly rent, additional rent and other benefits which would
have accrued to Landlord under the Lease for the remainder to the Lease term, if
the Lease terms had been fully complied with by Tenant, over and above the then
present rental value of the Premises for the balance of the term. Suit or suits
for the recovery of an deficiency or damages or for any installments or
installments of fixed monthly rent, additional rent or other charges hereunder,
or for a sum equal to any such installment or installments, may be brought by
Landlord at once or from time to time at Landlord's election and nothing in this
Lease shall be deemed to require Landlord to await the date whereon this Lease
or the term hereof would have expired by limitation had there been no such
default by Tenant or no such cancellation or termination.
(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 Action and Proceedings Law including any amendments
hereafter. As an inducement to Landlord to make this Lease and in consideration
thereof, the Landlord and Tenant covenant and agree that in any action or
proceeding brought by either Landlord or Tenant against the other or any matter
whatsoever
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arising out of, or by virtue of the terms of this Lease or of Tenant's
occupancy, Landlord and Tenant shall and do hereby waive trial by jury. In the
event Landlord commences any proceedings for non-payment of rent, Tenant shall
not interpose any non-compulsory counterclaim in any such proceeding. This shall
not, however, be construed as a waiver of Tenant's rights to assert such claim
in any separate action or actions initiated by Tenant.
(e) No failure by Landlord to insist upon the strict performance of any
covenant, agreement, term or condition of this Lease or to exercise any right or
remedy consequent upon a breach thereof, and no acceptance of full or partial
rent during the continuance of any such breach, shall constitute a waiver of any
such breach or of such covenant, agreement, term or condition. No waiver of any
breach shall affect or alter this Lease, but each and every covenant, agreement,
term and condition of this Lease shall continue in full force and effect with
respect to any other then existing or subsequent breach thereof. No payment by
Tenant or receipt by Landlord of a lesser amount than the monthly installments
of rent or additional rent stipulated in this Lease shall be deemed to be other
than on account of the earliest amounts due 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
additional rent or to pursue any other remedy provided by this Lease.
(f) Tenant hereby grants to Landlord a security interest in all
equipment, fixtures, improvements, merchandise, now or hereafter located in the
Premises, and all proceeds therefrom, to secure the payment and performance of
the Tenant's obligations set forth in this Lease. Upon request, Tenant agrees to
sign a Financing Statement simultaneously with the execution and delivery of
this Lease or at any time thereafter, and Landlord is hereby authorized to file
such Financing Statement as may be required under the Uniform Commercial Code to
perfect such security interest. Upon the occurrence of any "event of default",
pursuant to Section 13.01 hereof, Landlord shall be entitled to exercise all of
the rights and remedies of a secured party under the Uniform Commercial Code.
Reasonable attorney fees of the Landlord in enforcing any right or exercising
any remedy under this Security Agreement shall be deemed a part of the
obligations secured hereby.
(g) 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, by statute or
otherwise.
(h) 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, by statute
or otherwise.
ARTICLE 14 - Mechanics' Liens
14.01 - Mechanics' Liens
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If any mechanics' lien shall be filed against the Premises, the Building
or any portion thereof 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 within 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 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 any
improvement thereon, 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
any part thereof.
ARTICLE 15 - Assignments, Subleases and Transfers of Tenant's
Interests
15.01 - Limitation on Tenant's Rights
Neither this Lease nor any interest of Tenant therein shall be sold,
assigned, transferred, mortgaged, pledged, hypothecated or otherwise disposed
of, nor shall the Premises or any part thereof be sublet or occupied by other
than Tenant, whether by act of Tenant, or by operation of law, or otherwise,
without the prior written consent of Landlord in each instance.
It is understood and agreed between the parties that, should Tenant
request Landlord's consent to a proposed assignment of this Lease or a
subletting of all or any portion of the Premises, Landlord will, in addition to
any other requirements which may be imposed as conditions to Landlord's consent,
require that Tenant execute and deliver to Landlord an agreement whereby Tenant
obligates itself, as additional rent, to pay over to Landlord the amount, if
any, of all rent, additional rent and any other consideration paid by such
assignee or sublessee to Tenant pursuant to such assignment or sublease which is
in excess of 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, shall be effective until there shall have been delivered to Landlord an
agreement, in recordable form, executed by Tenant and the proposed assignee,
wherein and whereby such assignee assumes due performance of the obligations on
Tenant's part to be performed under this Lease to the end of the term hereof.
Any assignment, mortgage, pledge, or hypothecation of these lease, or of
any interest of Tenant hereunder, and any sublease affecting the Premises shall
be subject to the full terms and conditions of this Lease. Regardless of the
assumption by an assignee of due performance, the
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Tenant named herein shall continue to be fully responsible for the due
performance of Tenant's obligations under this Lease in the same manner and to
the same extent as if no such assignment had been made.
Any assignment, mortgage, pledge, or hypothecation of this Lease, or of
any interest of Tenant hereunder, or any sublease affecting the Premises shall
be subject and subordinate to the full terms and conditions of this Lease.
Regardless of the assumption by an assignee of due performance, the Tenant named
herein shall continue to be fully responsible for the due performance of
Tenant's obligations under this Lease in the same manner and to the same extent
as if no such assignment had been made.
Any assignment, mortgage, pledge, or hypothecation of this Lease, or of
any interest of Tenant hereunder, or any sublease affecting the Premises,
without full compliance with all of the requirements set forth in this Lease,
shall be a breach of this Lease and an event of default hereunder.
15.02 - 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, hypothecating, or transfer of this
Lease.
With respect to any of the consents requested by Tenant under the
provisions of this Article 15, whether or not the Landlord shall have consented
thereto, Tenant shall pay to the Landlord all reasonable counsel fees and other
out-of-pocket expenses incurred by the Landlord in connection therewith.
ARTICLE 16 - Subordination of Lease and Mortgagee's Rights
16.01 - Subordination
This Lease and all of the rights and interests of Tenant under this
Lease shall be subject and subordinate to any ground or underlying lease and to
any mortgage, whether fee or leasehold mortgage, now or hereafter affecting the
Premises or the Building or the land under the Building, and to any advances
made thereunder, and to the interest thereon, and to any renewal, modification,
consolidation, replacement, extension or refinancing thereof.
16.02 - Mortgagee's Rights
(a) So long as any ground lease or mortgage shall remain a lien on the
Premises, the Building, or the land under the Building, Tenant agrees that
simultaneously with the giving of any
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notice to Landlord which is required to be given by this Lease Tenant shall give
a duplicate copy thereof to the ground lessor or mortgagee. Further, Tenant
agrees that if Landlord defaults in its performance of any of the covenants
under the Lease, the ground lessor or mortgagee may cure said default within a
reasonable period of time beyond any time period permitted of Landlord, and if
necessary be permitted entry upon the Premises for the purpose of curing any
such default, all with the same effect as if cured by Landlord. The giving of
any such notice to Landlord shall not be properly given under the terms of this
Lease and shall be of no force and effect until a duplicate copy thereof shall
also have been given to the ground lessor or mortgagee pursuant to this Section
16.02.
(b) The parties hereto mutually agree that so long as a mortgage 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 this lease prior to the end of the term, except as
otherwise expressly provided in this Lease, without first obtaining the consent
of the mortgagee in writing, and that any such proposed modifications or
terminations without said mortgagee's consent shall be void as against said
mortgagee.
ARTICLE 17 - Entry to Premises
17.01 - Entry to Premises by Landlord
Landlord shall have the right to enter Premises at all reasonable times
for the purpose of:
(i) inspecting the Premises;
(ii) making any repairs to the Premises or the Building Common
Facilities located in the Premises, or performing any work in the
Premises that may be necessary by reason of Tenant's default under the
terms of this Lease;
(iii) exhibiting the Premises for the purpose of sale, ground lease,
mortgage or other financing of the Building; and
(iv) exhibiting the Premises within nine (9) months prior to the
expiration of the term of this Lease to prospective tenants.
ARTICLE 18 - Notice and Certificates
18.01 - Notices and Certificates
Any notice, statement, certificate, request or demand required or
permitted to be given in this Lease shall be in writing sent by registered or
certified mail, postage prepaid, return receipt requested, addressed, as the
case may be, to the Landlord and to Tenant at the respective addresses shown at
the beginning of this Lease or to such other addresses as Landlord or Tenant
shall
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designate in the manner herein provided. Such notice, statement, certificate,
request or demand shall be deemed to have been given on the date mailed as
aforesaid 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 severalty, a
notice given by Landlord to any one such person, firm or corporation shall be
conclusively deemed to have been given to all such persons, firms, or
corporation. Any notice by Tenant pursuant to the provisions hereof shall be
void and ineffective unless signed by all such persons, firms or corporations
unless such persons, firms or corporations shall have previously given notice to
Landlord, signed by each of them designating and authorizing one or more of them
to give the notice referred to, and such notice shall then be unrevoked by any
notice to Landlord.
18.02 - Certificate by Tenant
Within ten (10) days after request by Landlord from time to time, Tenant
shall deliver to Landlord or to a person, firm or corporation, specified by
Landlord, a duly executed and acknowledged instrument, certifying:
(i) 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.
(ii) whether Tenant knows or does not know, as the case may be, of any
default by Landlord of the terms, covenants, and conditions of this
Lease, and specifying the nature of such defaults, if any;
(iii) 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
(iv) the amount of fixed monthly rent and additional rent due
hereunder and the date to which the fixed monthly rent and additional
rent has been paid.
ARTICLE 19 - Covenant of Quite 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 of 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
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Premises during the term hereof on and after the Term Commencement Date without
hindrance or ejection by any persons lawfully claiming under Landlord.
ARTICLE 20 - Services
20.01 - Services
During the term of this Lease, while Tenant is not in default hereunder,
Landlord shall furnish to the Premises electricity, lighting, heating,
ventilating, air conditioning, elevator service and water to the plumbing
fixtures, if any, on Monday through Friday from 8 a.m. to 6 p.m. and on Saturday
from 8:30 a.m. to 1:30 p.m., principal legal holidays excepted. Landlord shall
also furnish janitorial services consisting of cleaning floors, removing waste
paper each business day and window cleaning.
20.02 - Interruption of Service
No diminution or abatement of rent or other compensation shall be
claimed or allowed for inconvenience or discomfort arising from the making of
repairs or improvements to the 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 which 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 or for other reasons beyond Landlord's reasonable
control.
ARTICLE 21 - Certain Rights Reserved to Landlord
21.01 - Certain Rights Reserved to Landlord
Landlord reserves the following rights:
(i) To Name the Building and to change the name or street address of
the Building;
(ii) To install and maintain a sign or signs on the exterior or
interior of the Building;
(iii) 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;
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(iv) To constantly have pass keys to the Premises; and
(v) 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.
ARTICLE 22 - Miscellaneous Provisions
22.01 - Holdover
Should Tenant continue to occupy the Premises after the expiration or
earlier termination of this Lease, 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 fixed monthly rent reserved herein for the last year of the
term.
22.02 - Limitation on Personal Liability
It is understood and agreed that Tenant shall look solely to the estate
and property of Landlord, its successors and assigns, 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 or performed by Landlord and any
other obligations or liability of Landlord created by or under this Lease, and
no other property or assets of Landlord, its successors and assigns, or of their
respective partners, beneficiaries, co-tenants, shareholders, or principals (as
the case may be) shall be subject to levy, execution or other enforcement
procedures for the satisfaction of Tenant's remedies.
22.03 - Definition of Landlord
The term "Landlord", as used in this Lease, shall be limited to mean and
include only the owner of the Building (or the owner of a lease of the
Building), at the time in question. In the event of any transfer or transfers
of the Landlord's interest in this Lease or the title to the Building (or in the
event of any lease of the Building or assignment of such lease). Landlord
herein named (and in case of any subsequent transfer or conveyance, 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 or conveyance, of all
obligation or liability as respects the performance of any covenants or
agreements on the part of Landlord to be performed.
22.04 - Force Majeure
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The period of time during which either party is prevented or delayed in
any performance or the making of any improvements or repairs or fulfilling any
obligation under this Lease, other than the payment of fixed monthly rent,
additional rent or any other required payment, due to unavoidable delays caused
by fire, catastrophe, strikes or labor trouble, civil commotion, Acts of God or
the public enemy, governmental prohibitions or regulations or inability to
obtain materials by reason thereof, or any other causes beyond such party's
reasonable control, shall be added to such party's time for performance, and
such party shall have no liability by reason thereof.
22.05 - Relocation of Tenant
Landlord reserves the right, and Tenant consents, to relocate Tenant to
other space with approximately the same square footage area within the Building
upon sixty (60) days written notice to Tenant. Such relocation shall be at
Landlord's cost and expense and shall in no way affect the obligation or duties
of either party hereunder.
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22.06 - Failure to Give Possession
If Landlord is unable to give possession of the Premises on the Term
Commencement Date by reason of the holding over or retention of possession of
any tenant, tenants, or occupants or for any other reason, or if repairs,
improvements or decoration of the Premises or of the Building are not completed,
such inability by Landlord shall not constitute a default under this Lease but
the Term Commencement Date shall be postponed until such date as such holdover
tenant or occupant shall give up possession of the Premises and the term of this
Lease shall be deemed to commence on such Term Commencement Date as postponed
(and the termination date of the term of the Lease shall be extended by the same
period as the Term Commencement Date is postponed)
22.07 - Surrender of Premises
At the expiration or sooner termination of this Lease, Tenant shall
return the Premises broom-clean and in as good a condition as when Tenant took
possession, ordinary wear and loss by fire or other casualty excepted, failing
which Landlord may restore the Premises to such condition and Tenant shall be
responsible to pay the cost thereof. Any personal property not removed within
three (3) days following the expiration or termination of this Lease shall, at
Landlord's option, become the property of Landlord.
22.08 - Attornment by Tenant
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
the exercise of the power of sale under, any mortgage made by Landlord covering
the Premises, or in the event Landlord sells, conveys or otherwise transfers its
interest in the Building or any portion thereof containing the Premises. Tenant
shall attorn to and hereby covenants and agrees to execute an instrument in
writing reasonably satisfactory to the new owner whereby Tenant attorns to such
successor in interest and recognizes such successor as the Landlord under this
Lease.
22.09 - Definition of Tenant's Allocable Share
For purpose of determining Tenant's Allocable Share herein, such share
shall be the percentage resulting from dividing the number of square feet set
forth in Section 1.01 above, by the total number of square feet in the Building,
which are leased as of the beginning of each lease year or partial lease year,
less the area occupied by the Xxx Xxxxxxxxx Center.
22.10 - Division of Costs
Landlord may construct or operate other office buildings located
adjacent to the Building. Tenant agrees that Landlord may treat the Building and
the adjacent office buildings as one unit for the purpose of purchasing and
providing energy and water, insurance and the common services included within
Operating Costs, Landlord shall equitably divide such costs between the Building
and any such adjacent office building for each lease year (or partial lease
year) and the allocation of such costs shall be subject to verification by
Tenant at Landlord's offices.
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22.11 - Complete Agreement
(a) 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 is in writing, signed and acknowledged by the parties
hereto, their legal representatives, successors or assigns.
(b) Tenant acknowledges and agrees that neither Landlord nor any
representative of Landlord nor any broker has made any representation to or
agreement with Tenant relating to the Premises, this Lease, the Building, or
Tenant's operation of business in the Premises or the Building which is not
contained in the express terms of this Lease. Tenant acknowledges and agrees
that Tenant's execution and delivery of this Lease is based upon Tenant's
independent investigation and analysis of the business potential and expenses
represented by this Lease, and Tenant hereby expressly waives any and all claims
or defenses by Tenant against the enforcement of this Lease which are based upon
allegations or representations, projections, estimates, understandings or
agreements by Landlord or Landlord's representative that are not contained in
the express terms of this Lease. Tenant agrees that there are no rights,
easements or licenses which may be acquired by Tenant by implication or
otherwise except as expressly set forth in the provisions of this Lease.
22.12 - Memorandum of Lease
Each party agrees, if requested by the other, to execute a Memorandum of
Lease in recordable form.
22.13 - 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 thereof.
22.14 - Invalidity of Particular Provisions
If any term or provisions of this Lease or the application thereof to
any person or circumstances shall, to any extent, be invalid or unenforceable,
the remainder of the 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.
22.15 - Execution of Lease by Landlord
The submission of this document by either party for examination and
negotiation does not constitute an offer to lease, or a reservation of, or
option for, the Premises, and this document shall
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be effective and binding only upon the execution and delivery thereof by both
Landlord and Tenant.
22.16 - Assignment of Rents or Sale and Lease Back
(a) With reference to any assignment by Landlord of Landlord's interest
in this Lease, or the rents payable hereunder, conditional in nature or
otherwise, which assignment is made to the holder of a mortgage or ground lease
on property which includes the Premises, Tenant agrees:
(i) that the execution thereof by Landlord, and the acceptance
thereof by the holder of such mortgage, or the ground lessor shall
never be treated as an assumption by such holder or ground lessor of
any of the obligations of Landlord hereunder, unless such holder, or
ground lessor, shall, by notice sent to Tenant, specifically
otherwise elect; and
(ii) that except as aforesaid, such holder or ground lessor shall be
treated as having assumed Landlord's obligations hereunder upon
foreclosure of such holder's mortgage and the taking of possession
of the Premises, or, in the case of a ground lessor, the assumption
of Landlord's position hereunder by such ground lessor.
(b) Where a party acquires the lessor's interest in property (whether
land only, or land and buildings) which includes the Premises, and
simultaneously leases the same back, such acquisition shall not be treated as an
assumption of Landlord's position hereunder, and this Lease shall thereafter be
subject and subordinate at all times to such lease.
22.17 - Other Provisions
There are attached hereto and incorporated herein the following
provisions (insert below the paragraph number and heading of any additional
provisions; if there are none, write "NONE"):* **
NONE
-------------------------
* SCC Telecommunications, Xxxxx Xxxxxx, has the right of first refusal on the
adjacent 1,600 sq. ft. space that they are vacating to occupy this 4,163 sq.
ft. space. Landlord must notify SCC Telecommunications in writing with a
bona fide offer and SCC Telecommunications has ten (10) days to match the
offer and commit to the 1,600 sq. ft. space in writing.
** Commencing June 1, 1997 the lease of 1,600 sq. ft. by and between Briar Joy
Development Corp. d/b/a/ SCC Telecommunications will be replaced by this new
lease.
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IN WITNESS WHEREOF, the parties hereto have executed this Lease on the date
first above written.
Briar Joy Development Corp. Railroad Street Partnership
d/b/a SCC Telecommunications (Name of Landlord)
By /s/ By /s/
------------------------------ ------------------------------
Xxxxx X. Xxxxxx, President (Partner)
SCC Telecommunications
----------------------
(Name of Tenant)
By /s/ Xxxxx X. Xxxxxx, President
-------------------------------
(Title)
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(Acknowledgment of LANDLORD)
STATE OF NEW YORK )
) ss.:
COUNTY OF ONONDAGA)
On this 9th day of January, 1997, before me personally came Xxxxxxx
Xxxxxxx, to me personally known, who, being by me duly sworn, did depose and say
that he resides in 0000 Xxxxxx Xxxxx, Xxxxxxxxx, Xxx Xxxx 00000, that he is one
of the Partners of the RAILROAD STREET PARTNERSHIP, that he is known to me to be
one of the Partners of such partnership that executed the within lease as
Landlord and he acknowledged to me that he executed the same in the name of and
on behalf of such partnership.
/s/ Xxxxxxx Xxxxxxx
-------------------
(Notary Public)
XXXXXXX XXXXXXX
Notary Public, State of New York
Qualified in Onondaga County
Reg. No. 01FlSOJ3373
Commission Expires 12/18/97
(Acknowledgment of TENANT if Corporation)
STATE OF NEW YORK )
) ss.:
COUNTY OF ONONDAGA)
On this 9th day of January, 1997, before me personally came Xxxxx
Xxxxxx, to me personally known, who, being by me duly sworn, did depose and say
that he resides in 000 Xxxxxxxx Xxxxxx, Xxxxxxxx, Xxx Xxxx 00000, that he is the
_______________ of __________________, the corporation described in, and which
executed the within Lease as Tenant; that he knows the seal of said corporation;
that the seal affixed to said instrument is such corporate seal; that it was so
affixed by order of the Board of Directors of said corporation, and that he
signed his name thereto by like order.
/s/ Xxxxxxx Xxxxxxx
-------------------
(Notary Public)
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TABLE OF EXHIBITS
EXHIBIT A.................................................... Floor Plan
EXHIBIT B............................................... Landlord's Work
EXHIBIT C................................................. Tenant's Work
EXHIBIT D......................................... Rules and Regulations
EXHIBIT E............................................. Guaranty of Lease
EXHIBIT F.................................. Stipulation of Term of Lease
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[EXHIBIT A]
[Floor Plan]
EXHIBIT B
Landlord's Work
Tenant to take space in "as is" condition.
EXHIBIT C
Tenant's Work
Tenant to take space in "as is" condition. Tenant shall be obligated
for any improvements needed for Tenant's use and occupancy of the Premises.
EXHIBIT D
RULES AND REGULATIONS
(a) Tenant shall not exhibit, sell or offer for sale on the Premises 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.
(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 are
forbidden by public law, ordinance or governmental regulation or which 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 or tend to 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. Tenant shall not use the Premises for
any illegal or immoral purpose.
(c) Tenant shall not display, inscribe, print, paint, maintain or affix on
any place or in or about the Building any sign, notice, legend, direction,
figure or advertisement, except at the doors of the Premises and on the
Directory Board, and then only such name(s) and matter, and in such color, size,
style, place and materials, as shall first have been approved by the Landlord.
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 15, it being expressly
understood that any such listing is a privilege extended by Landlord revocable
at will by written notice to Tenant.
(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 purposes 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
Landlord's consent.
(e) No additional locks or similar devices shall be attached to any door or
window without Landlord's written consent. No keys for any door other than
those provided by the Landlord shall be made. If more than one (1) key to the
Premises 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 Saturday, Sunday or
holidays, may be required to do so under such regulations as Landlord may
impose. Landlord may exclude or expel any peddler.
(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 Tenant's use and may specify the location of safes and other heavy
articles.
(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
(except by using a microwave unit) 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, naptha, benzine, and solvents, or any explosives,
radioactive materials or other hazardous materials or articles deemed hazardous
to life, limb or property except in a manner which would not violate any
ordinance or regulation or any condition imposed by 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.
(i) Tenant shall cooperate fully with Landlord to assure the effective
operation of the Building's air-conditioning systems, including the closing of
blinds and drapes, and if windows are operable to keep them closed when the air-
conditioning system is in use.
(j) Tenant shall not contract for any work or service which might involve
the employment of labor incompatible with the Building employees or employees of
contractors doing work or performing services by or on behalf of Landlord.
(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 invitees of any tenant shall
go upon the roof or into the mechanical rooms of the Building.
(l) Tenant shall not use, keep or permit to be used or kept any foul or
noxious gas or substance in the Premises, or permit or suffer the Premises to be
occupied or used in a manner
D-2
offensive or objectionable to Landlord or other occupants of the Building by
reason of noise, odors and/or vibrations, or interfere in any way with other
tenants or those having business therein, nor shall any animals or birds by
brought in or kept in or about the Premises of the Building.
(m) With respect to the Premises and the Building Common Areas and Common
Facilities. Tenant shall see that the door, and windows, if operable, are
closed and securely locked before leaving the Building and shall observe strict
care and caution that all water faucets or water apparatus is 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. Tenant
shall install seven (7) day time clocks to automatically shut off any equipment
installed by Tenant which, by its nature, is not shut off by Tenant's employees
at the end of each business day.
(n) There shall not be used 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 determine from time to time. The Landlord
reserves the right to inspect all freight to be brought into the building and to
exclude from the building all freight which violates any of the Rules and
Regulations or the lease of which these Rules and Regulations are a part.
D-3
Exhibit E
GUARANTY OF LEASE
The undersigned, Xxxxx X. Xxxxxx, individual (cross out whichever do not
apply) organized and existing under the laws of the State of New York, with
principal office at or resident at
000 Xxxxxxxx Xxx., Xxxxxxxx, Xxxxxxxx, Xxx Xxxx 00000
(Street Address) (City or Town), (County), (State), (Zip)
Attention Xxxxx Xxxxxx ........................................................
(Insert Name of Person or Office to receive Notice)
Hereinafter together 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 ...................
19__ wherein RAILROAD STREET PARTNERSHIP, a New York partnership, having its
principal address at X.X. Xxx 000, Xxxxxxxx, Xxx Xxxx 13201(hereinafter and in
said Lease called "Landlord") has leased to Briar Joy Development Corp. d/b/a/
SCC Telecommunications ((Name of Tenant)
000 Xxxxx Xxxxxx Xxxxxx
...............................................................................
(Street Address)
.Syracuse.............Onondaga....................NY......................13203
(City or Town) (County) (State) (Zip)
(hereinafter and in said Lease called "Tenant") certain premises in the Building
known as SALINA PLACE 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 term of the 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 and the payment of all damages or costs that arise in consequence of any
default by Tenant under the 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, and that Guarantor hereby waives (a) notice of the acceptance
of 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 and (d) notice of any amendment or
modification of the said Lease or any of the provisions contained therein
including any amounts due thereunder. Guarantor further agrees that the
validity of this Guaranty and its or his obligations hereunder shall in no wise
be terminated, affected or impaired by reason of the assertion by Landlord
against Tenant of any rights or remedies reserved to Landlord pursuant to the
terms of said Lease. Guarantor further agrees that this Guaranty will continue
in full force and effect and remain unchanged by any bankruptcy, reorganization
or insolvency of Tenant or any successor or assignee of Tenant, or by any
disaffirmance, rejection or abandonment by a trustee of Tenant.
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.
IN WITNESS WHEREOF, the undersigned has caused this instrument to be duly
executed on this ........ day of ....... 19...
Xxxxx X. Xxxxxx
(Name of Guarantor)
/s/
-------------------------------
E-2
(Acknowledgment of Guarantor if Individual)
STATE OF .................)
} ss.
COUNTY OF.................)
On this...9.... day of ...January, .... 1997, before me personally came
........Xxxxx Xxxxxx......... to me personally known, who being by me duly
sworn, did depose and say that he resides at .....207 Xxxxxxxx Avenue, Syracuse,
NY 13203...... and who acknowledges that he executed the within Guaranty of
Lease as Guarantor.
/s/ Xxxxxxx Xxxxxxx
--------------------------------------
(Notary Public)
EXHIBIT F
STIPULATION OF TERM OF LEASE
AGREEMENT, made this ___ day of _________________, 2000, by and between the
following parties Xxxxxxxx Xxxxxxxx Xxxxxx Partnership, a partnership organized
and existing under the laws of the State of New York with principal address at
X.X. Xxx 000, Xxxxxxxx, Xxx Xxxx 00000, hereinafter referred to as the
"Landlord", and
Tenant,
a corporation/partnership/individual(s) (cross out whichever do not apply)
organized and existing under the laws of the State of _____________ with
principal office at or residence at:
...............................................................................
(Street Address)
...............................................................................
(City or Town) (County) (State) (Zip)
herein referred to as the "Tenant".
WHEREAS, Landlord and Tenant have entered into a Lease dated the .........
day of ......, 19.. relating to Premises containing approximately square feet
in the
Salina Place Building
located at 000-000 Xxxxx Xxxxxx Xxxxxx, Xxxxxxxx, Xxx Xxxx as more fully
described in said Lease; and
WHEREAS, Landlord and Tenant now desire to stipulate and agree to the Term
Commencement Date and termination date of said Lease,
NOW THEREFORE, it is hereby mutually stipulated and agreed by the parties
hereto that the Term Commencement Date under the aforesaid Lease is the ....day
of ....... 19.. and that the term expires on the day of, 19... It is further
agreed and stipulated by Tenant that Tenant has accepted or does hereby accept
the Premises referred to in said Lease for occupancy, that Tenant has entered
into possession of the said Premises and that the rents under the said Lease
have become fully effective without offset or defense of any kind.
IN WITNESS WHEREOF, the parties hereto have executed this Stipulation of
Term of Lease on the date first above written.
RAILROAD STREET PARTNERSHIP
(Name of Landlord)
By__________________________________
(Partner)
By__________________________________
(Name of Tenant)
By__________________________________
(Title)
(Acknowledgment of Landlord)
STATE OF NEW YORK).)
} ss.
COUNTY OF ONONDAGA ))
On this ...... day of ..........., 19.. before me personally came
..........., to me personally known, who being by me duly sworn, did depose and
say that he resides at ................... that he is a Partner of RAILROAD
STREET PARTNERSHIP, that he is known to me to be one of the Partners of such
Partnership that executed the within Stipulation of Term of Lease as Landlord
and acknowledged to me that he executed the same on behalf of and in the name of
such Partnership.
________________________.
(Notary Public)
(Acknowledgment of Tenant if Corporation)
STATE OF .................... )
} ss.
COUNTY OF ................... )
On this ............... day of ........., 19.. 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
Stipulation of Term of Lease as Tenant, that knows the seal of said corporation;
that the seal affixed to said instrument is such corporate seal; that it was so
affixed by order of the Board of Directors of said corporation; and that he
signed his name thereto by like order.
________________________.
(Notary Public)
(Acknowledgment of Tenant if Partnership)
STATE OF .................... )
} ss.
COUNTY OF ................... )
On this ............ day of ............., 19.. before me personally came
................, to me personally known, who being by me duly sworn, did depose
and say that he resides at ................ that he is a Partner of ............
............. that he is known to be one of the partners of the Partnership that
executed the within Stipulation of Term of Lease as Tenant and acknowledged to
me that he executed the same on behalf of and in the name of such Partnership.
________________________.
(Notary Public)
(Acknowledgment of Tenant if Individual)
STATE OF ..................... )
} ss.
COUNTY OF .................... )
On this ............... day of ........................, 19.. before me
personally came ..............., to me personally known, who being by me duly
sworn, did depose and say that he resides at ................. and who
acknowledges that he executed the within Stipulation of Term of Lease.
________________________.
(Notary Public)
