STANDARD
OFFICE SPACE LEASE
Name of Office Building Woodcliff IV Office Building
Location of Office Building: 000 Xxxxxxxxx Xxxxx, Xxxxxxxx, Xxx Xxxx
Landlord: 000 Xxxxxxxxx Xxxxx Company, LLC
Tenant: Logisoft Corp.
TABLE OF CONTENTS
ARTICLE 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Premises . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
ARTICLE 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Term of Lease . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
ARTICLE 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Rent, Taxes and Lease Year . . . . . . . . . . . . . . . . . . . . . 3
ARTICLE 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Construction, Financing and Alterations . . . . . . . . . . . . . . . 6
ARTICLE 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Use of Premises . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
ARTICLE 6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Operating Costs . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
ARTICLE 7 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Energy Costs and Water . . . . . . . . . . . . . . . . . . . . . . . . 8
ARTICLE 8 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Repairs and Compliance . . . . . . . . . . . . . . . . . . . . . . . . 9
ARTICLE 9 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Indemnity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
ARTICLE 10 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
ARTICLE 11 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Fire and Other Casualties . . . . . . . . . . . . . . . . . . . . . . 11
ARIICLE 12 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Eminent Domain . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
ARTICLE 13 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Bankruptcy and Default Provisions . . . . . . . . . . . . . . . . . . 12
ARTICLE 14 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Mechanic's Liens . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
ARTICI.E 15 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Mortgages, Assignments, Subleases and Transfers of Tenant's Interest . . 14
ARTICLE 16 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Subordination of Lease . . . . . . . . . . . . . . . . . . . . . . . . 16
ARTICLE 17 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Entry to Premises . . . . . . . . . . . . . . . . . . . . . . . . . . 16
ARTICLE 18 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Notices and Certificates . . . . . . . . . . . . . . . . . . . . . . . 16
ARTICLE 19 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Covenant of Quiet Enjoyment . . . . . . . . . . . . . . . . . . . . . 17
ARTICLE 20 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Services . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
ARTICLE 21 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Certain Rights Reserved to Landlord . . . . . . . . . . . . . . . . 18
ARTICLE 22 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Miscellaneous Provisions . . . . . . . . . . . . . . . . . . . . . . . 18
STANDARD
OFFICE SPACE LEASE
This Lease made this 8th day of March, 2000, is by and between the following
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parties:
Landlord: 000 XXXXXXXXX Xxxxx Company, LLC, a limited liability company
organized and existing under the laws of the State of New York
with its mailing address for notices and a principal office at:
c/o The Widewaters Group, Inc.
0000 Xxxxxxxxxx Xxxxxxx
P.O. Box 3
DeWitt, New York 13214-0003
Attention: Lease Administration
hereinafter referred to as the "Landlord", and
Tenant: Logisoft Corp., a corporation organized and existing under the
laws of the State of New York with a Fed. Tax ID number of
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00-0000000 and its principal office or residence at:
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0000 Xxxxxxxxx-Xxxxxxx Xxxx
Xxxxxxxxx, Xxx Xxxx 00000
Attn.: Xxxxxx Xxxx
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hereinafter referred to as the "Tenant".
Xxxxxxxx has appointed The Widewaters Group, Inc. the Managing Agent, and
Landlord has granted to line Widewaters Group, Inc. the authority to remit,
operate and manage the Building on behalf of and in the name of Landlord.
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WITNESSETH:
ARTICLE I
Premises
1.01 - Premises
Landlord hereby leases to Tenant and Tenant hereby leases and hires from
Landlord those certain premises in the Woodcliff IV Office Building (hereinafter
called the ''Building'') which is located in the town of Pittsford, County of
Monroe, and State of New York, which premises are located on the first (1st)
floor(s) of the Building and are outlined on the floor plan(s) attached hereto
and made a part hereof as Exhibit "A" (said premises being hereinafter called
the "Premises"), together with the right to use, in common with others, the
Building Common Areas and Outside Common Areas as hereinafter defined. For
purposes of this Section 1.01, the sum of the square feet in the Premises and
Tenant's share of Building Common Areas (as defined in Section 1.02 hereof)
shall be 8,499 leaseable 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 concrete floor surface and the lower surface of the
next higher floor (or roof). Landlord reserves unto itself, its successors and
assigns, the right to install, maintain, use, repair and replace pipes, ducts,
conduits, wires and structural elements leading through the Premises in
locations which will not materially interfere with Xxxxxx's use of the Premises.
No right to use any part of the exterior of the Building and no easement for
light or air are included in the lease of the Premises hereby made.
1.02 - Definition of Building COMMON Areas
"Building Common Areas" shall be defined to mean all areas, space,
equipment, signs and special services provided by Landlord specifically for the
Building or for line common or joint use and benefit of all the tenants in the
Building, their employees, agents, customers, visitors and other invitees,
including without limitation, hallways, corridors, trash rooms, mechanical and
electrical rooms, storage rooms, stairways, entrances, elevators, rest rooms,
lobbies, stairs, loading docks, pedestrian walks, roofs and basements, janitor's
and storage closets within the Building and all other common rooms and common
facilities within the Building.
1.03 - Definition of Outside Common AREAS
The term "Outside Common Areas" is defined to mean the land described on
Exhibit "B" attached hereto and made a part hereof, or such portion thereof as
is from time to time devoted to uses associated with the Building, and any
adjacent, contiguous or other land which may from time to time be devoted to
uses associated within the Building, together with such improvements as may from
time to time be erected upon or under any of such lands, including, but not
limited to, parking areas, lighting facilities, utility lines, sidewalks,
covered walkways, underground walkways, driveways, plazas, courts, retaining
walls, access roads, truck serviceways and landscaped areas, signs and
equipment.
ARTICLE 2
Term of Lease
2.01 - Term
The initial term of this Lease shall be sixty-six (66) full ' calendar
months following the "Term Commencement Date" (defined in and determined in
accordance with the provisions of Section 2.02 below) unless earlier terminated
pursuant to the provisions hereof. The last day of the month in which the term
shall expire is herein referred to as the "Expiration Date".
The word "term" shall, unless otherwise expressly provided to the contrary,
be deemed to include the initial and any renewal term.
2.02 - Term Commencement Date
A. The initial term of this Lease shall commence on date which is the
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earlier of: (i) the date the Premises are Ready For Occupancy (defined below);
or (ii) the date Tenant first occupies the Premises, (the earlier of such dates
is herein referred to as the "Term Commencement Date'').
B. The Premises shall be deemed "Ready For Occupancy'' on the date that
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there is delivered to Tenant a statement in writing by Landlord stating that
possession of the Premises is available to Tenant and that the following
conditions have been fulfilled:
(a) That the Landlord has "Substantially Completed" all of
Landlord's Work mentioned in Exhibit "C" annexed hereto. Substantially
Completed shall mean that Tenant may commence the installation of its
fixtures and equipment without significant interference from
Xxxxxxxx's workmen and that facilities shall have been installed in
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the Premises to insure reasonable security of said fixtures and
equipment; and
(b) That adequate facilities exist for sate and convenient access
to and egress front the Premises by persons for the purposes of
readying the Premises for the conduct of Tenant's business therein.
C. If the Premises are not ready for occupancy on or before May 1, 2000
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for any reason other than an event of Force Majeure or Tenant delay, then,
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Tenant shall have the option of terminating this Lease upon written notice to
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Landlord given within five (5) days from May 1, 2000. If Tenant fails to timely
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exercise its option to terminate as aforesaid Tenant shall be deemed to waived
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its right to terminate this Lease pursuant to this paragraph, and this Lease
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shall continue in full force and effect through the remainder of the Lease term.
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2.03 - Stipulation of Term
The parties agree to execute and deliver a written Stipulation of Term of
Lease in the form attached hereto as Exhibit "G" ("Stipulation"), prepared by
Landlord, once the Term Commencement Date and Expiration Date have been
determined. Tenant shall have a period of thirty (30) days from receipt of the
completed Stipulation within which to either: (i) execute, acknowledge and
deliver the same to landlord; or (ii) notify landlord in writing of any dispute
Tenant may have regarding the information therein contained. If Tenant fails to
duly respond within such thirty (30) day period, Tenant shall pay to Landlord,
as liquidated damages, the sum of ten dollars ($10.00) per day, as Additional
Rent (defined below), until the executed and acknowledged Stipulation shall have
been delivered to Landlord. Nothing contained herein shall be construed to be a
limitation of or in substitution of Landlord's rights and remedies under this
Lease.
2.04 - Condition of Premises
Xxxxxx's taking possession shall he conclusive evidence as against Tenant
that the Premises was in good order and satisfactory conditions when Xxxxxx took
possession. At the termination of this Lease, Tenant shall return the Premises
broom clean and in as good condition as when Tenant took possession, ordinary
wear and loss by fire or other casualty excepted, failing which the Landlord may
restore the Premises to such condition and Tenant shall pay the cost thereof.
2.05 - Tenant's Trade Fixtures and Personal Property
Upon the expiration or sooner termination of this Lease, Tenant shall
remove all of its trade fixtures and other property from the Premises and shall
promptly repair any damage caused to the Premises or to the Building by stick
removal. If the Tenant fails to so remove any trade fixtures or other property
of 'tenant prior to vacating the Premises, such fixtures and/or other property
shall be deemed abandoned by 'tenant and shall become the property of Landlord
or, at Landlord's option, Landlord may cause line fixtures or property to be
removed at Tenant's expense.
ARTICLE 3
Rent, Taxes and Lease Year
3.01 - Fixed Monthly Rent and additional Rent
(a) Xxxxxx agrees to pay to Landlord at the offices of Landlord, or at
such other place designated by Landlord, without any prior demand therefore and
without any deduction or set-off whatsoever, and as fixed monthly rent
(sometimes referred to herein as "Fixed Monthly Rent"), the sums set forth
below:
MONTH OF TERM FIXED MONTHLY RENT - Total 891756
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1 - 12, inclusive 135564 $11,296.59 - 5/1/00 - 12/31 - 90376
13 - 24, inclusive 153828 $12,819.33 - 1/1/01 - 12/31 - 45188 + 102552 = 147740
25 - 66, inclusive 602364 $14,342.06 - 1/1/02 - 12/31 - 51276 + 114736 = 166012
(3+4+5+1/2 of 6) 1/1/03 - 12/31 - 172104
1/1/04 - 12/31 - 172104
1/1/05 - 11/01/05 - 143420
Fixed Monthly Rent shall he 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
(b) 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".
If the term or payment of rent shall commence or terminate upon a day other
than the first (or in the case of termination the last) day of a calendar month,
Tenant shall pay, upon the Term Commencement Date, or the date payment of rent
shall commence, and on the first day of the last calendar month, a pro rata
portion of the Fixed Monthly Rent for the first and last fractional calendar
month, respectively, prorated on a per diem basis with respect to such
fractional calendar month(s).
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3.02 - Taxes
(a) Landlord shall, in the first instance, pay during the term of this
Lease, to the public officers charged with the collection thereof, all Building
Taxes as hereinafter defined.
The term "Building Taxes" shall be deemed to include (i) all real property
taxes (which shall be deemed to include all property taxes and assessments,
water and sewer rents, rates and charges, parking and environmental surcharges
and any other governmental charges, general and special, ordinary and
extraordinary), which may he levied or assessed by any lawful authority against
the Building, the Building Common Areas and the Outside Common Areas, plus (ii)
twelve percent (12%) of such real property taxes for overhead expenses. The
amounts required to be paid by Landlord or any tenant or occupant of the
Building pursuant to any Payment in Lieu of Tax Agreement entered into with a
taxing authority having jurisdiction over the Building shall be considered for
the purposes of this Lease to be included within the definition of Building
Taxes.
(b) During the term of this Lease, Xxxxxx agrees to pay to Landlord as
Additional Rent, Xxxxxx's Allocable Share (computed pursuant to Section 22.10(b)
hereof) of the amount by which Building Taxes payable by Landlord under Section
3.02(a) above for each lease year exceeds said Building Taxes payable during the
Tax Base Year as hereinafter defined. 'line term "Tax Base Year" for purposes of
this Lease shall mean the 1999-2000 school for School Taxes and the 2000
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calendar for State, Town and County Taxes. At the beginning of each lease year,
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Landlord will submit to Tenant Landlord's estimate of the increases in Building
Taxes for the following lease year. Within ten (10) days after receipt of such
estimate, (and thereafter on the first day of each month without invoice) Tenant
shall pay to Landlord an amount equal to one twelfth (1/12) of Tenant's
Allocable Share of such estimated increase. At the end of each lease year or
partial lease year, Landlord will furnish to Tenant a statement setting forth
the actual Building Taxes payable during such lease year, comparing such actual
Building Taxes with the Building Taxes for the Tax Base Year and also comparing
Tenant's Allocable Share of the increase as estimated by Landlord and paid by
Tenant with Xxxxxx's Allocable share of the actual increase in Building Taxes
for such lease year. Any underpayment by tenant shall be promptly adjusted by
payment to Landlord within fifteen (15) days of the balance of any underpayment
for such year, and any overpayment by Tenant shall either be applied as a credit
to the next succeeding monthly installment of increases in Building Taxes, or
applied to offset any then existing monetary default by Tenant under this Lease.
In the event of any over payment by Tenant in the last lease year or last
partial lease year, Tenant shall be entitled to receive a refund of the monies
overpaid after application to any then existing monetary default, if any, by
Tenant under this Lease. A copy of a tax bill or assessment bill submitted by
Landlord to Tenant shall at all times be sufficient evidence of the amount of
Building Taxes levied or assessed against the property to which stick bill
relates
(c) Tenant shall at all times be responsible for and pay, before
delinquency, all municipal, county, state or federal taxes assessed against its
leasehold interest or any fixtures, furnishings, equipment, stock-in-trade or
other personal Property of any kind owned, installed or used in or on the
Premises.
(d) Should any governmental taxing authority acting under any present
or future law, ordinance or regulation, levy, assess or impose a tax, excise,
surcharge and/or assessment (other than a tax on net rental income or franchise
tax) upon or against the rents payable by Tenant to Landlord, or upon or against
the Building, the Building Common Areas or the Outside Common Areas, either by
way of substitution for or in addition to any existing tax on land or buildings
or otherwise, Tenant shall be responsible for and shall pay Tenant's Allocable
Share of such tax, excise, surcharge and/or assessment in the manner provided in
Subsection (h) above.
(e) Landlord may seek a reduction in the assessed valuation (for real
estate tax purposes) of the Building in which the Premises is situate by
administrative or legal proceeding. Tenant shall pay to Landlord Xxxxxx's
Allocable Share of Landlord's costs for said proceedings including but not
limited to, special counsel, counsel's reimbursable expenses, and special
appraisers if required, Xxxxxx's Allocable Share of Landlord's costs being
computed under Section 22.10(b). In the event that the assessed valuation of the
Building is reduced as aforementioned or in any other manner, all future
computations of Tenant's Allocable Share of Building Taxes shall be made with
respect to the new assessed valuation. Upon receipt of any refund resulting from
any proceeding for which Xxxxxx has paid Xxxxxx's Allocable Share of Landlord's
costs and has paid Tenant's Allocable Share of excess Building Taxes under
Section 3.02(b) above, Landlord shall recompute the amount that would have been
due from Tenant and pay to Tenant the amount by which Building Taxes originally
paid by Xxxxxx exceed such recomputed amount.
(f) Should any alteration or improvement performed by Tenant during the
term of this Lease cause an increase in assessment, Tenant shall pay to Landlord
the cost of all taxes resulting from such increase in assessment. Any amount
paid separately hereunder by Tenant to Landlord shall be in addition to any
amounts paid by Tenant pursuant to Section 3.02(b) above.
3.03 - Past Due Rent
If, during the term of this Lease, Tenant shall fail to pay any installment
of Fixed Monthly Rent or Additional Rent or any other charge hereunder when the
same is due and payable, Tenant shall pay to Landlord, in addition to such
installment of Fixed Monthly Rent or Additional Rents or any other charge,
without notice or demand by Landlord and/or, a sum equal to one-tenth (1/10) of
the payment due, said additional sum payable as herein required being the agreed
liquidated damages for Tenant's late payment of any installment not paid when
due. If
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Tenant's failure to pay any such installment continues for more than thirty (30)
days from the original date such installment was due, Landlord shall have the
right to impose as additional liquidated damages a sum equal to one-tenth (1/10)
of the amount then due. Nothing contained in this Section 3.03 shall be
construed to be a limitation of or in substitution of Landlord's rights and
remedies under Article 13. Any payments by Tenant to Landlord shall first be
applied to satisfy any past due rent charges under this Section before being
applied for any OTHER purpose. Tenant shall pay to Landlord an administrative
fee of $100.00 for each and every check submitted by Tenant which is dishonored.
If Landlord receives from Tenant two or more checks which have been dishonored,
all checks from Tenant thereafter shall, at Landlord's option, be either
certified or cashier's checks.
3.04 - Definition of Lease Year and Partial Lease Year
The term "lease year" is defined to mean a period of twelve (12)
consecutive calendar months, the first full lease year commencing on the first
day of January following the Term Commencement Date, and each succeeding lease
year commencing on the anniversary of the commencement of the first full lease
year. Any portion of the term which is less than a lease year shall be deemed a
"partial lease year" and computations requiring proration shall be pro rated on
a per diem basis using a 365 day year.
Landlord reserves the right to designate and change the beginning and
ending day of the lease year, notice of which shall be given to Tenant.
3.05 - Security Deposit
Xxxxxx agrees to deposit with Xxxxxxxx, upon Xxxxxx's execution and return
of this Lease, the sum of $28,684.13 ("Security Deposit")as security for the
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faithful performance and observance by Xxxxxx of the terms, provisions and
conditions of this Lease. _ If Tenant completes, executes and delivers to
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Landlorda Certification of Taxpayer Identification Number for,- Rental Security
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Accounts, simultaneously with the delivery of this Lease, Landlord agrees it
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shall deposit the Security Deposit into a Key Bank Custodial Account which shall
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then earn interest at the rate established by the bank. It is agreed that in the
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event Tenant defaults in respect of any of the terms, provisions and conditions
of this Lease, including, but not limited to, the payment of Fixed Monthly Rent
and Additional Rent, Landlord may use, apply or retain the whole or any part of
the security so deposited, to the extent required, for the payment of any Fixed
Monthly Rent and Additional Rent or any other sum as to which Tenant is in
default, or for any sum which Landlord may expend or may be required to expend
by reason of Tenant's default in respect of any of the terms, covenants and
conditions of this Lease, including but not limited to, any damages or
deficiency in the re-letting of the Premises, whether such damages or deficiency
occurred before or after summary proceedings or other re-entry by Landlord. If
Landlord uses, applies or retains any part of the security so deposited, Tenant
shall promptly replenish the security deposit to its full original amount upon
demand by Landlord. In the event that Tenant shall fully and faithfully comply
with all of the terms, provisions, covenants and conditions of this Lease, the
security (and any accrued interest)shall be returned to Tenant after the date
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fixed as the end of the term of the Lease, after surrender of the Premises to
Landlord in accordance with Sections 2.04 and 2.05, and within sixty (60) days
of Tenant s request. In the event of a sale of the land and Building or leasing
of the Building, Landlord shall have the right to transfer the security to the
vendee or lessee and Landlord shall thereupon be released by Tenant from all
liability for the return of such security; and Xxxxxx agrees to look to the new
Landlord solely for the return of said security; and it is agreed that the
provisions hereof shall apply to every transfer or assignment made of the
security to a new Landlord. Tenant further covenants that it will not assign or
encumber or attempt to assign or encumber the monies deposited herein as
security, and that neither Landlord nor its successors or assigns shall be bound
by any such assignment, encumbrance attempted assignment or attempted
encumbrance.
3.06 - PLACE FOR PAYMENTS
(a) Tenant shall deliver to landlord all payments of Fixed Monthly
Rent, Additional Rent, and other sums at the office of Landlord shown on page 1
of this Lease or such other place as may be designated by Landlord. Checks
should be made payable to The Widewaters Group, Inc.
(b) Tenant may elect to make rental payments due under this Lease by
the electronic funds transfer method. In such event, Tenant shall:
(i) open and maintain an account in a financial institution ("Tenant's
financial institution") which is authorized to transmit entries to an
Automated Clearing House of a member of the National Automated Clearing
House Association;
(ii) execute promptly any and all agreements and authorizations and supply
any and all information, necessary to provide for automatic payment
of Fixed Monthly Rent, Additional Rent, and other sums by electronic
funds transfer from Tenant's financial institution to a financial
institution designated by Landlord; and
(iii) take all actions necessary to insure that any and all such payments
will he received by Xxxxxxxx's financial institution from Tenant's
Financial institution by the dates due as specified in this Lease.
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Xxxxxx agrees to maintain an account containing sufficient funds at all times
during the term of this Lease. In the event such account fails to contain
sufficient funds necessary to pay amounts then due, such that said amounts
become delinquent, the outstanding amounts shall be subject to liquidated
damages as set forth in Section 3.03 of this Lease. Nothing contained in this
Section 3.06(b) shall relieve Tenant of the obligation to pay by the dates due,
any and all such payments payable by Tenant under this Lease.
ARTICLE 4
Construction, Financing and Alterations
4.01 - - Landlord's Obligation
Landlord shall, at its cost and expense (except as otherwise specified),
construct the Premises for Tenant's rise and occupancy in accordance with plans
and specifications prepared by Landlord or Landlord's architect, incorporating
in such construction all items of work described in Exhibit ''C'', attached
hereto and made a part hereof, as "Landlord's Work". Any work in addition to any
of the items specifically enumerated in Exhibit "C" shall be performed by Tenant
at its own cost and expense, or if Landlord installs or constructs any of such
additional work in the Premises at Tenant's request it shall be paid for by
Tenant within fifteen (15) days after receipt of a bill therefore.
4.02 - Financing
If Landlord can obtain mortgage financing or refinancing only upon the
basis of modifications of the terms and provisions of this Lease, Landlord shall
have the right to cancel this Lease if Xxxxxx refuses to approve in writing any
such modifications within thirty (30) days after Xxxxxxxx's request therefore.
The lease modifications referred to herein shall not relate to those provisions
pertaining to length of the term of the Lease, amount of rent, Additional Rent,
and other charges. If such right to cancel is exercised, this Lease shall
thereafter be null and void, any money or prepaid rent deposited hereunder shall
be returned to Tenant, and neither party shall have any liability to the other
by reason of such cancellation.
In the event of a refinancing or a bona fide sale of the Building by
Landlord, Tenant shall, immediately upon request therefore, provide to Landlord
a balance sheet and a statement of income and expenses for Xxxxxx's last fiscal
year.
4.03 - Tenant's Obligation
Any alterations, additions or improvements which are in addition to
Landlord's Work (set forth in Exhibit "C", attached hereto and made a part
hereof) which Tenant desires to make in the Premises either before or after the
Term Commencement Date of this Lease shall be deemed 'Tenant's Work". Tenant's
Work shall be performed by Tenant at its sole cost and expense, shall require
prior written approval from Landlord, and be in full compliance with Section
4.04 and the general conditions and specifications described in Exhibit "D",
attached hereto and made a part hereof. Tenant acknowledges its ability to
perform such work and no delay in its performance shall cause or be denied to
cause any delay or postponement of the Term Commencement Date.
Xxxxxx agrees to, at Xxxxxx's expense, obtain and maintain for so bug as
Xxxxxx's Work continues, insurances of the types and in the amounts set forth in
Exhibit "D" to fully protect Landlord as well as Tenant from and against any and
all liability for death or personal injury or damage to property caused in or
about the Premises by reason of the performance of Xxxxxx's Work. Tenant shall
furnish to Landlord certificates evidencing said coverage prior to the
commencement of Xxxxxx's Work.
4.04 - Alterations, Additions and Improvements
Tenant shall not make any alterations, additions or improvements in or to
the Premises without the prior written consent of Landlord, and then only by
contractors approved by Landlord. If Landlord shall grant its consent, Tenant
shall provide Landlord with certificates evidencing the insurance coverages and
limits required by Exhibit "D" prior to the commencement of any such work.
Tenant shall not make nor permit any defacement, injury or waste in, to or about
the Premises or any part of the Building. Tenant agrees that any improvements as
may be installed within the Premises by Tenant pursuant to this Section 4.04
shall, at the option of Landlord, remain as part of the Premises at the
expiration of the Lease or any extension or renewal thereof. Landlord, however,
shall have the right to require Tenant to remove any alterations, additions or
improvements so made. Tenant shall, at its expense, repair or cause to be
repaired any damage to the Premises caused by such removal.
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ARTICLE 5
Use of Premises
5.01 - Use of Premises
Xxxxxx agrees to use the Premises for general office purposes and for no
other purpose whatsoever. Xxxxxx further agrees to comply with the rules and
regulations set forth in Exhibit "E" attached hereto and made a part hereof, and
with such reasonable modifications thereof and additions thereto as Landlord may
hereafter from time to time make for the Building Common Areas or the Outside
Common Areas. Landlord shall not be responsible for the non-observance by any
other tenant of any of said rules and regulations and shall not be responsible
to Tenant for any violation of the rules and regulations, or the covenants or
agreements contained in any other lease, by any other tenant of the Building, or
its agents or employees.
ARTICLE 6
Operating Costs
6.01 - Definitions
The term "Operating Costs" shall be deemed to include (i) the costs of
operating, managing, and maintaining the Building, the Building Common Areas and
the Outside Common Areas, including, but without limiting the generality of the
foregoing, the cost of: gardening and landscaping; parking lot repair,
maintenance and line restriping; janitorial and cleaning services (which shall
be deemed to include labor, materials and supplies for cleaning any office space
in the Building, whether or not leased to tenants, including the Premises);
insurance premiums; repairs to the Building and roof; painting and caulking;
refinishing; glass repair; the maintenance and repair of lighting, utilities,
sanitary control facilities, and heating, ventilating and air-conditioning
systems and equipment; removal of snow, ice, trash, waste and refuse in
compliance with any and all recycling laws, rules and regulations imposed by the
municipality in which the Building is located and specifically excluding any
hazardous or toxic wastes including but not limited to petroleum products,
medical waste, etc.) which shall be disposed of by Tenant at Tenant's own cost
and expense; traffic control and policing; fire and security protection; the
cost, as reasonably amortized by Landlord, with annual interest at the prime
rate in existence at the time of completion of the improvement, of any capital
improvement made after calendar year 2000 in compliance with the requirements of
any federal, state or local law or governmental regulation; the cost, as
reasonably amortized by Landlord, with interest at the rate of fourteen percent
(14 %) per annum, of any other capital improvement made after calendar year
2000; maintenance, replacement and rental of signs and equipment; depreciation
of the capital cost of any machinery, equipment and vehicles used in connection
with the operation and maintenance of the Outside Common Areas and Building
Common Areas; repair and/or replacement of on-site water lines, sanitary and
storm sewer lines; rental and other charges paid to third parties; personnel
costs; holiday and other decorations; and related costs to implement such
services, plus (ii) twelve percent (12%) of the foregoing for overhead expenses.
Operating Costs shall not include franchise or income taxes imposed on
Landlord, except to the extent hereinbefore provided, or the cost to Landlord
for any work or service performed in any instance for any tenant (including
Tenant) at the cost of such tenant, or the cost of improvements performed for
tenants as Landlord's Work.
6.02 - Tenant to Share Increases in Operating Costs
(a) Tenant agrees to pay to Landlord, as Additional Rent, monthly (or
less frequently as Landlord shall determine) within ten (10) days after receipt
of Landlord's estimate therefor (and thereafter on the first day of each month
without invoice) an amount equal to one twelfth (1/12) of Tenant's Allocable
Share (computed pursuant to Section 22.10(a) hereof) of the estimated amount by
which Operating Costs for each lease year exceed the Operating Costs for the
Base Period as hereinafter defined. The "Base Period" for purposes of this Lease
shall mean the_2000 calendar year. In determining the amount of Operating Costs
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for any lease year or partial lease year, (1) if less than 100% of the square
feet leaseable in the Building shall have been occupied by tenants at any time
during a lease year or partial lease year, Operating Costs shall be deemed, for
purposes of this Article 6, to be increased to an amount equal to like operating
costs which would normally be expected to be incurred, had such occupancy been
100% during the period, or (2) if Landlord is not furnishing any particular work
or service (the cost of which if performed by Landlord would constitute
Operating Costs) to a tenant who has undertaken to perform such work or service
in lieu of the performance thereof by Landlord, Operating Costs shall be deemed
for the purposes of this Article to be increased by an amount equal to the
additional Operating Costs which would reasonably have been incurred during such
period by Landlord if it had at its own expense furnished such work or service
to such tenant
(b) Following the end of each lease year (or partial lease year),
Landlord shall furnish to Tenant a comparative statement showing Xxxxxx's
Allocable Share of the Operating Costs during such year and the amounts paid by
Xxxxxx (based on Xxxxxxxx's estimate of increases in Operating Costs)
attributable to such year. Any underpayment by Tenant shall be promptly adjusted
by payment to Landlord within fifteen (15) days of the balance
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of any underpayment for such year. and any overpayment by Tenant shall either be
applied as a credit to the next succeeding monthly installment of increases in
Operating Costs, or applied to offset any then existing monetary default by
Tenant under this Lease. In the event of any over payment by Tenant in the last
lease year or last partial lease year, Tenant shall be entitled to receive a
refund of the monies overpaid after application to any then existing monetary
default, if any, by Tenant under this Lease. Landlord and Tenant shall use
commercially reasonable efforts to minimize such costs of operation, management
and maintenance in a manner consistent with generally accepted office building
practices.
(c) Tenant covenants and agrees to promptly pay Landlord as Additional
Rent, upon demand, the amount of any increase in costs for trash removal from
the Premises or any other part of the Building that results by reason of
Tenant's extraordinary trash removal requirements, including but not limited to
the removal of Xxxxxx's purged files, the disposal of boxes, and any
governmental fines resulting from Tenant's non-compliance with local recycling
laws, rules or regulations.
ARTICLE 7
Energy Costs and Water
7.01 - Definitions
As used in this Lease, "Building Utilities" shall mean the cost of all
energy of any kind and water which is consumed for the purposes of operating the
Building, Building Common Areas, and Outside Common Areas, during the Normal
Operating hours for the Building as set forth in Section 20.01 of this Lease,
except for the cost of electric energy paid by tenants of the Building. "Tenant
Electric Energy" shall mean the cost of all electric energy which is consumed by
all electrically operated equipment within the Premises, including but not
limited to heating, ventilating and air conditioning equipment ("IIVAC"),
lighting fixtures, and electrical convenience plugs and outlets etc., during all
hours of each day. "Tenant Extra Energy" shall mean the cost of all energy,
other than Tenant Electric Energy, consumed in the operation of the Building,
Building Common Areas and Outside Common Areas, during hours which are in
addition to the Normal Operating Hours for the Building.
7.02 - Tenant to Share Increases in Building Utilities
(a) Xxxxxx agrees to pay Landlord as Additional Rent, monthly, within
ten (10) days after receipt of Landlord's estimate therefore (and thereafter on
the first day of each month, without invoice) an amount equal to one-twelfth
(1/12) of Tenant's Allocable Share (computed under Section 22. 10(a) hereof) of
the estimated amount by which Building Utilities for each lease year exceed the
Base Amount as hereinafter defined. The term "Base Amount" for purposes of this
Lease shall be (i) the amount computed by applying the electrical rate in effect
during the month of January 2000 to the total kilowatt hours of usage (computed
------------
monthly) during the twelve (12) consecutive month period commencing with the
month following the Term Commencement Date, plus (ii) twelve percent (12%) of
such costs for overhead expenses. In determining the amount of Building
Utilities for the purpose of this Article 7 for any lease year or partial lease
year, (1) if less than 100% of the square feet leasable in the Building shall
have been occupied by tenants at any time during a lease year or partial lease
year, Building Utilities shall be deemed for the purposes of this Article to be
increased to an amount equal to the like Building Utilities which would normally
be expected to be incurred, had such occupancy been 100% during the, entire
period, or (2) if Landlord is not furnishing any particular work or service (the
cost of which if performed by Landlord would constitute Building Utilities) to a
tenant who has undertaken to perform such work or service in lieu of the
performance thereof by Landlord, Building Utilities shall be deemed for the
purposes of this Article to be increased by an amount equal to the additional
Building Utilities which would reasonably have been incurred during such period
by Landlord if it had at its own expense furnished such work or service to such
tenant.
(b) Following the end of each lease year (or partial lease year),
Landlord shall furnish to Tenant a comparative statement showing Xxxxxx's
Allocable Share of the Building Utilities during such year and the amounts paid
by Xxxxxx (based on Landlord's estimates of increases in the Building Utilities)
attributable to such year. Any underpayment by Tenant shall be promptly adjusted
by payment to Landlord within fifteen (15) days of the balance of any
underpayment for such year, and any overpayment by Tenant shall either be
applied as a credit to the next succeeding monthly installment of increases in
Building Utilities, or applied to offset any then existing monetary default by
Tenant under this Lease. In the event of any over payment by Tenant in the last
lease year or last partial lease year, Tenant shall be entitled to receive a
refund of the monies overpaid after application to any then existing monetary
default, if any, by Tenant under this Lease. Landlord and Tenant shall use their
commercially reasonable efforts to minimize Building Utilities.
7.03 - Charge for Tenant Electric Energy
Xxxxxx agrees to pay to Landlord, as Additional Rent, an annual charge for
Tenant Electric Energy equal to One Dollar ($1.00) per leaseable square foot of
Premises, plus twelve percent (12%) of such costs for overhead expenses, payable
in twelve (12) equal consecutive monthly installments, each payable in advance
on the first day of each calendar month during the term hereof. The charge for
Tenant Electric Energy as herein set forth was estimated by Landlord based upon
an estimate of Tenant's metered usage and current utility rates. Following the
8
end of each lease year (or partial lease year), Landlord shall furnish to Tenant
a comparative statement showing Xxxxxx's actual consumption of electric energy
and the amounts paid by Tenant for the same under this Section 7.03 attributable
to such year. Based on Tenant's actual usage, any underpayment by Tenant shall
be promptly adjusted by payment to Landlord within fifteen (15) days of the
balance of any underpayment for such year, and any overpayment by Tenant shall
either be applied as a credit to the next succeeding monthly installment of
Tenant Electric Energy, or applied to offset any then existing monetary default
by Tenant under this Lease. In the event of any over payment by Tenant in the
last lease year or last partial lease year, Tenant shall be entitled to receive
a refund of the monies overpaid after application to any then existing monetary
default, if any, by Tenant under this Lease.
7.04 - Charge for Tenant Extra Energy
In the event Tenant shall occupy and/or use the Premises during hours which
are in addition to the Normal Operating hours for the Building, Tenant agrees to
pay to Landlord, as Additional Rent, the Tenant Extra Energy consumed during
such period of time, as estimated by Landlord based upon energy requirements
considering Tenant's use of the Premises, and its location, size, and equipment
contained therein, plus twelve percent (12%) of such costs for overhead
expenses, within ten (10) days following Tenant's receipt of Landlord's invoice
therefore.
ARTICLE 8
Repairs and Compliance
8.01 - Repairs
Tenant shall give to Landlord prompt notice of any damage to, or defective
condition in any part of or appurtenance to the Building's plumbing, electrical,
heating, air-conditioning or other systems serving, located in, or passing
through the Premises. Subject to the provisions of Article 11, Tenant shall, at
Xxxxxx's own expense, keep the Premises, including everything therein (except
the heating and air-conditioning systems), in good order, condition and repair
during the term. Landlord shall, as part of the Operating Costs set forth in
Article 6, maintain the heating and air-conditioning systems through out the
Building (including the Premises) and the outside walls, outside windows, roof
and foundation of the Building containing the Premises in good order and repair.
Repairs made by Landlord required due to negligence or fault of Tenant, its
contractors, agents or employees shall be made at Tenant's expense, plus
nineteen percent (19%) administrative charge.
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
within any law, ordinance, rule or regulation requiring any structural
alteration of or in connection with the Premises, unless such alteration is
required by reason of a condition which has been created by, or at the instance
of, Tenant, or is required by reason of a breach of any of Tenant's covenants
and agreements hereunder. All repairs made by Tenant shall he made using
contractors approved by Landlord, which approval shall not be unreasonably
withheld. If Tenant fails or neglects to comply within any laws or ordinances,
rules and regulations of any governmental authority or insurance body as herein
required of Tenant, then Landlord or its agents may enter the Premises and make
said repairs and comply with any laws or ordinances, or the rules and
regulations of any governmental authority or insurance body at the cost and
expense of the Tenant, plus a nineteen percent (19%) administrative charge, and
in case Tenant fails to pay therefore upon notice within five (5) days
thereafter, the said cost and expenses shall be added to the next month's
installment of Fixed Monthly Remit and be due and payable as such or Landlord
may deduct the same from any balance remaining in Landlord's hands. This
provision is in addition to the right of Landlord to terminate this Lease by
reason of default on the part of Tenant.
8.02 - Hazardous Materials
Tenant shall, at all times, comply with all local and federal laws, rules
and regulations governing the use, handling and disposal of Hazardous Materials
in the Premises including, but not limited to Section 1004 of the Federal
Resource Conservation and Recovery Act, 42 U.S.C. Section 6901 et. Seq. (42
U.S.C. Section 6903) and any additions, amendments, or modifications thereto. As
used herein, the term "Hazardous Materials" shall mean any hazardous or toxic
substance, material or waste including but not limited to petroleum products,
which is, or becomes, regulated by any local or state government authority in
which the Premises is located or the United States Government. Landlord and its
agents shall have the right, but not the duty, to inspect the Premises at any
time to determine whether Tenant is complying with the terms of this Section. If
Tenant is not in compliance with this Section, Landlord shall have the right to
immediately enter upon the Premises and take whatever actions reasonably
necessary to comply including, but not limited to, the removal from the Premises
of any Hazardous Materials and the restoration of the Premises to a clean, neat,
attractive, healthy and sanitary condition. Tenant shall pay all such costs
incurred by Landlord within ten (10) days of receipt of a bill therefor, plus
nineteen percent (19%) administrative charge.
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8.03 - Compliance with XXX
Xxxxxxxx agrees that it shall be responsible for the compliance of (i) the
Premises prior to the date Landlord delivers possession of the Premises to
Tenant, and (ii) the Building, and Building and Outside Common Areas, and
alterations thereto, in accordance with the applicable requirements of Title III
of the Americans with Disabilities Act ("ADA"), and applicable Federal, State,
and Local laws. Tenant agrees that it shall be responsible for the compliance of
all alterations to the Premises undertaken by Tenant with the applicable
requirements of the ADA, and all applicable Federal, State and Local laws. In
the event Tenant shall discover a condition(s) of the Premises which is/are
shown (a) to have existed prior to the date Landlord delivers possession of the
Premises to Tenant, and (b) to have been in violation of the ADA as of the date
Landlord delivers possession of the Premises to Tenant, Tenant shall promptly
notify Landlord in writing of such violations, and upon Landlord's verification
to its satisfaction of (a) and (b) of this Section 8.03, it shall promptly bring
such violations into compliance with the ADA.
ARTICLE 9
Indemnity
9.01 - Indemnification
Tenant does hereby agree to indemnify Landlord, Xxxxxxxx's managing agent,
and such other persons as are in privity of estate with Landlord, defend and
save it harmless from and against any and all claims, actions, damages,
liability and expense in connection with loss of life, personal injury and/or
damage to property arising from or out of any occurrence in, upon or at the
Premises, from or out of the occupancy or use by Tenant of the Premises, the
Building Common Areas and/or Outside Common Areas or any part thereof, or
occasioned wholly or in part by any act or omission of Tenant, its agents,
contractors, employees, lessees or concessionaires. In case Landlord (and such
other persons as are in privity of estate with Landlord) shall, without fault on
its part, be made a party to any litigation commenced by or against Tenant, then
Xxxxxx agrees to protect and hold Landlord harmless and to pay all costs,
expenses and reasonable attorney's fees incurred or paid by Landlord in
connection with such litigation. Xxxxxx agrees also to pay all, costs, expenses,
and reasonable attorney's fees that may be incurred or paid by Landlord in
enforcing the covenants and agreements in this Lease.
ARTICLE 10
Insurance
10.01 - Liability Insurance
At all times during the term of this Lease, Tenant shall, at its sole cost
and expense, maintain personal injury and property damage liability insurance,
naming the Landlord and its managing agent as primary additionally insured
parties, against claims for personal injury, death or property damage occurring
on, in or about the Premises during the term of this lease of not less than Two
Million Dollars ($2,000,000.00) with respect to personal injury, death or
property damage, and including contractual liability coverage. In the event that
Tenant shall not have delivered to Landlord a policy or certificate evidencing
such insurance fifteen (15) days prior to the Term Commencement Date and fifteen
(15) days prior to the expiration dates of each expiring policy, Landlord may
obtain such insurance as it may reasonably require to protect its interest, and
the cost for such policies shall be paid by Tenant TO Landlord as Additional
Rent upon demand, plus nineteen percent (19%) administrative charge.
10.02 - All Risks and Difference in Conditions Insurance
At all times during the term of this Lease, Landlord shall keep the
Building insured for the benefit of Landlord against loss or damage by risks now
or hereafter embraced by "All Risks", 'Difference in Conditions", and loss of
remit coverages, and against such other risks as Landlord from time to time
reasonably may designate in amounts sufficient to prevent Landlord from becoming
a coinsurer.
In any event, the amount applicable to "All Risks" shall be ninety percent
(90%) of the then full replacement cost being the cost of replacing the
Building, exclusive of the costs of excavations and footings below the lowest
grade level). Such full replacement cost shall be determined from time to time
(but not more frequently than once in any twelve (12) calendar months) by an
appraiser, architect or other person or firm designated by Landlord.
10.03 - Insurance on Common Areas
At all times during the term of this Lease, Landlord shall keep the Common
Areas insured for personal injury and property damage liability, "All Risk"
property coverage, Difference in Conditions", workers' compensation, employer's
liability and any other casualty or risk insurance which Landlord or Land1ord's
insurance carrier deems necessary or appropriate.
10
10.04 - Increase in Fire Insurance Premium
Tenant covenants and agrees to promptly pay to Landlord as Additional Rent,
upon demand, tine amount of any increase in tine rate of insurance on the
Premises or on any part of tine I3uihdimng that (but for Tenant's act(s) or
Xxxxxxx'x permitting certain activities to take place which result in an
increase in said rate (if insurance) would otherwise have been in effect.
10 05 - Waiver of Subrogation
Each party hereto hereby waives on behalf of the insurers of such party's
property, any and all claims or rights of subrogation of any such insurer
against the other party hereto for loss of or damage to the property so insured
other titan loss or damage resulting from the willful act of such other party,
and each party hereby agrees to maintain insurance upon its property, it being
understood, however, (a) that such waiver shall be ineffective as to any insurer
whose policy of insurance does not authorize such waiver, (b) that it small be
the obligation of each party seeking tire benefit of tine foregoing waiver to
request the other party (i) to submit copies of its insurance, and (ii) in case
such waiver results in an additional charge from the insurer thereunder, the
additional charge for such waiver shall be paid by the party requesting the
benefit of said waiver; and (c) that no party shall be liable to the other under
clause (h) hereof except for willful failure to comply with any request pursuant
to said clause (h).
10.06- Tenant's Property
At all times during the term of this Lease, Tenant shall, at Tenant's sole
cost and expense, carry "all-risk" insurance coverage for 'Tenant's trade
fixtures, furnishings, equipment amid other personal property of tenant.
ARTICLE II
Fire and Other Casualties
11.01 - Untenantability
If the Premises is made untenantable in whole or in part by fire or other
casualty, the Fixed Monthly Rent, Additional Rent and other charges, until
repairs shall be made or the Lease terminated as hereinafter provided, shall be
apportioned on a per diem basis according to the part of the Premises which is
usable by Tenant, if, but only if, such fire or other casualty not be caused by
Tenant's fixtures or equipment or by fault or negligence of Tenant, its
contractors, agents or employees. If such damage shall be so extensive that the
Premises cannot be restored by Landlord within a period of nine (9) six (6)
months either party small have the right to cancel this Lease by notice to the
other given at any time within thirty (30) days after the date of such damage,
except that if such fire or casualty be due to Tenant's fixtures or equipment or
due to Tenant's fault or negligence Tenant shall have no right to cancel. If
Xxxxxx does not elect to terminate this Lease as aforesaid, then Tenant may
request in writing, within thirty (30) days after the date of the fire or other
casualty, that Landlord provide Tenant with temporary alternative premises
("Temporary Premises") until the restoration of the Premises is substantially
complete. Landlord shall use commercially reasonable efforts to provide Tenant
with Temporary Premises. Landlord shall be under no obligation to relocate any
existing tenant to accommodate Tenant, or to build-out or make any improvements
to the Temporary Premises. If the Landlord provides Tenant with Temporary
Premises, and the parties mutually agree upon the terms of Tenant's occupancy of
the Temporary Premises, including rent for the Temporary Premises, and such
other terms and conditions upon which Landlord and Tenant shall mutually agree,
then the parties shall execute a written agreement prepared by Xxxxxxxx's
counsel that confirms the understanding of Landlord and Tenant. Upon the date
that Tenant occupies the Temporary Premises, the term of this Lease and all
obligations hereunder shall toll until restoration of the Premises is
substantially compete.
If a portion of the Building other than the Premises shall be damaged
that in the opinion of Landlord the Building should be restored in such a way as
to alter the Premises materially, Landlord or Tenant may cancel this Lease by
notice to the other party given at any time within thirty (30) days after the
date of such damage, except that if such fire or casualty be due to Tenant's
fixtures or equipment or due to Tenant's fault or negligence Tenant shall have
no right to cancel. In the event of giving effective notice pursuant to this
Section, this Lease and the term and the estate hereby granted shall expire on
the date fifteen (15) days after the giving of such notice as this Lease is not
so terminated, Xxxxxxxx will promptly (taking into account the time necessary to
obtain required permits and approvals and the time necessary to effectuate a
satisfactory settlement with Landlord's insurance company) restore the damage
insured by Landlord pursuant to Section 10.02. Tenant hereby expressly waives
the provisions of Section 227 of the New York Real Property Law and agrees that
the foregoing provisions of this Section 11.01 shall govern and control in lieu
thereof.
11.02 - Loss of Property and Water Damage
Landlord shall not be responsible to Tenant for any loss or theft of
property in or from the Premises, or for any loss or theft or damage of or to
any property left with any employee of Landlord, however occurring Landlord
shall not be liable for any damage caused by water, rain, snow or ice, or by
breakage, stoppage or leakage of water, gas, heating, air-conditioning, sewer or
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other pipes or conduits, or arising from any other cause, in, upon, about or
adjacent to the Premises or the Building.
ARTICLE 12
Eminent Domain
12.01 - Eminent Domain
(a) In the event that title to the whole or any part of the
Premises shall be lawfully condemned or taken in any manner for any public or
quasi-public use, this Lease and the term and estate hereby granted shall
forthwith cease and terminate as of the date of vesting of title, and Landlord
shall be entitled to receive the entire award, Tenant hereby assigning to
Landlord Xxxxxx's interest therein, if any.
(b) In the event that title to a part of the Building other than
the Premises shall be so condemned or taken, and if in the opinion of Landlord,
the Building should be restored in such a way as to alter the Premises
materially, or in the event that title to all or a material part of the Outside
Common Areas shall be so condemned or taken, Landlord may terminate this Lease
and the term and estate hereby granted by notifying Tenant of such termination
within sixty (60) days following the date of vesting the 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
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 such date.
In such event, Xxxxxx shall not entitled to any portion of Landlord's award
hereunder, if any, nor shall Tenant have any claim against Landlord for the
unexpired portion of the term.
ARTICLE 13
Bankruptcy and Default Provisions
13.01 - Conditional Limitations
(a) This Lease and the demised terms are subject to the limitation
that if, at any time prior to or during the term, any one or more of the
following events (herein called an "event of default") shall occur, that is to
say:
(i) If Tenant shall make an assignment for the benefit of its
creditors; or
(ii) If the leasehold estate hereby created shall be taken on
execution or by other process of law; or
(iii) If any petition shall be filed against Tenant in any
court, whether or not pursuant to any statute of the United States or of any
State, in any bankruptcy, reorganization, composition, extension, arrangement,
or insolvency proceedings, and Tenant shall thereafter be adjudicated bankrupt,
or such petition shall be approved by the court, or the court shall assume
jurisdiction of the subject matter and if such proceedings shall not be
dismissed within ninety (90) days after the institution of the same, or if any
such petition shall be so filed by the Tenant; or
(iv) If in any proceedings a receiver or trustee be appointed
for Tenant's property, and such receivership or trusteeship shall not be vacated
or set aside within ninety (90) days after tine appointment of such receiver or
trustee; or
(v) If Tenant shall vacate or abandon the Premises and
permit the same to remain unoccupied or closed for business for more than thirty
(30) days; or
(vi) If Tenant shall be in default of any other lease that
Tenant is a party to with Landlord or an affiliate of Landlord; or
(vii) If Tenant shall fail to pay any installment of the
Fixed Monthly Rent or any part thereof when the same shall become due and
payable, and such failure shall continue for Five (5) days without notice from
landlord; or
(viii) If Tenant shall fail to pay any outer charge required
to be paid by Tenant hereunder, and such failure small continue for Five (5)
days after notice from Landlord; or
(ix) If Tenant shall fail to timely deliver to Landlord any
Subordination Agreement or any Estoppel Certificate, as required hereunder; or
(x) Tenant fails to perform or observe any other requirement
of this 1.ease (not hereinbefore specifically referred to) on the pant of Tenant
to be performed or observed and such failure continues for thirty (30) days
after receipt of notice from Landlord to Tenant.
(b) This Lease and the term are expressly subject to the
conditional limitation that upon the happening of any one or more of the
aforementioned events of default, Landlord, in addition to the other rights and
remedies it may have, shall have the right to immediately declare this Lease
terminated and the term ended, in which event all of the right, title and
interest of Tenant hereunder shall wholly cease and expire upon service by
Landlord of a Notice of Termination. Tenant shall then quit and surrender the
Premises to Landlord in the manner and under the conditions as provided for
under this Lease, but Tenant shall remain liable as hereinafter provided.
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(c) If the Landlord shall not be permitted to terminate this Lease
as hereinabove provided because of Title 11 of the United States Code, as
amended, relating ("to Bankruptcy Code"), then Tenant or any trustee for Tenant
agrees promptly, within no more than fifteen (15) days after the request of
Landlord to the Bankruptcy Court to assume or reject this Lease so made by
Landlord. In such event, Tenant or any trustee for Tenant may only assume this
Lease if it (1) cures or provides adequate assurance that the trustee will
promptly cure any default hereunder, (2) compensates or provides adequate
assurance that the Tenant will promptly compensate Landlord for any actual
pecuniary loss Landlord resulting from Xxxxxx's default, and (3) provides
adequate assurance of future performance under this Lease by Tenant. In no
event after the assumption of this Lease by Tenant or any trustee for Tenant
shall any then existing default remain uncured for a period in excess of ten
(10) days. Adequate assurance of future performance of this Lease shall
include, without limitation, adequate assurance (a) of the source of the Fixed
Monthly Rent required to be paid to Landlord hereunder, and (b) that the
assumption or any permitted assignment of this Lease will not constitute a
breach of any provision of this Lease.
13.02 - Landlord's Remedies
(a) If this Lease shall be terminated as provided in Section
13.01, Landlord or Landlord's agents or employees may immediately or at any time
thereafter re-enter the Premises and remove therefrom Tenant, its agents,
employees, licensees, and any subtenants and other persons, firms or
corporations, and all or any of its or their property therefrom either by
summary dispossess proceedings or by any suitable action or proceeding at law or
by force or otherwise, without being liable to indictment, prosecution or
damages therefor, and repossess and enjoy the Premises, together with all
alterations, additions and improvements thereto.
(b) In case of any such termination, re-entry or dispossession by
summary proceedings or otherwise, the rents and all other charges required to be
paid up to the time of such termination, re-entry or dispossession, shall be
paid by Xxxxxx, and Tenant shall also pay to Landlord all expenses which
Landlord may then or thereafter incur for legal expenses, attorneys' fees,
brokerage commissions and all other costs paid or incurred by Landlord for
restoring the Premises to good order and condition and for altering and
otherwise preparing the same for reletting thereof. Landlord may, at any time
and from time to time, relet the Premises, in whole or in part, for any rental
then obtainable either in its own name or as agent of Tenant, for a term or
terms which, at Landlord's option, may be for the remainder of the then current
term of this Lease or for any longer or shorter period.
(c) If this Lease be terminated as aforesaid, Tenant nevertheless
covenants and agrees, notwithstanding any entry or re-entry by Landlord, whether
by summary proceedings, termination, or otherwise, to pay and be liable for on
the days originally fixed herein for the payment thereof, amounts equal to the
several installments of Fixed Monthly Rent, Additional Rent and other Charges as
they would under the terms of this Lease become due if this Lease had not been
terminated or if Landlord had not entered or re-entered as aforesaid, whether
the Premises be relet or remain vacant in whole or in part for a period less
than the remainder of the term or for the excess of the Fixed Monthly Rent, and
Additional Rent reserved under the terms of this Lease) in the net amount of
rent received by Landlord in reletting the Premises after deduction of all
expenses and costs incurred or paid as aforesaid in reletting the Premises and
in collecting the rent in connection therewith. As an alternative, at the
election of Landlord, Tenant shall pay to Landlord as damages, such a sum as at
the time of such termination represent: (i) the unamortized costs of Landlord's
leasehold improvements (including, but not limited to, any costs of design,
materials and construction) within the Premises and any brokerage and/or other
fees paid by Landlord in connection with Lease, as such costs shall have been
amortized over the term of the Lease at an interest rate of ten percent (10%),
and (ii) the amount o f the then present value of the total Fixed Monthly Rent
and Additional Rent and other benefits which would have accrued to Landlord
under this Lease for the remainder of the term (including all renewal terms
whether or not Tenant had elected to renew) if the Lease terms had been fully
complied with by Xxxxxx.
(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 an on
behalf of itself and all persons claiming through or under Tenant also waives
any and all rights of redemption or re-entry or repossession under present or
future laws, including specifically but without limitation, Section 761 of the
New York Real Property Law and Rules. In case Tenant shall be dispossessed by a
judgment or by warrant of this Lease, Landlord and Xxxxxx, so far as permitted
by law, waive and will waive trial by jury in any action, proceeding or
counterclaim brought by either of the parties hereto against the other on any
matters whatsoever arising out of or in any way connected with this Lease, the
relationship of Landlord and Tenant, Xxxxxx's use or occupancy of said Premises,
or any claim of injury or damage. The terms "enter," "entry," or "re-entry" as
used in this Lease are not restricted to their technical legal meaning.
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(e) No failure by Landlord to insist upon time strict
performance of any covenant, agreement, term or condition of this lease or to
exercise any right or remedy consequent upon a breath thereof, and no acceptance
of full or partial rent during the continuance of any such breach, shall
constitute a waiver of any such breach or of such covenant, agreement, term or
condition. No waiver of any breach shall affect or alter this Lease, but each
and every covenant, agreement, term and condition of this Lease shall continue
in full force and effect with respect to any other then existing or subsequent
breach thereof. No payment by Tenant or receipt by Landlord of a lesser amount
than the monthly installments of rent or Additional Rent stipulated in this
Lease shall be deemed to be other than on account of the earliest stipulated
rent, nor shall any endorsement or statement on any check or letter accompanying
a check for payment of rent be deemed any accord and satisfaction, and Landlord
may accept such check or payment without prejudice to Landlord's right to
recover the balance of such rent or to pursue any other remedy provided by this
Lease.
(f) In the event of any breach or threatened breach by Tenant of any of
the covenants, agreements, terms or conditions contained in this Lease, Landlord
shall be entitled to enjoin such breach or threatened breach and shall have the
right to invoke any right or remedy allowed at law or in equity or by statute or
otherwise.
(g) Each right or remedy of Landlord provided for in this Lease shall
be cumulative and shall be in addition to every other right or remedy provided
for in this Lease, or now or hereafter existing at law or in equity or by
statute or otherwise.
ARTICLE 14
Mechanic's Liens
14.01 - Mechanic's Liens
Xxxxxx agrees to pay when due all sums of money that may become due for, or
purporting to be due for, any labor, services, materials, supplies or equipment
alleged to have been furnished or to be furnished to or for Tenant in, upon or
about the Premises and/or Xxxxxxxx's interest therein.
If any mechanic's lien shall be-filed against the Premises or the Building
based upon any act of Tenant or anyone claiming through Tenant, Tenant, after
notice thereof from Landlord (or any person in privity of estate with Landlord),
shall forthwith take whatever action by bonding, deposit, payment or otherwise,
as will remove or satisfy such lien within five (5) days. In the event Tenant
does not remove or satisfy said lien within said Five (5) day period, Landlord
shall have the right to do so by posting a bond or undertaking, and Xxxxxx
agrees to reimburse Landlord for any and all expenses incurred by Landlord in
connection therewith within five (5) days after receipt by Tenant of Landlord's
invoice therefor. These expenses shall include, but not be limited to, Filing
fees, legal fees and bond premiums.
However, nothing in this Article 14 shall be deemed or construed as (a)
Landlord's consent to any person, firm or corporation for the performance of any
work or services, or the supply of any materials to the Premises, or (b) giving
Tenant or any other person, firm or corporation any right to contract for or to
perform or supply any work, services or materials that would permit or give rise
to a lien against the Premises or the Building.
ARTICLE 15
Mortgages, Assignments, Subleases and Transfers of Tenant's Interest
15.01 -Limitation on Tenant's Rights
Except as hereinafter otherwise provided, during the term of this Lease,
neither this Lease nor the interest of Tenant in this Lease or in the Premises,
or in any sublease, or in any rentals under any sublease shall be sold,
assigned, transferred, mortgaged, pledged, hypothecated or otherwise disposed
of, whether by operation of law or otherwise, unless Xxxxxxxx's prior written
consent is obtained in each case, nor shall the Premises be sublet in any case
unless such prior written consent is obtained.
It is understood and agreed between the parties that, should Tenant request
Landlord's consent to a proposed assignment of this Lease or a subletting of all
or any portion of the Premises, Landlord will, in addition to any other
requirements which may be imposed as conditions to Landlord's consent, require
that Tenant execute and deliver to Landlord an agreement prepared by Landlord
whereby Tenant obligates itself, as Additional Rent, to pay over to landlord the
amount, if any, of all rent, Additional Rent and any other consideration paid by
such assignee or sublessee to Tenant pursuant to such assignment or sublease
which is in excess of the rent and Additional Rent due and payable from time to
time from Tenant to Landlord pursuant to this Lease.
Should Tenant request Xxxxxxxx's consent to a proposed assignment of this
Lease or a subletting of all or part of the Premises, Landlord shall have the
right at Landlord's option to recapture the Premises by written notice given to
Tenant within thirty (30) days after Xxxxxxxx's receipt of Xxxxxx's request for
Landlord's consent. If Landlord exercises its right to recapture the Premises,
or any part thereof, this Lease shall be cancelled and terminated as of the date
that is proposed by Tenant for the requested assignment or subletting as fully
and
14
effectively as if such date were the date originally specified herein for the
expiration of this Lease. If this lease shall be cancelled with respect to less
than the entire Premises, the Fixed Monthly Rent reserved herein shall be
prorated on the basis of the number of leaseable square feet retained by Tenant
in proportion to the number of leaseable square feet contained in the Premises,
and this Lease shall continue thereafter in full force and effect with respect
to the proportion to the Premises retailed by Tenant, and the parties shall
execute an amendment of this :Lease to provide for the reduction in square
footage and rental.
No consent by Landlord to an assignment of this Lease and no assignment
made as hereinafter permitted, shall be effective until there shall have been
delivered to Landlord (a) an agreement, in recordable form, prepared by
Xxxxxxxx, executed by Xxxxxx and the proposed assignee, wherein and whereby such
assignee assumes due performance of the obligations on Xxxxxx's part to be
performed under this Lease to the end of the term hereof, and (b) the written
consent to such assignment by the holder of any fee or leasehold mortgage to
which this Lease is then subject shall have been obtained and delivered to
Landlord if so required by the terms of such fee or leasehold mortgage.
Notwithstanding the assumption by such assignee of due performance, Tenant
shall continue to be fully responsible for the due performance of Xxxxxx's
obligations hereunder in the same manner and to the same extent as if no such
assignment had been made.
Any assignment, mortgage, pledge, sublease or hypothecation of this Lease,
or of the interest of Tenant hereunder, without full compliance with any and all
requirements set forth in this Lease shall be a breach of this Lease and a
default hereunder, shall be null and void, and shall confer no rights upon any
third party.
15.02 - Effect of Landlord's Consent
Any consent by Landlord to a sale, assignment, sublease, mortgage,
pledging, hypothecation, or transfer of this lease, shall apply only to the
specific transaction thereby authorized and shall not relieve Tenant from the
requirement of obtaining the prior written consent of Landlord to any further
sale, assignment, sublease, mortgage, pledge, hypothecation, or transfer of this
lease. In instances where the consent of Landlord is required hereunder to any
proposed assignment or sublease of this Lease, or to the mortgaging, pledging or
hypothecation of this Lease, contemporaneously with the request of Xxxxxx
therefore, Tenant shall submit in writing information reasonably sufficient to
enable landlord to decide with respect thereto including, but not limited to,
(i) the name and address of the proposed transferee, (ii) a current financial
statement of the proposed transferee, (iii) the consideration to be paid by the
proposed transferee to Tenant, and (iv) the use intended to be made of the
Premises by the proposed transferee. Xxxxxxxx shall reply to Tenant within ten
(10) days after receipt of the request and information as aforementioned.
With respect to any of the consents requested by Xxxxxx under the
provisions of this Article 1 5, whether or not the Landlord shall have consented
thereto, Tenant shall pay to Landlord all reasonable counsel fees and other
out-of-pocket expenses incurred by the Landlord in connection therewith.
15.03 - Sale of Stock or Partnership Interest
Tenant agrees that if (i) Tenant or any Guarantor of Tenant's obligations
under this Lease is a corporation and there shall be a sale of stock
constituting a controlling interest in Tenant or any Guarantor of Tenant's
obligations under this Lease (whether such sale occurs at one time or at
intervals so that, in the aggregate, over the term of this Lease, such a sale
shall have occurred), or (ii) Tenant or any Guarantor of Tenant's obligations
under this Lease is a partnership or other legal business entity and there shall
be a sale of a partnership or ownership Interest constituting a controlling
interest in Tenant or any Guarantor of Tenant's obligations under this Lease
(whether such sale occurs at one time or at intervals so that, in the aggregate,
over the term of this Lease, such a sale shall have occurred), then and in any
of such events, Landlord shall have the right, at its sole election, to deem
such sale a default pursuant to Article 13 of this Lease and to cancel and
terminate this Lease at any time thereafter by giving notice of Landlord's
intention to do so and this Lease shall terminate upon the expiration of thirty
(30) days after such notice of intention from Landlord to Tenant, but Tenant
shall remain liable for its obligations under this Lease as provided in Article
13 hereof.
The term "sale" shall include any transfer of the stock, partnership and/or
ownership interest in Tenant or its Guarantor, as the case may be, other than a
transfer by operation of law occurring upon the death of a stockholder or
partner and the devolution of the stock or interest held by such stockholder or
partner or member or other owner to his legal representative, heirs or legatees,
but shall not include a stock offering whereby an aggregate of greater than
fifty percent (50%) of Tenant's stock shall be offered publicly. to parties who
are non-stockholders as the date of this Lease, through a recognized security
exchange.
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ARTICLE 16
Subordination of Lease
16.01 - Subordination to Mortgages and Ground Leases
This Lease and all the rights of Tenant hereunder are and shall be subject
and subordinate to the lien of any ground or underlying leases and to any
mortgage or mortgages, whether fee or leasehold mortgages, which may now or
hereafter affect the Premises or the Building or the land under the Building,
and to all renewals, modifications, consolidations, replacements and extensions
thereof, and advances thereunder. however, Xxxxxx agrees to execute and deliver
to Landlord, within fifteen (15) days after request therefor, such Instrument(s)
as may be requested by any such ground lessor, mortgagee, or trustee for such
purposes (any such instrument(s) are hereinafter referred to as "Subordination
Agreement"). In the event Tenant fails to execute and deliver any such
Subordination Agreement within the fifteen (15) day period Tenant does hereby
make, constitute and irrevocably appoint Landlord as its attorney-in-fact for
the purpose of executing any such Subordination Agreement in Tenant's name,
place and stead.
Tenant will not do, suffer or permit any act, happening or occurrence or
any condition to occur or remain which may be prohibited under the terms or
provisions of any ground or underlying lease or mortgage to which this Lease is
subject or which will create a default thereunder except that Tenant shall not
be obligated to pay the principal indebtedness or any installment thereof or
interest thereon.
So long as any such mortgage or lease shall remain a lien on the Premises,
Xxxxxx agrees simultaneously with the giving of any notice to Landlord which is
required to be given by this Lease, to give a duplicate copy thereof to any
mortgagee or ground lessor, notice of whose name and address have been given to
Tenant. Further, Tenant agrees that if Landlord defaults in the performing of
any of its covenants under this Lease and if such default allows Tenant to
cancel or surrender said Lease, the mortgagee or ground lessor may cure said
default with the same effect as if cured by landlord, and if necessary, enter
upon the Premises for the purpose of curing any such default, provided that the
mortgagee or ground lessor must cure the default within the time in which
Landlord is obligated to cure such default under this Lease. The giving of any
such notice to Landlord shall not be properly given under the terms of this
Lease and shall be of no force and effect until a duplicate copy thereof shall
also have been given to the mortgagee or ground lessor pursuant to this Section.
ARTICLE 17
Entry to Premises
17.01 - Entry to Premises by Landlord
Landlord shall have the right to enter the Premises at all reasonable times
upon reasonable prior notice
(except in case of emergency and then at any time without notice for the
purposes of:
(a) inspecting the same, and/or
(b) making any repairs to the Premises and performing any work
therein that may be necessary by reason of Tenant's default
under the terms of this Lease continuing beyond any
applicable period of grace, and/or
(c) exhibiting the Premises for the purpose of sale, ground
lease or mortgage
ARTICLE 18
Notices and Certificates
18.01 - Notices and Certificates
Any notice, statement, certificate, request or demand required or permitted
to be given under this Lease shall be in writing sent either by an overnight
express mail service (such as Federal Express) designated for "next day
delivery", or by registered or certified mail, postage prepaid, return receipt
requested, addressed as the case may be, to landlord in care of the Managing
Agent (see Page 1) at the address shown at the beginning of this Lease, and to
Tenant at the address shown at the beginning of this Lease or to such other
addresses as Landlord or Tenant shall designate in the manner herein provided.
Such notice, statement, certificate, request or demand shall be deemed to have
been given on the date mailed as aforesaid by such express mail service or on
the date deposited in any post office or branch post office regularly maintained
by the United States Government, except for notice of change of address or
revocation of a prior notice, which shall only be effective upon receipt or
refusal to accept receipt of such notice. Anything contained in the foregoing to
the contrary notwithstanding, in order for any notice of change of address to be
effective, the notice must be express and clearly state that it is intended to
change Tenants address for billing purposes and/or for receipt of notices and
documents.
At any time or times when tenant's interest herein shall be vested in more
than one person, firm or Corporation, jointly, in common or in severalty, a
notice given by Landlord to any one such person, firm or corporation shall be
conclusively deemed to have been given to all such persons, firms or
corporations Any notice
16
by Tenant pursuant to the provisions hereof shall be void and ineffective unless
signed by all such persons, firms and corporations, unless all such persons,
firms and corporations shall have previously given notice to Landlord, signed by
each of them designating and authorizing one or more of them to give the notice
referred to, and such notice shall then be unrevoked by any notice to Landlord.
18.02 - Certificate by Xxxxxx
Within fifteen (15) days after request by Xxxxxxxx, Tenant, from time to
time (but no more than three times per year)and without charge, shall deliver to
-------------------------------------
Landlord or to a person, firm or corporation, specified by Landlord, a duly
executed and acknowledged instrument certifying:
(a) that this Lease is unmodified and in full force and effect, or
if there has been any modification, that the Lease is in
full force and effect, as modified, and identifying the date
of any such modification; AND
(b) whether Tenant knows or does not know, as the case may be,
of any default by Landlord in the performance by Landlord of
the terms, covenants, and conditions of this Lease, and
specifying the nature of such defaults, if any; and
(c) whether or not there are any then existing set-offs or
defenses by Tenant to the enforcement by Landlord of the
terms, covenants, and conditions of this Lease and any
modification thereof, and if so, specifying them; and
(d) the date to which the Fixed Monthly Rent has been paid.
Any such instrument(s) is sometimes referred to herein as "Estoppel
Certificate".
ARTICLE 19
Covenant of Quiet Enjoyment
19.01 - Covenant of Quiet Enjoyment
Tenant, subject to the terms and provisions of this Lease, on payment of
the rent and observing, keeping and performing all the terms and provisions of
this Lease on its part to be observed, kept and performed, shall law fully,
peaceably and quietly have, hold and enjoy the Premises during the term hereof
on and after the Term Commencement Date without hindrance or ejection by
Landlord and any persons lawfully claiming under Landlord, subject nevertheless
to the terms and conditions of this Lease and to any ground or underlying lease
and/or mortgage(s); but it is understood and agreed that this covenant, and any
and all other covenants of Landlord contained in this Lease shall be binding
upon Landlord and its successors only with respect to breaches occurring during
its and their respective ownership of Landlord's interest hereunder.
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 am. to 6 p.m., principal legal
holidays excepted (herein referred to as the "Normal Operating Hours") and
Tenant shall have twenty-four-hour access to the Premises Building and the
Building parking facilities. Landlord shall also furnish janitorial services
consisting of cleaning floors, removing waste paper each business day and window
cleaning.
20.02 - Interruption of Service
No diminution or abatement of rent or other compensation shall be claimed
or allowed for inconvenience or discomfort arising from the making of repairs or
improvements to the Premises, the Building or its appurtenances. There shall be
no diminution or abatement of rent or any other compensation for interruption or
curtailment of any service or utility herein expressly or impliedly agreed to be
furnished by Landlord when such interruption or curtailment shall be due to
accident, alterations, repairs (desirable or necessary), or to inability or
difficulty in securing supplies or labor, or to some other cause not resulting
from GROSS negligence on the part of Landlord. No such interruption or
curtailment shall be deemed a constructive eviction. Tenant agrees that Landlord
shall not be responsible for interruption of utility service caused by any
utility company or governmental regulatory agency.
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ARTICLE 21
Certain Rights Reserved to Landlord
21.01 -Certain RightsReserved to Landlord
Landlord reserves time following rights:
(a) To name the Building and to change the name or sired address of the
Building;
(b) To install and maintain a sign or signs on the exterior or interior of
the Building;
(c) To designate all sources furnishing sign painting and lettering, ice,
drinking water, towels, toilet supplies, shoe shining, vending machines, mobile
vending service, catering, and like services used on the Premises;
(d) During the last ninety (90) days of the term, if during or prior to that
time Tenant vacates the Premises, to decorate, remodel, repair, alter or
otherwise prepare the Premises for reoccupancy, including the placing of a
notice of reasonable size on or in time Premises offering the premises "For
Rent" or For Lease", all without affecting Tenant's obligation to pay rental for
the Premises;
(e) To constantly have pass keys to the Premises;
(f) At any time in the event of an emergency, or otherwise at reasonable
times, to take any and all measures, including inspections, repairs,
alterations, additions and improvements to the Premises or to the Building, as
may be necessary or desirable for the safety, protection or preservation of the
Premises or the Building or the Landlord's interests, or as may be necessary or
desirable in the operation or improvement of the Building or in order to comply
with all laws, orders and requirements of governmental or other authority;
(g) At any reasonable time and from time to time throughout the term of the
Lease to show the Premises to persons wishing to rent same or to purchase time
Building.
ARTICLE 22
Miscellaneous Provisions
22.01 - Occupancy After Expiration Term
(a) Should Tenant continue to occupy the Premises after the expiration
or earlier termination of the term, such tenancy shall be from month-to-month,
amid such month-to-month tenancy shall be under the same terms, covenants and
conditions as set forth in this Lease, except that the Tenant shall pay double
the Fixed Monthly Rent reserved herein.
(b) The aforementioned month-to-month tenancy may be terminated by
either party notifying the other of its intention to terminate the
month-to-month tenancy at least one calendar month prior to the last day of the
term. Xxxxxx's continued occupancy of the Premises after time expiration of the
time period specified in said notice to terminate shall confer no rights
whatsoever upon Tenant, who shall then be deemed a holdover tenant. Tenant
hereby consents in advance to the immediate entry of an order and warrant of
eviction, together with judgment for unpaid rent or Additional Rent due and
owing under the terms of this Lease, or for compensation due and owing to the
Landlord for Tenant's use and occupation of the Premises during the time of
occupancy as a holdover Tenant, by any court of competent jurisdiction. Tenant
shall indemnify and save harmless Landlord from any claim, damage, expense,
attorney fee, or loss which Landlord may incur by reason of such holding over,
including without limitation, any claim of a succeeding tenant, or any loss by
Landlord with respect to a lost opportunity to re-let Premises.
22.02 - Limitation on Personal Liability
(a) It is understood and agreed that Tenant shall look solely to the
estate and property of Landlord in the Building for the satisfaction of Xxxxxx's
remedies for the collection 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 stated by or under this Lease, and no other property or assets of
Landlord or of its partners, members, beneficiaries, co-tenants, shareholders,
or principals (as the case may be) shall be subject to levy, execution or oilier
enforcement procedures.
(b) The term "Landlord," as used in Subsection 22.02(a) above and
throughout this Lease, so far as covenants and agreements on the part of
Landlord arc concerned, shall be limited to mean and include only the owner or
owners of the Building at the time in question, and at the time of the Lease.
Further, in the event of any transfer or transfers of the title to the Lease
and/or the Building, Landlord herein named (and in case of any subsequent
transfers or conveyances, the then grantor), including each of its members,
partners, beneficiaries, en-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
18
by Landlord or such grantor on behalf of Tenant, Landlord thereby being relieved
of and from all responsibility for such monies and security, and shall assign to
such grantee all right, title and interest of Landlord or such grantor thereto,
it being intended that the covenants and agreements contained in this Lease on
the part of Landlord to be performed shall, subject as aforesaid, be binding on
Landlord, its successors and assigns.
22.03 - - No Representations by Landlord
Landlord and Landlord's agents have made no representations or promises
with respect to the Building, the land upon which the Building is erected or the
Premises except as herein expressly set forth, and no rights, easements, or
licenses are acquired by Tenant by implication or otherwise except as expressly
set forth in the provisions of this Lease.
22.04 - - Lease Binding
All covenants in this Lease which are binding upon Tenant shall be
construed to be equally applicable to and binding upon Tenant's agents,
employees and others claiming the right to be in the Premises or in the Building
through or under Tenant. If more than one individual, firm or corporation shall
join as Tenant, the singular context shall be construed to be plural wherever
necessary, and the covenants of Tenant shall be the joint and several
obligations of each party signing as Tenant; and, when the parties signing as
Tenant are partners, it shall be the joint and several obligations of the Firm
and of the individual members thereof.
22.05 - Failure to Give Possession
Notwithstanding anything to the contrary contained in this Lease, Landlord
shall not in any manner be liable to Tenant for damages or any other damn
resulting from failure to deliver the Premises or for any delay in commencing or
completing any work Landlord is to perform or is authorized by Tenant to perform
under Exhibit C, and Tenant hereby waives any such liability whatsoever and any
right it may have to terminate this Lease.
(a) If Landlord shall be unable to give possession of the Premises on
the Term Commencement Date by reason of the fact that the Premises is located ml
a building being constructed which has not been sufficiently completed to make
the Premises ready for occupancy or by reason of the fact that a certificate of
occupancy has not been procured or for any other reason, then Landlord shall not
be subject to any liability for the failure to give possession on said date.
Under such circumstances the rent reserved and covenanted to be paid herein
shall not commence until possession of the Premises is given or the Premises is
available for occupancy by Tenant. Notwithstanding the forgoing, if the 'Term
Commencement Date shall not have occurred within two (2) years after use date
hereof, then this Lease shall automatically become null and void. In either
case, Landlord shall reimburse Tenant for any advance rent paid or security
deposit posted, and except for items which have been theretofore accrued and not
yet paid and both parties hereto shall be relieved of all obligations hereunder,
in which event each party will, at the other's request, execute an instrument in
recordable form containing a release and surrender of all right, title and
interest in and to this Lease.
(b) If the Building is not in the course of construction, and Landlord
is unable to give possession of the Premises on the Term Commencement Date by
reason of the holding over or retention of possession by any tenant, tenants, or
occupants, or for any other reason, or if repairs, improvements or decoration of
the Premises or of the Building are not completed, such inability by Landlord
shall not constitute a default under this Lease but the Term Commencement Date
shall be postponed until such date as such holdover tenant or occupant shall
give up possession of the Premises, and/or the repairs, improvements or
decorations have been completed, and the term of this Lease shall be deemed to
commence on such Term Commencement Date as postponed (and the expiration date of
the term of the Lease shall be extended by the same period as the Term
Commencement Date is postponed).
22.06 - Relocation of Tenant
Landlord shall have the right to relocate Tenant to other premises
substantially similar in size substantially similar or better in design and
quality as the Premises (including, improvements) and located within the
Building or any building in the office park in which the Building is located
upon sixty (60) days' written notice to Tenant. Such relocation shall be at
Landlord's cost and expense and shall it no way affect the obligations or duties
of either party hereunder. Landlord's cost shall include costs and expenses
related to moving the furniture; office equipment and other contents of the
Premises to the new premises, and telecommunications lines.
22.07 - Force Majeure
The period of the 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
19
trouble, civil commotion, Acts of God or the public enemy, governmental
prohibitions or regulation or inability to obtain materials or labor, or other
causes beyond such party's reasonable control, shall be added to such party's
the for performance thereof, and such party shall have no liability by reason
thereof.
22.08 - Attornment by Xxxxxx
If at any the dusting the term of this Lease the Building is sold through a
mortgage foreclosure proceeding, or if Landlord hereunder shall be the holder of
a leasehold estate covering premises which include the Premises and if such
leasehold estate shall be cancelled or otherwise terminated prior to the
expiration date thereof and prior to the expiration of the term of this Lease,
or in the event of the surrender thereof whether voluntary, involuntary or by
operation of law, Tenant shall make full and complete attornment to the
purchaser at the foreclosure sale or to the lessor of such leasehold estate for
the balance of the term of this Lease upon the same covenants and conditions as
are contained herein so as to establish direct privity between such purchaser or
lessor and Tenant and with the same force and effect as though this Lease was
made directly from such purchaser or lessor to Tenant. Tenant shall make all
rent payments thereafter directly to such purchaser or lessor.
22.09 - Landlord May Pay Tenant's Obligations
All costs and expenses which Xxxxxx assumes or agrees to pay under tine
provisions of this Lease shall at Landlord's election be treated as Additional
Rent, and in the event of non-payment, Landlord shall have all the rights and
remedies herein provided for in case of non-payment of rent or of a breach of
covenant. If Tenant shall default in making any payment required to be made by
Tenant (other than the payment of rent as provided by Article 3 above) or shall
default in performing any term, covenant or condition of this Lease on the part
of Tenant to be performed which shall involve the expenditure of money by
Xxxxxx, Landlord at Landlord's option may, but shall not be obligated to, make
such payment or, on behalf of Tenant, expend such sums as may be necessary to
perform and fulfill such term, covenant or condition, and any and all sums so
expended by Landlord, with interest thereon at the rate of one and one-half
percent (1 1/2%) per month front the date of such expenditure, shall be and be
deemed to be Additional Rent, in addition to the rent provided in Article 3 and
shall be repaid by Tenant to Landlord on demand, but no such payment or
expenditures by Landlord shall be deemed a waiver of Tenant's default nor shall
it affect any other remedy of Landlord by reason of such default.
22.10 - Definition of "Tenant's Allocable Share"
(a) For purposes of determining Tenant's Allocable Share herein, except
as provided in Subsection (b) below, such share shall be the percentage
resulting from dividing the number of square feet set forth in Section 1.01
above, by the total number of square feet leased in the Building as of the
beginning of each lease year or partial lease year.
(b) For purposes of determining Tenant's Allocable Share for Section
3.02, such share shall be the percentage resulting from dividing the number of
square feet set forth in Section 1.01 above, by the total number of square feet
leasable in the Building as of the beginning of each lease year or partial lease
year.
22.11 - Division of Costs
Landlord may construct and operate other office buildings located within
the office park in which the Building is located. Tenant agrees that Landlord
may treat the Building and the adjacent office buildings as one unit for the
purpose of purchasing and providing energy and water, insurance and the common
services included within Operating Costs. Landlord shall equitably divide such
costs between the Building and the adjacemit office buildings
for each lease year (or partial lease year) and the allocation of such costs
shall be subject to 'erification by Tenant at Landlord's offices.
22.12 - Effect of Captions
The captions or legends on this Lease are inserte(l only for convenient
reference or identification of the particular Sections. lltey are in no way
intended to describe, interpret, define or limit the scope, OF Cxtemut or
imitemit of this Lease, or army Section or provision thereof.
20
22.13 - Tenant Authorized to Do Business
Tenant represents and covenants that it is and throughout the term of this
Lease shall he authorized to do business in the state in which the Building is
located. In the event Tenant hereunder is a corporation Tenant hereby covenants
arid warrants that: the Tenant is a duly constituted corporation qualified to do
business in time state in which time Building is located, all Tenant's franchise
and corporate taxes have been paid to date; all future forms, reports, fees aim
other documents necessary for Tenant to comply with applicable laws will be
filed by Tenant when due; and Xxxxxx's signatory(s) to this lease is/are duly
authorized by the governing body of such corporation to execute and deliver this
Lease on behalf of the corporation. The person executing this Lease on behalf of
Tenant hereby covenants, represents and warrants to Landlord that (s)he is duly
authorized to execute and deliver this Lease to Landlord. Tenant, if a
partnership or corporation, Xxxxxx agrees to furnish to Landlord, upon request,
evidence of authority for entering into this Lease.
22.14 - Execution in Counterparts
This Lease may be executed in one or more counterparts, any one or all of
which shall constitute hut one agreement.
22.15 - Memorandum of Lease
upon request by either party, Xxxxxxxx and Xxxxxx agree to execute a
Memorandum or Notice of lease in recordable form pursuant to applicable state
law. Upon the expiration or earlier termination or this Lease, time party wino
shall have recorded such Memorandum or Notice of' Lease shall promptly execute
any necessary instrument and remove time Memorandum or Notice of 1,easc from
time public records, and upon failure to do so, time other party, upon ten (10)
days prior notice to the party who recorded time aforesaid instrument, is hereby
appointed attorney-in fact to execute army such instrument in the recording
party's name, place and stead. 'lime requesting party shall pay for all
recording fees and attorney's fees in connection with lime preparation and
recording of the Memorandum or Notice of Lease.
22.16 - Law Governing. Effect and Gender
This Lease shall be construed in accordance with time laws of the state in
which the Building is located and small be binding upon time parties hereto and
their respective legal representatives, successors and assigns except as
expressly provided otherwise. Should any provisions of this Lease require
judicial interpretation, it is agreed that the court interpreting or construing
time same shall not apply a presumption that the terms of any such provisions
shall be more strictly construed against one party or the other by reason of the
rule of construction that a document is to he construed most strictly against
time party who itself or its agent prepared time same, it being agreed that time
agents of all parties have participated in time preparation of this 1.ease. Use
of the neuter gender shall he deemed to include the masculine or feminine, as
the sense requires. Any reference to successors and assigns of Tenant is not
intended to constitute a consent to any assignment by Xxxxxx but has reference
only to those instances in which Landlord may later give consent to a particular
assignment as required by the provisions of Article I 5 hereof.
22.17 - Security Agreement
Tenant hereby grants to Landlord a security interest in all appliances,
equipment, fixtures, improvements, now or hereafter located in time Premises,
and all proceeds and accounts receivable there from, to secure time payment of
time 'lermant's obligation set forth in this Lease. Such security interest will
be deemed to apply to all of time foregoing, notwithstanding that Tenant may
have reimbursed Landlord for all or any portion of the costs of time same in
Exhibit ~C" of this Lease. Tenant authorizes Landlord to sign a Financing
Statement as it may be required under time Uniform Commercial Code to perfect
such security interest. Upon the occurrence of any event of default pursuant to
Section 15.01, landlord shall be entitled to exercise all of the rights and
remedies of a secured party under time Uniform Commercial Code. Reasonable
attorney's fees of time Landlord in enforcing any right or exercising any remedy
under this Security Agreement shall be deemed a part of the obligation secured
hereby.
22.18- Amendments
Except as may be specifically provided otherwise in any mortgage on time
Building, the parties hereto mutually agree that so long as a mortgage or army
extension thereof shall be a lien upon the Premises, they will not reduce time
rents from that provided for in this Lease, provide for payments of rents prior
to time set forth herein, not terminate said Lease prior to the end of the term,
except as otherwise provided in this Lease, without first obtaining time consent
of the mortgage in writing, and that any such proposed modification or
termination without said mortgage's consent shall be void as against said
mortgage.
21
22.19 Brokerage
Tenant warrants that it has had no dealings with any broker or agent in
connection with this Lease and covenants and agrees to pay any commission,
compensation or charge claimed by any real estate broker, salesman or agent with
respect to this Lease or the negotiation thereof, and Tenant further covenants
to hold harmless and indemnify Landlord from and against any and all costs,
expense or liability in connection therewith.
22.20 - Complete Agreement
This Lease contains and embraces the entire Agreement between the parties
hereto and it or any part of it may not be changed, altered, modified, limited,
terminated, or extended orally or by any agreement between the parties unless
such agreement be expressed in writing, signed and acknowledged by the parties
hereto, their legal representative, successors or assignees, except as ma be
expressly otherwise provided herein.
22.21 Arbitration
Any controversy or claims arising or relative to any matter in connection
with this Lease, with reference to which this Lease shall expressly provide that
this section governs, shall be settled by arbitration in the City of Syracuse,
New York in accordance with the rules of the American Arbitration Association or
its successor organization, and judgment upon the award rendered by the
arbitration may be entered in any court having jurisdiction hereof.
22.22 - Guarantee of Lease
Intentionally deleted.
22.23 - Invalidity of Particular Provisions
If any term or provision of this Lease or the application there of to any
person or circumstances shall to any extent be invalid or unenforceable, the
remainder of this Lease, or the application of such term or provision to persons
or circumstances other than those as to which it is held invalid or
unenforceable, shall not be affected thereby and each term and provision of this
Lease shall be valid and be enforced to the fullest extent permitted by law.
22.24 - Execution of Lease by Landlord
The submission of this document for examination and negotiation does not
constitute an offer to lease , or a reservation of, or option for, the Premises,
and this document shall be effective and binding only upon such date that this
lease shall have been executed and delivered by both Landlord and Tenant ("Lease
Date"). All negotiations, considerations, representations and understandings
between Landlord and Tenant are incorporated herein and may be modified or
altered only by an agreement in writing between Landlord and Tenant, and no act
or omission of any employee or other agent of Landlord shall later, change or
modify any of the provisions hereof. Notwithstanding the fact that the term of
this lease shall commence on the Term Commencement Date, this Lease and all of
the obligations of Landlord and Tenant arc binding, and arc, and shall be in
full force and effect from and after the Lease Date.
22.25 Relationship of the Parties
Nothing contained herein shall be deemed or construed by the parties hereto
nor by any third party as creating the Relationship of principal and agent or of
partnership 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 ___ of the parties hereto, shall be deemed to create
any relationship between the parties hereto other than Landlord and Tenant. _
IN WITNESS WHEREOF, the parties hereto have executed this Lease on the date
first above written.
LANDLORD: TENANT:
000 Xxxxxxxxx Xxxxx Company, LLC Logisoft Corp.
By: /s/ Xxxxxx X Xxxxxxx By: /s/ Xxxxxx X Xxxx
----------------------- -------------------
Xxxxxx X Xxxxxxx name: Xxxxxx X Xxxx
Authorized Person title: President
22
STATE OF NEW YORK )
SS.;
COUNTY OF ONONDAGA )
ON THE 8TH DAY OF MARCH IN THE YEAR 2000, BEFORE ME, THE UNDERSIGNED, A NOTARY
--- -----
PUBLIC IN AND FOR SAID STATE, PERSONALLY APPEARED XXXXXX X. XXXXXXX, PERSONALLY
KNOWN TO ME OR PROVED TO ME ON THE BASIS OF SATISFACTORY EVIDENCE TO BE THE
INDIVIDUAL WHOSE NAME IS SUBSCRIBED TO THE WITHIN INSTRUMENT AND ACKNOWLEDGED TO
ME THAT HE EXECUTED THE SAME IN HIS CAPACITY. AND THAT BY HIS SIGNATURE ON THE
INSTRUMENT THE INDIVIDUAL, OR THE PERSON UPON BEHALF OF WHICH THE INDIVIDUAL
ACTED, EXECUTED THE INSTRUMENT.
/S/ XXXXXX X XXXXXX
-----------------------------
NOTARY PUBLIC.
XXXXXX X XXXXXX
STATE OF NEW YORK
NO. 01KE6001531
QUALIFIED IN ONONDOGA COUNTY
COMMISSION EXPIRES JANUARY 20. 2002
(ACKNOWLEDGEMENT OF TENANT)
STATE OF FLORIDA )
-------
SS.:
COUNTY OF SARASOTA )
--------
ON THE 6TH DAY OF MARCH IN THE YEAR 2000, BEFORE ME, THE UNDERSIGNED, A NOTARY
PUBLIC IN AND FOR SAID STATE, PERSONALLY APPEARED XXXXXX XXXX, PERSONALLY KNOWN
TO ME OR PROVED TO ME ON THE BASIS OF SATISFACTORY EVIDENCE TO BE THE
INDIVIDUAL(S) WHOSE NAME(S) IS/ARE SUBSCRIBED TO THE WITHIN INSTRUMENT AND
ACKNOWLEDGED TO ME THAT HE/SHE/THEY EXECUTED THE SAME IN HIS/HER/THEIR
CAPACITY(IES), AND THAT BY HIS/HER/THEIR SIGNATURE(S) ON THE INSTRUMENT, THE
INDIVIDUAL (S), OR THE PERSON UPON BEHALF OF WHICH THE INDIVIDUAL(S) ACTED,
EXECUTED THE INSTRUMENT.
[SEAL] /S/ SIGNED
---------------------
NOTARY PUBLIC
23
TABLE OF EXHIBITS
EXHIBIT A FLOOR PLAN
EXHIBIT B LEGAL DESCRIPTION OR SITE PLAN
OR OUTSIDE COMMON AREAS
EXHIBIT C LANDLORD'S WORK
EXHIBIT D TENANT'S WORK
EXHIBIT E RULES AND REGULATIONS
EXHIBIT G STIPULATION OF TERM OF LEASE
EXHIBIT B
ALL THAT TRACT OR PARCEL OF LAND SITUATED IN THE TOWN OF PERINTON, COUNTY OF
MONROE, STATE OF NEW YORK; ALSO BEING PART OF TOWN LOT 49, TOWNSHIP 12, RANGE 4,
AS SHOWN ON THE FINAL PLAT FOR LOT 3 OF WOODCLIFF DEVELOPMENT, AS RULED IN THE
MONROE COUNTY CLERK'S OFFICE LIBBER 242 OF MAPS, PAGE 34 AND MORE PARTICULARLY
DESCRIBED AS FOLLOWS:
BEGINNING AT THE POINT OF INTERSECTION OF THE WESTERLY RIGHT-OF-WAY LINE OF
WOODCLIFF DRIVE (60' WIDE) AND LIME NORTH RIGHT-OF-WAY LINE OF NYS ROUTE 96
(PITTSFORD-XXXXXX ROAD VARIABLE WIDTH); THENCE,
1. N 57 degrees 47' 39" W, A DISTANCE OF 353.74 FEET ON THE NORTHERLY
RIGHT-OR-WAY OF NYS RT. 96, TO A POINT; THENCE,
2. N 51 degrees 25' 49" W, A DISTANCE OF 45.11 FEET ON THE NORTHERLY
RIGHT-OF-WAY OF NYS RT. 96, TO A POINT; THENCE,
3. N 57 degrees 16' 06" W, A DISTANCE OF 104.01 FEET ON THE NORTHERLY
RIGHT-OF-WAY OF NYS RT. 96, TO A POINT; THENCE,
4. N 42 degrees 47' 29" W, A DISTANCE OF 128.34 FEET ON THE NORTHERLY
RIGHT-OF-WAY OF NYS RT. 96, TO A POINT; THENCE,
5. N 64 degrees 03' 21" W, A DISTANCE OF 162.99 FEET ON THE NORTHERLY
RIGHT-OF-WAY OF NYS RT. 96, TO A POINT; THENCE,
6. N 25 degrees 37' 39" E, A DISTANCE OF 1.00 FEET ON THE NORTHERLY
RIGHT-OF-WAY OF NYS RT. 96, TO A POINT; THENCE,
7. N 64 degrees 25' 09" W, A DISTANCE OF 21.41 FEEL ON THE NORTHERLY
RIGHT-OF-WAY OF NYS RT. 96, TO A POINT; THENCE,
8. N 54 degrees 01' 28" W, A DISTANCE OF 187.49 FEET ON THE NORTHERLY
RIGHT-OF-WAY OF NYS RT. 96, IN A POINT; THENCE,
9. N 36 degrees 46' 05" W, A DISTANCE OF L82.P9 FEET ON THE NORTHERLY
RIGHT-OF-WAY OF NYS RT. 96, TO A POINT OF INTERSECTION OF THE EASTERLY
RIGHT-OF-WAY LINE OF INTERSTATE 490 AND THE NORTHERLY RIGHT-OF-WAY LINE
OF NYS RT. 96; THENCE;
10. N 07 degrees 51' 06" W, A DISTANCE OF 192.13 FEET ON SAID INTERSTATE
490 RIGHT-OF-WAY TO A POINT ON THE SOUTHERLY LINE OF LOT 1 (LIBER 237 OF
MAPS, PG. 2); THENCE,
11. S 57 degrees 51' 06" E, A DISTANCE OF 437.TIB FEET ON THE SOUTHERLY
BOUNDARY LINE OF LOT 1 OF WOODCLIFF DEVELOPMENT TO A POINT; THENCE,
12. S 86 degrees 51' 06" E, A DISTANCE OF 128.00 FEET ON THE SOUTHERLY
BOUNDARY LINE TO A POINT; THENCE,
13. N 32 degrees 08' 54" E, A DISTANCE OF 123.00 FEET, ON SAID SOUTHERLY
BOUNDARY LINE TO A POINT; THENCE,
14. S 7O degrees 51' 06" II, A DISTANCE OF 315.98 FEET, ON SAID SOUTHERLY
BOUNDARY LINE TO A POINT; THENCE,
15. N 68 degrees 22' 27" E, A DISTANCE OF 107.31 FEET, ON SAID SOUTHERLY
BOUNDARY LINE TO A POINT ON THE WESTERLY RIGHT-OF-WAY OF WOODCLIFF
DRIVE; THENCE,
16. S 21 degrees 37' 32" E, A DISTANCE OF 323.85 FEET ON SAID RIGHT-OF-WAY TO
A POINT OF CURVATURE; THENCE,
17. SOUTHERLY ON A CURVE TO THE RIGHT HAVING A RADIUS OF 270.00 FEET, A
CENTRAL ANGLE OF 53 degrees 49' 54", AND AN ARC LENGTH OF 253.68 TO A
POINT OF TANGENCY; THENCE,
18. S 32 degrees 12' 21" W, A DISTANCE OF 179.67 FEET, TO THE POINT OF
BEGINNING.
193.02-3-3
000 XXXXXXXXX XXXXX
EXHIBIT C
February 18, 2000
Xxxxxxxx's Work
The Tenant acknowledges that it has inspected the existing office space, and
that said Premises are hereby accepted by the Tenant in its existing "AS
IS"condition with the exception of the following items.
1. Landlord shall provide new identity signage at the Tenant's entry and on
the building directory, In order to ensure aesthetic continuity said signage
shall be designed and installed in accordance with building standards as
determined by Landlord.
REMAINDER OF THE PAGE INTENTIONALLY LEFT BLANK.
EXHIBIT D
TENANT'S WORK
All items of Tenant's Work shall be performed by Tenant at its sole cost and
expense, and shall require prior written approval from Landlord.
Tenant, at its sole cost and expense, shall perform all labor, services and
management and furnish all labor, material, plans and equipment necessary to
complete in a good, substantial and approved manner, the or herein described,
and shall bring the Premises to a finished condition for the conduct of Xxxxxx's
business therein.
All of tenants Work shall be governed by Section 4.04 of this Lease and,
additionally, shall he subject to the following general conditions:
1. COMPLIANCE WITH LAWS
----------------------
Tenant shall, at its own expense, comply with all applicable statutes,
ordinances, rules, orders, laws, codes, regulations and recommendations of
governments and their authorized agents which have jurisdiction over Tenant's
Work, and, with respect to the prevention of fire and the exposure of liability
risks, of the Board of Fire underwriters, Rating Board and Landlord's and
Tenant's insurance companies. Tenant shall apply for, pay all fees for, and
obtain all necessary permits, licenses and certificates required by Tenant's
Work. A copy of same shall be delivered to landlord and shall be posted in a
prominent place within the Premises before Tenant commences its work. Tenant
shall furnish Landlord with a copy of a Certificate of Occupancy prior to
opening for business.
2. INTERFERENCES
-------------
Tenant shall perform its work so as to cause no interference with the completion
of Landlord's Work or other tenants' work.
3. DESIGN AND CONSTRUCTION
-------------------------
Tenant shall retain the services of a competent experienced architect (and
engineers) licensed in the stale in which the 0111cc Building is located for the
design of Tenant's Work. Tenant shall retain competent and skilled contractors
for the completion of Tenant's Work, and Tenant and its contractors shall employ
people who at all times will work in harmony with the people employed by
Landlord, its contractors, oilier tenants and their contractors. Xxxxxx's
architect and engineer shall design all tenant's Work in full compliance with
all federal, state and local codes, ordinances, miles and zoning regulations
which are applicable to the Office Building and Tenant's Premises.
4. TENANT'S DESIGN
----------------
All submissions shall hear the seal and signature of an architect (and engineer
if applicable) licensed to practice in
tine State in which the Office Building is located.
No less than 30 days prior to the date of commencement of Tenant's Work, Tenant
shall submit to Landlord for review "Preliminary Design Drawings," showing the
intended design concept and character of proposed finishes. Tenant's submission
shall consist of one reproducible print and three (3) blue line sets of prints.
Preliminary Design Drawings shall contain basic dimensions and shall include,
but not necessarily be limited to, the following:
1 Preliminary floor plan with featuring layout.
2. Preliminary reflected ceiling plan.
3. Preliminary electrical layout.
landlord will return to Tenant one set of prints marked with Xxxxxxxx's comments
on Tenants preliminary submission within ten (10) days alter Landlord's receipt
tenant shall incorporate Landlord's comment's into tenants final submission.
Within ten (10) days of the receipt by Tenant of Landlord's comments, Tenant
shall submit to landlord one reproducible print an(t three (3) sets of blue line
prints of Tenants Design Drawings' showing final design, character and finishes.
Tenant's design drawings shall include, without limitation, the following:
1 Architectural: Floor plan, fixating layout, room finish schedule, door
schedule, partition types, ceiling plan, shop drawings, sections, and details as
may be appropriate.
2. Mechanical: All equipment, locations, distributions and return systems,
diffuser locations, load calculations, controls and details as may be
appropriate.
3. Electrical: Floor and ceiling plans showing type and location of power
and lighting, equipment, controls, projected loads, panel schedules, riser
diagram and details as may be appropriate.
4. Plumbing: Location~ and type of fixtures, supply and waste, piping
schematics, details as may he appropriate.
Exhibit D page 1 of 4
5. Specializations on materials and methods of construction for above items
6. Material and color finish sample board(s).
landlord will return to Tenant one (1) set of prints of Xxxxxx's Design
Drawings, marked with approvals and required modifications. II Tenant's Design
Drawings are returned to Tenant with comments, hut not barring approval of
Landlord, Xxxxxx's Design Drawings shall be revised by Xxxxxx and re-submitted
to Landlord for review within ten (10) days of receipt.
landlord's design review is solely for the purpose of assisting the Tenant, of
coordinating the office design of use various tenants its the office Building,
and insuring that each office in the office Building will be consistent xxxxx
the overall image and theme of the Office Building. If in the design review
process Landlord docs not discover items that arc not in compliance with any
code, statute, rule or regulation, or the provisions of the Tenant's Lease, this
oversight will not relieve the Tenant, Xxxxxx's architect or engineer of their
obligations under any such code, statute, rule or regulation or under Xxxxxx's
Lease.
If Xxxxxx's final drawing submission is not modified in accordance with final
comments, the landlord may make necessary modifications to Xxxxxx's drawings, at
Xxxxxx's additional cost, and return subject drawings to Tenant for its use.
5. Certificate OF COMPLETION
----------- --------------
As a conditions of I .landlord's approval for Tenant to initially open for
business in the Office Building, Tenant shall deliver to Landlord a certificate
of Completion and as built mechanical and architectural drawings signed by
leii~iiit and tenant's architect certifying that the Premises has beers
constructed and completed in accordance with the Tenant's final design Drawings
as approved by Landlord. landlord shall be entitled to rely on this certificate
as evidence of Xxxxxx's completion of construction of the Premises pursuant to
the provisions of this Lease.
6. GENERAL CONI)ITIONS
------- -----------
1. Ready for Occupancy
---------------------
landlord shall notify Tenant of the date on which tire Premises shall be Ready
its Occupancy and available for the construction of Tenant's Wonk. Xxxxxx agrees
that time is of the essence and agrees to commence installation of Xxxxxx's Work
as soon as possible, but in no event later than five (5) days following the date
referenced in the notification from landlord.
2. Occupancy Period
-----------------
Tenant's occupancy shall run from the date the Premises is Ready For Occupancy
though the expiration or earlier termination of the Lease.
3. Establishment of Schedules
----------------------------
Tenant, its agents, contractors and employees shall comply with reasonable
schedules which Landlord shall establish from time to time, governing submittals
by Tenant of design information for Landlords approval, construction operations,
occupancy by Tenant, opening for business, and other occurrences for the purpose
of coordination efforts of Tenants, contractors, and Landlord. i
