EXHIBIT 10.26
LEASE
between
Xxxx Xxxxxxxxx
and
Sprint Spectrum L.P., A Delaware Limited Partnership
TABLE OF CONTENTS
Page
----
1. PREMISES................................... 1
2. TERM; POSSESSION........................... 1
3. RENT....................................... 2
4. UTILITIES.................................. 5
5. USE OF PREMISES............................ 5
6. MAINTENANCE AND REPAIRS.................... 6
7. ALTERATIONS AND IMPROVEMENTS BY TENANT..... 6
8. SIGNS...................................... 7
9. PARKING.................................... 7
10. ASSIGNMENT AND SUBLETTING.................. 8
11. SUBORDINATION.............................. 8
12. INDEMNITY AND INSURANCE.................... 9
13. DAMAGE OR DESTRUCTION...................... 10
14. CONDEMNATION............................... 11
15. ACCESS..................................... 11
16. DEFAULT BY TENANT.......................... 11
17. REMEDIES BY LANDLORD....................... 12
18. SELF HELP.................................. 14
19. LIMITATION OF LIABILITY.................... 14
20. FORCE MAJEURE.............................. 15
21. SECURITY DEPOSIT [INTENTIONALLY OMITTED].. 15
22. ESTOPPEL CERTIFICATES...................... 15
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23. OPTION TO EXPAND........................... 16
24. FREON CONTAINING EQUIPMENT................. 16
25. HAZARDOUS MATERIALS........................ 17
26. ASBESTOS................................... 17
27. OCCUPANCY.................................. 18
28. LATE CHARGE; ADDITIONAL RENT............... 18
29. LEASE EXTENSION............................ 18
30. RULES & REGULATIONS........................ 18
31. NOTICES.................................... 18
32. REAL ESTATE BROKERS........................ 19
33. NO WAIVER.................................. 19
34. QUIET ENJOYMENT............................ 19
35. RECORDING.................................. 19
36. BINDING EFFECT............................. 20
37. ENTIRE AGREEMENT........................... 20
38. WAIVER OF JURY TRIAL....................... 20
39. REMEDIES CUMULATIVE........................ 20
40. ATTORNEYS' FEES............................ 20
41. SEVERABILITY............................... 20
42. PARAGRAPH HEADINGS......................... 20
43. ACCEPTANCE................................. 20
44. RIDER...................................... 21
ii
LEASE
THIS LEASE, made and entered into as of the _____ day of September,
1996, by and between Xxxx Xxxxxxxxx, having his principal office and place of
business at 000 Xxxxx Xxxx Xxxxxx Xxxx, Xxxxxx, Xxx Xxxx 00000, as Landlord
(hereinafter called "Landlord"), and Sprint Spectrum, L.P., a Delaware Limited
Partnerships having its principal office and place of business at as Tenant
(hereinafter called "Tenant");
WITNESSETH:
The parties hereto, for the consideration herein stated, hereby
covenant and agree as follows:
1. PREMISES
Landlord does hereby lease and demise to Tenant, and Tenant does
hereby hire and take from Landlord, the following described premises in the
building located at and known as 300 Great Oaks (hereinafter called the
"Building"), situated in Xxxxx Xxxx Xxxxxx Xxxx, Xxxxxxx Xxxxxx and Church Road,
Town of Guilderland, County of Albany, State of New York, to wit: approximately
Nine Thousand Two Hundred (9,200) square feet of rentable space on the
1st floor- Suite 319 as shown outlined in red on the floor plan attached hereto
as EXHIBIT "A" and made a part hereof (hereinafter called the "Premises");
together with all the appurtenances, rights, privileges and easements in any way
pertaining thereto including, but not limited to, the elevators, stairways,
corridors, entranceways, rest rooms, parking facilities and other similar or
related facilities as may exist in and about the Building (hereinafter
collectively called the "Common Areas") and be generally available to all
tenants. All measurements which form the basis for the determination of the
square footage of the Premises, the square footage of the Tenant's optional
expansion area, the calculation of Rent, Basic Monthly Rent, Additional Rent,
proportionate shares and other charges under the terms of this Lease shall be
made in accordance with the applicable BOMA standard method of floor measurement
and Landlord shall provide Tenant with a certification of the accuracy or such
measurements by an architect licensed in the jurisdiction where the Building is
located prior to the Commencement Date as hereinafter defined. Landlord
represents and warrants that Landlord has full right and authority to lease the
Premises and to otherwise enter into this Lease on the terms and conditions set
out herein.
2. TERM; POSSESSION
a. The term of this Lease shall be for a period of five (5) years
commencing on the later of substantial completion of the Landlord's Work (as
defined below and in the Workletter attached as Exhibit C) or first day of
January, 1997 (01/01/97) (hereinafter called the "Commencement Date") and ending
at midnight on the 31st day of December, 2001 (12/31/01) (hereinafter called the
"Expiration Date"), unless sooner terminated as hereinafter provided. Landlord
shall deliver possession of the Premises to Tenant on or prior to the
Commencement Date of the term hereof, free and clear of all tenancies and
occupancies, broom clean and in good order and condition and with the
alterations and improvements to be made by Landlord in accordance with Exhibits
A and C, attached hereto and made a part hereof, substantially completed in
accordance with the Work Agreement attached as Exhibit C in a first-class
manner.
The Landlord's Work shall be considered "substantially complete" and
"substantial completion" shall be achieved for purposes of this Lease when all
of the following shall have occurred (i) Landlord has performed or completed all
of the Landlord's Work (as defined herein and in the Lease), except only for
punchlist items of a quantity and character which do not substantially interfere
with Tenant's ability to occupy or use the Premises or to complete improvements
to the Premises to be made by Tenant and (ii) all approvals, certificates of
occupancy and permits (other than Tenant's business licenses and those permits
and approvals from the appropriate governmental authorities pertaining to the
Improvements required for the legal and practical occupancy of the Premises for
Tenant's intended use have been approved for issuance, and (iii) the Landlord
and all subcontractors have provided certificates of payment for all of
Landlord's Work and (iv) the architect certifies in writing that the Premises
are "substantially complete" as defined above; and (v) Landlord has effected
removal of all rubbish and debris, such that Tenant may commence its business
operations from the Premises immediately after Landlord completes such clean-up.
Landlord shall provide Tenant with Thirty (30) days prior notice of substantial
completion of the Premises. Landlord shall deliver the Premises and
substantially complete the Landlord's Work on or before the sixtieth (60th) day
following the Commencement date of this Lease.
3. RENT
a. The annual base rent (hereinafter called the "Base Rent") for the
Premises shall be One Hundred Forty-four Thousand Nine Hundred and 00/100ths
Dollars ($144,900.00), which Tenant agrees to pay to Landlord in equal monthly
installments of Twelve Thousand and Seventy-Five and 00/100ths Dollars
($12,075.00) each, in advance, on the first day of each and every calendar month
during the term of this Lease. All rent due or to become due hereunder shall be
paid to Landlord at its address first above written, unless Landlord shall
designate some other payee or address for the payment thereof by giving written
notice to that effect to Tenant. The foregoing amounts of Base Rent and monthly
installments shall be adjusted to reflect those amounts resulting from the
application of a Fifteen and 75/100ths Dollars per rentable square foot rate per
annum to the number of rentable square feet of space determined by the certified
measurement of the Premises.
b. In addition to the Base Rent payable under this Lease as set forth
above, Tenant shall pay to Landlord as additional rental (hereinafter called
"Additional Rental") the following:
(i) A pro-rata percentage of any increase in the cost of
maintaining and operating the Building (hereinafter referred to as
"Operating Expenses") for each calendar year during the term of this Lease
over the cost of maintaining and operating said property for the calendar
year 1996 (hereinafter referred to as the "Base Year"). Landlord
represents that the pro-rata percentage applicable to this Lease is Fifteen
Percent (15.33%) based on the ratio of the rentable square footage of the
Premises as compared to the rentable square footage of the Building, which
percentage is subject to adjustment based on certified measurements.
(ii) A pro-rata percentage of any increase in any Taxes (as
defined below in Paragraph 3) against the Building for each year of the
term of this Lease over
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and above the Taxes with respect to the Base Year. Landlord represents that
the pro-rata percentage applicable to this Lease is Fifteen Percent
(15.33%) based on the ratio of the rentable square footage of the Premises
as compared to the rentable square footage of the Building, which
percentage is subject to adjustment based on certified measurements..
Computations relating to the increases in Taxes shall be computed as if the
Building of which the Premises form a part is fully assessed as a completed
and fully operational building. Landlord represents and warrants that the
Building of which the Premises form a part, is fully assessed as a
completed fully operational building prior to or at the commencement of the
Base Year. Without limiting the foregoing representation and warranty, in
each calendar year in which the Building of which the Premises form a part
is less than fully assessed as a completed and fully operational building
for the full calendar year, the Taxes for the Base Year shall be increased
for the purpose of calculating tax escalation charges to the amount of
Taxes for the Building and the property of which it is a part as fully
assessed, fully completed and fully operational. The resulting amount(s)
shall be used for calculating Tax escalations pursuant to this Paragraph.
Operating Expenses shall include only those things customarily
considered under generally accepted accounting principles as building operating
expenses; that is the cost of all normal repairs, maintenance, security, janitor
service, exterior grounds maintenance, snow removal, rubbish removal, Taxes
(except ad valorem and income taxes), water and sewer charges, fire casualty and
liability insurance carried by the Landlord with respect to the Building or any
incident or casualty occurring therein or with respect thereto and Building and
Common Areas management. Operating Expenses shall also include a proportionate
allocation to the Building of the actual and reasonable costs incurred by
Landlord in operating and maintaining the Common Areas.
"Taxes" are defined as all real estate taxes and assessments, general
and special, ordinary and extraordinary, unforeseen as well as foreseen, of any
kind and nature whatsoever in said categories that are assessed upon the Land
and Building and become payable during the term of this Lease.
In addition, the cost of any capital improvements to the Building and
Common Areas and/or of any machinery or equipment of a capital nature installed
in the Building and Common Areas which is made or becomes operational as the
case may be following final completion of the Building and Common Areas, may be
included in the cost of maintaining and operating the Building and Common Areas,
provided such improvements reduce the expenses which otherwise would be included
in the cost of maintaining and operating the Building and Common Areas. Such
cost shall be included in Operating Expenses to the extent of the lesser of:
(i) such cost, amortized over the useful life of the improvement, machinery
and/or equipment (as reasonably estimated by Landlord using generally accepted
accounting principles); or (ii) the amount of such reduction in Operating
Expenses. Only the proportionate part allocable to each calendar year during
the term of this Lease of such cost which has been amortized over the useful
life (as reasonably estimated by Landlord) may be included in the cost off
maintaining and operating the Building and Common Areas.
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c. Tenant hereby agrees to pay Landlord as Additional Rental on
account of each calendar year (or portion thereof) during the term hereof
Tenant's proportionate share of such Operating Expenses and Taxes for that
calendar year over those for the Base Year. On the first day of each month
during the term of this Lease, Tenant shall pay to Landlord an estimate of any
such excess reasonably anticipated by Landlord at the rate of one-twelfth
(1/12th) of Tenant's proportionate share of such estimated excess. Appropriate
adjustment shall be made yearly during the term of this Lease based upon a
statement to be furnished to Tenant by Landlord following the close of each
calendar year. Each such statement shall set forth any excess Operating
Expenses for the particular calendar year in question and the aggregate of
monthly payments by Tenant on account thereof. If such statement reflects any
such excess which has not been paid to Landlord by Tenant by means of the
monthly payments, then Tenant shall pay the amount of such deficiency within
thirty (30) days after the date such a statement was mailed to Tenant. If such
statement reflects an overpayment by Tenant, then at the option of Tenant,
Landlord shall refund the excess to Tenant within thirty (30) days after the
date such a statement was mailed to Tenant or credit Tenant with the amount of
such overpayment against the monthly payments thereafter due from Tenant on
account of Base Rent or any future excess Operating Expenses and/or Taxes.
d. Operating Expenses shall not include any expenses, labor or
materials relating to financing, depreciation or amortization of funded
indebtedness, nor Tenant's separately metered electricity.
e. A xxxx for Operating Expenses and Taxes (or copies thereof)
submitted by Landlord to Tenant shall be sufficient evidence of the amount of
maintenance and Operating Expenses Taxes and charges with respect to the
property and improvements thereon. Tenant's pro-rata share of any increases
shall be adjusted in the first and the last year to take into consideration the
fact that Tenant may be in possession for a partial year.
If Landlord shall receive a refund of Taxes for any period during the
term of this Lease after the year during which the term of this Lease shall
commence, then Landlord shall pay over to Tenant the pro-rata percentage of
Taxes paid by Tenant as set forth above, to the extent Tenant shall have borne
any portion of such Taxes so refunded, after deducting from any such Taxes to be
refunded the fees and expense incurred by Landlord in obtaining such refund.
Base Rent and Additional Rent payable under this Paragraph shall be
apportioned for any fraction of year at the end of the term of this Lease.
Any apportionments of Base Rent or Additional Rent to be made under
this Lease shall be computed on the basis of a three hundred sixty (360) day
year with twelve (12) months of thirty (30) days each. Tenant's obligation to
pay its pro-rata share of increase in Operating Expenses and Taxes for the final
period of the Lease shall survive the expiration of the term of this Lease, and
shall be payable immediately upon billing.
f. Except as set forth in the Addendum to this Lease, this Lease and
the obligation of Tenant to pay Base Rent and Additional Rent hereunder and
perform all of the other covenants and agreements hereunder on part of Tenant to
be performed shall in no way be affected, impaired or excused because Landlord
is unable to supply or is delayed in supplying
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any service expressly or impliedly to be supplied or is unable to make, or is
delayed in making any repairs, additions, alterations or decorations or is
unable to supply or is delayed in supplying any equipment or fixtures, if
Landlord is prevented or delayed from so doing by reason of governmental
preemption in connection with any National Emergency declared by the President
of the United States or in connection with any rule, order or regulation of any
department or subdivision thereof of any governmental agency or by reason of the
condition of supply and demand which have been or are affected by war or other
emergency.
g. INTENTIONALLY OMITTED. See Addendum Section 10.
h. At the request of Tenant at any time after Landlord delivers a
yearly statement of Operating Expenses and Taxes to Tenant, Landlord shall make
available to Tenant at the Building and allow Tenant to copy such information as
is reasonably available to Landlord and reasonably necessary for the purpose of
allowing Tenant to verify the information contained in such statement of
Operating Expenses and Taxes. No such request shall extend the time within
which Tenant is obligated to pay the amounts shown in such statement, and Tenant
may not make the request at any time it is in default of such payments. Tenant
may thereafter advise Landlord if Tenant objects to any part of a prior
statement of Operating Expenses, provided however, that if no objection is made
by the second anniversary of Tenant's receipt of particular statement, such
statement shall not be subject to objection, absent fraud or misconduct on the
part of Landlord. If objection is made within the foregoing two (2) year
period, the matter shall be submitted to arbitration. This section shall not be
construed so as to bar Tenant from any rights in respect of a refund or
readjustment of Taxes.
4. UTILITIES
Tenant shall be responsible for its own utility bills which shall be
separately metered and billed directly to Tenant by provider of utilities. In
addition Tenant shall pay to Landlord, as additional rent, its proportionate
share of utilities which are necessary to provide service to common use
facilities (e.g. hallways, lobby and lunch room, pumps, water coolers,
elevators) within the Building as well as site lighting for the Common Areas.
5. USE OF PREMISES
a. The Premises shall be used for Tenant's office and marketing
purposes and for no other purpose whatsoever.
b. Tenant shall not at any time use or occupy, or suffer or permit
anyone to use or occupy, the Premises, in any manner (a) which causes or is
likely to cause injury to the Building or any equipment facilities or systems
therein; (b) which constitutes a violation of the laws and requirements of any
public authorities or the requirements of any insurance bodies; (c) which
impairs the character, reputation or appearance of the Building as a first-class
office Building; (d) which impairs the maintenance, operation and repair of the
Building and its equipment, facilities or systems; or (e) which unreasonably
annoys or inconveniences other tenants of the Building.
c. Tenant shall, at all times during the term and at its sole cost
and expense, promptly comply with all statutes, ordinances, rules, orders,
regulations and requirements of the
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Federal, State and City Government and of any and all their Departments and
Bureaus applicable to Tenant's particular use of the Premises; and shall also,
at all times during the term and at its sole cost and expense, promptly comply
with all rules, orders and regulations of the New York Board of Fire
Underwriters for the prevention of fires, except that Landlord shall be
responsible for the cost of any alterations, modifications and improvements to
the Premises and Building required pursuant to such rules, orders and
regulations and repairs not occasioned by waste, misuse or negligence on the
part of Tenant, in which case such repairs shall be made by Landlord, but at the
expense of Tenant. Further, Landlord shall be responsible for any and all
expenditures for the required compliance arising from the nature of the use of
the Premises generally (meaning, if such compliance applies to office uses
generally, as opposed to Tenant's particular business being conducted thereon).
6. MAINTENANCE AND REPAIRS
Landlord shall maintain the Land, Building and Common Areas in a state
of good operating condition and repair, including the roof and every part
thereof, the exterior of the Building & its structural parts, perimeter walls,
ceiling, floors, windows, the electrical and lighting system, pipes and
plumbing, ventilating system, heating and air-conditioning units and/or system,
elevators, stairs and halls, the grounds (including landscaping, parking areas,
walkways and driveways) and all necessary apparatus, accessories and fixtures
pertaining to said Land, Building & Common Areas and Premises, unless such
repairs are required by reason of any waste, misuse or negligence on the part of
Tenant, in which case such repairs shall be made by Landlord but at the expense
of Tenant. Except as provided above and in EXHIBIT "B", Tenant shall take good
care of the Premises and fixtures, make good any injury or breakage done by
Tenant or Tenant's agents, employees or visitors, and. shall quit and surrender
said Premises, at the end of said term, in as good condition (ordinary wear and
tear excepted) as the reasonable use thereof will permit. Tenant shall keep the
interior of the Premises in a neat and orderly condition. Landlord shall keep
the parking areas, driveways and walkways reasonably clear of ice and snow.
7. ALTERATIONS AND IMPROVEMENTS BY TENANT
a. Tenant shall have the right, at its own expense, to make such non-
structural alterations and changes in and to the Premises as it shall deem
expedient or necessary for its purposes provided it has first obtained the
consent thereto of Landlord in writing, Landlord agreeing that it shall not
withhold, delay or condition such consent unreasonably. All such work shall be
done in good and workmanlike manner, and in accordance with all applicable laws
and shall be performed only by Landlord approved contractors (such approval not
to be unreasonably withheld, conditioned or delayed) under the supervision of
the Landlord. Landlord shall execute and deliver upon request of Tenant such
instrument or instruments embodying the approval of Landlord which may be
required by any public or quasi-public authority for the purpose of obtaining
any license or permit for the making of such alterations or changes in, to or
upon said Premises, Tenant agreeing to pay for and procure such license or
permit. Tenant will not make or permit anyone to make any alterations,
improvements or additions in or to the Premises, or install any equipment of any
kind that will require any alteration or addition to, or the use of, the water,
heating, air conditioning or electrical or other building systems or equipment
without the consent thereto of Landlord in writing, Landlord agreeing that it
shall not
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withhold, delay or condition such consent unreasonably. If any such alterations
or improvements are made, without such consent, the Landlord may correct or
remove them and the Tenant shall be liable for any and all expense incurred by
the Landlord in the performance of this work. Any such alterations, additions or
improvements to the Premises which are made with the Landlord's prior written
consent shall immediately become the property of the Landlord and shall remain
upon and be surrendered with the Premises as part thereof at the end of the
term. The Landlord may, however, at the time of the giving of such consent, by
written notice to such effect, require the Tenant to remove all or any part of
such alterations, additions or improvements at the end of the Term, and in such
event the Tenant shall remove the same at its expense and shall repair all
damage to the premises caused by such removal at the end of the Term.
b. Tenant shall not permit any mechanics or materialmen's liens to be
filed against the Premises, nor against the Tenant's leasehold interest in the
Premises on account of work or materials procured by Tenant. The Landlord shall
have the right at all reasonable times to post and keep posted on the Premises
any notice which it deems necessary for protection from such liens. If any such
liens ate so filed, the Tenant, at Tenant's election shall bond or discharge
such liens and should Tenant fail to do so within Fifteen (15) days following
notice thereof, Landlord, at its election may pay and satisfy the same and in
such event the sums so paid by the Landlord, with maximum permissible interest
from the date of payment, but not to exceed twelve percent (12%) per annum,
shall be deemed to be Additional Rent due and payable by the Tenant within Ten
(10) days following written notice or demand.
c. Tenant shall provide and maintain any fire extinguishers which may
be required within tenant's premises.
8. SIGNS
Tenant shall have the right to a free listing on the directory board
in the lobby of the Building. Tenant shall also have a suite sign outside next
to the door of the Premises and a listing on the outside directory to advertise
Tenant's occupancy of the Premises and direct visitors, guests and the like to
Tenant's Premises. Suite sign and outside directory listing shall conform to
building standard signage and shall be provided by Landlord at Tenant's cost.
Tenant shall not otherwise place or paint any sign on or in front of the
exterior of the Premises or in any other part of the Building.
9. PARKING
As further consideration for the rental to be paid by Tenant
hereunder, Landlord hereby grants to Tenant the right to use the non-exclusive
parking area surrounding the Building in common with the other Tenants in the
Building. Landlord agrees to provide not less than Forty-five (45) parking
spaces for Tenant's use and use of Tenant's visitors at no extra charge. The
foregoing obligation, however, shall not be construed as obligating Landlord to
provide more than Forty-five (45) parking spaces for Tenant's use. Tenant and
its visitors shall not occupy spaces in excess of the number provided in this
Paragraph.
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10. ASSIGNMENT AND SUBLETTING
a. Tenant will not sell, assign, mortgage or transfer this Lease, or
sublet or rent the Premises or any part thereof, or permit the same or any part
thereof to be used or occupied by anybody other than the Tenant or the Tenant's
employees, without the prior written consent of the Landlord, which Landlord
agrees not to unreasonably withhold, condition or delay. Any sale, assignment,
mortgage, transfer or subletting of this Lease which is not in compliance with
the provisions of this Paragraph and the following paragraphs shall be of no
effect and void.
b. If Tenant shall desire to sublet the Premises, Tenant shall give
written notice thereof to Landlord requesting Landlord's consent thereto which
notice shall set forth a proposed commencement date ("Proposed Effective Date")
of the sublease term, which is not less than Twenty (30) nor more than One
Hundred Twenty (120) days after the sending of said notice and attached to said
notice shall be a copy of the proposed sublease agreement and of all agreements
collateral thereto. The form of said sublease agreement shall be subject to
Landlord's consent, such consent not to be unreasonably withheld, conditioned or
delayed, and, among other things, provide for the subtenant to be bound by all
of the terms and provisions contained in this Lease agreement. Landlord, within
twenty (20) business days after receipt of said notice shall give Tenant written
notice of Landlord's consent or lack of consent to Tenant's said request.
c. INTENTIONALLY OMITTED.
d. In the event of any sublease of all or any portion of the Premises
where the Base Rent reserved in the sublease exceeds the rental or pro rata
portion of the Base Rent, as the case may be, for such space reserved in the
Lease, Tenant shall pay to the Landlord monthly, as additional rent, at the same
time as the monthly installments of Base Rent hereunder, Fifty Percent (50%) of
the excess of the rental reserved in the sublease over the Base Rent reserved in
this Lease applicable to the subleased space, less all leasing costs,
commissions and tenant improvement costs.
e. If this Lease be assigned, sublet or transferred in any manner
whatsoever, such assignment or transfer shall be upon and subject to all of the
covenants, provisions and conditions contained in this Lease and notwithstanding
any consent by the Landlord to any such assignment or transfer or any subletting
by the Tenant, the Tenant shall continue to be and remain liable hereunder. Any
consent by the Landlord to any such assignment, transfer, subletting or other
matter or thing contained in this Paragraph shall not in any way be construed to
relieve the Tenant from obtaining the prior consent of the Landlord to any other
or further such assignment, transfer, subletting, matter or thing.
11. SUBORDINATION
Provided that Tenant is provided with a non-disturbance agreement in
form and content acceptable to Tenant and its attorneys, this Lease shall he
subordinate to any mortgages that are now on or that hereafter may be placed
against said Premises, and the recording of such mortgage or mortgages shall
have preference and precedence and be superior and prior in lien of this Lease,
irrespective of the date of recording and, subject to the foregoing provision,
Tenant
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agrees to execute any such instrument without cost, which may be deemed
necessary or desirable to further effect the subordination of this Lease to any
such mortgage or mortgages, and a refusal to execute such instrument shall
entitle Landlord, or Landlord's assigns and legal representatives to the option
of canceling this Lease without incurring any expense or damage and the term
hereby granted is expressly limited accordingly, provided, however, that Tenant
shall not be required to effectuate any such subordination or other document
hypothecating any interest in the Premises unless the mortgagee or beneficiary
named in such mortgage or deed of trust shall agree that so long as Tenant is
not in default, following notice and the expiration of applicable periods for
cure, of any of the terms, covenants, or conditions of this Lease, neither this
Lease nor any of the rights of Tenant hereunder shall be terminated or modified
or be subject to termination or modification by any trustee's sale, any action
or proceeding in foreclosure, or any sale in lieu of the foregoing.
12. INDEMNITY AND INSURANCE
a. With the exception of the Landlord's negligence, Tenant shall
indemnify, defend and hold harmless the Landlord, its agents and employees from
and against any and all liability (statutory or otherwise), claims, suits,
demands, judgments, costs, interest and expense (including, but not limited to,
attorney's fees and disbursements) arising from any injury to, or death of, any
person or persons or damage to property (including loss of use thereof) related
to (i) the Tenant's use of the Premises or conduct of business therein, (ii) any
work or thing whatsoever done, or any condition created (other than by the
Landlord, its employees, agents or contractors) by or on behalf of the Tenant in
or about the Premises, including during the period of time, if any, prior to the
term Commencement Date, that the Tenant may have been given access to the
Premises for the purpose of doing any work or making any installations, (iii)
any condition of the Premises due to or resulting from any default by the Tenant
in the performance of the Tenant's obligations under this lease, or (iv) any
act, omission or negligence of the Tenant or its agents, contractors, employees,
subtenants, licensees or invitees. In case any action or proceeding is brought
against the Landlord by reason of any one or more thereof, the Tenant shall pay
all costs, attorneys' fees, expenses and liabilities resulting therefrom and
shall defend such action or proceeding if Landlord shall so request, at Tenant's
expense, by counsel reasonably satisfactory to the Landlord.
b. Tenant shall carry and keep in force, at its own expense, with
respect to the Premises, a policy or policies of commercial general liability
and "all risk" property damage insurance with an insurance company or companies
licensed to do business in the State of New York. Such policies shall name the
Landlord as an additional insured party as its interest may appear and shall be
in the following minimum amount: Personal Injury, Bodily Injury including death
and property damage -- $1,000,000 combined single limit coverage on an
occurrence basis. The certificates of such policy or policies evidencing such
coverage shall be delivered to Landlord. No changes shall be made in any such
policies without the approval of Landlord.
c. Tenant shall not violate, or permit the violation of any condition
imposed by any and all insurance policies carried by Landlord including but not
limited to fire insurance policies carried by Landlord with respect to the
Building, and Common Areas and shall not do, or permit anything to be done, or
keep or permit anything to be kept in the Premises which
9
would subject Landlord to any liability or responsibility for personal injury,
bodily injury including death or property damage, or which would increase the
fire or other casualty insurance rate on the Building or the Land thereon over
the rate which would otherwise then be in effect or which would result in
insurance companies of good standing refusing to insure the Building or Landlord
in amounts reasonably satisfactory to Landlord.
d. Tenant will not, nor will Tenant permit undertenants or other
persons to do anything in said Premises, or bring anything into said Premises,
or bring anything to be brought into said Premises or to be kept therein, which
will in any way increase the rate of fire insurance on said Premises, nor use
the Premises or any part thereof, nor suffer or permit their use for any
business or purpose which would cause an increase in the rate of fire insurance
on said Building, and Tenant agrees to pay on demand any such increases as
additional rent, if, after 30 days' written notice from Landlord stating
conditions causing the increase, Tenant fails or refuses to correct such cause.
e. Landlord is exempt from any and all liability for any damage or
injury to person or property resulting from steam, electricity, gas water, rain,
ice, snow, or any leak or flow from or into any part of said Building or from
any damage or injury resulting or arising from any other cause or happening
whatsoever unless said damage be caused by or be due to the negligence of
Landlord.
13. DAMAGE OR DESTRUCTION
Tenant must give Landlord prompt notice of fire, accident, damage or
dangerous or defective conditions.
In case of damage, by fire or other action of the elements, to the
Building in which the Premises are located, without the fault of Tenant or of
Tenant's agents or employees, if the damage is so extensive as to amount
practically to the total destruction of the Premises or of the Building, or if
the Building is partially destroyed, such that the period reasonably required to
repair or rebuild shall exceed Ninety (90) days as estimated by a reputable
commercial general contractor licensed in the jurisdiction where the Premises
are located, this Lease at the election of Landlord or Tenant shall cease and
come to an end, or, in addition, if the premises or such portion of the Building
as materially affects Tenant's use of the Premises shall be totally or partially
damaged and such damage is not repaired within sixty (60) days of the
occurrence, Tenant at its election may terminate the Lease, and, if the Lease is
terminated on any of the above bases, the Base Rent and Additional Rent shall be
apportioned to the time of the damages. In all other cases where the Premises
are damaged by fire without the fault of Tenant or of Tenant's agents or
employees, Landlord shall repair the damage with reasonable dispatch after
notice of damage, and if damage has rendered the premises untenantable, in whole
or in part, there shall be an apportionment of the Base Rent and Additional Rent
until the damage has been repaired. In determining what constitutes reasonable
dispatch consideration shall be given to delays caused by strikes, adjustment of
insurance and other causes beyond the Landlord's control.
If the fire or other casualty is caused by an act or neglect of
Tenant, Tenant's employees or invitees, or at the time of the fire or casualty
Tenant is in default in any term of this
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Lease, then all repairs will be made at Tenant's expense and Tenant must pay the
full Base Rent and Additional Rent with no adjustment. The cost of the repairs
will be added rent.
14. CONDEMNATION
If the Premises, or any part thereof, or any estate therein, or any
other part of the Building materially affecting Tenant's use of the Premises be
taken by Federal, State, County, City, or other authority for public use under
any Statute or by virtue of eminent domain, this Lease may be terminated at the
election of either party, and the Base Rent, and Additional Rent, if any, shall
be apportioned as of the date of such termination, and any Base Rent and
Additional Rent paid for any period beyond such date of termination shall be
repaid to Tenant.
Tenant shall not be entitled to any part of the award or any payment
in lieu thereof, but Tenant may file a claim against the condemner for any
taking of fixtures and improvements owned by or paid for by Tenant and for
relocation expenses.
15. ACCESS
Landlord's agents, employees, contractors, prospective purchasers and
prospective tenants shall have the right to enter the Premises at reasonable
hours upon Twenty-Four (24) hours (counting business days only) prior notice to
the Tenant for the purpose of inspecting the same, and further, Landlord, its
employees, agents and contractors shall have the right to enter the Premises
without notice at any time in an emergency or upon Twenty-Four (24) hours
(counting business days only) prior notice at other times as may be necessary
for the purpose of making repairs thereto and to the Building and its mechanical
systems and for the purpose of performing the services to be performed by
Landlord pursuant to the terms hereof. Except in the case of an emergency,
Tenant may condition such entry on the presence of a representative of Tenant.
Tenant further agrees that during the six (6) months immediately
preceding the expiration of the term hereby granted, Landlord or Landlord's
agents shall have the right to place notices in front of said Building offering
the premises "To Let", and Tenant hereby agrees to permit the same to remain
thereon without hindrance or molestation. Landlord shall have the right to
place a "For Sale" notice on the Building or Land at any time during the term of
this Lease and Tenant hereby agrees to permit the same to remain thereon without
hindrance or molestation.
16. DEFAULT BY TENANT
Tenant shall be considered to be in default if Tenant at any time
during the Term of this Lease shall:
a. INTENTIONALLY OMITTED.
b. Fail to make the payment of any installment of Base Rent and
Additional Rent or any other sum specifically to be paid by Tenant when due and
payable hereunder and such default shall not have been cured within ten (10)
days after the Landlord shall have given to Tenant written notice specifying
such default; or
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c. Fail to observe or perform any of Tenant's other covenants
hereunder (other than the covenant to pay Base Rent and Additional Rent or any
other sum herein specified to be paid by Tenant) and such failure shall not have
been cured within Thirty (30) days after Landlord shall have given to Tenant
written notice specifying such failure; provided, however, that if the failure
complained of shall be of such a nature that the same cannot be completely
remedied or cured within such Thirty (30) day period, then such failure shall
not be an enforceable default against Tenant for the purposes of this Paragraph
if Tenant shall have commenced curing such default within such Thirty (30) day
period and shall proceed with reasonable diligence and in good faith to remedy
the failure complained of; or
d. Finally and without further possibility of appeal or review, (i)
be adjudicated bankrupt or insolvent, or (ii) have a receiver or trustee
appointed for all or substantially all of its business or assets on the ground
of Tenant's insolvency, or (iii) suffer and order to be entered approving a
petition filed against Tenant seeking reorganization of Tenant under the Federal
Bankruptcy Laws or any other applicable law or statute of the United States
thereof; or
e. Make an assignment for the benefit of its creditors, or file a
voluntary petition in bankruptcy or a petition or answer seeking reorganization
or arrangement under the Federal Bankruptcy Laws or any other applicable law or
statute of the United States or any State thereof, or shall file a petition to
take advantage of any insolvency act or shall consent to the appointment of a
receiver or trustee of all or a substantial part of its business and property.
17. REMEDIES BY LANDLORD
a. If a Tenant shall at any time be in default beyond any applicable
grace period as specified in Paragraph 16 hereof, Landlord may:
(i) At its option, without terminating this Lease, change the
locks on the doors to said Premises and exclude the Tenant therefrom until
all of such defaults shall have been completely cured;
(ii) enter into the Premises, remove Tenant's property and
effects as elsewhere in the Lease provided, take and hold possession
thereof, without such entry and possession terminating this Lease or
releasing Tenant in whole or in part from Tenant's obligations to pay Base
Rent and Additional Rent and all its other obligations hereunder for the
full term, relet the Premises or any part or parts thereof, either in the
name of or for the account of Landlord or Tenant, for such rent and for
such term and terms as Landlord may see fit, which term may, at Landlord's
option, extend beyond the balance of the term of this Lease. Landlord
shall not be required to accept any tenant offered by Tenant or to observe
any instructions given by Tenant about such reletting. In any such case
Landlord may make such repairs, alterations and additions in or to the
Premises and redecorate the same as it reasonably sees fit. Tenant shall
pay Landlord any deficiency between the Base Rent and Additional Rent
hereby reserved and covenanted to be paid and the net amount of the rents
collected on such reletting, for the balance of the term of this Lease, as
well as any expenses incurred by Landlord in such reletting, including, but
not limited to attorneys' fees, brokers' fees, the expense of repairing,
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altering and adding to and redecorating the Premises, and otherwise
preparing the same for re-rental. All such costs, other than the rental,
shall be paid by Tenant upon demand by Landlord. Any deficiency in rental
shall be paid in monthly installments, upon statements rendered by Landlord
to Tenant, unless Landlord has declared the entire rental for the balance
of the term due, as elsewhere in this Lease provided. Any suit brought to
collect the amount of the deficiency for any one or more months shall not
preclude any subsequent suit or suits to collect the deficiency for any
subsequent months;
(iii) require that upon any termination of this Lease, whether
by lapse of time, the exercise of any option by Landlord to terminate the
same, or in any other manner whatsoever, or upon any termination of this
Lease, the Tenant shall at once surrender possession of said Premises to
the Landlord and immediately vacate the same, and remove all effects
therefrom, except such as may not be removed under other provisions of this
Lease. If Tenant fails to do so Landlord may forthwith re-enter said
Premises, with or without process of law, and repossess itself thereof as
in its former estate and expel and remove Tenant and any other persons and
property therefrom, without being deemed guilty of trespass or eviction,
without thereby waiving Landlord's rights to rent or any other rights given
Landlord under this Lease or at law or in equity;
(iv) if the Tenant shall not remove all effects from said
Premises as in this Lease provided, at Landlord's option, Landlord may
remove any or all of said effects in any manner that Landlord shall choose
and store the same without liability for loss thereof and Tenant will pay
the Landlord, on demand, any and all expenses incurred in such removal and
also storage on said effects for any length of time during which the same
shall be in Landlord's possession or in storage; or Landlord may, at its
option, without notice, sell any or all of said effects in such manner and
for such price as the Landlord may deem best and apply the proceeds of such
sale upon any amounts due under this Lease from the Tenant to the Landlord,
including the expenses of removal and sale;
(v) collect from Tenant any other loss or damage Landlord may
sustain by reason of any default and any diminished value of said premises
resulting from said breach; and
(vi) in the event of a default or threatened default by Tenant of
any of the covenants or provisions of this Lease, have the right to enjoin
in any such breach or threatened breach; and
(vii) declare the entire rental for the balance of the term or
the entire term immediately due and payable at once.
b. Except for the nonpayment of Base Rent, Additional Rent or other
charges or payment the responsibility of Tenant to make hereunder, Tenant shall
not be in default upon the occurrence of any of the events referred to in
Paragraph 16c above (except for nonpayment of Base Rent, Additional Rent or any
other charge or payment the responsibility of Tenant to make hereunder) if,
during the said Thirty (30) day notice period, Tenant cures said default. If,
however, the said default shall be of such a nature that the same cannot be
completely cured or
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remedied within said Thirty (30) day period, then Tenant shall not be in default
if, during the said Thirty (30) day period Tenant shall have commenced to cure
said default and thereafter continuously and diligently take such action and
actions as are necessary to cure said default at the earliest possible time.
c. Except for the Thirty (30) working days notice referred to in
Paragraph 16b above, Tenant expressly waives the service of any demand for
payment of rent. Tenant hereby expressly waives any and all rights of
redemption granted by or under any present or future laws, in the event of
eviction or dispossession of Tenant by Landlord under any provisions of this
Lease. No receipt of monies by the Landlord from or for the account of Tenant
or from anyone in possession or occupancy of the Premises after the termination
in any way of this Lease or after the giving of any notice, shall reinstate,
continue or extend the term of this Lease or affect any notice given to the
Tenant prior to the receipt of such money, it being agree that after final
judgment for possession of said Premises, the Landlord may receive and collect
any rent or other amounts due Landlord and such payment shall not waive or
affect said notice, said suit or said judgment.
d. Landlord shall have the first lien on Tenant's interest in this
Lease to secure the payment and performance of Tenant's obligations hereunder,
prior and preferable to all other liens, and, in case of default, upon all
fixtures and chattels of Tenant at any time in the demises Premises.
18. SELF HELP
In the event of any breach of this Lease by Tenant, or Landlord the
non-breaching party may, at their sole option, at any time, without notice, cure
such breach for the account and at the expense of the other. If such non-
breaching party at any time so elects, or is compelled, to cure any such breach
and/or is compelled to incur any other expense because of any such breach of the
breaching party (including, without limitation, attorneys' fees and
disbursements in reasonable amount in instituting, prosecuting, or defending any
suits, actions or proceedings to enforce such non-breaching party's rights under
this Lease or otherwise), the sum or sums so paid by the non-breaching party
with all interest at the rate of twelve (12) percent per annum, costs and
damages shall be paid by the breaching party to the non-breaching party upon
demand. In the case of any exercise by Landlord, as non-breaching party of the
above the self help remedy provided in this Section 18 the sums due hereunder
shall be payable, as additional rent, upon demand. It is expressly agreed,
however, that the Landlord's right to charge interest under this Section 18
shall not be construed as a cumulative remedy, if other remedies are elected by
Landlord under Section 17, above.
19. LIMITATION OF LIABILITY
Anything in this Lease to the contrary notwithstanding, Tenant agrees
that it shall look solely to the estate and property of the Landlord in the Land
and the Building, and subject to the prior rights of any mortgagee of the Land
and the Building, and subject to Landlord's rights under a leasehold interest of
said Land or Building or part thereof, for the collection of any 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
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this Lease to be observed and/or performed by Landlord, and no other assets of
the Landlord shall be subject to levy, execution or other procedures for the
satisfaction of Tenant's remedies.
20. FORCE MAJEURE
a. Landlord and Tenant shall be excused for the period of any delay
in the performance of any obligations hereunder, when prevented from so doing by
cause or causes beyond Landlord's control which shall include, without
limitation, all labor disputes, civil commotion, war, war-like operations,
invasion, rebellion, hostilities, military or usurped power, sabotage,
governmental regulations or controls, fire or other casualty, inability to
obtain any material, services or financing, or through acts of God.
b. The foregoing is subject to the following proviso:
(i) nothing contained in this Paragraph or elsewhere in this
Lease shall be deemed to excuse or permit any delay in the payment of any
sums of money required hereunder, or any delay in the cure of any default
which may be cured by the payment of money;
(ii) no reliance by Landlord or Tenant upon this Paragraph shall
limit or restrict in any way Landlord's or Tenant's right of self-help to
the extent provided in this Lease; and
(iii) Neither Landlord nor Tenant shall be entitled to rely upon
this Paragraph unless it shall advise the other in writing, of the
existence of any force majeure preventing the performance of an obligation
of Tenant within five (5) business days after the commencement of the force
majeure.
21. SECURITY DEPOSIT
[INTENTIONALLY OMITTED]
22. ESTOPPEL CERTIFICATES
Tenant shall, upon written request by Landlord, execute and deliver to
Landlord, within ten (10) days, a written declaration in recordable form stating
to the extent true to the knowledge of Tenant at the time of such declaration:
(a) expressing the Commencement and Expiration Dates thereof; (b) certifying
that this Lease is in full force and effect and has not been assigned, modified,
supplemented or amended (except by such writings as shall be stated); (c) that
all conditions under this Lease to be performed by Landlord have been satisfied;
(d) that there are no defenses or offsets against the enforcement of this Lease
by Landlord, or stating those claimed by Tenant; (e) the amount of advance
rental, if any, (or none if such is the case) paid by Tenant; (f) the date to
which Base Rent and Additional Rent has been paid; and (g) the amount of
security deposited with Landlord; and (h) whether all work to be performed by
Landlord has been completed. Such declaration shall be executed and delivered
by Tenant from time to time as may be requested by Landlord, but no more often
than twice in any calendar year. Landlord's mortgage lenders and/or purchasers
shall be entitled to rely upon same.
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23. OPTION TO EXPAND
Tenant shall have the option to expand into Two Thousand Five Hundred
Eighty-One (2,581) rentable sq. ft. contiguous with Premises and hereinafter
referred to as Expansion Option Space-1, as shown on Exhibit A-1, under the
following terms and conditions:
a. Landlord shall make Expansion Option Space-1 available to Tenant
on a date (hereinafter referred to as the "Expansion Option Date") between
November 1, 1999 and May 1, 2000.
b. Landlord shall notify Tenant in writing of the exact date of
Expansion Option Date by Certified Mail, Return Receipt Requested on or before
Two Hundred Seventy (270) Days prior to the Expansion Option Date.
c. Tenant shall notify Landlord in writing by Certified Mail at least
one hundred eighty (l80) days in advance of Expansion Option Date of its
election whether to exercise the option to expand.
d. Expansion Option Space-1 shall be taken in "as is" condition as of
the date of exercise of the option.
e. The Rental rate for Expansion Option Space-1 shall be at the same
base rental rate of Fifteen Dollars Seventy-Five Cents ($l5.75) per rentable
square foot, including all other terms and conditions of the Lease.
24. FREON CONTAINING EQUIPMENT
Landlord represents and warrants that the Premises do not and shall
not on the Commencement Date contain any freon-containing equipment. Subject to
the foregoing representation and warranty, Tenant shall be required at/or prior
to the end of the term of the Lease hereof, upon written notice by Landlord, to
remove any freon-containing equipment installed by the Tenant during the term of
hereof other than any such equipment installed as part of the tenant
improvements described in the Workletter attached as Exhibit C or otherwise
constituting part of the initial tenant improvements of the Premises. Removal
of said freon-containing equipment shall be removed by Tenant at its sole cost
under all of the following terms and conditions:
a. Tenant shall follow all legal requirements and industry practices
in removal of said freon containing equipment.
b. All plans, drawings and specifications shall be submitted to
landlord's engineer for approval.
c. Tenant shall submit name of contractor to do removal work for
Landlord's approval.
d. The removal work shall be done expeditiously and in a workmanlike
manner.
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e. any and all damages to Landlord's building, no matter how
extensive, arising out of said removal shall be Tenant's
responsibility.
Freon-containing equipment referred to herein shall include, but not
be limited to, refrigerators, air-conditioners, supplemental HVAC systems, etc.
Tenant shall remain liable for rental during the term of freon-containing
equipment removal and the repair of the building containing said equipment and
liable for the cost of business interruption to Landlord and/or other tenants
occupying said Building.
25. HAZARDOUS MATERIALS
Tenant covenants that neither Tenant nor any occupant of the Premises
allowed by Tenant shall use, transport, store, dispose of or in any manner deal
with Hazardous Materials on the premises, except for customary office supplies
and materials in quantities consistent with customary office activities or
otherwise in compliance with all applicable federal, state and local law,
ordinances, rules and regulations, and shall keep the Premises free and clear of
any liens imposed pursuant to such laws, ordinances, rules or regulations. In
the event that Tenant receives any notice or advice from any governmental agency
or any source whatsoever with respect to Hazardous Materials on, from or
affecting the Premises, Tenant shall immediately notify Landlord. Tenant shall
conduct and complete all investigations, studies, sampling, and testing, and all
remedial actions necessary to clean up and remove all Hazardous Materials from
the Premises to the extent the same were used, transported, or stored by Tenant,
but excluding any Hazardous Materials on or within the Premises or the property
of which it is a part prior to the Term and Tenant's occupancy of the Premises
(which shall be Landlord's responsibility to remediate), in accordance with all
applicable federal, state and local laws, ordinances, rules and regulations.
The term "Hazardous Materials" as used in this Lease shall include, without
limitation, gasoline, petroleum products, explosives, radioactive materials,
polychlorinated biphenyls or related similar material, or any other substance or
material defined a hazardous or toxic substance or material by any federal state
or local law, ordinance, rule or regulation, but excluding Asbestos, as defined
in Paragraph 26. The obligations and liabilities of Tenant under this Paragraph
shall survive the expiration or earlier termination of this Lease.
26. ASBESTOS
Tenant covenants that neither Tenant nor any occupant of the Premises
allowed by Tenant shall install, or permit to be installed, any asbestos or
asbestos containing material, hereinafter referred to as "Asbestos" on the
Premises. Tenant shall comply with, and ensure compliance by all occupants of
the Premises with, all applicable federal, state and local laws, ordinances,
rules and regulations with respect to Asbestos, and shall keep the Premises free
and clear of any liens imposed pursuant to such laws, ordinances, rules or
regulations to the extent the Asbestos was installed by Tenant or any occupant
allowed by Tenant, but excluding any Asbestos on or within the Premises or the
property of which it is a part prior to the Term and Tenant's occupancy of the
Premises (which shall be Landlord's responsibility to remediate). In the event
that Tenant receives any notice or advice from any governmental agency or any
source whatsoever with respect to Asbestos on, affecting or installed on the
Premises, Tenant shall immediately notify Landlord, Tenant shall conduct and
complete all investigations, studies, sampling and testing and all remedial
action necessary to clean up and remove all Asbestos from
17
the Premises in accordance with all applicable federal, state and local laws,
ordinances, rules and regulation to the extent the Asbestos was installed by
Tenant or any occupant allowed by Tenant, but excluding any Asbestos on or
within the Premises or the property of which it is a part prior to the Term and
Tenant's occupancy of the Premises (which shall be Landlord's responsibility to
remediate). The obligations and liabilities of Tenant under this Paragraph shall
survive the expiration or earlier termination of this Lease.
27. OCCUPANCY
Landlord shall not be liable for failure to give possession of the
Premises upon Commencement Date by reason of the fact that Premises are not
ready for occupancy, or due to a prior tenant wrongfully holding over or any
other person wrongfully in possession or for any other reason. In such event,
the Base Rent shall not commence until possession is given or is available, but
the term herein shall not be extended.
28. LATE CHARGE; ADDITIONAL RENT
All Base Rent payments, any Additional Rent herein, and any and all
payments due under the provisions of this Lease Agreement from Tenant, unless
herein otherwise specifically referred to shall be received by Landlord no later
than 4:00 P.M. on the Fifth (5th) day of each month or within Five (5) days from
their due date, whichever is applicable. A five percent (5%) late charge
calculated on the amount then due shall be imposed, if on more than one occasion
in any twelve month period such payments are not received within Five (5) days
following notice by the Landlord of its failure to receive such payments.
29. LEASE EXTENSION
In the event Tenant desires to remain in possession of the Premises
after the termination of this Lease, it shall give the Landlord notice, in
writing, by certified mail-return receipt, of no less than one hundred eighty
(180) days before the Expiration Date of this Lease.
30. RULES & REGULATIONS
Tenant covenants and agrees to comply with such reasonable rules and
regulations as may be established by Landlord from time to time for the
necessary, proper, and orderly care and use of the Building and Premises.
Landlord's Rules and Regulations are attached hereto as Exhibit D and made a
part hereof.
31. NOTICES
All notices, requests, demands or other communications with respect to
this Lease, whether or not herein expressly provided for, shall be in writing
and shall be deemed to have been duly given when mailed by United States First-
Class, certified or registered mail, postage prepaid, return receipt requested,
to the parties at their respective addresses as set forth below. Any such
addresses for the giving of notice may be changed by either party by giving
notice thereof in writing to the other.
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TO LANDLORD:
Xxxx Xxxxxxxxx
000 Xxxxx Xxxx Xxxx.
Xxxxxx, XX 00000
To Tenant:
Sprint Spectrum
Attention: Associate General Counsel
0000 Xxxx Xxxxxx, 00xx Xxxxx
Xxxxxx Xxxx, XX 00000
32. REAL ESTATE BROKERS
Both Landlord and Tenant warrant that they have had no dealings with
any real estate brokers or agents in connection with the negotiation of this
Lease other than with Winbury Realty of K.C., Inc. / Xxxxxx Companies
(hereinafter called "Broker"), and that they know of no real estate broker or
agent who is or might be entitled to a commission or fee in connection with this
Lease other than Broker, and Landlord and Tenant agree to indemnify and hold
each other harmless from and against any and all claims for any such commission
or fee. Any commission or fee which may be due and owing Broker in connection
with this Lease shall be paid by Landlord at its sole cost expense.
33. NO WAIVER
The failure of Landlord to insist upon a strict performance of any of
the terms, conditions and covenants herein, shall not be deemed a waiver of any
rights or remedies that Landlord may have, and shall not be deemed a waiver or
any subsequent breach or default in the terms, conditions and covenants herein
contained.
34. QUIET ENJOYMENT
Landlord covenants and agrees that Tenant, so long as it shall not be
in default hereunder, shall and may, at all times during the term of this Lease
and any extension and renewal hereof, peaceably and quietly have, hold, occupy
and enjoy the Premises.
35. RECORDING
If this Lease, in order to be valid and binding against any and all
third parties, is required to be recorded or registered, Landlord or Tenant may
effect same. It is understood and agreed that this Lease may not be in
recordable form, but the parties hereto agree that if same is to be recorded as
herein above provided, they shall either execute further copies of this Lease
which shall be recordable form or, in the alternative, execute a short form of
this Lease if such is permitted to be recorded by the jurisdiction where the
Premises lie.
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36. BINDING EFFECT
Each and all of the terms and agreements herein contained shall be
binding upon and inure to the benefit of the parties hereto, their heirs,
personal and legal representatives, successors and assigns.
37. ENTIRE AGREEMENT
This instrument contains the entire agreement made between the parties
and may not be modified orally or in any manner other than by an agreement in
writing signed by all the parties hereto or their respective successors in
interest.
38. WAIVER OF JURY TRIAL
Tenant waives a trial by jury of any or all issues arising in any
action or proceeding between the parties hereto, or their successors, arising
out of or in any way connected with this Lease, or any of its provisions, the
Tenant's use or occupancy of said Premises, and/or any claim of injury or
damage.
39. REMEDIES CUMULATIVE
Any and all rights and remedies which Landlord may have under this
Lease and at law or equity, shall be cumulative and shall not be deemed
inconsistent with each other, and any two or more or all of said rights and
remedies may be exercised at the same time or at different times and from time
to time.
40. ATTORNEYS' FEES
Tenant covenants and agrees to pay on demand Landlord's expenses,
including reasonable attorneys' fees, incurred in enforcing any obligation of
the Tenant under the Lease or in curing any default by Tenant under this Lease.
41. SEVERABILITY
If any of the aforesaid provisions or any other provisions of this
Lease shall be unenforceable or void, said provisions shall be deemed eliminated
and of no force and effect and the balance of this Lease shall continue in full
force and effect. If any notice is required by law to be given, such notice
shall be given.
42. PARAGRAPH HEADINGS
The paragraph headings contained herein are solely for convenience and
shall in no way define, increase, limit, or describe the scope or intent of any
provisions of this Lease.
43. ACCEPTANCE
The submission of this Lease for examination or consideration by
Tenant and Landlord does not constitute a reservation of or option for the
Premises and this Lease shall be
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and become effective as a lease only upon legal execution and delivery hereof by
Landlord and Tenant.
44. RIDER
The attached Addendum consisting of 12 pages, each of which shall be
initialed by both parties hereto, is hereby incorporated into and made a part of
this lease and is fully and completely set forth herein.
EXHIBITS:
A. Floor Plan showing leased premises
A-1 Expansion and Right of First Refusal Area
B. Cleaning Schedule
C. Landlord's Improvements: Work Agreement
D. Rules and Regulations
Lease Addendum
21
IN WITNESS WHEREOF, the parties hereto have hereunto set their hand and seals
the day and year first above written.
Signed, Sealed and Delivered LANDLORD: Xxxx Xxxxxxxxx
in the Presence of:
/s/ Xxxxxxx X. Xxxxxx By: /s/ Xxxx Xxxxxxxxx
---------------------------------------- -----------------------------
Notary Public
---------------------------------------- TENANT: Sprint Spectrum L.P.
State of Missouri By: /s/ Xxxxxx X. Xxxxxxxxxxx
---------------------------------------- -----------------------------
Xxxxxxx County Its: V.P. Financial Planning
---------------------------------------- & Analysis
---------------------------
00
XXXXX XX XXX XXXX )
) SS.:
COUNTY OF ALBANY )
The foregoing instrument was acknowledged before me this 30th day of
September 1996, by Xxxx Xxxxxxxxx, as an individual of ____________________, a
(corporation) (partnership).
/s/ Xxxxxx X. Xxxxxxx
-----------------------------------------------
Notary Public
STATE OF MISSOURI )
) SS.:
COUNTY OF XXXXXXX )
The foregoing instrument was acknowledge before me this 27th day of
September, 1996, by Xxxxxx X. Xxxxxxxxxxx, as V.P. Financial Planning & Analysis
of Sprint Spectrum, L.P., a (corporation) (partnership).
/s/ Xxxxxxx X. Xxxxxx
-----------------------------------------------
Notary Public
23
EXHIBIT A
[Exhibit A - Floor Plan]
A-1
[Exhibit X-0 - Xxxxx Xxxx]
X-0
XXXXXXX B
CLEANING SCHEDULE
Nightly Duties:
--------------
Empty Waste Baskets and change liners if necessary
Empty and damp wipe ashtrays
Clean and sanitize water fountains
Dust furniture
Vacuum carpeting
Spot clean - door glass
Dust mop tile floors
Damp mop tile floors (if needed)
Clean lunchroom tables and counters
Sweep or vacuum all entryways
Sweep all stairways
Clean sinks & countertops
Rest Room Cleaning:
------------------
Empty waste baskets nightly - change liners nightly
Clean and sanitize toilet seats and bowls nightly
Clean mirrors and mirror ledges nightly
Sweep and mop all floors nightly
Clean sinks nightly
Clean urinals nightly
Fill empty paper towel dispensers nightly
Fill toilet tissue dispensers nightly
Empty and clean sanitary napkin receptacles nightly
Toilet stall doors and walls cleaned as needed - no less than monthly
Spot clean light switches, doors and walls daily.
Weekly Duties:
-------------
Damp mop all tile floors
Dust mop, damp mop and spray buff all hallways and lunchrooms
Periodic:
--------
Strip and, wax all tile floors (when necessary)
Dust Venetian blinds (when necessary)
Wash exterior windows inside and out (three times annually)
Wash partition glass (three times annually)
Wash light fixtures, lenses (when necessary)
Wash air diffusers (when necessary)
B-1
EXHIBIT C
---------
Work Agreement
This Work Agreement ("Work Agreement") is dated September ___, 1996,
between Xxxx Xxxxxxxxx, having his principal office and place of business at 000
Xxxxx Xxxx Xxxxxx Xxxx, Xxxxxx, Xxx Xxxx 00000, as Landlord (hereinafter called
"Landlord"), and Sprint Spectrum, L.P. a Delaware Limited Partnership, having
its principal office and place of business at as Tenant (hereinafter called
"Tenant").
RECITALS
A. This Work Agreement is attached to and forms a part of that
certain Office Lease dated September __, 1996 ("Lease"), pursuant to which
Landlord has leased to Tenant office space ("Premises") the building located at
and known as 300 Great Oaks (hereinafter called the "Building"), situated in
Xxxxx Xxxx Xxxxxx Xxxx, Xxxxxxx Xxxxxx and Church Road, Town of Guilderland,
County of Albany, State of New York. Landlord desires to make certain initial
improvements to the Premises, and Tenant desires to have Landlord make such
initial improvements, upon the terms and conditions contained in this Work
Agreement.
1. Definitions. In this Work Agreement. some defined terms are used.
Such terms and agreements relating to them include the following:
(a) Tenant's Representative: Xxxxx Xxxxx
(b) Landlord's Representative: Xxxxxxxx Xxxxxxxxx.
(c) Architect: the architectural firm selected and employed by Tenant
in connection with the construction of the Improvements.
(d) Tenant Construction Allowance: Landlord shall provide to Tenant
an allowance of One Hundred Twelve Thousand Five Hundred Dollars ($115,000.00)
(or Twelve and One Half Dollars ($12.50) per rentable square foot of the
Premises), whichever is greater (the "Tenant Construction Allowance"), to be
applied to the costs and expenses incurred in connection with the construction
of the Tenant Improvements. Landlord shall be responsible for payment of any
and all construction "soft costs" and consulting (including architectural and
construction management) fees, development of space plans and working drawings,
including supporting engineering studies i.e., structural design or analysis,
----
lighting or acoustical evaluations, or others procured by Landlord as
distinguished from such soft costs and fees procured by Tenant in connection
with the Tenant Improvements and such costs shall not be applied against or
deducted from the Tenant Construction allowance. Landlord shall pay the Tenant
Construction Allowance us provided in the Work Agreement.
(e) Construction Information: Landlord shall provide to the Tenant
and the Architect any and all information that is necessary or reasonably
requested by Tenant or the Architect for the preparation of the proposed Space
Plan, Preliminary Plans or Tenant's Working Drawings, as applicable, including
without limitation: the As-Built Plans and Specifications for
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the Premises and all portions of the Building and Building systems required or
reasonably necessary for preparation of the Tenant's Working Drawings and (ii)
to the extent not included in subsection (i) above, all mechanical, electrical,
plumbing, fire protection and, to the extent required, structural information
and details to be provided by Landlord to the Architect for the preparation of
Final Plans and Specifications for the construction of the Premises, including,
without limitation, detailed plans and specifications of and information
concerning the existing site conditions or the Improvements to be constructed,
as applicable (collectively, the "Construction Information"). All Construction
Information provided by Landlord shall be complete, correct and in compliance
with applicable laws, regulations and codes and contain sufficient detail and
information, so as to allow for the Architect to prepare the Tenant's Working
Drawings, for the construction of the Premises and Improvements, each free of
defects and design inconsistencies.
(f) Construction Information Submission Date: The date Landlord shall
submit to the Tenant's Architect all Construction Information necessary for the
preparation of the Space Plan, Preliminary Plans or Tenant's Working Drawings.
(g) Space Plan: A drawing of the Premises showing the layout and
relationship of all departments and offices, depicting partitions, door
locations, types of electrical/data/telephone outlets, and delineation of
furniture and equipment and all other necessary information.
(h) Preliminary Plans: Designs and drawings for the construction of
the Improvements which constitute the schematic designs to be provided by the
Architect to the Tenant, and shall be subject to modifications, exceptions and
changes, including, without limitation, those changes resulting from the
ordinary evolution of design of a construction project subsequent to the
schematic design phase and resulting from input from the Tenant and Tenant's
consultants relating to the refinement of the design concepts set forth in the
schematic designs.
(i) Estimated Construction Costs: A preliminary estimate of the costs
of the Improvements that are depicted on the Space Plan or Preliminary Plans, as
applicable, including all engineering, contractor, and any other costs as can be
determined from the Space Plan or Preliminary Plans, as applicable.
(j) Tenants Working Drawings: Construction documents detailing the
Improvements and conforming to applicable codes, complete in form and content
and containing sufficient information and detail to allow for competitive
bidding or negotiated pricing by contractor(s) selected by Landlord and Tenant
in accordance with this Work Agreement and engaged by Landlord and to allow the
selected contractor to construct the Improvements.
(k) Construction Schedule: The schedule depicting the relative time
frames for the activities related to the construction of the Improvements in the
Premises. The design process and the Construction Schedule is attached as
Schedule I to this Work Agreement.
(l) Improvements Cost Proposal: The amount proposed by Landlord in
accordance with Paragraph 5.(h) for the costs of the Improvements that are
depicted on the Space Plans, the Preliminary Plans or Tenant's Working Drawings,
as applicable, including all labor,
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materials and overhead, profit and construction management costs and fees,
contractor and construction costs, and clearly indicating the dollar amount, if
any, that is to be paid by Tenant pursuant to paragraph 6 of this Work
Agreement.
(m) Maximum Approved Cost: The sum of the Tenant Construction
Allowance and any additional amount that Tenant has agreed to pay for the
Improvements pursuant to Paragraph 5.(h).
(n) Improvements: The improvements to the Premises constructed
pursuant to the Tenant's Working Drawings, which are inclusive of all
construction work and materials necessary to augment the Base Building or
existing improvements, as applicable, creating the details and partitioning
shown on the Tenant's Working Drawings. The Improvements will create finished
ceilings, walls, and floor surfaces, as well as complete HVAC, plumbing,
lighting, electrical, and fire protection systems and such other components and
finishes as are contemplated by the Tenant's Working Drawings.
(o) Cost of the Improvements: The cost of the Improvements includes,
but is not limited to, the following:
(1) All Tenant approved labor and materials fees and expenses;
(2) All Tenant approved contractor costs and fees, overhead,
profit, and contractor fees (not to exceed the ceiling set
forth in this Work Agreement;
(p) Change Order: Any change, modification, or addition to the
Tenant's Working Drawings after Tenant has approved the same.
(q) Base Building: Those elements of the core and shell construction
and all improvements and finishing in existence on the date of the Lease. Base
Building shall include the Building structure envelope and shall include,
without limitation, all Building systems and those elements and items listed on
Schedule II to this Work Agreement.
(r) Substantial Completion: The Improvements and Landlord's Work
shall be considered "substantially complete" for purposes of this Work Agreement
and the Lease when all of the following have occurred: (i) Landlord has
performed or completed all of the Landlord's Work (as defined herein and in the
Lease), except only for punchlist items of a quantity and character which do not
substantially interfere with Tenant's ability to occupy or use the Premises or
to complete improvements to the Premises to be made by Tenant and (ii) all
approvals, certificates of occupancy and permits (other than Tenant's business
licenses and those permits and approvals from the appropriate governmental
authorities pertaining to the Improvements required for the legal and practical
occupancy of the Premises for Tenant's intended use have been approved for
issuance, and (iii) the Landlord and all subcontractors have provided
certificates of payment for all of Landlord's Work and (iv) the architect
certifies in writing that the Premises are "substantially complete" as defined
above; and (v) Landlord has effected removal of all rubbish and debris, such
that Tenant may commence its business operations from the Premises immediately
after Landlord completes such clean-up.
C-3
(s) General Contractor: The Landlord shall serve as General
Contractor for the construction of the Improvements. Landlord represents,
warrants and covenants that all cost estimates, prices and construction costs
(including, without limitation, the Estimated Construction Cost, the Cost of the
Improvements and the cost of any Change Orders as those terms are defined in
this Workletter) shall be no higher than those estimates, prices and costs that
would apply were construction of the Improvements to be competitively bid to
outside general contractors and subcontractors unrelated to Landlord (such
competitive estimates, prices and costs hereinafter referred to as "Competitive
Amounts"). In the event the amounts with respect to categories for which Tenant
has payment responsibility under the Lease or are to be applied against the
Tenant Construction Allowance are out of proportion with Competitive Amounts, or
are out of proportion with the amounts for portions of the work that are solely
the payment responsibility of Landlord under the Lease, an appropriate
adjustment shall be made by Landlord.
(t) Tenant's Construction Manager: The construction manager, if any,
contracting with Tenant and selected by Tenant in Tenant's discretion, which may
be the Architect, at Tenant's election.
(u) Tenant's Engineer(s): The structural, mechanical, electrical and
plumbing engineer(s) contracting with Tenant and selected by Tenant in Tenant's
discretion.
2. Representatives. Landlord appoints Landlord's Representative to
act for Landlord in all matters associated with this Work Agreement. Tenant
appoints Tenant's Representative to act for Tenant in all matters associated
with this Work Agreement. Either representative may appoint a substitute or
successor representative, so long as such designation is effected by written
notice in accordance with the notice provisions of the Lease. All inquiries,
requests, instructions, authorizations, and other communications with respect to
the matters covered by this Work Agreement (collectively, "Work Agreement
Communications") shall be made to Landlord's Representative or Tenant's
Representative, as the case may be. Landlord's Representative shall be
responsible for communicating to the Tenant, the Architect, the Construction
Manager and Tenant's Engineer and to subcontractors all Work Agreement
Communications made by Tenant to Landlord's representative which are pertinent
to the responsibilities, activities and functions of the Architect, the
Construction Manager, Tenant's Engineer, the general contractor and
subcontractors, as the case may be, and Landlord's Representative shall be
responsible for all costs and delays resulting from a failure to so communicate.
3. Project Design and Construction. All work will be performed by
the contractors selected by Landlord and Tenant in accordance with this Work
Agreement and, unless otherwise provided, such contractors shall be engaged by
Landlord.
4. Landlord's Approval. Landlord may only withhold its approval of
any Space Plan, Preliminary Plan, Tenant's Working Drawings, or Change Order
that in its reasonable discretion:
(a) Would delay completion of the Improvements by the date
scheduled for "substantial completion" or exceeds the capacity of or materially
and adversely
C-4
affects the structural integrity of the Building, or any part of the heating,
ventilating, air conditioning, plumbing, mechanical, electrical, or other
systems of the Building, subject to Landlord's warranty that all of the
foregoing are in good structural and operating condition. The agreed upon load
limits for the structure of the building are 200 lbs. live load and 200 lbs.
dead load.
(b) Does not conform to applicable building codes or is not
approved (or is not likely to be approved) by any governmental, quasi-
governmental, or utility authority with jurisdiction over the Premises.
5. Schedule of Improvement Activities.
(a) Timetable. Landlord and Tenant shall adhere to the timetable
attached as Schedule I in the design and construction process, which timetable
may be altered only in accordance with the terms of this Work Agreement or by
mutual written consent of Landlord and Tenant. Landlord shall cooperate with
Tenant and submit the Construction Information necessary for the Architect to
prepare the Space Plan, Preliminary Plans and Tenant's Working Drawings, as
applicable. Landlord shall be responsible for (i) timely furnishing the
Construction Information for which Landlord is responsible and (ii) for assuring
that there are no inconsistencies between Landlord's Construction Information
and the Preliminary Plans and Tenant's Working Drawings prepared by the
Architect.
(b) Design Meetings. During the design phases of the
Improvements, if Tenant shall meet with the Architect to review and discuss the
significant aspects of the design documents as then completed, Landlord's
Representative shall attend any or all such meetings as and when requested by
Tenant upon reasonable prior notice.
(c) Preparation of Space Plans and Preliminary Plans. If not
prepared prior to execution of the Lease, Tenant's Architect will expeditiously
prepare a Space Plan and Preliminary Plans and forward them to Landlord and
Tenant. With respect to each:
Landlord will give Tenant written notice whether or not Landlord
approves the proposed Space Plan or Preliminary Plans within Five (5) days after
its receipt. If so approved by Landlord, such Space Plan or Preliminary Plans
shall be the final Space Plan or Preliminary Plans. If Landlord's notice
objects to the proposed Space Plan or Preliminary Plans as permitted in
Paragraph 4., above, the notice will set forth how the proposed Space Plan or
Preliminary Plans must be changed in order to overcome Landlord's permitted
objections. Tenant will resubmit a revised Space Plan or Preliminary Plans to
Landlord and if acceptable to and approved by Landlord, it will be treated as
though it was the final Space Plan or Preliminary Plans prepared pursuant to
this paragraph. If Landlord objects to the revised Space Plan or Preliminary
Plans as permitted in Paragraph 4., above, the notice will set forth how the
proposed Space Plan or Preliminary Plans must be changed in order to overcome
Landlord's permitted objections and Tenant will submit a revised Space Plan or
Preliminary Plans.
(d) Estimation of Costs. Within Eight (8) days after approval of
the final Space Plan or Preliminary Plans, Landlord will promptly cause to be
prepared in consultation with outside contractors and suppliers, a preliminary
estimate of the cost of the
C-5
Improvements as set forth in the Final Space Plan or Preliminary Plans (the
"Estimated Construction Cost"). Such estimate shall identify separately the
amount of the Estimated Construction Cost attributable to each separate trade or
category of the work and unit prices and quantities for each line item of the
components thereof which shall be used to compute the cost implications of
changes in the scope of work. Upon receipt by Tenant of the Estimated
Construction Cost, Tenant may either approve the final Space Plan or Preliminary
Plans or require Landlord to demonstrate that the costs and prices shown are
within Competitive Amounts (defined below) and make appropriate adjustments or
require Architect to revise the final Space Plan or Preliminary Plans by the
deadline established in Schedule I or within 5 days after the dare of Tenant's
receipt of the Estimated Construction Cost, whichever is later, in order to
assure that the Estimated Construction Cost is either:
(1) No more than the Tenant Construction Allowance; or
(2) Exceeds the Tenant Construction Allowance by an amount
consistent with the Improvements budget established by
Tenant for competitive bidding.
(e) Preparation of Working Drawings. The Architect will cause to
be prepared and delivered to Landlord and Tenant, the Tenant's Working Drawings
in accordance with the finial Space Plan or Preliminary Plans as the same may
have been revised in accordance with subsections (c) and (d) above. Tenant,
concurrent with Tenant's approval of Working Drawings, may advise Landlord in
writing that Tenant desires to provide certain materials or elements of the
Improvements or reserve for performance by contractors selected by Tenant
distinct elements of the Improvements, in which case, the elements of
Improvements selected by Tenant shall not be performed by Landlord (said
elements of the Improvements referred to in this Lease as "Tenant's Work," and
the Improvements shown on the Working Drawings and not reserved for Tenant's
contractors referred to in this Lease as "Landlord's Work"). Thereafter,
construction and installation of the Tenant's Work shall be Tenant's sole
responsibility (provided that Tenant may apply the Tenant Construction Allowance
to the cost of Tenant's Work). Notwithstanding anything to the contrary,
Landlord consents to the performance by contractors selected by Tenant of the
Improvements relating to the construction of the antenna and satellite dish, and
Landlord acknowledges that such division of work will not delay substantial
completion of Landlord's Work.
(f) Cost Estimates and Construction Costs. The Estimated
Construction Cost prepared by Landlord shall be delivered in standard (broken
down in CSI format) response format: specific line items by trade, general
conditions and fees, together with a statement of unit prices. Landlord shall
state unit prices for line item components, which shall be used to compute the
cost implications of changes in the scope of work. Landlord represents, warrants
and covenants that all cost estimates, prices and construction costs (including
the Cost of the Improvements and the cost of any change orders) shall be no
higher than those estimates, prices and costs that would apply were construction
of the Improvements to be competitively bid to outside contractors unrelated to
Landlord (such competitive estimates, prices and costs hereinafter referred to
as "Competitive Amounts").
C-6
(g) Tenant Approval. The Improvements Cost Proposal shall be
subject to the approval of Tenant as to amounts for categories of the work that
are either the payment responsibility of Tenant under the Lease or are to be
applied against the Tenant Construction Allowance. Tenant, Tenant's Architect,
and Tenant's Construction Manager, if any, each shall have the right to revise
and approve all categories for which Tenant has payment responsibility under the
Lease or are to be applied against the Tenant Construction Allowance, and shall
have the right to require Landlord to reallocate the amounts in each category.
In the event the amounts with respect to categories for which Tenant has payment
responsibility under the Lease or are to be applied against the Tenant
Construction Allowance are out of proportion with Competitive Amounts, or are
out of proportion with the amounts for portions of the work that are solely the
payment responsibility of Landlord under the Lease, an appropriate adjustment
shall be made by Landlord shall state delivery dates for all items of work,
equipment and materials.
(h) Improvements Cost Proposal. Landlord will notify Tenant in
writing of the amount of the Improvements Cost Proposal. The Improvements Cost
Proposal may include a markup for overhead and profit to compensate the Landlord
and any general contractor employed by Landlord, provided that the combined and
aggregate amount of such markups shall not exceed Ten Percent (10%). Tenant will
either (1) agree to the amount of the Improvements Cost Proposal if the same or
less than the Tenant Construction Allowance, or (2) agree m writing to pay the
amount by which the Improvements Cost Proposal exceeds the sum of the Tenant
Construction Allowance and Landlord's Costs (defined in paragraph 6, below),
without waiving its option to exercise Landlord's commitment to advance funds
therefore or (3) request the Architect to revise the Working Drawings in order
to assure that the Improvements Cost Proposal is no more than an amount to which
Tenant agrees or (4) require that Landlord demonstrate that cost estimates,
prices and construction costs (including the Cost of the Improvements and the
cost of any change orders) are not higher than Competitive Amounts and, if
Landlord is unable to so demonstrate such estimates, prices and costs shall be
adjusted to be no greater than Competitive Amounts. Landlord shall afford Tenant
the opportunity to revise the Working Drawings and other requirements to bring
the Improvements into conformity with Tenant's budget requirements and shall
cooperate with Tenant and the Architect to achieve completion of such
changes inter alia, by promptly providing information available to Landlord
----------
regarding costs and the estimated effect of the proposed revisions on the
completion of the Improvements. Upon Tenant's timely fulfillment of its
obligations in either clause (1) or clause (2) or clause (3) immediately above,
the maximum approved cost (the "Maximum Approved Cost") will be established.
Upon establishment of the Maximum Approved Cost, (i) Landlord shall not approve
any contract, any contract amendment or take any action which will increase the
cost of completing the Improvements without the prior written consent of Tenant
and (ii) Landlord will expeditiously take steps necessary to obtain required
permits and approvals and commence construction of the Improvements to the
Premises. Landlord shall allow Tenant to review all contract documents and
agreements with the Landlord's General Contractor and provided the same do not
increase Landlord's costs or liabilities, shall implement such recommended
amendments and additions thereto as shall be reasonably requested by Tenant to
protect Tenant's interests, including, without limitation, exposure to cost
increases.
C-7
(i) Governmental Approvals. Following approval of the Tenant's
Working Drawings. the Improvements Cost Proposal and the Maximum Approved Cost,
Landlord will cause application to be made to the appropriate governmental
authorities for necessary approvals and building permits. Upon receipt of the
necessary approvals and permits, Landlord will begin construction of the
Improvements.
(j) Construction Progress Meetings. Beginning with the
commencement of construction, at the request of Tenant, the Landlord shall hold
progress meetings at the Improvements site, or at such other times and places as
are acceptable to Landlord and Tenant. At such meetings, the progress of the
Work shall be reported in detail with reference to the Construction Schedule,
and all problems or other issues relating to the Work shall be discussed and
resolved. Each of Landlord's Subcontractors then performing work on the
Improvements shall have a competent representative present at each weekly
meeting to report on the condition of his work and to receive information
regarding the performance of future work by the Subcontractor. The Landlord
shall hold such meetings within at least three (3) days of Tenant's request for
any meeting to held as required herein and shall allow Tenant, Tenant's
Construction Manager, if any, Tenant's Engineer, if any, and the Architect to
attend and participate in each such meeting. The Landlord shall keep minutes of
each such meeting held and shall circulate the minutes of each meeting to
Tenant, Tenant's Construction Manager, if any, Tenant's Engineer, if any, the
Architect, and all Subcontractors (and such other persons as may be
appropriate), no later than three (3) working days after the meeting is
concluded. If such minutes reflect authorization for any Change Order, the same
shall not be effective until and unless approved by Tenant's Representative and
Landlord's Representative in accordance with Section 7., below.
(k) Tenant's Work. With respect to Tenant's Work, Tenant shall
have the right to retain contractors, union or non-union, to fabricate millwork,
including shelving, work surfaces, etc., and to install equipment, subject only
to obtaining the prior written approval of Landlord. Landlord's approval of a
contractor for the Tenant Work, which may not be unreasonably withheld, shall be
based upon consideration such as whether the contractor is properly licensed,
his financial condition, experience and past job performance. Landlord may
require that Tenant provide evidence of insurance coverage of a type and amount,
reasonably acceptable to Landlord and that Tenant provide a certificate of
insurance prior to commencement of any work naming Landlord as a loss payee. In
addition, Landlord may require lien waivers from Tenant's contractors in respect
of Landlord's interest in the Premises. Upon the request of Tenant, Landlord
shall grant to Tenant amid its contractors non-exclusive access to the Premises
(the "Non-Exclusive Access Period") (a) during construction of Landlord's Work,
upon Ten (10) days' prior oral or written advice to Tenant, at such times and
for such periods as reasonably necessary for the orderly and efficient delivery,
construction and installation of Tenant's Installations set forth in Schedule 3,
and (b) during the thirty-day (30) period immediately prior to the Term
Commencement Date, at reasonable times, for the purpose of installing the Tenant
Work, provided, however, that the installation of Tenant's installations and the
Tenant Work does not interfere with or delay the work of Landlord's General
Contractor and its subcontractors. Landlord and Tenant shall use reasonable
efforts to coordinate the Tenant's installations and the Tenant Work with
Landlord's Work during the Non-Exclusive Access Period. Landlord shall lock the
Building and Premises during the Non-Exclusive Access Period, when work is not
being performed. Tenant's consultants shall have access to the Premises during
the construction period
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to install cabling, wiring and other related items prior to the partitions being
enclosed. Tenant's consultants shall have access to the Premises during the
construction period to install cabling, wiring and other related items prior to
the partitions being enclosed.
(l) Contingent Assignment of Contracts and Subcontracts. In the
event of the default of Landlord, Tenant shall have the right (without any
responsibility to do so) to assume the rights and responsibilities of Landlord
under all or some of Landlord's subcontractor agreements, contractor agreements,
engineering agreements, or purchase or rental agreements, which the Tenant, in
its sole discretion, chooses to assume. While this provision shall constitute a
present assignment of Landlord's rights with respect to any and all such
contracts and agreements and commitments which Tenant so chooses to assume, the
Landlord, upon request from Tenant, shall promptly execute and deliver to the
Tenant written assignments of such subcontracts, agreements and commitments
which the Tenant in its sole discretion so chooses to take by assignment. All of
Landlord's agreements with Subcontractors and suppliers shall provide for this
assignment.
(m) Disclaimer of Liability and Third-Party Rights.
Notwithstanding anything to the contrary, no provision of this Work Agreement or
of the Lease, nor of any contract between Landlord and the Landlord's General
Contractor, subcontractor, materialman or supplier shall be construed as an
agreement between Tenant and the Landlords' General Contractor, subcontractor or
sub-subcontractor, materialman or supplier unless or until Tenant exercises its
rights under Paragraph 5(o) above. Landlord shall be as fully responsible to
Tenant for the acts and omissions of a Subcontractor or a Sub-subcontractor,
materialman or supplier, and of the persons employed by a subcontractor, sub-
subcontractor, materialman or supplier, and of the persons for whose acts and
omissions they may be liable, as he is for the acts and omissions of his own
employees in connection with all matters relating to this Work Agreement and the
construction of the Improvements. No subcontractor, sub-subcontractor,
materialman or supplier shall have the benefit of any rights, remedies or
redress against Tenant pursuant to the Lease, the Work Agreement or any of the
agreements attendant thereto unless or until Tenant exercises its rights under
Paragraph 5(o) above.
6. Cost Responsibilities.
(a) Landlord's Costs: Landlord will pay up to the amount of the
Tenant Construction Allowance (plus those amounts of the other allowances
provided in this Work Agreement and the Lease generally, as the same may be
reallocated by Tenant pursuant to the provisions hereof) for the cost of the
Improvements, provided that Landlord agrees to fully construct the Improvements
in accordance with the Tenant's Working Drawings for a price not to exceed the
Maximum Approved Cost, except only for such additional costs approved by Tenant
in writing in connection with Change Orders authorized in writing by Tenant in
accordance with Paragraph 8. In addition, Landlord, at Landlord's sole cost and
expense, shall install and/or relocate as required by the Tenant's Working
Drawings all Building HVAC, fire and safety code requirements (including
sprinklers and exit signs), (ii) shall be responsible for increases in the cost
of the Improvements above the Maximum Approved Cost not approved by Tenant in
writing and (iii) shall provide the other allowances and bear all such other
costs as are set forth in this Work Agreement and in the Lease. Landlord shall
be responsible to pay all increased costs of design and construction (above the
amounts initially agreed to by the Tenant) caused by any
C-9
concealed, unforeseen or other existing physical conditions at the construction
site affecting the tenant improvements, including, without limitation, the
failure of any of the Construction Information provided or required to be
provided by Landlord to reflect accurately the location or existence of any
structural, mechanical, electrical or other components of the work already in
place in the base building, or any defects or deficiencies in the design or
construction of the Base Building. Landlord warrants that the amounts which
shall be paid out of the Tenant Construction Allowance (and any additional
amount Tenant has agreed to pay in writing in accordance with this Work
Agreement) to Landlord and any general contractor employed by Landlord and its
subcontractors shall be the exact amounts set forth in the bids for which
contracts were awarded and any and all savings resulting from a deviation of
actual payments from such amounts shall represent unused Tenant Construction
Allowance.
(b) Tenant's Costs: In connection with construction of the
Improvements, Tenant will pay for:
(1) Tenant-initiated and approved changes to the Tenant's
Working Drawings, following establishment of the Maximum Approved Cost and
approval of Tenant's Working Drawings by Landlord and Tenant, that result in a
total cost in excess of the Tenant Construction Allowance;
(2) Tenant-initiated and approved Change Orders, that result
in a total cost in excess of the Tenant Construction Allowance;
(3) All costs in excess of the Tenant Construction Allowance
that are not included in (1) or (2) immediately above and are not designated as
items either for which Landlord shall be responsible for payment or for which an
unused allowance is available pursuant to this Work Agreement.
7. Payment by Tenant. The amounts payable by Tenant, if any, will be
billed, subject to Landlord's obligation to advance funds and following delivery
by Landlord to Tenant of copies of all monthly requisitions for payment to the
General Contractor and to all subcontractors, together with lien waivers
effective through the last requisition period, promptly following receipt
thereof by Landlord. Tenant shall pay to Landlord, Tenant's Costs as set forth
in Paragraph 6 above in three installments as follows: the first installment,
equal to thirty percent (30%) of such Tenant's Costs, shall be due and payable
three (3) days after Fifty Percent of the Improvements are completed as
certified by the Architect; the second installment, equal to an additional
thirty percent (30%) of such Tenant's Costs, shall be due and payable upon
Substantial Completion of the Improvements as certified by the Architect; and
the final installment, the balance of such Tenant's Costs, shall be due and
payable Thirty (30) days following Substantial Completion as certified by the
Architect.
8. Change Orders. Tenant may authorize changes to the Improvements
during construction only by written instructions to Landlord's Representative on
a form approved by Landlord. All such changes will be subject to Landlord's
prior written approval in accordance with paragraph 4. Prior to commencing any
change, Landlord will prepare and deliver to Tenant, for Tenant's approval, a
change order setting forth the total cost of such change, which will include
associated architectural, engineering, construction contractor's costs and fees
and
C-10
completion schedule changes. If Tenant fails to approve such change order in
writing within Five (5) business days after delivery by Landlord, Tenant will be
deemed to have withdrawn the proposed change and Landlord will not proceed to
perform the change. Upon Landlord's receipt of Tenant's approval, Landlord will
proceed with the change. Landlord shall not be authorized to issue change orders
without the approval of Tenant. Change orders to correct defects or errors not
caused by Tenant or unforeseen field conditions shall not be charged to Tenant
or charged against or deducted from the Tenant Construction Allowance.
9. Completion and Commencement Date. Tenant's obligation for payment
of Rent pursuant to the Lease will commence on the Commencement Date specified
in the Lease; however, notwithstanding the Commencement Date, the date for the
payment of Rent and the dates for performance by Tenant of its responsibilities
under this Work Agreement (including, without limitation, the dates for
submission of Construction Information and Schedule I items) shall be delayed on
a day-by-day basis for each day the design, construction or Substantial
Completion of the improvements are delayed by Landlord or its contractors or
agents. The Term Commencement Date and the payment of Rent will not be delayed
by a delay of Substantial Completion due to Tenant, its contractors or agents.
The following are delays ("Tenant Delays") which will not delay the Commencement
Date and the date Rent is to commence under the lease:
(a) Change orders requested by Tenant, which cause such delay;
(b) Delays in obtaining non-standard construction materials
requested by Tenant, provided Landlord has reasonably determined that such
materials will result in a delay, has so notified Tenant at the time such
materials are specified and afforded Tenant an opportunity to accept a
reasonably equivalent alternative material; and
(c) Tenant's failure to approve timely any item requiring
Tenant's approval, which causes such delay. In the event that Substantial
Completion of the Improvements is delayed by Landlord, its contractors, or
agents, the Term Commencement Date will be the later of the date of Substantial
Completion of the Improvements or the date otherwise specified in the Lease.
Time is of the essence with respect to Landlord's obligations under
this Work Agreement.
10. Condition of the Premises.
(a) Prior to the Commencement Date, Tenant and, at Tenant's
option, Tenant's Architect and Tenant's Construction Manager, if any, will
conduct a walk-through inspection of the Premises with Landlord and prepare a
punch-list of items needing additional work by Landlord, which shall be
completed by Landlord within 30 days. Such punch-list shall not preclude Tenant
from requiring subsequent correction by Landlord of "Latent Defects" as defined
below.
(b) A "Latent Defect" is a defect in the condition of the
Premises caused by Landlord's failure to construct the Landlords Work in a good
and workmanlike manner which defect would not ordinarily be observed during a
wall-through inspection. If
C-11
Tenant notifies Landlord of a Latent Defect within one year following the Term
Commencement Date, then Landlord, at its expense, will repair such latent defect
as soon as practicable. Except as set forth in this paragraph 10, Landlord will
have no obligation or liability to Tenant for Latent Defects.
11. Confirmation Upon Completion. Upon completion of the
Improvements in accordance with this Work Agreement, Tenant shall upon
acceptance of the Premises confirm its acceptance of the Premises and the Term
Commencement Date and of the Lease and such other matters as Landlord shall
reasonably request.
12. Tenant's Sell-Help Right. In addition to any and all other
remedies available to Tenant and not in limitation thereof, if Landlord does not
substantially complete the Landlord's Work in the Premises on or before March 1,
1997 for any reason (other than delays caused by a Tenant Delay as specified in
Paragraph 9 above), then Tenant may itself perform or cause to be performed the
Landlord's Work using a general contractor of Tenant's selection in its sole
discretion and Landlord shall pay to Tenant the reasonable entire cost of
performing and completing such work in accordance with the construction
contracts or, at Tenant's sole election, Tenant may offset the amount thereof
from any and all Rent and other obligations due and payable by Tenant.
13. Reimbursement. Landlord agrees to reimburse Tenant with Thirty
(30) days following demand, for all sums so expended by Tenant to perform the
Landlord's Work pursuant to Paragraph 12 above. If Landlord fails to reimburse
such sums to Tenant, then Tenant may offset such sums (together with interest
thereon at the prime rate then being quoted in The Wall Street Journal plus 2%
per annum whichever is greater from the date such sums were advanced by Tenant
until such sums are offset) against Rent owing under the Lease. The offset
right granted herein is a limited offset right and shall in no event operate or
be construed to permit Tenant to offset any other sums, amounts, damages, costs
or expenses owing (or alleged to be owing) to Landlord by Tenant under or
pursuant to the Lease or the Work Agreement.
C-12
SCHEDULE 1 TO WORK AGREEMENT
----------------------------
BASE BUILDING COMPONENTS
------------------------
For purposes of the Office Lease Agreement dated September ___, 1996
by and between Xxxx Xxxxxxxxx, as Landlord, and Sprint Spectrum, L.P., as
Tenant, the term "Base Building" shall mean the without limitation components of
the Building located within the Premises or provided for the benefit of the
Premises as hereinafter set forth in this Schedule B-1. Landlord will perform
same at Landlord's sole cost and expense, in a good and workmanlike manner, and
in accordance with all applicable building code requirements and regulations of
governmental authorities having jurisdiction over the Building and the Premises.
The components of the Base Building are inter alia as follows:
----- ----
1. All power in base building systems required to supply Tenant with Building
Standard electrical supply of not less than 6 xxxxx per rentable square
foot, demand load, unconnected or such higher capacity as is shown in the
Plans and Specifications.
2. Heating, ventilating and air conditioning systems and main distribution
ducts in the ceiling of the Premises with specifications meeting the Plans
and Specifications and the Lease.
3 Space will be delivered in a broom-clean condition with demising walls in
place and prior improvements, if any removed.
4. All costs associated with adding sprinklers to the Premises or the Building
associated with the lack of sprinklers in the Premises or the Building
(including, without limitation, extraordinary permit or inspection costs,
cost of extraordinary signage, standpipe relocation or installation or
relocation of life safety systems installed in lieu of a sprinkler system).
5. The structural integrity of the Building and the operability of the main
mechanical and electrical systems of the building which connect to the
Premises and Landlord's Work.
6. Compliance with all ADA requirements.
7. The Building standard HVAC service shall be brought to the Premises.
[diffusers, trotters and balancing are included].
8. All core and perimeter walls shall be finished, ready to paint; all
corridors on the exterior of the Premises and the common areas shall be
finished to building standards by Landlord following completion of the
improvements.
9. A fire and life safety system consisting of automatic sprinklers, fire
alarm speakers, horns, strobes, manual strikes and smoke detectors.
10. Repair or replace convector covers.
C-13
11. Asbestos free; no hazardous materials or substances or other conditions
which could present a danger to health, safety or the environment.
12. All windows in good repair.
C-14
EXHIBIT D
RULES AND REGULATIONS
1. The rights of tenants in the entrances, corridors, elevators and
escalators of the Building are limited to ingress to and egress from the
Tenant's Premises of the Tenants and their employees, licensees and invitees,
and no Tenant shall use, or permit the use of the entrances, corridors,
escalators or elevators for any other purpose. No Tenant shall invite to the
Tenant's premises or permit the visit of persons in such numbers or under such
conditions as to interfere with the use and enjoyment of any of the plazas,
entrances, corridors, elevators and other facilities of the Building by other
Tenant. Fire exits and stairways are for emergency use only, and they shall not
be used for any other purpose by the Tenants, their employees, licensees or
invitees. No Tenant shall encumber any of the sidewalks, plazas, entrances,
corridors, escalators, elevators, fire exits or stairways of the Building. The
Landlord reserves the right to control and operate the public portions of the
Building and the public facilities, as well as, facilities furnished for the
common use of the Tenants in such manner as it deems best for the benefit of the
Tenants generally.
2. The Landlord may refuse admission to the Building outside of
ordinary business hours or business days to any person not known to the watchman
in charge or not having a pass issued by the Landlord or the Tenant whose
premises are to be entered or not otherwise properly identified, and may require
all persons admitted to or leaving the Building outside of ordinary business
hours or business days to register. Any person whose presence in the Building
at any time shall in the judgment of the Landlord, be prejudicial to the safety,
character, reputation and interests of the Building or its Tenants may be denied
access to the Building or may be ejected therefrom. In case of invasion, riot,
public excitement or other commotion the Landlord may prevent all access to the
Building during the continuance of the same, by closing the doors or otherwise,
for the safety of the Tenants and protection of property in the Building. The
Landlord shall, in no way, be liable to any Tenant for damages or loss arising
from the admission, exclusion or ejection of any person to or from the Tenant's
premises or the Building under provision of this rule. Canvassing, soliciting
or peddling in the Building is prohibited and every Tenant shall cooperate to
prevent the same.
3. No Tenant shall obtain or accept for use in its premises
bootblacking, floor polishing, lighting maintenance, cleaning or other similar
services from any persons not authorized by the Landlord in writing to furnish
such services, provided that the charges for such services by persons authorized
by the Landlord are not excessive and, where appropriate and consistent with the
security and proper operation of the Building, sufficient persons are so
authorized for the same services to provide Tenants with a reasonably
competitive selection. Such services shall be furnished only at such hours, in
such places within the Tenant's premises and under such reasonable regulations
as may be fixed by the Landlord.
4. The cost of repairing any damage to the public portions of the
Building or the public facilities in common with other Tenants, caused by a
Tenant or the employees, licensees or invitees of the Tenant, shall be paid by
such Tenant.
D-1
5. No lettering, sign, advertisement, notice or object shall be
displayed in or on the windows or doors, or on the outside of any Tenant's
premises, or at any point inside any Tenant's premises where the same might be
visible outside of such premises, except that the name of the Tenant may be
displayed on the entrance door of the Tenant's premises, or in the elevator
lobbies of the floors which are occupied entirely by any Tenant, subject to the
approval of the Landlord as to the size, color and style of such display. The
inscription of the name of the Tenant on the door of the Tenant's premises shall
be done by the Tenant at the expense of the Tenant. Listing of the name of the
Tenant on the directory boards in the Building shall be done by the Landlord at
its expense, any other listing shall be at the discretion of the Landlord.
6. No awning or other projections over or around the windows shall be
installed by any Tenant, and only such window blinds as are permitted by the
Landlord shall be used in a Tenant's premises. Any floor covering shall be laid
in a Tenant's premises only in a manner approved by the Landlord.
7. The Landlord shall have the right to prescribe the weight and
position of safes and other objects of excessive weight, and no safe or other
object whose weight exceeds the lawful load for the area upon which it would
stand shall be brought into or kept under a Tenant's premises. If, in the
reasonable judgment of the Landlord, it is necessary to distribute the
concentrated weight of heavy objects, the work involved in such distribution
shall be done at the expense of the Tenant and in such manner as the Landlord
shall determine. The moving of safes and other heavy objects shall take place
only outside of ordinary business hours upon previous notice to the Landlord,
and the persons employed to move the same in and out of the Building shall be
reasonably acceptable to the Landlord and, if so required by law, shall hold a
Master Rigger's license. Freight, furniture, business equipment, merchandise
and bulky matter of any description shall be delivered to and removed from the
premises only in the freight elevators and through the service entrances and
corridors and only during hours and in manner approved by the Landlord.
Arrangements will be made by the Landlord with any Tenant for moving large
quantities of furniture and equipment into or out of the Building.
8. No machinery or mechanical equipment other than ordinary portable
business machines, may be installed or operated in any Tenant's premises without
Landlord's prior written consent, and in no case (even where the same are of a
type so excepted or as so consented to by the Landlord) shall any machines or
mechanical equipment which may be permitted to be installed in a Tenant's
premises shall be so equipped, installed and maintained by such Tenant as to
prevent any disturbing noise, vibration or electrical or other interference from
being transmitted from such premises to any other area of the Building.
9. No cooking shall be done in the Tenant's premises. Nothing shall
be done or permitted in any Tenant's premises, and nothing shall be brought into
or kept in any Tenant's premises, which would impair or interfere with any of
the Building services or the proper and economic heating, cleaning or other
servicing of the Building or the premises, or the use or enjoyment by any other
Tenant of any other premises, nor shall there be installed by any Tenant any
ventilating, air-conditioning, electrical or other equipment of any kind which,
in the judgment of the Landlord, might cause any such impairment or
interference. No dangerous, inflammable, combustible or explosive object or
material shall be brought into the Building by any Tenant or with the permission
of any Tenant.
D-2
10. No acids, vapors or other materials shall be discharged or
permitted to be discharged into the water lines, vents, or flues of the Building
which may damage them. The water and wash closets and other plumbing fixtures
in or serving any Tenant's premises shall not be used for any purpose other than
the purposes for which they were designed or constructed, and no sweepings,
rubbish, rags, acids or other foreign substances shall be deposited therein.
11. No additional locks or bolts of any kind shall be placed upon any
of the doors or windows in any Tenant's premises and no lock on any door therein
shall be changed or altered in any respect. Additional keys for a Tenant's
premises and toilet rooms shall be procured only from the Landlord, which may
make a reasonable charge therefor. Upon the termination of a Tenant's lease,
all keys of the Tenant's premises and toilet rooms (if locked to public) shall
be delivered to the Landlord.
12. The Landlord reserves the right to rescind, alter or waive any
rule or regulation at any time prescribed for the Building when, in its
reasonable judgment, it deems it necessary, desirable or proper for its best
interest and for the best interest of the Tenants, and no alteration or waiver
of any rule or regulation in favor of one Tenant shall operate as an alteration
or waiver in favor of any other Tenant.
13. Tenant shall not obstruct the driveways nor keep any vehicle or
other item in the driveways, so as to prevent or restrict the use of said
driveways by the other tenants of the Landlord or the Landlord himself.
14. Tenant shall not store any equipment outside the premises for
more than twenty four (24) hours Tenant shall not leave any trash, debris or any
other undesirable appearing objects outside its premises and shall be
responsible to clean or remove same. Should the Landlord, after advising Tenant
of same, find it necessary to clean or remove same from premises, the cost of
such removal shall be added to the Tenant's rent and become payable as rent
within ten (10) days of billing.
15. Movement of goods in or out of the premises and Building shall
only be effected through entrances and elevators designated for that purpose.
No hand trucks, carts, etc. shall be used in the building unless equipped with
rubber tires and side guards.
16. Tenant shall not xxxx, drill into, paint or in any way deface any
part of the demised premises or the Building of which they form a part. No
boring, cutting or stringing of wires shall be permitted, except with the prior
written consent of Landlord and as the Landlord may direct. No Tenant shall lay
linoleum or other similar floor covering, so that the same shall come in direct
contact with the floor of the demised premises.
17. Canvassing, soliciting and peddling in the building is prohibited
and each Tenant shall co-operate to prevent the same.
D-3
STANDARD FORM LEASE ADDENDUM
Sprint Spectrum L.P.
("Tenant")
AND
Xxxx Xxxxxxxxx
------------------------------------------------
("Landlord")
LEASE ADDENDUM
--------------
THIS ADDENDUM TO LEASE is made as of the ____ day of September. 1996,
to the Lease of even date herewith (the "Lease") by and between Xxxx Xxxxxxxxx,
("Landlord"), and Sprint Spectrum L.P. ("Tenant") for the premises at:
Address: 300 Great Oaks
---------------------------------------------------------
Great Oaks Office Park
---------------------------------------------------------
Western Avenue and Church Road
---------------------------------------------------------
Town of Guilderland
---------------------------------------------------------
Albany, New York
---------------------------------------------------------
If there is a conflict between the provisions set forth in the Lease
and the following paragraphs, the following paragraphs shall control.
1. Premises. The demised premises or premises as defined in the
Lease are referred to below as the "Premises." The office building in which the
Premises are located is referred to below as the "Building." The land and other
real property of which the Building is a part are referred below as the
"Property.
2. Term. Notwithstanding anything in the Lease to the contrary,
Tenant shall have the right and option to cancel and terminate its obligations
under the Lease without liability, if the Premises are not substantially
completed and delivered to Tenant within Sixty (60) days following the
commencement date of the Lease, due to causes other than a delay caused by:
(i) Tenant's inability or failure timely to meet any of its obligations under
the Lease relating to construction of leasehold improvements; (ii) the inclusion
in tenant improvements of any items selected by Tenant, which at the time of
selection are reasonably designated by Landlord as requiring long term lead rime
for procurement and installation; (iii) any changes or any change orders
requested by Tenant after final approval of contract documents.
3. Rent; Proration. Rent on the Commencement Date is intended to be
based on the application of a rental rate of $15.75 per square foot to the
number of rentable or leasable square feet calculated as set forth in this Lease
Addendum. The Rent payable by Tenant shall be reduced should application of such
per square foot rate to the actual number of leasable or rentable square feet of
the Premises results in a lower rental for the Premises. If the Expiration Date
is a date other than the last day of a calendar month, then the installment of
Rent for the last month for which Rent is owing, being a fractional month, shall
be appropriately prorated.
4. Operating Expenses. Notwithstanding anything in the Lease to the
contrary, the terms "operating expenses" or "operating costs", or similar terms
defined in the Lease, shall not mean and shall exclude any and all fees,
charges, disbursements, obligations, Base Rent, Additional Rent, costs and
expenses nor expressly authorized by the Lease, such exclusions, without
limitation, including:
a. Capital Costs. Any and all of Landlord's capital costs,
improvements. alterations, repairs, and/or replacements to
any part
of the Building or Property which are not leased by
the Tenant, including, without limitation, any financing-
related fees, costs and expenses, and professional fees and
disbursements incurred in connection therewith; rentals and
other expenses incurred in leasing systems, elevators, or
other equipment ordinarily considered to be of a capital
nature;
b. Financing Costs. Any and all of Landlord's payments for (a)
loan principal or interest, together with expenses thereto
related in connection with such financing or any refinancing
during the term of the Lease, (b) Ground Lease rent, (c)
charges, rentals, obligations or payments of any kind for
the financing of Landlord's work (as defined in the
Workletter or for the construction of the Improvements (as
defined in the Workletter) or (d) similar payments;
c. Parking Facilities. Any and all of Landlord's expenses
relating to any parking facility or facilities on or about
the Property or comprising a part of the Building, except to
and only to the extent that such expenses exceed the
revenues generated by such facilities.
d. Landlord's Taxes; Real Estate Taxes. Any and all of
Landlord's income, excise, franchise taxes, excess profit
taxes, and any and all taxes which do not uniquely pertain
to the Premises or Tenant's specific use thereof or similar
taxes on Landlord's business;
e. Salaries. Salaries of Landlord's employees who are not
engaged in the day-to-day management and maintenance of the
Premises, including, without limitation, the salaries of
employees not engaged full-time in such management who are
executive managers, accountants, bookkeepers. accountants,
receptionists, clerks, marketing representatives,
administrative assistants, secretaries and brokers;
f. Enforcement Costs. Any and all of Landlord's costs to
compel full performance under leases with all prior,
existing and prospective tenants at the Building, including,
without limitation, all legal fees costs and expenses to
collect rent arrears and recover possession;
g. Leasing Costs. Any and all of Landlord's costs to lease
space in the Building to all prior, existing and prospective
tenants, including, without limitation: consulting and
marketing fees, advertising expenses, brokerage commissions,
legal fees, vacancy costs, rent or other rent concessions,
and/or refurbishment or improvement expenses; and costs of
preparing, improving or
2
altering any space in preparation for occupancy of any new
or renewal tenant; rent for management or leasing offices;
h. Related Party Fees. Wages, salaries, fees and fringe
benefits paid to administrative or executive personnel or
officers or partners of Landlord unless employed at
competitive rates as independent contractors; any other
operating expense representing an amount paid to a related
corporation, entity or person that is in excess of the
amount that would be paid in the absence of such
relationship; compensation paid to clerks, attendants or
other persons in commercial concessions operated by
Landlord;
i. Depreciation. Any charge for depreciation of the Building
or equipment and any interest or other financing charge;
j. Building Defects. The cost of correcting defects in the
construction of the Building or in the Building equipment,
except that conditions (not occasioned by construction
defects) resulting from ordinary wear and tear will not be
deemed defects for the purpose of this category; the cost of
repair or replacement for any item covered by a warranty;
k. Casualty and Condemnation Costs. The cost of any repair
made by Landlord because of the total or partial destruction
of the Building or the condemnation of a portion of the
Building;
l. Costs Otherwise Recovered. The cost of any items for which
Landlord is reimbursed by insurance or for which Landlord is
reimbursed pursuant to clauses in leases with other tenants
of the Building substantially die same as the clause, if
any, in the Lease requiring Tenant to pay a proportionate
share of operating expenses or operating costs of the
Property or Building; items and services for which Tenant
reimburses Landlord or pays to third parties or that
Landlord provides selectively to one or more tenants of the
Building other than Tenant; items and services that Landlord
provides to one or more tenants of the Building in
substantially greater quantities than provided to Tenant to
the extent of the excess as reasonably determined;
m. Additions. The cost of any additions or capital
improvements to the Building subsequent to the date of
original construction, except for such capital improvements
as are expressly permitted elsewhere in the Lease in
connection with the reduction of operating expenses;
n. Building Upgrades. The cost of any labor, materials,
alterations, additions, changes, replacements and other
items that under
3
generally accepted accounting principles are properly
classified singly or in the aggregate as capital
expenditures to the extent they upgrade or improve the
Building as opposed to replace existing items that have worn
out;
o. Initial Construction Costs. The cost of tools and equipment
used initially in the construction, operation, repair and
maintenance of the Building; the cost of any "tap fees" or
one time lump sum sewer or water connection fees for the
Property;
p. Recordation and Transfer Fees. Any documentary and transfer
taxes imposed in connection with the Lease or any other
lease;
q. Landlord Compliance Costs. The cost of overtime or other
expense to Landlord in curing its defaults or performing
work expressly provided in the Lease to be borne at
Landlord's expense; amounts paid by Landlord (including
interest) on account of or to cure violations of or
deviations from the requirements of statutes, laws,
regulations, notices or ordinances on any part of the
Property or Building and any costs or expenses resulting
from Landlord's violation of any agreement to which it is a
party; costs incurred to test, survey, cleanup, contain,
xxxxx, remove or otherwise remedy hazardous materials or
wastes or asbestos-containing materials from the Property
unless the wastes or asbestos-containing materials were in
or on the Property due to Tenant's negligence or intentional
acts;
r. Bad Debt Costs. Any and all collection costs, including
legal fees and bad debt losses or reserves;
s. Excessive Management Fees. Property management fees in
excess of 5% of gross rentals generated by the Property.
t. Inflated, Excessive and Inappropriate Costs. Any otherwise
permissible fees or costs, to the extent the same are in
excess of prevailing and competitive rates; expenses that
under generally accepted accounting principles consistently
applied would not be considered normal maintenance, repair,
management or operating expenses; and
Operating expenses and operating costs shall be calculated using
generally accepted accounting principles consistently applied and certified by
an independent certified public accountant. If Landlord makes an expenditure
for a capital improvement to the Property or the Building by installing energy
conservation or labor-saving devices to reduce operating expenses, or to comply
with any law, ordinance or regulation pertaining to the Property or the
Building, and if, under generally accepted accounting principles, such
expenditure is not a current expense, then the cost thereof shall be amortized
over a period equal to the useful life of
4
such improvement, determined in accordance with generally accepted accounting
principles, and the amortized costs allocated to each Lease Year during the Term
shall be treated as an operating expense.
Tenant will be entitled one time in any twelve month period to audit
and verify the operations of the Building and the related books and records of
Landlord to assure that the operating expenses and taxes from time to time
reported by Landlord are in keeping with the provisions of the Lease and this
Addendum. In the event of any error, Landlord shall make a correcting payment
in full to Tenant within 30 days after the determination of the amount of such
error, provided that, absent fraud or misconduct on the part of Landlord, Tenant
has advised Landlord of an objection or error on or before the second
anniversary of Tenant's receipt of particular statement for operating expenses
or taxes. This section shall not be construed so as to bar Tenant from any
rights in respect of a refund or readjustment of taxes. Tenant also shall be
entitled to verify the rentable building area, the Premises area and the
proportionate share.
If the Building is less than 100% occupied during the Base Year 1996,
Landlord shall adjust the operating expenses and operating Costs that vary with
occupancy (including any management fee) for such Base Year on the basis of a
100% occupancy rate of all rentable area in the Building, for the purposes for
which such areas have been constructed, without regard to any abatements,
curtailments or reductions in rent reserved under any lease or any portion of
the Building.
5. Taxes. The terms taxes, "assessments", "Real Estate Taxes" or
"Taxes" (collectively, "Real Estate Taxes") shall exclude (and under no
circumstances shall Real Estate Taxes or Taxes include) federal and state taxes
on income from the Building, Landlords income taxes, profit taxes, franchise
taxes, inheritance taxes, gift taxes, transfer taxes, excise taxes, capital
levies or similar taxes on Landlord's business or any assessments to the extent
no substantial benefit accrues to Tenant, and all of the same shall be excluded
from computations of Tenant's obligations under the Lease, nor shall any
determination of any increase in Real Estate Taxes be based on or include any
increase in property or real estate taxes attributable to or as a result of any
sale, refinancing, transfer or change of ownership of the Building or the
Property, or any portion of or interest in the Building or the Property, whether
directly or otherwise. In addition, if the Building, the parking facilities or
the Property are subject to any provision for tax abatement, the base year for
determining increases in Real Estate Taxes shall be adjusted to reflect the year
following the expiration of the applicable abatement period(s). If the Building,
the parking facilities or the Property are part of a phased development or if
substantial additional improvements are added to the Building, the parking
facilities or the Property, or if there occurs a rehabilitation of or
improvement to the Building, the parking facilities or the Property, Tenant
shall not be responsible for increases in Real Estate Taxes attributable to such
additional improvements or rehabilitation. Landlord represents and warrants that
no tax contest is pending, in progress or contemplated in respect of the Real
Estate Taxes and that the base Real Estate Taxes for determining Tenant's share
shall not be reduced as a consequence of such contest.
6. Security Deposit INTENTIONALLY OMITTED.
7. First Refusal Right. So long as the Lease is in full force and
effect, in addition to the Option to Expand set forth in Section 23 of the
Lease, Tenant may lease the space
5
identified in the Lease as Expansion Option Space-1, as shown on Exhibit A-l to
the Lease (the "First Refusal Area") on the terms and conditions of this
paragraph. If Landlord desires to offer all or any portion of the First Refusal
Area for lease, Landlord will deliver to Tenant a written notice specifying the
terms of the offer. Tenant will then have Twenty (20) days from the delivery of
such notice to accept the offer and lease the space within the First Refusal
Area in accordance with the offer. If Tenant fails to accept or rejects the
offer within the Twenty (20) day period, Landlord will be entitled for a period
of One Hundred Eighty (180) days to lease the space on the same terms stated in
the notice to Tenant. If Landlord does lease the space during the One Hundred
Eighty (180) day period on such terms, the right granted Tenant under this
paragraph will automatically terminate. However, if Landlord does not lease the
space during the One Hundred Eighty (180) day period on such terms, the space
will not subsequently be leased without Landlord's compliance with this
paragraph. Without limiting the foregoing, Landlord consents to the use of such
space in accordance with the terms of the Lease.
8. Pre-Occupancy Period. Landlord consents to the access by Tenant,
its agents, representatives and contractors and subcontractors and by
representatives of governmental entities for the inspection of the Premises and
Building and for the construction of Tenant's Work and installation of Tenant's
personal property at all reasonable times during normal business hours following
execution of the Lease and prior to the Commencement Date and Landlord shall
provide access to the Premises and the Building for such purpose. During such
Pre-Occupancy Period, all terms and conditions of the Lease shall apply, except
for the payment of Rent.
9. Common Areas. Landlord grants Tenant, its employees, invitees,
licensees and other Visitors the right to use the common areas of the Building
and the Property (including, without limitation, parking areas, sidewalks, lobby
and corridors), subject to the terms and conditions of the Lease and such
reasonable rules and regulations concerning the maintenance, management, use and
operation of the common areas as are set forth in the Lease. Landlord agrees to
maintain, repair, restore, repaint and replace the common areas, including
without limitation elevators, landscaping, asphalt and utilities serving the
common areas in good condition and repair throughout the term and any extension
of the Lease; to keep the common areas and other areas under Landlord's control
in a neat, clean and well maintained condition according to the highest
standards; and to maintain public liability property damage insurance for
injuries and damage occurring in the common areas in such amounts as are
reasonable. Notwithstanding anything to the contrary. Landlord shall not close
or change the common areas in a way as to alter or diminish the quantity,
quality, utility or character thereof or limit Tenant's ease of access to or use
of its Premises, except in the event of a bona fide emergency on a temporary
basis, and then in a manner which minimizes any adverse impact on Tenant.
10. Services - Full Service Lease. During the term, Landlord shall
furnish Tenant with the following services: (a) hot and cold running and potable
water at those points of supply provided for normal lavatory use by tenants in
the Building; (b) heating, ventilating, and/or air conditioning in the Premises
sufficient to enable Tenant to maintain the Premises at such temperatures and in
such amounts as may customarily be provided to tenants occupying space in first-
class office buildings in the same geographic area as the Building; and (c)
electrical service equipment and facilities (to the extent so provided in the
Lease, the cost of electric service to be at Tenant's expense) at Six Xxxxx per
rentable sq. ft. demand load, not connected,
6
(exclusive of HVAC and any other building system) for the Premises and electric
lighting for common and public areas and special service areas of the Building
in the manner and to the extent customarily provided in first-class office
buildings in the same geographic area as the Building; (d) passenger elevator
service (One (1) high speed) in common with other tenants for access to and from
the Premises; provided, however, that Landlord may reasonably limit the number
-------- -------
of elevators to be operated at night after normal business hours and on
Saturdays, Sundays, and legal holidays or during periods of construction or for
safety or maintenance purposes; (e) char and janitorial service after 6:00 pm
Monday through Friday only (except legal holidays, which shall be New Year's
Day. Memorial Day, July 4th. Labor Day, Thanksgiving Day and Christmas Day); and
(f) daily trash collection and the services provided for in the Lease; all of
which services shall be provided to Tenant by Landlord without additional cost
to Tenant.
Additionally, Tenant may use the plenums in the Premises along with
flues, pipes, stacks, elevator shafts, and vertical ducts in the Building to run
cabling for its operational needs, provided that (1) Tenant first obtains
Landlord's written consent thereto, (2) the installation, maintenance, and use
thereof does not interfere with any other tenants use of the Building or, in
Landlord's reasonable judgment, the operational systems or requirements of any
Building, and (3) at Landlord's option, the installation and repairs thereof
shall be subject to Landlord's reasonable supervision.
The Landlord shall provide or cause to be provided to the Tenant all
necessary keys to the Building, the Premises and the restrooms on the First
-----
floor of the Building to enable the Tenant to have continuous access to the
Premises. Landlord shall provide Tenant with access to the Building 24 hours a
day, 365 days a year. Landlord shall provide to Tenant, at Landlord's sole
cost, use of any existing key card access system for the Building, which
Landlord shall ensure is operational during the Term. Landlord shall provide
access to telephone and electric services at the Premises and at the request of
Tenant shall facilitate reasonable access by Tenant to telephone and electrical
closets in the Building. Costs of providing the electrical service equipment
and facilities and the costs of repairs and maintenance of the electric systems
at the Premises shall be borne by Landlord.
If the failure of Landlord to furnish, or the stoppage of services as
provided above, continues for a period of Three (3) business days or more and as
a consequence thereof, Tenant is not reasonably able to conduct business in the
manner normally conducted by Tenant, all rent shall be abated until the services
are restored. Without limiting the foregoing, the following shall be deemed
stoppages and cessations of service that would result in Tenant's inability to
conduct business: (1) cessation of electric service, (2) inaccessibility of
restroom facilities or cessation of char service thereto and (3) cessation or
significant impairment of HVAC service or systems serving the Premises. Should
any malfunction of the Building improvements or facilities occur, Landlord will
repair such malfunction promptly with reasonable diligence. Landlord shall use
reasonable commercial efforts to restore the services provided above. Should
any malfunction of the Building improvements or facilities occur, including
without limitation any interruption of service, and should the same continue for
a period exceeding seven (7) successive days or an aggregate of fourteen (14)
days in any single thirty (30) day period, then Tenant, in addition to any other
available remedies shall have the option to secure such service(s) and deduct
the cost thereof from the Rentals due under the Lease.
7
11. Facilities. Landlord expressly agrees and acknowledges that
Tenant's use of the Premises for office purposes and the attendant use of
computer equipment, telecommunications support services and other equipment and
facilities associated with such use (i) shall not constitute excessive or
additional electric consumption which would obligate Tenant to make any
additional payment to Landlord, (ii) shall not constitute a circumstance which
would be deemed as generating abnormal or excessive heat or air conditioning
consumption, which would obligate Tenant to make any additional payment to
Landlord, (iii) shall not exceed the floor load capacity of the Premises, and
(iv) shall not exceed the capacity of existing transformers, feeders, risers or
wiring installations. Tenant shall be allowed to operate microwave cooking
equipment within the Premises.
12. Legal Compliance. Landlord represents and warrants that the
Premises (including, without limitation, any tenant improvements contemplated to
be made by Landlord), the Building and the Property, at the time of execution of
the Lease and on the later of the Commencement Date or the date of completion of
the improvements to be effected by Landlord, ate and shall be in compliance with
any and all applicable federal, state or local laws, ordinances and regulations
("Legal Requirements"), including, without limitation, those relating to (a) the
environment (including, without limitation, those relating to hazardous
materials, hazardous substances, hazardous waste, infectious waste, toxic
materials, regulated materials and substances and the like), health and/or
safety, (b) the Americans with Disabilities Act ("ADA"), and (c) zoning and
building codes, occupancy and permit requirements required for Tenant's intended
use, and (d) laws or regulations pertaining to chlorofluorocarbons ("CFCs") and
(e) applicable life safety codes. Notwithstanding anything to the contrary.
Tenant shall not be responsible for compliance with items (a) through (d) above
or any other Legal Requirements not relating uniquely to the Premises and
occasioned by Tenant's particular use of the Premises, Landlord represents and
warrants that neither the Premises nor the Building contain any asbestos or
asbestos-containing materials.
In no event shall the legal and regulatory compliance obligations of
Tenant under the Lease be construed as requiring Tenant (i) to comply with any
Legal Requirements affecting those portions of the Building or Property
comprising the common areas or otherwise outside the Premises or (ii) directly
or indirectly to pay or reimburse Landlord for legal or regulatory compliance
costs not caused directly by Tenant's business activities conducted on the
Premises, or (iii) to restrict Tenant's use of the Premises and common areas as
contemplated by the Lease.
To the extent that Tenant is responsible for compliance with Legal
Requirements, Tenant shall have the right to contest by appropriate proceedings
diligently conducted in good faith, in the name of Tenant or, with the prior
written consent of Landlord, in the name of Landlord, or both, the validity or
application of any Legal Requirements of any nature affecting Tenant or its use
of the Premises. If compliance with any of such Legal Requirements legally may
be delayed pending she prosecution of any proceeding, without incurring any
lien, charge or liability of any kind against the Building and/or the Premises,
or against Landlord's interest in the Building and/or the Premises or sale of
the Building and/or the Premises, and without subjecting Tenant or Landlord to
any liability, civil or criminal, interest or penalty for failure to comply.
Tenant may delay compliance until the final determination of the proceeding.
8
Landlord will indemnify Tenant and hold Tenant harmless from and
against any losses, costs, damages or claims of whatever nature arising out of
or in connection with the failure of the Premises to comply with ADA
requirements and applicable life safety codes as of the Commencement Date or the
failure of the Building or common areas to comply with ADA requirements and
applicable life safely codes at any time during the Lease Term.
13. Landlords Repair Responsibilities. Anything in the Lease to the
contrary notwithstanding, Landlord shall repair, replace and maintain in a first
class manner as comparable to buildings in the same geographical area as the
Building, (i) the external and structural components of the Building, (ii) all
common and public areas of the Building, (iii) the HVAC, mechanical, electrical
and plumbing systems of the Building and on the Property exclusive of systems,
if any, specially installed by or on behalf of any tenant, and (iv) the Premises
and fixtures therein to the extent beyond the scope of Tenant's maintenance
responsibilities under the terms of the Lease and to the extent not caused by
Tenant.
14. Damage or Destruction. If the Premises are partially or totally
damaged or if the Building of which the same forms a part is totally or
substantially damaged (whether or not the Premises are actually damaged) and if
as a result thereof Landlord has the right to terminate the Lease, Tenant shall
also have the right to terminate the Lease for and during the same period
afforded Landlord and, in addition, if the Premises or such portion of the
Building as materially affects Tenant's use of the Premises shall be totally or
partially damaged and such damage is not repaired within ninety (90) days of the
occurrence, Tenant at its election may terminate the Lease.
15. Condemnation. Notwithstanding anything in the Lease to the
contrary, in the event of a taking by eminent domain, if the whole or a portion
of the Premises, the Building or the Property is taken or condemned by any
governmental authority and such taking has a material adverse impact on Tenant
or its use of the Premises, Tenant shall have the right to terminate the Lease
upon sixty (60) days notice to Landlord, and upon the giving of such notice by
Tenant the Term shall terminate as of the date title vests in the authority, and
rent shall be abated on that date.
16. Insurance. At all times throughout the term of the Lease,
Landlord will maintain in reasonable amounts (a) fire and extended coverage
insurance covering the Building in an amount sufficient to prevent Landlord from
being a co-insurer under its policy of insurance, and (b) public liability and
property damage insurance in an amount customary for first class office
properties.
17. Assignment; Subletting. Landlord's consent to assignment and
sublettings shall not be unreasonably withheld, conditioned or delayed.
Notwithstanding anything in the Lease to the contrary, it is not necessary to
obtain Landlord's consent to any assignment of the Lease or to any subletting of
all or any part of the Premises to any affiliate of Tenant and any entity which
controls, is controlled by or which is under common control with Tenant. No
assignment of the Lease or any subletting of all or any part of the Premises
will operate to release Tenant from any of its obligations under the Lease.
9
18. Landlord Entry; Alterations. Notwithstanding anything to the
contrary in the Lease, except in case of an emergency, Landlord shall provide
notice of not less than 24 hours prior to entering the Premises under any
provision of the Lease affording any rights of repair, entry or inspection
provided in the Lease. Landlord shall not have the right to make alterations to
the Premises (as distinguished from ordinary repairs and maintenance) unless
Tenant in its sole discretion consents thereto and Landlord shall not have the
right to diminish or alter the size or location of the Premises, its entrances
or other appurtenances.
19. No Individual Liability. Notwithstanding anything to the
contrary, no person or party having an ownership or equity interest in Tenant
shall have any personal liability for the obligations under the Lease.
20. Mitigation of Damages. Notwithstanding anything to the contrary
in the Lease, Landlord shall have the duty to mitigate damages in the event of
default, inter alia, by using reasonable efforts to re-let the Premises.
---- ----
21. Rules and Regulations. Wherever Landlord has reserved the right
in the Lease to enact rules and regulations governing the Building and the
Premises, such rules and regulations shall be reasonable and applied uniformly
and equally to all tenants throughout the Building.
22. Limitation on Landlord Exculpation; Tenant Remedies. Landlord
shall not be held harmless for its own negligence or willful misconduct or the
negligence or willful misconduct of its agents, contractors, servants or
employees. Tenant shall have the right to deduct from the rent payable hereunder
the amount of any money judgment rendered by a court of law against Landlord
after the time for appeal has expired.
23. Waiver of Claims and Subrogation. Tenant and Landlord waive any
and every claim which arises or may arise in their favor and against the other
party during the term of the Lease or any renewal or extension thereof for any
and all loss of. or damage to the Premises, the Building or any of its property
located within or upon, the Premises or the Building, which loss or damage is
covered by valid and collectible fire and extended coverage insurance policies,
to the extent that such loss or damage is recoverable under such insurance
policies. This waiver shall be in addition, to, and not in limitation or
derogation of, any other waiver or release contained in the Lease with respect
to any loss of or damage to, property of Landlord. Inasmuch as the above waiver
will preclude the assignment of any aforesaid claim, by subrogation or
otherwise, to an insurance company (or any other person), Landlord and Tenant
agree immediately to give to each insurance company which has issued policies of
fire and extended coverage insurance, written notice of the terms of such
waiver, and to have such insurance policies properly endorsed, if necessary, to
prevent the invalidation of the insurance coverage by reason of such waiver.
24. Subordination; Mortgagee's Right to Cure. The Lease shall not be
subordinate to any ground lease, mortgage, deed of trust or similar interest,
unless Tenant is provided with a non-disturbance agreement in form reasonably
acceptable to Tenant executed by the mortgagee, ground lessor, trustee or
beneficiary, as the case may be. Landlord agrees to secure a non-disturbance
agreement in form reasonably acceptable to Tenant from all such
10
interest holders in existence on the date of execution of the Lease. Any period
afforded to any mortgagee under the Lease to cure any default shall not exceed a
total of sixty (60) days.
25. Consents and Permits. Landlord covenants and warrants to Tenant
that it shall obtain any and all consents, certificates and permits which are or
may be required for Tenant's occupancy of the Premises as contemplated by the
Lease and that the Premises shall be in a condition suitable to enable the use
contemplated by the Lease.
26. Parking. Tenant shall be entitled to receive, without charge
during the Term hereof, not less than Forty Five (45) unreserved parking
space(s) in the parking areas used in conjunction with the Building, as shown on
the site plan attached to the Lease. The foregoing obligation, however, shall
not be construed as obligating Landlord to provide more than Forty-five (45)
parking spaces for Tenant's use.
27. No Use at Force. Notwithstanding anything in the Lease to the
contrary in the Lease, the use of force by Landlord or its agents shall not be
included among the remedies available for enforcement of the Base Rent.
28. Consent. Where Landlord's consent is required under the Lease,
such consent shall not be unreasonably withheld, delayed or conditioned. In the
event Landlord fails to respond to a request for consent within thirty (30) days
after written demand, such request shall be deemed granted.
29. Holdover. Notwithstanding anything in the Lease to the contrary,
Landlord shall not be entitled to collect an amount in excess of one hundred
fifty percent (150%) of the Base Rent due under the Lease in the event of
Tenant's holdover.
30. Estoppel Certificates. The time afforded to Tenant for
responding to requests for estoppel certificates shall not be less than ten (10)
business days following receipt of written notice.
31. Leasehold Mortgages. Tenant may, without the prior written
consent of Landlord, subject the leasehold estate created by the Lease, as
amended from time to time, and its personal property, equipment and trade
fixtures. to a leasehold mortgage and/or security agreement to secure financing
or other obligations which Tenant may obtain or incur. In connection with any
such leasehold mortgage and/or security agreement, Landlord will, promptly
following receipt of written request therefor, provide to Tenant's lender(s) an
estoppel agreement confirming whether or not the Lease has been amended, whether
or not there are any uncured defaults under the Lease, and such other matters
pertaining to the Lease as such lender(s) may reasonably require.
32. Landlord's Indemnity. Landlord, on behalf of itself and any
party claiming by, through or under Landlord, hereby agrees to indemnify, defend
and hold Tenant, its agents and employees, harmless from claims for personal
injury, death, or property damage arising from incidents occurring in or about
the Premises, Building or Common Areas caused by any negligent action or
omission of Landlord, its agents, employees, contractors, licensees or invitees.
If Tenant is made a party to any action commenced by or against Landlord and any
such action arises out of matters for which Landlord has provided
indemnification for Tenant as
11
hereinbefore provided, Landlord agrees to indemnify and hold Tenant harmless
therefrom and to pay all judgments, settlements, losses, expenses and costs
(including attorneys' fees and expert witness and consultant fees) which may be
incurred by Tenant in connection therewith.
33. Landlord Default. Landlord's failure to perform or observe any
of its obligations under the Lease after a period of thirty (30) days (or the
additional time, if any, that is reasonably necessary to promptly and diligently
cure the failure) after receiving written notice from Tenant is a default under
the Lease. The notice will give in reasonable detail the nature and extent of
the failure and identify the provision(s) of the Lease containing the
obligation(s). After Tenant receives notice of a mortgagee's name and address
and request for notice upon Landlord's default, Tenant will provide the notice
required by this Section to the mortgagee at the same time Tenant gives notice
to Landlord. If Landlord commits a default under the Lease, Tenant may pursue
any remedies given in the Lease or under applicable law.
If either party defaults ("Defaulting Party"), the other party
("Nondefaulting Party") may, without being obligated and without waiver of the
default, cure the default. The Nondefaulting Party may enter the Premises or
Building to cure the default. The Defaulting Party will pay the Nondefaulting
Party, upon demand, all reasonable costs, expenses and disbursements incurred by
the Nondefaulting Party to cure the default.
34. Telephone Service. Tenant, at its expense, may bring an
alternate or different carrier's telephone service into the Building for use by
Tenant. Tenant may make such alternate telephone service available to other
tenants in the Building (but will not encourage such other tenants to demand
different services). The plans for any work to bring such alternate telephone
service to the Building must be reviewed and approved by Landlord (such approval
not to be unreasonably withheld or delayed) prior to the commencement of any
such work by Tenant. Tenant agrees that any such work may not adversely affect
the structural or aesthetic integrity of the Building nor interfere with the
services provided to other tenants.
37. Option To Extend. Tenant will have one (1) five-year option to
extend the Term. The amount of the rent during any such extension will be
determined by the "market rate" at the time of such extension for comparable
office space in the Town of Guilderland, Western Avenue, New York, as mutually
agreed upon by Landlord and Tenant. Tenant shall notify Landlord of its exercise
of such option not less than One Hundred Eighty (180) days prior to the
expiration of the initial term of the Lease. If Landlord and Tenant are not able
to so agree upon the market rate, the rent then in effect will continue during
such extension until the market rate is determined as hereinafter provided. Once
the market rate is so determined, appropriate payments will be promptly made as
are necessary to reimburse the party entitled thereto for any overpayment or
underpayment of rent retroactive to the beginning of the extension period. If
Landlord and Tenant are unable to agree upon the market rate within thirty (30)
days prior to the beginning of any extension of the Lease, each of them will
select a licensed broker who has at least ten (10) years of experience in the
Albany County office rental market. The two (2) brokers so selected will select
a third broker who meets the same minimum experience requirement. The market
rate will be deemed to be the average of the rates which are determined by such
brokers to be the then current market rate.
12
38. Antenna Installation. Landlord will allow Tenant to install,
maintain and access an array of its typical antennae and antennae support system
and related equipment on the roof of the Building and those areas necessary to
connect and operate the same at a location selected by Tenant, subject to
Landlord's reasonable approval as to the location and method and manner of
installation, at no additional cost or rental. Tenant shall submit
specifications for such equipment and support system, so as to enable Landlord
to assure that the size and color thereof conform to reasonable building
standards. Depending upon the location on the roof of the Building and
visibility from the ground, Landlord may require Tenant to provide screening.
39. Security System. Tenant shall have the right to install a key
card or other security system selected by Tenant in and about the Premises,
provided that, at the end of the Term, Tenant shall repair any damage to doors
within the Premises, but Tenant shall not be obligated to remove any concealed
wiring associated with such system.
40. Storage Space. During the term of the Lease (as may be extended)
Landlord shall make available to Tenant within Sixty (60) days following request
by Tenant approximately 2,500 usable square feet of storage space (or so much
thereof as shall be available at the time or thereafter) in the 000 Xxxx
Xxxxxxxx, Xxxxx Xxxx Xxxxxx Xxxx, Xxxx of Guilderland, Albany, New York (the
"Storage Space"). The Storage Space shall be dry, clean, sprinklered and secure
and Landlord shall install lighting and drop ceiling within the Storage Space
and provide for secured access to the Storage Space. The monthly rent for the
storage space, as of the Commencement Date, shall be an amount equal to the
quotient of: the product of Ten and no/100ths Dollars ($10.00) multiplied by the
number of usable square feet in the Storage Space, divided by twelve (12). For
purposes of this Lease, the Storage Space shall be considered as part of the
Premises, except that (i) Tenant shall be obligated to pay rent for the Storage
Space only in the amount specified in this section, and not the amounts
specified in the sections of the Lease in respect of operating expenses, taxes
or any other component of base, basic or additional rent.
41. Authority To Sign. Each party hereby represents and warrants to
the other that the person or entity signing the Lease on behalf of such party is
duly authorized to execute and deliver the Lease and to legally bind the parry
on whose behalf the Lease is signed to all of the terms, covenants and
conditions contained in the Lease.
42. Defined Terms. Any capitalized term not defined in the Lease
Addendum will have the meaning attributed to such term as set forth in the Lease
13
43. Non-Standard Provisions Attached. If noted, additional provisions
are attached as Exhibit A
YES [X] NO [ ] Landlord's Environmental Representation and Indemnity.
WITNESS: /s/ Xxxxxx X. Xxxxxxx LANDLORD: Xxxx Xxxxxxxxx
--------------------
By /s/ Xxxx Xxxxxxxxx
-------------------------------
Printed Name Xxxx Xxxxxxxxx
--------------
Title Landlord
--------
WITNESS: /s/ [Signature Illegible] TENANT: Sprint Spectrum L.P.
--------------------
By /s/ X.X. Xxxxxxxxxxx
--------------------------------
Printed Name Xxxxxx X. Xxxxxxxxxxx
---------------------
Title V.P. Financial Planning and Analysis
------------------------------------
14
EXHIBIT A TO LEASE ADDENDUM
---------------------------
LANDLORD'S ENVIRONMENTAL REPRESENTATION AND INDEMNITY
-----------------------------------------------------
Landlord covenants, represents and warrants to Tenant that as of the
Commencement Date of this Lease, no Hazardous Substances (as defined below) have
been manufactured, refined, stored, disposed of, produced or processed on or in
any part of the Premises and the Premises contains no asbestos containing
materials. "Hazardous Substance" means any pollutant, contaminant, toxic or
hazardous waste, dangerous, noxious or toxic substance, flammable, explosive,
radioactive material, urea formaldehyde foam insulation, asbestos, PCBs, or any
other substances the removal of which is required, or the manufacture,
preparation, production, generation, use, maintenance, treatment, storage,
transfer, handling or ownership of which is restricted, prohibited, regulated,
penalized by or subject to any and all federal, state, county, or municipal
statutes or laws. Landlord, the Premises and the property of which they are a
part are each in compliance with all federal, state, county or municipal
environmental, pollution, health, safety, fire, or building code laws and
Landlord has no knowledge and has received no notice of any federal, state,
county or municipal environmental, pollution, health, safety, fire, or building
code violations, any proceedings, investigations or lawsuits or any requirements
to clean up, xxxxx or decontaminate. Landlord will defend, indemnify, and hold
harmless Tenant, its partners, directors, officers, employees, and agents, and
any assignees, subtenants or successors to Tenant's interest in the Premises
from and against any and all losses, claims, damages, penalties, and liability,
including all out of pocket litigation costs and the reasonable fees and
expenses of counsel, consultant fees and expert fees in connection with the
Landlord's covenants, representations and warranties above. The obligations and
liabilities of Landlord under this Paragraph shall survive the expiration or
earlier termination of the Lease.
November 20, 1996
Sprint Spectrum, LP.
Attn: Xx. Xxxxxx X. Xxxxxxxxxxx, V.P.
Re: Lease Amendment No. 1
Xxxx Xxxxxxxxx/Sprint Spectrum LP.
Dear Xx. Xxxxxxxxxxx:
This letter constitutes Amendment No. 1 of the Lease Agreement, dated September
30, 1996 between Xxxx Xxxxxxxxx and Sprint Spectrum L.P. for the space you have
leased at 000 Xxxxx Xxxx Xxxx Xxxxxx Xxx Xxxx 00000. I have attached a copy of
the facing page of this Lease to this letter.
It is my understanding that we have agreed and so hereby amend the Lease
effective November 20, 1996 as follows:
1. The Tenant's principal office and place of business shall be 0000 Xxxx,
Xxxxxx Xxxx, XX 00000.
2. The size of the premises has been reduced from Nine Thousand Two Hundred
----
(9,200) rentable square feet to Eight Thousand Seven Hundred Thirty-Two (8,732)
--
rentable square feet, as shown on revised Exhibit A-2, attached hereto.
3. The commencement date and respective termination dates of the Lease shall
be changed from January 1, 1997 through December 31, 2001 to March 1, 1997
---- --
through February 28, 2002.
4. The annual base rent ("Base Rent") has been reduced from One Hundred Forty
----
Four Thousand Nine Hundred Dollars ($144,900) to One Hundred Thirty Seven
--
Thousand Five Hundred Twenty-Nine and Dollars ($137,529) to be paid in equal
monthly installments of Eleven Thousand Four Hundred Sixty and 75/100 Dollars
($11,460.75).
5. The pro-rata percentage of operating expenses and pro-rata percentage of
taxes has been changed from 15.33% to 14.55%.
---- --
6. The Option to Expand has been changed from Two Thousand Five Hundred
----
Eighty-One (2,581) rentable square feet to Three Thousand Forty-Nine (3,049)
--
rentable square feet, as shown on revised Exhibit A-2, attached hereto.
7. The Tenant Construction Allowance has been changed from One Hundred
----
Fifteen Thousand Dollars ($115,000) to One Hundred Nine Thousand One Hundred
--
Fifty Dollars ($109,150).
1
Except as modified above, all other terms, provisions and conditions of the
Lease Agreement shall remain unchanged and are hereby ratified and confirmed.
If the above reflects your understanding, I would appreciate it if you would
have the authorized officer of your firm sign all three copies of this letter.
----------------
Upon receipt of the signed copies, I shall fully execute a copy for your files
and return it to you.
Sincerely,
/s/ Xxxx Xxxxxxxxx
The above is hereby accepted and approved:
By: /s/ X.X. Xxxxxxxxxxx Date: 3-6-97
______________________________ _______________________
Sprint Spectrum L.P.
By: Date:
______________________________ _______________________
Xxxx Xxxxxxxxx
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[Exhibit A-2 - Floor Plan]
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CONSENT TO ASSIGNMENT
---------------------
THIS CONSENT TO ASSIGNMENT (this "Consent") is made and delivered as of the
12th day of May, 2000 by Xxxx Xxxxxxxxx ("Lessor") and Sprint Spectrum L.P. and
its assigns ("Lessee").
Recitals
--------
A. Lessor and Lessee entered into a lease, license or Sprint PCS Site
Agreement dated September 26, 1996 (the "Lease") pursuant to which Lessee
leased from Lessor certain premises located at 000 Xxxxx Xxxx Xxxx.,
Xxxxxx, XX 00000 (the "Premises").
B. Lessee and Independent Wireless One Corporation ("Assignee") have entered
into an Asset Purchase Agreement whereby Lessee may sell to Assignee
certain assets of Lessee ("Assets") including, without limitation, the
Lease. If the sale of the Assets is completed, Lessee will assign to
Assignee all of Lessee's right, title and interest in, under and to the
Lease, and Assignee will assume all of the duties, obligations and
liabilities of Lessee under the Lease which arise from and after the
assignment of the Lease from Lessee to Assignee.
X. Xxxxxx has requested that Lessor grant its consent to the assignment of the
Lease.
X. Xxxxxx has agreed to give such consent in accordance with the terms and
conditions of the Lease under this Consent.
Terms and Conditions
--------------------
Based upon the foregoing Recitals, for good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, and intending to be
legally bound hereby, Lessor hereby agrees as follows:
1. Lessor's Consent to Assignment and Reassignment. If Lessee completes the
sale of the Assets to Assignee, lessor hereby consents to the assignment of
the Lease by Lessee to Assignee upon the terms and conditions set forth in
this Assignment. Lessor further consents to a future reassignment of the
Lease by Assignee to Lessee provided that the Lease has not been amended or
upon Lessee agreement to assume all tenant obligations under the Lease
arising after the date of such reassignment.
2. Lessee to Remain Liable. Lessee agrees to be and shall remain responsible
for all rent, additional rent, duties, obligations and liabilities under
the Lease and this consent shall not operate as a release thereof.
3. Limitation of Consent. The consent of Lessor given hereby extends only to
the assignment of the Lease to Assignee and thereafter by Assignee to
parties under common control with Assignee, including, without limitation,
Independent Wireless One Leased Realty Corporation, and to any future
reassignment to Lessee and shall not apply to any other assignment to the
Lease or subletting of the leased Premises. Any other further
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assignment of the Lease or subletting of the leased Premises, either in
whole or in part, is subject to the Consent requirements of the Lease.
4. Status of Lease. The lease is in full force and effect and there are no
defaults under the Lease as of the date of this Consent.
5. Right to Cure/Reassignment. Lessor agrees that it will provide Lessee with
written notice of any default by Assignee under the Lease. Lessee has the
right and the obligation to cure any such default if Assignee fails to cure
the default within the cure period provided under the Lease. All notices
to Lessee shall be in writing and sent certified mail or overnight carrier
to:
General Counsel Sprint PCS
Sprint Spectrum L.P. One International Blvd.
0000 Xxxx Xxxxxx Xxxxx 000
Xxxxxx Xxxx, XX 00000 Xxxxxx, Xxx Xxxxxx 00000
(000) 000-0000
(000) 000-0000
With a copy to:
X.X. Xxxx III, General Counsel Office of General Counsel
Independent Wireless One Corporation Independent Wireless One Corporation
000 Xxxxxxxxx Xx. 000 Xxxxx Xxxx Xxxx.
Xxxxx, XX 00000 Xxxxxx, XX 00000
6. Governing Law. This consent is to be governed by, and construed and
enforced in accordance with the laws of the state in which the Premises are
located.
IN WITNESS WHEREOF, Lessor and Lessee have executed this Consent for delivery as
of the date first above written.
LESSOR: LESSEE:
/s/ Xxxx Xxxxxxxxx /s/ [Signature Illegible]
---------------------------------- -----------------------------------------
Xxxx Xxxxxxxxx Sprint Spectrum L.P.
By: /s/ Xxxx Xxxxxxxxx By:
------------------------------- --------------------------------------
Name: Xxxx Xxxxxxxxx Name:
----------------------------- ------------------------------------
Title: Title:
---------------------------- -----------------------------------
/s/ Xxxx X. Xxxx 5/12/00 /s/ [Signature Illegible]
---------------------------------- -----------------------------------------
Witness: Date Witness: Date
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