EXHIBIT 10.25
LEASE
between
Xxxxxxxxx Associates
and
Independent Wireless One Corporation
TABLE OF CONTENTS
Article 1. Demised Premises
2. Term; Possession
3. Rent
4. Utilities
5. Use
6. Maintenance and Repairs
7. Alterations by Tenant
8. Signs
9. Parking
10. Assignment and Subletting
11. Subordination
12. Indemnity and Insurance
13. Damage or Destruction
14. Condemnation
15. Access
16. Default by Tenant
17. Remedies of Landlord
18. Self Help
19. Limitation of Liability
20. Force Majeure
21. Security Deposit
22. Estoppel Certificates
23. Relocation
24. Freon Containing Equipment
25. Hazardous Materials
26. Asbestos
27. Occupancy
28. Late Charge; Additional Rent
29. Lease Extension
30. Rules and Regulations
31. Notices
32. Real Estate Brokers
33. No Waiver
34. Quiet Enjoyment
35. Recording
36. Binding Effect
37. Entire Agreement
38. Waiver of Jury Trial
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39. Remedies Cumulative
40. Attorneys' Fees
41. Severability
42. Paragraph Headings
43. Acceptance
44. Rider
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LEASE
THIS LEASE, made and entered into as of the 22nd day of October, 1999,
by and between Xxxxxxxxx Associates, a New York general partnership having its
principal office and place of business at 000 Xxxxx Xxxx Xxxx., Xxxxxx, Xxx Xxxx
00000, as Landlord (hereinafter called "Landlord"), and Independent Wireless One
Corporation, having its principal office and place of business at 000 Xxxxxxxxx
Xxxxxx., Xxxxx, XX 00000 as Tenant (hereinafter called "Tenant");
WITNESSETH:
The parties hereto, for the consideration herein stated, hereby
covenant and agree as follows:
1. DEMISED 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 200 Great Oaks (hereinafter called the
"Building"), Suite 220 situated in Great Oaks Blvd., Western Avenue and Church
Road, Town of Guilderland, County of Albany, State of New York, to wit: Thirteen
Thousand, Three Hundred Thirty-Four (13,334) square feet of rentable space on
the second floor 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 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 standard method of floor
measurement and Landlord shall provide Tenant with a certification of the
accuracy of 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
The term of this Lease shall be for a period of five years commencing
on the first day of January, 2000 (hereinafter called the "Commencement Date")
and ending at midnight on the 31st day of December 2004 (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 a
first-class manner.
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3. Rent
a. The annual base rent (hereinafter called the "Base Rent") for the
demised Premises shall be Two Hundred Six Thousand Six Hundred Seventy-Six
Dollars ($ 206,676) which Tenant agrees to pay to Landlord in equal monthly
installments of Seventeen Thousand Two Hundred Twenty-Three Dollars ($ 17,223)
each, in advance on the first day of each and every calendar month during the
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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. Notwithstanding the above, the rent for the first month
of occupancy shall be pro-rated on a daily basis to reflect the number of days
of occupancy if less than a full month.
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 Immediately preceding the year
in which this Lease is executed (hereinafter referred to as the "Base Year").
The pro-rata percentage applicable to this Lease is 23 percent.
(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 and above the Tax charges with respect to the Base Year. The pro-rata
percentage applicable to this Lease is 23 percent. Computations relating to the
increases in Taxes shall be computed on and as if the Building of which the
demised Premises form a part is fully assessed as a completed building. The
parties hereto acknowledge that the Building of which the demised Premises form
a part, may not be fully assessed as a completed building prior to or at the
commencement of the Base Year and in such event it is agreed that during such
calendar year when the Building of which the demised Premises form a part is
less than fully assessed as a completed building for the purpose of calculating
Tax escalation charges, the tax rate(s) existing during the Base Year shall be
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applied to the final assessment as if the said building had been fully assessed
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during the Base Year. 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, utilities, 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.
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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 not 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,
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and/or refurbishment or improvement expenses; and costs of
preparing, improving or 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 the 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 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;
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o. Initial Construction Costs. The cost of tools and equipment used
initially in the construction 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.
"Taxes" are defined as all real estate taxes, assessments, and other
governmental charges, 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, may be included in the cost of maintaining and operating the
Building and Common Areas, provided such improvements would have the effect of
reducing 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
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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 of maintaining and operating the Building and Common Areas.
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 Landlord shall credit Tenant
with the amount of such overpayment against the monthly payments thereafter due
from Tenant on account of any future excess Operating Expenses and/or Taxes.
Tenant's obligation pursuant to this Paragraph shall be determined on a non-
cumulative basis each calendar year without regard to any amounts paid or
payable by Tenant with respect to any other calendar year.
d. Operating Expenses shall not include any expenses, labor or
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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.
Should any governmental taxing authority acting under any present or
future law, ordinance or regulation, levy, assess or impose a tax, excise and/or
assessment (other than an income or franchise tax) upon or against or in any way
related to the Land and Building or otherwise, such tax, excise and/or
assessment shall be deemed a lienable charge hereunder.
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.
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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. 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 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. No diminution or abatement of Base Rent and Additional Rent, or
other compensation, shall be claimed or allowed for inconvenience or discomfort
arising from the making of repairs or improvements to the Building or to its
appliances, nor for any space taken to comply with any law, ordinance or order
of a governmental authority. In respect to the various "services", if any,
herein expressly or impliedly agreed to be furnished by Landlord to Tenant, it
is agreed that there shall be no diminution or abatement of the Base Rent and
Additional Rent, or any other compensation, for interruption or curtailment of
such "service" when such interruption or curtailment shall be due to accident,
alterations, or repairs desirable or necessary to be made or to inability or
difficulty in securing supplies or labor for the maintenance of such "service"
or to some other cause, not gross negligence on the part of Landlord. No such
interruption or curtailment of any such "service" shall be deemed a constructive
eviction. Landlord shall not be required to furnish, and Tenant shall not be
entitled to receive any of such "services" during any period wherein Tenant
shall be in default in respect to the payment of Base Rent and Additional Rent.
Neither shall there be any abatement or diminution of Base Rent and Additional
because of making of repairs, improvements or decorations to the demised
Premises after the Commencement Date of the term, it being understood that Base
Rent and Additional Rent shall, in any event, commence to run at such date so
above fixed.
Notwithstanding the above, Tenant shall be entitled to an abatement of rent
for any portion of the premises, after an interruption of service for three (3)
consecutive business days, during which Tenant is unable to conduct its business
from that portion of the Premises.
h. At the request of Tenant at any time within ninety (90) days after
Landlord delivers the yearly statement of Operating Expenses 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. 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
shall thereafter, prior to a
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date one hundred eighty (180) days from the date of the statement was delivered,
advise Landlord if Tenant objects to any part of such statement, in which event
the matter shall be submitted to arbitration. If Tenant does not make objection
by the date specified, Tenant shall be deemed to have waived any objection and
will have no further right to challenge or object to the charges based on such
statement.
4. UTILITIES
To the extent not already included in Operating Expenses, 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, any
equipment which supports heating and cooling within Tenants' premises, as well
as site lighting for the Common Parking Areas.
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 equipment 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 all utilities to be at Tenant's expense) at Six Xxxxx per rentable sq.
ft. demand load, not connected (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)) in common with other tenants
for access to and from the Premises; provided, however, that Landlord may
reasonably limit the use of the elevator to be operated at night after normal
business hours 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 tenant's 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 Second
floor of the Building to enable the Tenant to have continuous access to the
Premises. Landlord shall provide Tenant with access to
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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 (145)
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.
5. USE OF PREMISES
a. The demised Premises shall be used for Tenant's office purposes
only. Premises shall be used only during normal business hours which the
parties agree shall be the hours between 7:00 AM and 6:00 PM, Monday through
Friday. If the Tenant and Tenant's employees shall use said premises in excess
of those hours on a regular basis, then Tenant shall obtain Landlord's written
approval and shall be subject to additional charges for services required by
Tenant related to its additional usage, to be paid to Landlord as additional
rent.
b. Tenant shall not at any time use or occupy, or suffer or permit
anyone to use or occupy, the demised Premises, in any manner (a) which causes or
is liable 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 or tends to impair the character, reputation or appearance of the
Building as a first-class office Building; (d) which impairs or tends to impair
the proper and economic maintenance, operation and repair of the Building and/or
its equipment, facilities or systems; or (e) which unreasonably annoys or
inconveniences or tends to annoy or inconvenience other tenants or occupants 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 Federal, State and City Government and of
any and all their Departments and Bureaus applicable to said Premises, for the
correction, prevention and abatement of nuisances or other grievances,
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in, upon, or connected with said Premises during said term; 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. 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 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)).
d. Tenant shall, at Tenant's expense, timely remove any systems or
equipment the Tenant installs in the event that any future laws so requires.
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 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 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. Landlord shall provide janitorial
service only Monday through Friday, except for national holidays, in accordance
with Exhibit "B", attached hereto.
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 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 under the supervision of the
Landlord. Landlord shall execute and deliver upon request of Tenant such
instrument or instruments
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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. 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. At the time approved Landlord shall notify Tenant of Landlord's
requirement to remove all or any part of such alterations, additions or
improvements, and in such event the Tenant shall promptly remove the same at its
expense and shall repair all damage to the premises caused by such removal.
b. Tenant shall not permit any mechanics' or materialmen's liens to
be filed against the fee of the real property of which the Premises form a part
nor against the Tenant's leasehold Interest in the Premises. 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 are so filed, the 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 upon
receipt of notice by Tenant.
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
Tenants 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 a maximum of sixty-six (66) parking spaces
for Tenant's use and use of Tenant's visitors at no extra charge. 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, and the Tenant will not vacate or abandon
the Premises. 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 demised 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 thirty (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 approval 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. In the event of any sublease of all or any portion of the demised
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.
d. 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 be
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 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
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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 Landlord 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 demised 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 demised 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 demised Premises for the purpose of doing any work or making any
installations, (iii) any condition' of the demised 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. With the exception of Tenant negligence, Landlord shall indemnify,
defend and hold harmless the Tenant, 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 Landlord's use of the demised Premises or conduct of business
therein, (ii) any work or thing whatsoever done, or any condition created (other
than by the Tenant, its employees, agents or contractors) by or on behalf of the
Landlord in or about the demised Premises, including during the period of time,
if any, prior to the term Commencement Date, that the Landlord may have been
given access to the demised Premises for the purpose of doing any work or making
any installations, (iii) any condition of the demised Premises due to or
resulting from any default by the Landlord in the performance of the Landlord's
obligations under this lease, or (iv) any act, omission or negligence of the
Landlord or its agents, contractors, employees, subtenants, licensees or
invitees. In case any action or proceeding is brought against the Tenant by
reason of any one or more thereof, the Landlord shall pay all costs, attorneys'
fees, expenses and liabilities resulting therefrom and shall defend such action
or proceeding if Tenant shall so request, at Landlord's expense, by counsel
reasonably satisfactory to the Tenant.
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c. Tenant shall carry and keep in force, at its own expense, with
respect to the demised Premises, a policy or policies of public liability and
all risk property damage insurance with an insurance company or companies
reasonably satisfactory to Landlord. Such policies shall name the Landlord as
an insured party as its interest may appear and shall be in the following
minimum amount: Personal 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 together with
an endorsement thereon evidencing payment of the premium or other satisfactory
proof thereof shall be delivered to Landlord. Landlord shall provide Tenant
with evidence of liability and casualty insurance in an amount equal to that
required by Landlord of Tenant.
d. 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 demised Premises which would subject
Landlord to any liability or responsibility for personal injury or 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 Land in amounts reasonably satisfactory to
Landlord.
e. Tenant will not, nor will Tenant permit undertenant or other
persons to do anything in said Premises, or bring anything into said Premises,
or permit 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 demised Premises,
nor use the demised 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.
f. 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
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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 damage. 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.
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 condemnor 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 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 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.
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 hinderance 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:
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a. Vacate or abandon the Premises while failing to pay Base Rent and
Additional Rent; or
b. Default in the payment of any installment of Base Rent and
Additional Rent or any other sum specifically to be paid by Tenant 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
c. Default in the observance or performance of any 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 default
shall not have been cured within fifteen (15) days after Landlord shall have
given to Tenant written notice specifying such default; provided, however, that
if the default complained of shall be of such a nature that the same cannot be
completely remedied or cured within such fifteen (15) day period, then such
default shall not be an enforceable default against Tenant for, the purposes of
this Paragraph if Tenant shall have commenced curing such default within such
fifteen (15) day period and shall proceed with reasonable diligence and in good
faith to remedy the default 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
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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
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, 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, using such force as may be
necessary, without being deemed guilty of trespass, eviction or forcible entry,
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 an breach and any diminished value of said premises resulting from
said breach; and
(vi) in the event of a breach or threatened breach 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
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Base Rent, Additional Rent or any other charge or payment the responsibility of
Tenant to make hereunder) if, during the said ten (10) 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 remedied within said ten (10) day period,
then Tenant shall not be in default if, during the said ten (10) 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 but in no event, however, shall the time within which
Tenant shall have to cure said default be extended beyond sixty (60) days from
the given of said ten (10) days notice.
c. Except for the ten (10) 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 agreed 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, Landlord may, at
Landlord's sole option, at any time, without notice, cure such breach for the
account and at the expense of Tenant. If Landlord 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 Tenant (including, without limitation,
attorney's fees and disbursements in reasonable amount in instituting,
prosecuting, or defending any suits, actions or proceedings to enforce
Landlord's rights under this Lease or otherwise), the sum, or sums so paid by
Landlord with all interest at the rate of twelve (12) percent per annum, costs
and damages shall be paid by Tenant to Landlord, as additional rent, upon
demand.
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 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, warlike 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. Tenant shall similarly be excused for delay in the performance of
obligations hereunder provided:
(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 Tenant upon this Paragraph shall limit or restrict
In any way Landlord's right of self-help as provided in this Lease; and
(iii) Tenant shall not be entitled to rely upon this Paragraph unless
it shall advise Landlord 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
NONE
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: (a)
ratifying this Lease; (b) expressing the Commencement and Expiration Dates
thereof; (c) 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); (d) that all conditions under this Lease to be performed by
Landlord have been satisfied; (e) that there are no defenses or offsets against
the enforcement of this Lease by Landlord, or stating those claimed by Tenant;
(f) the amount of advance rental, if any, (or none if such is the case) paid by
Tenant; (g) the date to which Base Rent and Additional Rent has been paid; and
(h) the amount of security deposited with Landlord;(i) whether all work to be
performed by Landlord has been completed; (j) such other matters as may be
reasonably requested by Landlord. Such declaration shall be executed and
delivered by Tenant from time to time as may be requested by Landlord.
Landlord's mortgage lenders and/or purchasers shall be entitled to rely upon
same.
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I Tenant falls to execute and deliver to the Landlord a completed
certificate as required under this section the Tenant hereby appoints the
Landlord as his attorney-in-fact to execute and deliver such certificate for and
on behalf of Tenant.
23. RELOCATION OF PREMISES
This Paragraph has been deleted
24. FREON CONTAINING EQUIPMENT
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 utilized by the Tenant during the term of hereof, or any freon-
containing equipment which was installed and/or utilized, and/or stored, and/or
in any way found to be in Tenant's demised Premises and/or the Building of which
the demised Premises form a part during the term hereof. 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 expeditously and in a workmanlike
manner.
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 the Premises shall be kept free of Hazardous
Material, as hereinafter defined, and neither Tenant nor any occupant of the
Premises shall use, transport, store, dispose of or in any manner deal with
Hazardous Materials on the Premises, except 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 regulation. 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
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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 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 bephenyls 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 the Premises shall be kept free of any asbestos
or asbestos containing material, hereinafter referred to as "Asbestos", and
neither Tenant nor any occupant of the Premises shall install, or permit to be
installed, 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. 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 the Premises in accordance
with all applicable federal, state and local laws, ordinances, rules and
regulation. 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 wrong fully holding over or any
other person wrongfully in possession or for any other reason. To the extent
that such holdover tenancy or delay exceeds sixty (60) days, Tenant shall have
the right to terminate the Lease. 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, after which there shall be a five
percent (5%) late charge calculated on the amount then due.
23
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 first above written. Any such
addresses for the giving of notice may be changed by either party by giving
notice thereof in writing to the other.
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 Xxxxxxxxx Realty (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.
24
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.
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. ATTORNEY'S 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 provision(s) 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.
25
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
demised Premises and this Lease shall be and become effective as a lease only
upon legal execution and delivery hereof by Landlord and Tenant.
44. RIDER:
The attached Rider consisting of ___ 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.
26
Signed, Sealed and Delivered LANDLORD:
in the Presence of:
By: /s/ Xxxx Xxxxxxxxx
_____________________________________________
_____________________________________________ Tenant: Independent Wireless One Corp.
_____________________________________________
_____________________________________________ By: /s/ Xxxxx X. Xxxxxx
Its: Xxxxx X. Xxxxxx, Pres. & CEO
State of New York )
) SS:
County of Oneida )
The foregoing instrument was acknowledged
before me this 29 day of November, 1999, by
Xxxxx X. Xxxxxx, as President and CEO of
Independent Wireless One, a Delaware
corporation.
Sworn to before me this 29th day of
November, 1999
/s/ Xxxxxx Xxxxxxxx
Notary Public
State of New York )
) SS:
County of Albany )
The foregoing instrument was acknowledged
before me this 30th day of November, 1999,
by Xxxx Xxxxxxxxx as Partner of Xxxxxxxxx
Associates, a Partnership.
Sworn to before me this 30th day of
November, 1999
/s/ Xxxxxx X. Xxxxxxx
Notary Public
27
EXHIBITS:
A. Floor Plan showing leased premises
B. Cleaning Schedule
C. Landlord's Improvements: Workletter
D. Rules and Regulations
28
[EXHIBIT A FLOOR PLAN]
EXHIBIT 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 - doorglass
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 spraybuff 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)
Schedule C
Workletter
Landlord shall provide the following improvements to the existing premises:
1. Repair where necessary and repaint all existing walls with white paint to
match existing finish.
2. Clean all carpeting wall to wall.
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
Tenants' 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.
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 t 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 hall 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.
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 at any time prescribed for the Building when, in its 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.
000 Xxxxx Xxxx Xxxxxx Xxxx
Xxxxxx, Xxx Xxxx 00000
(000) 000-0000 Office
(000) 000-0000 Fax
XXXXXXXXX DEVELOPMENT CORP.
December 9, 1999
Xx. Xxx Xxxxxx, President & CEO
000 Xxxxxxxxx Xx.
Xxxxx, XX 00000
Re: Lease Amendment No. 1
Independent Wireless One Corporation
200 Great Oaks Office Park-Suite 220
Dear Xx. Xxxxxx:
This letter constitutes Amendment No. 1 of the Lease Agreement, dated October
22, 1999 between Xxxxxxxxx Associates and Independent Wireless One Corporation
for the space you have leased at 000 Xxxxx Xxxx Xxxxxx 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 December 8, 1999 as follows:
1. The size of the premises shall be increased from approximately Thirteen
Thousand Three Hundred Thirty-Four (13,334) rentable square feet to
approximately Thirteen Thousand Eight Hundred Forty- Seven (13,847) rentable
square feet, as shown on Exhibit A-1, attached hereto and made a part hereof.
2. The rent shall be increased from Two Hundred Six Thousand Six Hundred
Seventy-Six Dollars ($206,676) to Two Hundred Fourteen Thousand Six Hundred
Twenty-Eight and 50/100 Dollars ($214,628.50) to be paid in equal monthly
installments of Seventeen Thousand Eight Hundred Eighty-Five and 71/100 Dollars
($17,885.71) until the expiration of the term on December 31, 2004.
3. The pro-rate percentage applicable to this lease for Real Estate Taxes and
Operation Expenses shall be increased from 23 percent to 23.9 percent.
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
sign all three copies of this letter by the designated parties. 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/ Xxxxx X. Xxxxxx, President and CEO
Independent Wireless One Corporation
Date: 12/16/99
By: /s/ Xxxx Xxxxxxxxx
Xxxxxxxxx Associates
Date: 12/16/99
[EXHIBIT A-1 FLOOR PLAN]
CONSENT TO ASSIGNMENT
---------------------
THIS CONSENT TO ASSIGNMENT (this "Consent") is made and delivered as of the 12th
of May, 2000 by Xxxxxxxxx Associates ("Lessor") and Independent Wireless One
Corporation and its assigns ("Lessee").
Recitals
--------
A. Lessor and Lessee entered into a lease dated October 22, 1999 (the "Lease")
pursuant to which Lessee leased from Lessor certain premises located at 000
Xxxxx Xxxx Xxxx., Xxxxxx, XX 00000 (the "Premises").
B. Lessee has requested that Lessor grant its consent to the assignment of the
Lease to Independent Wireless One Leased Realty Corporation ("Assignee"),
its wholly-owned subsidiary.
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. Lessor hereby consents to
the assignment of the Lease by Lessee to Assignee upon the terms and
conditions set forth in the 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 and for all 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, 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 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:
X.X. Xxxx, III, General Counsel Corporate Attorney
Independent Wireless One Independent Wireless One
Corporation 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.
LESSEE: LESSOR:
Independent Wireless One Corporation Xxxxxxxxx Associates
By: /s/ Xxxxx Xxxxxx By: /s/ Xxxx Xxxxxxxxx
__________________________________ _________________________________
Name: Name: Xxxx Xxxxxxxxx
Title: Title: Partner
/s/ Xxxx X. Xxxx 5/12/00
_____________________________________ ____________________________________
Witness Date Witness Date
