Exhibit 99.9
LEASE
LANDLORD
THE HAGUE CORPORATION
TENANT
ACC CORP.
DATE: JANUARY 25, 1994
TABLE OF CONTENTS
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Page
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TERM SHEET............................................... T-1
1. DEFINITIONS......................................... 1
2. PREMISES............................................ 3
3. RIGHT OF FIRST REFUSAL.............................. 4
4. TERM OF LEASE; COMPLETION OF IMPROVEMENTS........... 5
5. EXTENSION OF TERM................................... 6
6. RENT, ADDITIONAL RENT............................... 7
7. COMPLIANCE WITH LAWS/USE OF PREMISES................ 9
8. SERVICES AND UTILITIES.............................. 9
9. PARKING............................................. 11
10. ACCESS TO THE PREMISES.............................. 12
11. COMMON AREA MAINTENANCE............................. 12
12. IMPROVEMENTS........................................ 13
13. REPAIRS............................................. 13
14. RIGHT OF ENTRY BY LANDLORD.......................... 14
15. INDEMNIFICATION..................................... 14
16. INSURANCE........................................... 15
17. SUBROGATION......................................... 16
18. LIENS AND ENCUMBRANCES.............................. 16
19. HOLDING OVER........................................ 16
20. ASSIGNMENT AND SUBLETTING........................... 17
21. DEFAULT AND RE-ENTRY................................ 18
22. CONDEMNATION........................................ 20
23. DESTRUCTION OF LEASED PREMISES...................... 21
24. PROPERTY TAXES...................................... 21
25. QUIET ENJOYMENT..................................... 23
26. SUBORDINATION....................................... 23
27. ESTOPPEL CERTIFICATE BY TENANT...................... 24
28. CONSENT BY LANDLORD................................. 24
29. HAZARDOUS SUBSTANCES................................ 25
30. MICROWAVE DISHES, RADIO ANTENNAS and
OTHER TRANSMISSION/RECEIVING EQUIPMENT.............. 26
31. BROKERS............................................. 26
32. NOTICES............................................. 26
33. RELATIONSHIP........................................ 27
34. COMPLETE AGREEMENT.................................. 27
35. AUTHORITY FOR EXECUTION............................. 28
36. BINDING EFFECT...................................... 28
37. EXECUTION........................................... 28
38. RULES............................................... 28
39. FORCE MAJEURE....................................... 29
40. AMERICANS WITH DISABILITIES ACT OF 1990............. 29
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41. MEMORANDUM OF LEASE................................. 31
42. CONTINGENT ON SPECIAL USE PERMIT.................... 31
43. SECURITY............................................ 31
-ii-
Exhibit
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A Buildings
B Premises
C Confirmation of Commencement Date and Termination Date
D Janitorial Services
E Estoppel Certificate
F Landlord's Work
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TERM SHEET
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Basic Lease Provisions
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1. Date: January 25, 1994
2. Landlord: The Hague Corporation
▇▇▇▇▇ ▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
3. Tenant: ACC Corp.
4. Section 1(b) Building Address:
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
5. Section 1(d) Business Hours:
8:00 a.m. - 5:00 p.m. Monday through
Friday
8:00 a.m. - 12:00 p.m. Saturday
6. Section 1(g) Floors: Parts of 2nd and 3rd Floors
in Buildings 1, 2, 16, 16A
7. Section 1(h) Exhibits: ▇, ▇, ▇, ▇, ▇, ▇, ▇.
8. Section 1(k) Tenant's Percentage Share: 27.24%
for Property Taxes and Operating
Expenses, except 62% for Operating
Expenses of snow removal and 50%
security costs.
9. Section 2 Premises
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Rentable Square Feet: 76,000; Tenant
shall be provided 2500 square feet of
contiguous space on the 2nd floor at
no additional Base Rent or Additional
Rent charges.
Buildings
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Rentable Square Feet: 266,292 (for
Tenant's Percentage share calculation
of Operating Expenses except for snow
removal and security costs, for which
the Rentable square feet for Tenant's
Percentage share of security costs
calculation shall be 112,952)
10. Section 3 Term Commencement Date: 5/1/94
Rent Commencement Date: 7/1/94
11. Section 3 Term Expiration Date: 6/30/04
T-1
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12. Section 4 Extended Term Commencement Date:
7/1/04
13. Section 4 Extended Term Expiration Date:
6/30/09
14. Section 5(a) Base Rent:
$507,682.00/yr. years 1-2 (based on
$7.00 p.s.f.)
$616,471.00/yr. years 3-5 (based on
$8.50 p.s.f.)
$688,997.00/yr. years 6-10 (based on
$9.50 p.s.f.)
Monthly Installment Amount:
$42,306.83/mo. years 1-2
$51,372.58/mo. years 3-5
$57,416.42/mo. years 6-10
15. Section 6 Extended Term Base Rent:
$761,523.00/yr.
(based on $10.50 p.s.f.)
$63,460.25/mo.
16. Section 7 Use: general office use and related
telecommunications use (see Lease)
17. Section 8 Parking: Landlord to provide 3
spaces per 1,000 square feet of the
Premises; 150 initially
18. Section 32 Broker: None
19. Paragraph 33 Landlord's Address for Notice:
▇▇▇▇▇ ▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Tenant's Address for Notice:
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇
Additional Provisions: See Exhibits "F" & "G" - Landlord's
Work, Tenant's Plans
Landlord's Work: Those items of work set forth in
Exhibit "F"
T-2
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IN WITNESS WHEREOF, Landlord and Tenant have executed the Lease to
which this Term Sheet is attached by signing and dating this Term Sheet and the
first page of the Lease.
TENANT: LANDLORD:
ACC CORP. THE HAGUE CORPORATION
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
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Its: VP - Finance Its: President
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T-3
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LANDLORD
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STATE OF NEW YORK )
COUNTY OF MONROE )
The foregoing instrument was acknowledged before me this 25th day of
January, 1994, by ▇▇▇▇▇ ▇. ▇▇▇▇▇, President of THE HAGUE CORPORATION, a New York
corporation, on behalf of the corporation.
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Notary Public
TENANT
------
STATE OF NEW YORK )
COUNTY OF MONROE )
The foregoing instrument was acknowledged before me this 25th day of
January, 1994, by ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, of ACC CORP., a Delaware corporation, on
behalf of the corporation.
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Notary Public
T-4
LEASE
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THIS LEASE, dated as of the 25th day of January, 1994, between THE
HAGUE CORPORATION, a New York Corporation with offices for the transaction of
business located at ▇▇▇▇▇ ▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
(herein called "Landlord") and ACC CORP., a Delaware corporation with offices
for the transaction of business located at ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇ (herein called "Tenant").
W I T N E S S E T H:
Landlord hereby leases to Tenant, and Tenant hereby takes and hires
from Landlord, the Premises as defined in Paragraph 1(g) below, for the term and
subject to the terms, covenants, agreements and conditions hereinafter set
forth, to each and all of which Landlord and Tenant hereby mutually agree.
1. DEFINITIONS
-----------
Unless the context otherwise specifies or requires, the following
terms shall have the meanings herein specified:
(a) "Additional Rent" shall mean any payment due Landlord under the
terms of this Lease except for Base Rent and Extended Term Rent. All remedies
applying to the non-payment of Base Rent and Extended Term Rent shall be
applicable to Additional Rent.
(b) "Buildings" shall mean all of the buildings and the land and other
real property in the parcel more particularly described on Exhibit "A" hereto,
excluding Lot J, all easements and rights of way affecting Tenant's Premises,
and all other improvements on or appurtenances to said parcel, as presently
exist and may change from time to time.
(c) "Business Day" shall mean Monday through Friday and Saturday
[only as noted in (d) below], but excludes the following holidays or the days
on which the holidays are designated for observance: New Year's Day, Memorial
Day, Independence Day, Labor Day, Thanksgiving Day and Christmas Day.
(d) "Business Hours" shall be the hours of 8:00 a.m. to 5:00 p.m.
Monday through Friday, and 8:00 a.m. to 12:00 p.m. Saturday.
(e) "Calendar Year" shall mean any period during the Initial Term or
any Extended Term of this Lease commencing on January 1 and ending on the next
following December 31.
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(f) "Common Areas" shall mean all interior and exterior common areas,
including, but not limited to, parking areas, driveways, building's signs,
landscaping, paving, sidewalks, hallways, stairways, escalators, elevators,
common entrances, lobbies, restrooms and other similar public areas and access
ways.
(g) "Premises" shall mean the following: (i) the portion of the
Buildings 1, 2, 16, and 16A located on parts of the second and third floor(s),
which is outlined on the floor plan attached hereto as Exhibit "B"; (ii) all
fixtures, improvements and other property now installed or located in the
Premises plus any improvements described in Section 4(b); and (iii) together
with the appurtenances including the right to use the Common Areas.
(h) This "Lease" shall mean and include this instrument, the Term
Sheet, Landlord's Worksheet, Exhibits A, B, C, D, E, F and G and all other
Exhibits, if any, made a part of this Lease.
(i) "Operating Expenses" shall mean any and all of Landlord's costs
and expenses paid or incurred in operating, managing and maintaining the Common
Areas, as defined in Section 1(f) of this Lease, for each Lease Year or partial
Lease Year, as determined by Landlord in accordance with generally accepted
accounting principles, consistently applied, including by way of illustration
and not limitation: insurance premiums pursuant to Section 16 of this Lease,
water, sewer, electrical and other utility charges (e.g., lighting in the Common
Area parking lots) other than the separately billed electrical and other
charges, if any, paid by Tenant as provided in this Lease; service and other
charges incurred in the maintenance of the elevator; refuse disposal, snow
removal, cleaning and other janitorial services; tools and supplies; repair
costs, landscape maintenance costs; security services in the Common Areas (if
any); license, permit and inspection fee(s); Landlord's cost of wages and
related employee benefits payable for the maintenance and operation of the
Common Areas; and in general all other costs and expenses which would, under
generally accepted accounting principles, be regarded as operating and
maintenance costs and expenses for the Common Areas.
(j) "Property Taxes" shall mean the total of all real property taxes
and currently due installments of assessments, special or otherwise, levied
upon, or with respect to or reasonably allocable to the Buildings, imposed by
any taxing authority having jurisdiction. Property Taxes also shall include all
taxes, levies and charges which may be assessed, levied or imposed in
replacement of or in addition to all or any part of ad valorem real property
taxes as revenue sources, and which in whole or in part are measured or
calculated by, based upon or allocable to the Buildings, the leasehold estate of
Landlord or Tenant, or the rent and other charges payable hereunder, and shall
include sewer and water charges, pollution, pure water, and other environmental
control charges, if any.
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If Landlord shall enter into any payment in lieu of tax or other
similar agreement with any taxing entity, in lieu of or as a substitute in whole
or part for any Property Taxes, such payments shall be deemed included in
Property Taxes.
(k) "Rent Commencement Date" shall mean the date Tenant's Base Rent
and Additional Rent shall commence being due and owing, which will be July 1,
1994 or two months after delivery of possession of the Premises to Tenant with
Landlord's Work substantially completed.
(l) "Tenant's Percentage Share" shall mean the percentage figure which
is equal to the rentable square footage of the Premises divided by the rentable
square footage of the Buildings. Initially, such percentage shall be 27.24% for
Property Taxes and Operating Expenses (based on 72,526 rentable square feet of
the Premises), except that it shall be 62% for Tenant's share of snowplowing
costs and 50% for Tenant's share of security services.
(m) "Term Sheet" shall mean the terms set forth in the foregoing
paragraphs delineated as "Term Sheet," which terms are hereby incorporated in
this Lease as if set forth in full. In the event of any conflict between any
provision of the Term Sheet and this Lease, the Lease shall control.
2. PREMISES
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(a) Landlord has caused the Premises to be measured by architects,
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ & Associates, and the Premises contain approximately 72,526
rentable square feet.
Either party may at any time prior to the Rent Commencement Date cause
the Premises to be measured, at the cost of the electing party, and if the area
of the Premises as so measured, is more or less than the number of square feet
set forth above, then the Base Rent and Additional Rent charges payable herein
shall be adjusted in proportion to the square footage of the Premises as so
measured.
Tenant represents that Tenant is familiar with the condition of the
Premises. Tenant shall accept possession of the Premises subject to the
completion of Landlord's work as described in this Lease in Exhibit "F". Tenant
has received and reviewed Landlord's environmental and engineering studies and
surveys for the Buildings, prior to the execution of this Lease, to make
independent assessments of the issues contained therein.
Tenant and its agents, employees and invitees have the non-exclusive
right with others designated by Landlord to the free use of the Common Areas and
the land on which the Buildings is located for the Common Areas' intended and
normal purpose, subject to Landlord's reasonable regulation. Landlord may
change the Common Areas if the
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changes do not materially and unreasonably interfere with Tenant's access to the
Premises or use of them.
3. RIGHT OF FIRST REFUSAL
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(a) Receipt of Offer; Exercise.
--------------------------
If at any time from and after the date hereof the Landlord shall
receive a bona fide offer from a third party ("Lease Offer") to lease any part
of or all of the remainder of the second floor of buildings 16 and 16A and not
included in the Demised Premises ("Adjacent Space") as shown on Exhibit A which
Lease Offer the Landlord shall desire to accept, the Landlord will immediately
notify Tenant pursuant to Section 3 of this Lease of all the terms and
conditions of the Lease Offer, enclosing a copy of the Lease Offer, and Tenant
shall have the right or option for a period of thirty (30) days after receipt of
such notice to elect to lease the Adjacent Space for the same consideration and
upon the same terms and conditions set forth in this Lease. Such election shall
be in writing and shall be delivered to the Landlord either personally or by
certified or express mail before the end of the thirty (30) day period.
(b) Failure to Exercise Right.
-------------------------
If such election shall not be exercised within the thirty (30) day
period, the Landlord shall have the right to lease the Adjacent Space to any
tenant but only upon the terms and conditions set forth in the Lease Offer and
within one (1) year of the receipt of the notice by Tenant.
(c) Failure of Landlord to Lease.
----------------------------
If the Adjacent space is not leased as provided in 3(b) above, then
upon the receipt of any further Lease Offer which the Landlord desires to
accept, the provisions of Section 3(a) hereof shall be and remain effective.
(d) Compliance.
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It is agreed that an Affidavit by the Landlord's attorney, showing
compliance with the provisions hereof with a copy of the Lease Offer attached
and a failure on the part of Tenant to exercise this first refusal option shall
be sufficient proof that this option is terminated.
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4. TERM OF LEASE; COMPLETION OF IMPROVEMENTS
-----------------------------------------
(a) The term of this Lease (hereinafter referred to as the "Initial
Term") shall commence on May 1, 1994 or the date of delivery of possession of
the Premises to Tenant with Landlord's Work substantially complete as certified
by the supervisory engineer of Tenant set forth in (b) below, and, unless sooner
terminated as hereinafter provided, shall end on June 30, 2004 (hereinafter,
respectively, the "Term Commencement Date" and the "Term Expiration Date").
Notwithstanding the above, Tenant's Base Rent and Additional Rent obligations
shall commence on July 1, 1994 or 2 months following the date of delivery of
possession of the Premises to Tenant with Landlord's Work substantially
complete. Landlord shall deliver the Premises free from all tenancies and
occupancies and free from all suits, complaints, reports, notices or orders with
respect to violations of any federal, state, municipal, or other governmental
laws and regulations.
On the expiration date, or earlier termination date of this Lease,
Tenant shall quit and surrender the Premises, broom clean, and in good condition
and repair, excepting only reasonable wear and tear, together with all
alterations, fixtures, installations and improvements which may have been made
in or attached on or to the Premises, or the Buildings (as provided for
elsewhere in this Lease), except for damages caused by fire or other casualty or
the elements, and except for improvements, installations, etc., which Tenant is
required to remove in accordance with other provisions of this Lease. Upon
surrender, Tenant may remove any of its trade fixtures, provided that it repairs
any structural damage to the Premises, or Buildings, as the case may be, caused
by such removal.
(b) Prior to the Term Commencement Date, Landlord shall construct or
install in the Premises the improvements to be constructed or installed by
Landlord, at Landlord's cost and expense, as set forth in the Term Sheet in
accordance with plans and specifications to be attached hereto as Exhibit "F"
(It is understood by Tenant and Landlord that after the execution of this Lease,
the Landlord will furnish the plans and specifications which will be attached
hereto as Exhibit "F" upon approval of the supervisory engineer of Tenant as set
forth below.) The improvements shall be completed in a good and workmanlike
manner and comply with all applicable laws, ordinances, rules and regulations of
government authority. Landlord agrees to expend not less than $2.4 million
dollars for improvements and alterations to be completed in accordance with the
plans and specifications to be attached hereto as Exhibit "F" above described.
To the extent that $2.4 million is not expended for such improvements and
alterations, the Base Rent set forth in Section 6 of this Lease shall be reduced
and prorated proportionately by the amount of the difference between actual
expenditures and the sum of $2.4 million over the first six (6) years of the
Lease Term. A supervisory engineer designated by Tenant and selected by the
Special Committee of Tenant shall, at Tenant's sole cost and expense, audit and
monitor the expenditures of Landlord for the purposes of determining and
certifying the total dollar amount expended by Landlord for the improvements and
alterations set forth in Exhibit "F" attached hereto. Landlord shall fully
cooperate in furnishing all information needed by the supervisory engineer of
Tenant for the purposes of said engineer's certification to the Special
Committee.
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This Lease is contingent upon approval by the supervisory engineer of
Tenant, within a reasonable period of time following receipt, of plans and
specifications to be furnished by Landlord and to be attached hereto as Exhibit
"F" as above described.
Said Supervisory engineer shall be authorized to review and monitor
the work being performed by the Landlord, its agents and contractors, and said
supervisory engineer shall report to the Special Committee with respect to the
compliance of the work being performed in accordance with said plans and
specifications to be attached hereto as Exhibit "F", and, where required, that a
certificate of occupancy from the City of Rochester has been issued. The
supervisory engineer of Tenant shall have the authority to approve substantial
completion of the Premises prior to commencement of the Lease term, provided
that a "punch list" of items remaining to be performed by Landlord has been
approved by said supervisory engineer, and a completion date has been agreed
upon by both the supervisory engineer and Landlord for completion of all items
on said "punch list".
(c) Tenant agrees to perform or cause to be performed all other work
necessary for the completion of the Premises, at Tenant's cost and expense,
including those items set forth in the Term Sheet, in a good and workmanlike
manner and in compliance with all applicable laws, ordinances, rules and
regulations of Landlord and of governmental authorities, and in accordance with
plans and specifications submitted and approved by Landlord. Such plans shall
be annexed hereto as Exhibit "G".
(d) Landlord and Tenant agree, upon demand of the other, to execute a
declaration in the form attached hereto as Exhibit C and made a part hereof by
reference, expressing the Term Commencement Date and Term Expiration Date.
5. EXTENSION OF TERM BEYOND INITIAL TERM
-------------------------------------
Provided: Tenant shall not be in default of any material terms or
conditions of this Lease beyond any applicable cure periods; this Lease is in
full force and effect; and Tenant is in possession of the Premises, Tenant shall
have the option to extend this Lease (hereinafter the "Extended Term")
commencing July 1, 2004 and, unless sooner terminated as herein provided, ending
on June 30, 2009 (hereinafter, respectively, the "Extended Term Commencement
Date" and the "Extended Term Expiration Date") by giving Landlord written notice
of its intention to do so at least six (6) months prior to the end of the
Initial Term, upon the same terms and conditions as herein stated and at the
rental rate of $10.50 per square foot of the Premises ("Extended Term Base
Rent").
5(A). EARLY TERMINATION OF INITIAL TERM
---------------------------------
Provided Tenant shall not be in default of any of the material terms
or conditions of this Lease beyond any applicable cure periods, Tenant shall
have the option to terminate this Lease effective the end of any month after the
end of the 61st month of the
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Initial Term, by giving Landlord written notice of its intention to do so at
least six (6) months in advance of the applicable termination date.
The payment due Landlord by Tenant required to exercise an early
termination of this Lease shall be reduced by twenty percent (20%) for
terminations effective the seventy-fourth (74th) month of the term of this
Lease, and an additional twenty percent (20%) after each twelve (12) month
period thereafter. To be effective, Tenant must forward to Landlord, at the
time of any such election, payment equal to twelve (12) months' Base Rent
together with an additional payment equal to the Additional Rent for the
immediately preceding twelve months, both subject to the cumulative percentage
annual reduction referred to in this section. Such notice of termination shall
not be effective unless accompanied by said payments. Notwithstanding anything
to the contrary contained in this section, Tenant shall not be required to make
any early termination payment if Tenant terminates this Lease pursuant to
Sections 8 or 13 of this Lease.
6. RENT, ADDITIONAL RENT
---------------------
(a) Tenant shall pay to Landlord throughout the Initial Term and
Extension Term, if any, of this Lease, as rental for the Premises, the Base Rent
as follows:
Base Rent:
$507,682.00/yr. years 1-2 (based on $7.00 p.s.f.)
$616,471.00/yr. years 3-5 (based on $8.50 p.s.f.)
$688,997.00/yr. years 6-10 (based on $9.50 p.s.f.)
Monthly Installment Amount:
$42,306.83/mo. years 1-2
$51,372.58/mo. years 3-5
$57,416.42/mo. years 6-10
Extended Term Base Rent: $761,523.00/yr. (based on $10.50 p.s.f.)
$63,460.25/mo.
in the manner and on the terms specified in this Lease, without deduction or
set-off, and without prior notice or demand. Notwithstanding the above, Base
Rent for the initial two (2) months of the term shall be waived.
(b) Tenant shall pay, as Additional Rent to Landlord, throughout the
Initial and Extension Term, if any, of this Lease, Tenant's Percentage Share (as
determined in accordance with Section 1(1)) of this Lease) of Operating Expenses
and Property Taxes, (as
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such terms are defined in this Lease), in the manner and on the terms specified
in this Lease, without deduction or setoff, and without prior notice or demand.
Notwithstanding any of the above provisions, Landlord represents that
Tenant's Additional Rent for Property Taxes and operating expenses shall not
exceed the sum of $1.25 per square foot for Lease Year 1 and $1.60 per square
foot for Lease Year 2, exclusive of janitorial costs for Tenant's Premises
(which are detailed in Section 8 of this Lease) and Security Costs (which are
detailed in Section 43 of this Lease). Any increase in the amount of Property
Taxes based upon any improvements or additions made by future tenants to the
Buildings shall not be included in determining Tenant's share of Property Taxes.
Tenant's Percentage Share of Property Taxes shall be payable on the
later of the last day of the month in which Landlord renders a statement for
same, or thirty days after Tenant's receipt of such statement. A copy of the
property tax ▇▇▇▇ for the Property Taxes submitted to Landlord shall be
conclusive evidence of the Property Taxes levied against the property.
Tenant's Percentage Share of Operating Expenses shall be payable in
monthly installments, at the time and in the manner payments of Base Rent are
made. For the initial Lease Year, Landlord shall ▇▇▇▇ Tenant an amount
reasonably estimated to equal Tenant's pro-rata share of Operating Expenses for
the first Lease Year. Within 60 days after the end of the first Lease Year,
Landlord shall determine the actual Operating Expenses for that period. Any
excess amounts paid by Tenant shall be refunded by Landlord, and any shortfalls
shall be paid by Tenant with the next due installment of base rent. Thereafter,
Tenant's pro-rata share of Operating Expenses shall be paid in equal and
consecutive monthly installments, at the time and in the manner payment of Base
Rent are made, and shall be based on the actual year's payments, with reasonable
estimates for increases.
Provided Tenant is not in default of any of the material terms and
conditions of this Lease, Tenant shall have the right, on reasonable advance
notice to Landlord, to review Operating Expenses upon which Tenant's percentage
share have been calculated. The Operating Expenses shall be subject to audit by
Tenant for a period of two (2) lease years after the lease year in question,
after which time Landlord's statement shall be final and conclusive. Such audit
shall be conducted at Tenant's sole expense.
(c) The installment of the Base Rent first due for the Initial Term of
the Lease shall be paid by Tenant to Landlord on the Rent Commencement Date.
Base Rent shall be paid to Landlord on or before the first day of each and every
successive calendar month after the Rent Commencement Date month during the
Initial Term and any Extension Term of this Lease. In the event the Rent
Commencement Date is other than the first day of a calendar month or the Term
Expiration Date is other than the last day of a calendar month, then the monthly
Rent first due for the first and last fractional months of the Initial Term or
any applicable Extended Term shall be prorated by multiplying the monthly Rent
by a fraction, the numerator of which is the number of days of the partial month
included in the
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Initial Term or any applicable Extended Term and the denominator of which is the
total number of days in the full calendar month.
(d) Rent shall be paid to Landlord at Landlord's address for notices
hereunder or to such other person or entity or at such other place as Landlord
may from time to time designate in writing.
7. COMPLIANCE WITH LAWS/USE OF PREMISES
------------------------------------
The Premises shall be used by Tenant for general office use, as well
as use for telecommunications operations and related services (including, but
not limited to, transmissions, switching, and testing) for a telephonic
switching center and voice, data and other telecommunications services,
including also the use of data processing equipment required for the successful
operation of such center and services, as well as the use of various
transmission mediums including, but not limited to, fiber optic, metallic, and
radio transmission mediums, including the installation of any business system or
systems necessary or incident to the support of such switching and/or
transmission systems and services, including facilities for the maintenance,
storage, and repair of such transmission systems and services, as well as all
other business uses of Tenant incident to Tenant's use of the Premises, all
subject to governmental regulations, as applicable. During the Initial Term and
any Extended Term of the Lease, Landlord and Tenant shall comply with all
governmental regulations regarding Tenant's use and occupancy of the Premises
and the Buildings.
8. SERVICES
--------
Landlord agrees to furnish to the Premises and/or Buildings the
following utilities and services: (a) heating and cooling units required for
the use and occupation of the Premises during normal Business Days and Business
Hours which Landlord represents can be operated at temperature levels sufficient
to maintain interior temperatures as set forth in Exhibit "F" (subject to the
precision air references in Exhibit "F") (Landlord's Work) compatible with
normal standards of comfort, together with necessary control devices to regulate
the same in the Premises; (b) hot and cold water suitable for drinking,
lavatory, toilet and ordinary cleaning purposes; (c) gas and electricity
suitable for the intended use of the Premises; (d) janitorial services in and
about the Premises, pursuant to specifications set out in Exhibit D attached
hereto and made a part hereof by reference; and elevator service. Additionally,
Landlord shall manage, operate and administer the Buildings of which the
Premises are a part. At Landlord's cost and expense, Landlord shall cause
separate water, electric, steam, and gas meters to be installed for the
Premises. Tenant shall be responsible for maintaining the meters and for
paying, before delinquency, all utility bills for the Premises.
- 10 -
Tenant shall have the right from time to time, subject to Landlord's
reasonable approval, at Tenant's sole expense, to install additional connection
lines for its telecommunication operation, systems, and services, as defined in
Section 7 above, and to perforate foundation or other walls (provided such
perforation does not affect the structural integrity of the building and/or
Buildings of Landlord of which the Premises form a part), and continue said
connections to the Premises, provided that such connections are safely and
properly installed, do not adversely interfere with any other services and
utilities which Landlord provides to other Tenants; further provided that said
connections comply with all state and municipal codes and any other governmental
requirements, and further provided that Landlord receives and approves, without
any unreasonable delay, all of Tenants plans for such work. Tenant shall be
responsible for installing such connections in a safe, proper and workmanlike
manner, and Tenant shall hold Landlord harmless and indemnity Landlord for any
liabilities of any kind resulting from such installation and use of such lines,
etc. Nothing herein shall be deemed to imply a right of access through another
Tenant's premises.
In the event that the connections, lines and receiving devices for
Tenant's business operations and systems, as defined in Section 6 above, are
interfered with by the Landlord, its agents, employees or servants, the Landlord
shall correct the interference within two (2) business days of receipt of notice
of such interference from the Tenant. In the event that the Landlord is unable
or unwilling to correct the interference, the Tenant may terminate the Lease and
all Rent shall ▇▇▇▇▇ as of the date of termination. Any termination of the
Lease by the Tenant must be exercised within sixty (60) days of the date of the
notice informing the Landlord of the interference or else the right of
termination shall be deemed to have been waived by the Tenant. The Tenant shall
vacate the Premises within sixty (60) days of the date of termination of the
Lease. As of that date which the Tenant vacates the Leased Premises, the Lease
shall be null and void and neither party shall have any liability or
responsibility to the other.
Notwithstanding the above, Tenant shall be responsible for any heating
and cooling equipment requirements for computer rooms, equipment rooms and other
special, non-general office areas.
Tenant shall maintain and operate the heating and cooling units
properly. Tenant may operate the heating and cooling units before and after
normal Business Days and Business Hours, provided Tenant is responsible for the
payment of all utilities incurred as a result of such use.
Tenant shall pay to Landlord, as Additional Rent, for the janitorial
services set forth in Exhibit D, the sum presently estimated at $.52 per square
foot of the Premises per year, in equal and consecutive monthly installments of
$3,142.80 due and payable at the time and in the manner Base Rent and Extended
Term Rent, if any, are due and payable. Said sum shall be increased or
decreased to reflect increases or decreases in the cost to Landlord for
janitorial services. Tenant, on at least sixty (60) days' written notice to
Landlord, may
- 11 -
elect to provide janitorial services for the Premises, in which case: (i) the
charge for such services billed to Tenant by Landlord shall discontinue
effective the latter of sixty (60) days after notice is received by Landlord or
when Landlord is no longer responsible to provide and pay for said janitorial
services for the Premises; and (ii) Tenant warrants and represents that the
replacement janitorial services in Exhibit D, provide them in a commercially
reasonable manner, and provide them solely at Tenant's cost and expense; and
(iii) Tenant shall provide Landlord with a copy of the executed service contract
with Tenant's janitorial service for the Premises for the period such services
are rendered/to be rendered; and (iv) Tenant agrees to indemnify and hold
Landlord harmless from and against any and all claims, damages, suits, etc. of
any kind whatsoever related in any way to the contracting with or performance of
services by Tenant's janitorial services; and (v) Tenant shall provide Tenant's
janitorial service's insurance certificate naming Tenant and Landlord as
additional insureds with coverages reasonably acceptable to Landlord.
Landlord shall be liable for, and Tenant shall be entitled to, a
reduction in Rent or any applicable Extended Term Rent due hereunder by reason
of Landlord's failure to provide such utilities and services resulting from the
negligent or willful misconduct of Landlord or its employees. Any failure or
delay within Landlord's control which shall materially adversely affect Tenant's
business or prohibit Tenant's use of the Premises for a continuous period
exceeding seventy-two (72) hours, excluding weekends and holidays, shall be
subject to an abatement of Rent by the percentage of the Premises reasonably
deemed unusable, and this abatement shall continue until Landlord shall cause
the same to be repaired and the Premises become usable by Tenant. Landlord
shall not be responsible for any failure or delay outside of its control such as
a failure of a public utility to provide services to the Buildings.
Except as specifically provided for in this Lease, Landlord shall not
be liable for any interruption or failure in the supply of utilities services to
the Premises unless the interruption or failure is caused by Landlord's
negligence or willful misconduct. If the interruption or failure is caused by
Landlord's willful misconduct, and as a result thereof Tenant is unable to
conduct business at the Premises, Landlord's liability shall be limited to the
actual damages incurred by Tenant, but not for any consequential or incidental
damages.
9. PARKING
-------
Landlord shall provide to Tenant access to common parking facilities
including, initially, 150 parking spaces for Tenant's use. Parking spaces shall
be provided as follows: 3 spaces per 1,000 square feet of the Premises. Tenant
acknowledges that Landlord will provide Tenant up to a total of 240 spaces
(based on 3 per 1,000 square feet of the Premises), but that construction of any
spaces over the initial 150 shall be subject to advance notice by Tenant and
availability of paving weather.
- 12 -
10. ACCESS TO THE PREMISES
----------------------
Tenant and its employees shall have access to the Premises twenty-four
(24) hours a day, seven (7) days a week. During non-Business Hours Landlord may
restrict access to only those individuals designated by Tenant to Landlord.
Landlord may require such individuals to show a badge or identification card
issued by Tenant.
11. COMMON AREA MAINTENANCE
-----------------------
Landlord shall use reasonable diligence to maintain or cause to be
maintained the Common Areas. Landlord shall operate, manage, equip, light,
repair and maintain each Common Area for its intended purpose. Tenant, its
agents, customers, employees and invitees, shall have the non-exclusive right in
common with Landlord and all others to whom Landlord has granted or may
hereafter grant rights to use the Common Areas subject to such reasonable rules
and regulations as Landlord may from time to time impose. Landlord shall be
solely responsible for compliance with all Applicable Laws, including, but not
limited to, the Americans with Disabilities Act and any regulations promulgated
thereunder, with respect to the Common Areas. Landlord shall not make any
changes to the access, parking configuration, or design of the common areas at
the time of the execution of this Lease, which materially, adversely affects
access to or visibility from the Premises, without the express written consent
of Tenant.
Notwithstanding any of the other terms contained in this paragraph or
in the definition of Operating Expenses under Term Sheet 9.2. the Tenant
reserves the right, upon sixty (60) days' written notice to Landlord, to elect
to provide its own snowplowing for its designated parking area, in which case
(i) the charge for such services billed to Tenant by Landlord shall discontinue
effective the latter of sixty (60) days after notice is received by Landlord or
when Landlord is no longer responsible to provide and pay for said snowplowing
services for the Premises; and (ii) Tenant warrants and represents that the
snowplowing services which it will provide will be done solely at Tenant's sole
cost and expense; and (iii) Tenant shall provide Landlord with a copy of the
executed Service Contract with Tenant's snowplowing contractor for the period
such services are rendered/to be rendered; and (iv) Tenant agrees to indemnify
and hold Landlord harmless from and against any and all claims, damages, suits,
etc. of any kind whatsoever related in any way to the contracting with or
performance of services by Tenant's snowplowing services; and (v) Tenant shall
provide Tenant's contractor's insurance certificate naming Tenant and Landlord
as additional insureds with coverage reasonably acceptable to Landlord. To the
extent that future tenants use the designated parking area. Landlord shall
provide snowplowing services, and Tenant will receive a pro-rata reduction for
the cost of said snowplowing services.
- 13 -
12. IMPROVEMENTS
------------
Except for the initial improvements to the Premises pursuant to
Exhibits F and G, Tenant, at Tenant's sole expense, may make, with the consent
of Landlord, non-structural alterations and improvements to the interior of the
Premises and shall retain title to anything it may place or install in the
Premises, including, without limitation, drapes, furniture, counters, shelving,
fixtures, work stations, removable partitions, equipment or business machines.
Tenant shall give notice to Landlord of all proposed alterations and
improvements to the interior of the Premises at least twenty (20) days prior to
the commencement of any such work for Landlord's review and comments, which
approval shall not be unreasonably withheld or delayed. If Landlord fails to
consent or otherwise comment to Tenant within fifteen (15) days after receipt of
Tenant's complete plans and specifications, Tenant may proceed with such work as
if Landlord had consented. All such work by Tenant shall be performed in a good
and workmanlike manner and in accordance with all applicable codes and
regulations.
Except as otherwise provided elsewhere in this Lease, at the
expiration or termination of this Lease as herein provided, Tenant may remove
all such improvements, excluding permanent Leasehold improvements, fixtures, and
wiring, piping, etc., installed and paid for by Tenant in accordance with this
Lease, and deliver the Premises to Landlord in as near as reasonably possible to
the condition as of the date of possession, except for ordinary wear and tear.
Any improvements or alterations (see Section 30, for example) by Tenant not in
the Premises shall be removed by Tenant, and the Buildings shall likewise be
repaired. If Tenant leaves any such removable items on the Premises after
termination of its occupancy without the written consent of Landlord, they shall
at the option of Landlord become the property of the Landlord, or Landlord may
cause such items to be removed, at Tenant's sole cost and expense.
13. REPAIRS
-------
Landlord shall maintain the Buildings in a good state of repair,
including, but not limited to: (a) repairs and replacements to the structural
portions of the Buildings, including the roof foundation and exterior walls of
the Buildings, (b) repairs and replacements necessitated by Landlord's acts or
negligence, (c) damage or destruction caused by fire or any other perils that
normally are insured under extended coverage endorsements issued in the area
where the Premises are located, whether or not due to Tenant's negligence, (d)
repairs and replacements to the parking lot areas and landscaped areas, and (e)
repairs and replacements, though non-structural, necessitated by Landlord's acts
or negligence, (f) repairs and replacements directly resulting from Landlord's
failure to repair as required hereunder and (g) repairs and replacements caused
by ordinary wear and tear to the Common Areas.
- 14 -
Except as otherwise provided in Section 23 hereof, in the event a
repair or replacement cannot be accomplished by Landlord within a period of
ninety (90) days from the date of notice from Tenant, or in the event Landlord
fails to complete the repair or replacement within a period of ninety (90) days
from the date of notice from Tenant, Tenant may, at its option, either (i) prior
to completion of any such repair or replacement, cancel this Lease by giving
Landlord written notice, and thereafter neither party shall have any rights,
duties or obligations hereunder, or (ii) Tenant may take such steps as may be
necessary to cure Landlord's default, in which event Tenant shall be entitled to
recover from Landlord the monies so reasonably expended by Tenant together with
reasonable interest thereon from the date such monies were expended by Tenant
until the date paid. Notwithstanding the foregoing, if the nature of Landlord's
obligation is such that more than ninety (90) days are required for performance,
Landlord shall not be in default if Landlord commences performance within such
ninety (90) day period and thereafter diligently proceeds to completion.
Notwithstanding the above, if Tenant cannot reasonably, substantially operate
Tenant's business from the Premises because of a failure of repair or
replacement by Landlord for a period of 150 days or more from the date Landlord
commences performance, then Tenant can terminate this Lease on ten (10) days'
written notice to Landlord, after such 150 days.
14. RIGHT OF ENTRY BY LANDLORD
--------------------------
Landlord and its agent may enter the Premises during Business Hours to
inspect the same; to make repairs, alterations, improvements or additions or to
perform such maintenance as required by the Lease or advisable to preserve the
integrity, safety and good order of part or all of the Premises or the
Buildings. Entry by Landlord is conditioned upon Landlord giving at least
twenty-four (24) hours advance notice to a Manager of Tenant located at the
Premises, except in an emergency; promptly finishing any work for which it
entered; and causing the least practical interference to Tenant's business. In
the event Landlord enters the Premises in an emergency without advance notice to
Tenant, Landlord shall promptly thereafter notify a Manager of Tenant located at
the Premises of the reason for such entry and the corrective or necessary action
taken with respect to such emergency.
15. INDEMNIFICATION
---------------
Landlord shall indemnity and save harmless Tenant and its parent,
subsidiaries and affiliates and their respective officers, directors, employees
and agents (herein collectively referred to as the "Indemnitees") from and
against any and all suits, liabilities, obligations, damages, penalties, claims,
costs, charges and expenses, including reasonable attorneys' fees, which may be
imposed upon or incurred by or asserted against Indemnitees as a result of or
arising out of Landlord's failure to perform any covenant or agreement required
to be performed by Landlord under this Lease Agreement or caused by the
negligence or willful misconduct of Landlord, its agents or employees.
- 15 -
Tenant shall indemnify and save harmless Landlord, its officers,
directors, employees and agents, from and against any and all suits,
liabilities, obligations, damages, penalties, claims, costs, charges and
expenses, including reasonable attorneys' fees, which may be imposed upon or
incurred by or asserted against Landlord by reason of any occurrence caused by
the negligence or willful misconduct of Tenant, its agents, employees,
directors, servants, contractors or invitees which arises out of Tenant's lease
of the Premises and its operations thereon.
Notwithstanding the foregoing two paragraphs of this Section 15,
Landlord and Tenant release each other from any claims either party ("Injured
Party") has against the other to the extent the claim is covered by the
insurance the Injured Party is required to carry under Section 15 of the Lease
16. INSURANCE
---------
Landlord during the Initial Term of this Lease and any applicable
Extended Term of this Lease shall insure the Buildings, including improvements,
by means of an insurance policy covering at least the perils of fire, lightning,
explosion, windstorm, hail, smoke, aircraft damage, vehicular damage, riot,
civil commotion and vandalism in the amount of the full replacement value of the
Buildings (exclusive of the cost of excavation, foundations and footings), as
the value may exist from time to time. Landlord shall, at Tenant's request,
furnish a certificate of insurance evidencing the above coverage. Such
certificate shall contain a clause that such policy and the coverage evidenced
thereby shall be primary with respect to any policies carried by Tenant, and
that any coverage carried by Tenant shall be excess insurance.
Tenant, during the Initial Term of this Lease and any applicable
Extended Term of this Lease, shall keep its personal property and trade fixtures
in the Premises insured for at least the perils of fire, lightning, explosion,
windstorm, hail, smoke, aircraft damage, vehicular damage, riot, civil commotion
and vandalism. Such certificate shall contain a clause that such policy and the
coverage evidenced thereby shall be primary with respect to any policies carried
by Landlord, and that any coverage carried by Landlord shall be excess
insurance.
Each party shall maintain during the Initial Term of this Lease and
any applicable Extended Term of this Lease commercial general liability
insurance (which includes, but is not limited to, contractual liability
coverage) covering claims for bodily injury and property damage occurring on, in
or about the Premises, with limits of at least $2,000,000 combined single limit
per occurrence.
Each policy or a certificate therefor required under this Section 16
shall name the other party as an additional insured as respects the Premises and
the provisions of Section 15 of this Lease, and shall contain an agreement by
the insurer that such policies
- 16 -
shall not be canceled without at least thirty (30) days' prior written notice to
the other party. Certificates evidencing such policies shall be delivered by
Tenant to Landlord and by Landlord to Tenant upon the other party's written
request.
All policies required herein shall be procured from insurance
companies licensed in the state where the Premises are located and shall be
listed in the current "Best's Insurance Guide" as possessing a minimum
policyholder's rating of "A" and a financial category no lower than "VI" ($25
million to $50 million of adjusted policyholder's surplus).
17. SUBROGATION
-----------
Each party releases and waives on behalf of itself and on behalf of
the insurers of such party's property, any and all claims and any rights of
subrogation of any such insurer against the other party, its employees and
agents for loss (other than loss or damage resulting from the willful act of
such other party, its employees and agents) sustained from any peril to property
required to be insured against herein, whether or not such insurance is actually
in force, or from any peril to property actually insured against, though not
required to be under this Lease. The policies of the respective parties shall
contain an express waiver of subrogation to this effect.
18. LIENS AND ENCUMBRANCES
----------------------
Tenant shall promptly pay for all improvements installed on the
Premises by Tenant and shall cause no mechanic's or construction lien to be
imposed on the Premises, provided, however, that if Tenant shall, in good faith,
contest any charge of a laborer, mechanic, subcontractor or materialman, Tenant
may contest such charge after paying the claimed amount into an escrow account
to protect Landlord from any adverse decision.
19. HOLDING OVER
------------
It is expressly understood by Tenant that Tenant's right to possession
of the Premises under this Lease shall terminate on the expiration or earlier
termination of the Initial Term or, if applicable, any Extended Term, and should
Tenant continue thereafter to remain in possession Landlord shall be entitled to
the benefits of all provisions of law with respect to summary recovery of
possession from a holdover Tenant. Tenant shall indemnify and save harmless
Landlord from any claim, damage, expense, cost or loss, which Landlord may incur
by reason of such holding over, including, without limitation, any claim of a
succeeding Tenant, or any loss by Landlord with respect to a lost opportunity to
re-lease the Premises.
- 17 -
Any holding over by Tenant beyond the Initial Term or, if applicable,
any Extended Term, shall give rise to a tenancy from month to month at a monthly
rent equal to one hundred fifty percent (150%) of the monthly Rent during the
last year of the Initial Term or applicable Extended Term, and all other
provisions of this Lease shall continue.
20. ASSIGNMENT AND SUBLETTING
-------------------------
Provided Tenant is not in material default of this Lease, Tenant may
assign this Lease, sublet the Premises or permit any other party to occupy the
Premises provided Landlord consents to same in writing, which consent shall not
be unreasonably withheld or delayed. Notwithstanding the preceding sentence,
Tenant may, without the prior approval of Landlord, assign this Lease or sublet
the Premises or any portion thereof to any corporation or entity which controls,
is controlled by, or is under common control with Tenant, or to any corporation
resulting from the merger or consolidation with Tenant, or to any person or
entity which acquires substantially all of the assets of Tenant; provided that
no such assignment or sublease shall act as a release of Tenant from any of the
provisions, covenants and conditions on the part of Tenant to be kept or
performed under this Lease.
No transfer or subletting, including one to which Landlord has
consented, shall be effective unless and until:
A. Tenant gives notice thereof to Landlord; and
B. The transferee, assignee or sublessee shall deliver to Landlord:
(i) a written agreement in the form and substance reasonably
satisfactory to Landlord pursuant to which the transferee,
assignee or sublessee assumes all of the obligations and
liabilities of Tenant under this Lease; and
(ii) a copy of the assignment, agreement or sublease.
The withholding of consent by Landlord shall not be deemed
unreasonable if:
(i) the creditworthiness of the proposed assignee or sub-
tenant is unsatisfactory, in Landlord's reasonable
opinion;
(ii) the proposed use and operation of the Premises by the
proposed assignee or sublessee is, in the reasonable
opinion of the Landlord, not compatible with the character
and use of the Buildings; and
- 18 -
(iii) such assignment or subletting would violate any
provisions of any other lease with Landlord in the
Buildings, or with any financial or insurance
obligations of Landlord with respect to the Buildings.
The granting of consent by Landlord to any assignment or subletting
shall apply only to the specific transaction thereby authorized and shall not
relieve Tenant from the requirement of obtaining prior written consent of
Landlord to any further assignment or sublease, nor shall the granting of
consent in one instance imply or confer any right or obligation to grant consent
again.
21. DEFAULT AND RE-ENTRY
--------------------
If, during the term of this Lease, Tenant shall:
(a) fail to pay any installment of the Rent or Extended Term Rent as
and when the same becomes due and payable, and such default shall
continue for a period of ten (10) Business Days following
Landlord's written notice of same, or
(b) default in its performance of or compliance with any of the other
agreements, terms or conditions of this Lease, and such default
shall continue for a period of thirty (30) Business Days after
notice by Landlord to Tenant; provided that if the nature of
Tenant's obligation is such that more than thirty (30) Business
Days are required for performance, Tenant shall not be in default
if Tenant commences performance within the thirty (30) Business
Day period and thereafter diligently proceeds to completion;
(c) transfer this Lease or Tenant's interest therein in violation of
Section 20 of this Lease;
then Landlord may at its option, by written notice to Tenant, terminate this
Lease effective the date of the giving of such notice, on which the Initial Term
or any applicable Extended Term of this Lease shall terminate; and thereupon, on
such date, unless such default shall have been cured, all rights of Tenant under
this Lease shall terminate in all respects as if the date fixed in such notice
were the date originally fixed in this Lease for the termination or expiration
thereof.
This Lease and the term are expressly subject to conditional
limitation that upon the happening of any one or more of the aforementioned
events of default, Landlord, in addition to the other rights and remedies it may
have, shall have the right to immediately declare this Lease terminated and the
term ended, in which event, all of the right, title and
- 19 -
interest of Tenant hereunder shall wholly cease and expire upon receipt by
Tenant of a notice of termination. Tenant shall then quit and surrender the
Premises to Landlord in the manner and under the conditions as provided for
under this Lease, but Tenant shall remain liable as hereinafter provided.
If this Lease is terminated as aforesaid, Tenant nevertheless
covenants and agrees notwithstanding any entry or re-entry by Landlord whether
by summary proceeding, termination or otherwise, to pay and be liable for on the
days originally fixed herein for the payment thereof, amounts equal to the
several installments of Base Rent (and Extended Term Rent, if any) and any other
rents and charges called for under this Lease, as they would, under the terms of
this Lease, become due if this Lease had not been terminated or Landlord had not
entered or re-entered as aforesaid, and whether the Premises be relet or remain
vacant in whole or in part or for a period less than the remainder of the term,
and for the whole thereof. Landlord shall use reasonable efforts to attempt to
relet the Premises. However, this shall not be construed as a condition
precedent of leasing other space in the Buildings. In the event the Premises be
relet by Landlord, Tenant shall be entitled to a credit (but not in excess of
the Base Rent, and Extended Term Rent, if any) and any other rent and charges
due pursuant to the terms of this Lease in the net amount received by Landlord
in reletting the Premises after deduction of all expenses and costs incurred or
paid as aforesaid in reletting the Premises and collecting the rent in
connection therewith.
In the event Landlord commences any proceedings for the recovery of
possession of the Premises or to recover for non-payment of Base Rent (or
Extended Term Rent, if any), or other rent and charges due pursuant to the terms
of this Lease, Tenant shall not interpose any non-compulsory counterclaim in any
such proceeding. This may not, however, be construed as a waiver of Tenant's
right to assert such claim in any separate action or actions initiated by
Tenant. Further, Tenant expressly waives any right to trial by jury in
consideration of Landlord entering into this agreement with Tenant.
In the absence of any written agreement to the contrary, if Tenant
should remain in occupancy of the Premises after the expiration, termination or
any renewal of this Lease, it shall so remain as a Tenant, from month to month,
and all provisions of this Lease applicable to such tenancy, shall remain in
full force and effect, except that the Base Rent shall be an amount equal to 1.5
times the Base Rent then in effect for the Premises.
No failure by Landlord to insist upon the strict performance of any
covenant, agreement, term or condition of this Lease or to exercise any right or
remedy consequent upon a breach thereof, and no acceptance of full or partial
rent during the continuance of any such breach, shall constitute a waiver of any
such breach or of such covenant, agreement, term and condition, and this Lease
shall continue in full force and affect with respect to any other then existing
or subsequent breach thereof.
- 20 -
Each right and remedy of Landlord provided for in this Lease shall be
cumulative and shall be in addition to every other right or remedy provided for
in this Lease or now or hereafter existing at law or in equity by statute or
otherwise.
22. CONDEMNATION
------------
The term "Taking" shall mean a taking during the Initial Term or any
applicable Extended Term of this Lease of all or part of the premises as the
result of condemnation or eminent domain. The term "Date of Taking" shall mean
the date on which the condemning authority is entitled to possession.
In the event of a Taking of either the fee of, or the temporary use
of, or a perpetual easement upon, all of the Premises, this Lease shall expire
as of the Date of Taking. In the event of a Taking of either the fee of, or the
temporary use of, or a perpetual easement upon, less than all of the Premises,
this Lease shall continue in full force and effect for the remainder of the
Premises, except that the Rent or any applicable Extended Term Rent shall be
reduced by an amount proportionate to the total area of the Premises so taken as
against the total area demised hereunder; provided that if Tenant shall
reasonably determine that the remaining portions of the Premises cannot be
suitably used for its intended purposes, and shall forward a notice to Landlord
of such determination within thirty (30) days after the Date of Taking, this
Lease shall expire as of the Date of Taking, and Tenant shall promptly vacate
the Premises.
Landlord reserves the right to make a claim directly to the condemning
authority for damages sustained by Landlord as a result of such Taking.
Further, Landlord shall refund to Tenant any unearned Rent paid in advance as of
the Date Tenant vacates the Premises due to Taking and all of Tenant's liability
hereunder shall cease from and after the date Tenant vacates the Premises.
Tenant shall be entitled to make a separate claim directly to the
condemning authority for damage sustained by Tenant due to such Taking,
including but not limited to, compensation for the value of the unamortized cost
of improvements paid for by Tenant, personal property of Tenant, and Tenant's
lost good will and relocation costs.
Each party shall seek its own award, at its own expense, and neither
shall have any right to the award made to the other. Nothing herein shall
prevent Tenant from recovering directly from the condemning authority any
damages sustained by Tenant due to such Taking.
- 21 -
23. DESTRUCTION OF LEASED PREMISES
------------------------------
If the Premises shall be totally destroyed by fire, casualty, or other
cause or happening, or if any lawful authority shall order demolition or removal
of the Buildings or Premises, so as to render them unfit for Tenant's proposed
use, then this Lease shall terminate as of the date of such destruction and all
of Tenant's liability hereunder shall cease from and after such date and any
unearned Rent paid in advance by Tenant to Landlord shall be refunded to Tenant.
If the Buildings or Premises shall be partially destroyed by fire,
casualty, demolition, removal or other cause or happening, or be declared unsafe
by any lawful authority, then they shall be promptly restored or made safe by
Landlord and a just portion of the Rent or any applicable Extended Term Rent
specified shall ▇▇▇▇▇ until they shall have been restored and put in proper
condition for Tenant's use and occupancy, except that Landlord shall not be
required to expend any sums in excess of the net proceeds of any insurance
policy carried by Landlord, and if such sums, in Landlord's reasonable opinion,
are inadequate to rebuild or restore the Buildings or Premises, then Landlord
may elect not to rebuild or restore and this Lease shall terminate on five (5)
days written notice from Landlord. Landlord shall notify Tenant promptly, and
no later than forty-five (45) days after any such partial destruction, if
Landlord elects to terminate this Lease because of a determination of inadequate
insurance proceeds. If the Buildings or Premises shall not be restored or made
safe within one hundred twenty (120) days after partial destruction or
declaration of unsafe condition, then Tenant, at its option, may cancel and
terminate this Lease in its entirety, and all of Tenant's liability hereunder
shall cease from and after the date of such destruction or declaration of unsafe
condition and any unearned Rent or Extended Term Rent paid in advance by Tenant
to Landlord shall be refunded to Tenant.
24. PROPERTY TAXES
--------------
(a) Landlord will pay in the first instance all Property Taxes (as
such term is defined in Section 1(j)) of this Lease) which may be levied or
assessed by any lawful authority against land or improvements constituting the
Buildings and adjacent land for parking and landscaping. The amounts required
to be paid by Landlord pursuant to any payment in lieu of tax agreement entered
into with a taxing authority having jurisdiction over the Buildings shall be
considered for the purposes of this Lease to be included within the definition
of Property Taxes.
(b) During the term of this Lease, Tenant shall pay to Landlord, as
Additional Rent, Tenant's pro-rata share of all Property Taxes. Tenant's
initial pro-rata share shall be 27.24% of the Property Taxes as of the first day
of the Rent Commencement Date.
- 22 -
Tenant's pro-rata share of Property Taxes shall be payable on the last
day of the month in which Landlord render's a statement of Tenant's pro-rata
share for any Property Taxes for which Landlord has received a ▇▇▇▇, or 30 days
after Tenant's receipt of such statement, whichever shall occur later. A copy
of the appropriate ▇▇▇▇ for the Property Taxes submitted to Landlord shall be
conclusive evidence of the property taxes levied against the buildings.
(c) Landlord may in good faith seek a reduction in the assessed
valuation (for Property Tax purposes) of the Buildings or any portion thereof by
administrative or legal proceeding. Tenant shall pay to Landlord Tenant's pro-
rata share of Landlord's reasonable costs for said proceedings, including
counsel fees, appraisal fees and other similar expenses, within twenty (20) days
after Tenant's receipt of a statement from Landlord therefore. Tenant's initial
pro-rata share of such costs shall be 27.24% (based on 72,526 rentable square
feet). Landlord shall reimburse Tenant for Tenant's pro-rata share of any
refund of Property Taxes (after deducting any unpaid portion of Tenant's pro-
rata share of Landlord's cost for such proceedings) resulting from any
proceeding for which Tenant has paid Tenant's pro-rata share of Property Taxes.
(d) Tenant may elect, at its sole expense, to contest any reassessment
affecting the Premises or any tax, levy or special assessment on the Premises,
and Landlord agrees to cooperate in such action or contest to the extent
Landlord's participation may be necessary, but without any cost to Landlord. If
such contesting results in a reduction of Property Taxes on the Buildings or a
refund, Landlord shall share pro-rata in such refund and pay a pro-rata share of
Tenant's expenses in obtaining such refund or reduction. Nothing herein
contained shall be construed, however, to permit Tenant to withhold payment of
Property Taxes during the pendency of any such review, it being understood that
Tenant must pay taxes pursuant to this Lease.
(e) Should any alteration or improvement performed by or for Tenant
during the term of this Lease cause an increase in assessment, Tenant shall pay
to Landlord the full cost of all Property Taxes resulting from such increase in
assessment. Any amount paid separately hereunder by Tenant to Landlord shall be
in addition to any amounts paid by Tenant pursuant to the above. Any increase
in the amount of Property Taxes based upon any improvements or additions made by
future tenants to the Buildings shall not be included in determining Tenant's
share of Property Taxes.
(f) Should any governmental taxing authority acting under any present
or future law, ordinance or regulation, levy, assess or impose a tax, excise,
surcharge or assessment upon or against the rent payable by Tenant to Landlord,
or upon or against the Common Areas, whether by way of substitution for or in
addition to any existing Property Tax or otherwise, such amount shall be deemed
included in the term "Property Taxes" as used in this Lease.
- 23 -
(g) Tenant shall have the right, upon reasonable advance notice, to
review Landlord's calculations pertaining to estimated Property Taxes, and
actual annual Operating Expenses and Property Taxes, and the books and records
supporting such calculations at the offices of Landlord.
25. QUIET ENJOYMENT
---------------
(a) Tenant, subject to the terms and provisions of this Lease and on
payment of the rent and other charges due and owing pursuant to this Lease, and
observing, keeping and performing all of the terms and provisions of this Lease
on its part to be observed, kept and performed, shall lawfully, peaceably and
quietly have, hold and enjoy the Premises during the Initial Term and any
applicable Extended Term hereof on and after the commencement of this Lease
without hinderance or rejection by any persons lawfully claiming under Landlord,
but it is understood and agreed that this covenant, and any all other covenants
of Landlord contained in this Lease shall be binding upon Landlord and its
successors only with respect to breaches occurring during its and the respective
ownership of Landlord's interest hereunder.
(b) With respect to any services to be furnished by Landlord to
Tenant, Landlord shall in no event be liable for failure to furnish the same
when prevented from doing so by strike, lock-out, breakdown, accident, order or
regulation of or by any governmental authority, or failure of supply, or
inability by the exercise of reasonable diligence to obtain supplies, parts or
employees necessary to furnish such services, or because of war or other
emergency, or for any cause beyond Landlord's control. In no event shall
Landlord ever be liable to Tenant for any indirect or consequential damages by
reason of Landlord's breach or default of the terms of this Lease.
26. SUBORDINATION
-------------
Except as set forth in this Section 26, this Lease shall at all times
be and remain subject and subordinate to the lien of all mortgages, ground
leases and deeds of trust on all or any portion of the Buildings and/or
Premises.
If Tenant is not in default hereunder, Landlord shall cause:
(a) Any party holding a mortgage, ground lease or deed of trust on
any portion of the Buildings or Premises as of the date hereof to
execute and deliver to Tenant, a non-disturbance agreement in a
form agreeable to Landlord and Tenant pursuant to which the
holder of such mortgage or deed of trust will agree not to
disturb the possession of Tenant under this Lease upon any
foreclosure or exercise of power of sale under such mortgage,
ground lease or deed of trust, if Tenant is not then in default
- 24 -
thereunder, and that the mortgagee, ground lessor, beneficiary or
other person claiming under such mortgage, ground lease or deed
of trust will accept the attornment of Tenant thereafter, as long
as Tenant is not then in default; and
(b) Any party acquiring a mortgage, ground lease or deed of trust on
any portion of the Buildings or Premises after the date hereof to
execute and deliver to Tenant a commercially reasonable non-
disturbance agreement within thirty (30) days of such party's
acquiring such mortgage, ground lease or deed of trust pursuant
to which the holder of such mortgage, ground lease or deed of
trust will agree not to disturb the possession of Tenant under
this Lease upon any foreclosure or exercise of power of sale
under such mortgage, ground lease or deed of trust, if Tenant is
not then in default thereunder, and that the mortgagee,
beneficiary or other person claiming under such mortgage, ground
lease or deed of trust will accept the attornment of Tenant
thereafter, as long as Tenant is not then in default.
Tenant agrees that as to the mortgagee, ground lessor beneficiary
or any other person claiming under a mortgage or deed of trust to
which Tenant has subordinated to Landlord's interest under this
Lease, Tenant will recognize such mortgagee, ground lessor
beneficiary or other person as its Landlord under the provisions
of this Lease, provided that such mortgagee, ground lessor
beneficiary or other person, during the period in which it shall
be in possession of the Premises, and thereafter its successors
in interest, shall assume all of the obligations of Landlord
hereunder and shall have executed and delivered the non-
disturbance agreement referred to above.
27. ESTOPPEL CERTIFICATE BY TENANT
------------------------------
Upon not less than thirty (30) days' prior written notice by Landlord,
Tenant shall execute, acknowledge and deliver to Landlord an estoppel
certificate in substantially the form attached hereto as Exhibit E and made a
part hereof by reference.
28. CONSENT BY LANDLORD
-------------------
Landlord covenants with Tenant that any consent or approval required
of Landlord herein shall not be withheld or delayed unreasonably.
- 25 -
29. HAZARDOUS SUBSTANCES
--------------------
Landlord has provided Tenant with copies of Landlord's environmental
reports of the condition of the Buildings, and to the best of Landlord's
knowledge and belief, there are no present hazardous or toxic substances at the
Buildings which require remedial action. If hazardous or toxic substances or
contaminants are discovered in, on or beneath the land or in or on any
improvements located on the land of which the Premises is a part, unless placed
or caused to be placed by Tenant, its employees, servants or its agents (in
which case Tenant shall promptly cause the removal and other necessary remedial
action at Tenant's sole cost) Landlord, at Landlord's cost, shall promptly
perform appropriate remedial action, to be completed in any event within sixty
(60) days of the identification of the contamination. Upon failure so to
complete, Tenant shall have the right, without further cost or obligation, to
terminate this Lease upon written notice to Landlord stating the effective date
of termination, and all of Tenant's liability hereunder shall cease from and
after the date of termination and any unearned Rent or Extended Term Rent paid
in advance by Tenant to Landlord shall be refunded to Tenant. Landlord also
agrees to hold harmless, indemnify and defend Tenant, and any services of Tenant
with equipment and/or materials within the Premises, for any damage to said
equipment, property and/or persons, involved in the administration, maintenance
and operating of said equipment, as well as injuries to said persons or property
caused by any hazardous or toxic substances at the Buildings (unless placed or
caused to be placed by Tenant, its employees, servants or agents) and/or caused
by Landlord's remedial activities in regard to said hazardous or toxic
substances as set forth above.
Tenant shall not use, store, or bring into the Premises any "hazardous
and toxic substances" other than in accordance with applicable law and
regulations. For purposes of this section, "hazardous and toxic substances"
includes, without limit, any flammable explosives, radioactive materials,
hazardous materials, hazardous wastes, hazardous or toxic substances or related
materials defined in the Comprehensive Environmental Response, Compensation, and
Liability Act of 1980, as amended, the Hazardous Materials Transportation Act,
as amended, the New York State Environmental Conservation Law, the Resource
Conservation and Recovery Act, as amended, and in the regulations adopted and
publications promulgated pursuant thereto. Tenant shall not use any equipment
or devices which cause or create health risks or hazards as presently known or
as determined in the future other than in accordance with applicable law and
regulations. Tenant agrees to hold Landlord harmless, indemnify and defend
Landlord from and against any claims, actions, suits, etc. made by reason of
Tenant's installation and/or use of any such equipment or devices.
- 26 -
30. MICROWAVE DISHES, RADIO ANTENNAS AND
OTHER TRANSMISSION/RECEIVING EQUIPMENT
--------------------------------------
Tenant shall have the right to install a microwave dish, radio
antenna, or any other form of transmission or receiving equipment incident to
Tenant's use as defined in Section 7 above on the roof of the Buildings at
Tenant's sole cost and expense. The installation, size and location of such
dish, radio antenna, or any other form of transmission or receiving equipment
incident to Tenant's use as defined in Section 7 above shall meet the reasonable
requirements of Landlord and comply with all governmental requirements (local,
state and federal), but prior to any such installation, such specifications and
location shall be reviewed and approved by Landlord. Tenant shall in no event
be charged any rent for the maintenance of such microwave dish, radio antenna,
or any other form of transmission or receiving equipment incident to Tenant's
use as defined in Section 6 above on the roof of the Buildings, and shall remove
such microwave dish, radio antenna, or any other form of transmission or
receiving equipment incident to Tenant's use as defined in Section 6 above at
the expiration (or earlier termination) of the Lease, and repair any damage
caused.
Tenant is solely responsible for the maintenance and repair of any
microwave dish, radio antenna, or any other form of transmission or receiving
equipment incident to Tenant's use as defined in Section 7 above, and Tenant
shall be responsible for any damage or deterioration to the Building caused by
the installation, operation and use of such equipment. Tenant shall indemnify
and hold Landlord and its officers, directors, employees, agents and invitees
harmless from and against any and all suits, liabilities, claims, damages,
charges and expenses of any kind whatsoever, including reasonable attorneys'
fees, which may be imposed upon or incurred by or asserted against Landlord, its
officers, directors, employees, agents and invitees as a result of or arising
out of Tenant's installation, use and operation of the microwave dish, radio
antenna, or any other form of transmission or receiving equipment incident to
Tenant's use as defined in Section 6 above.
31. BROKERS
-------
Landlord and Tenant hereto represent and warrant to each other that it
has dealt with no broker or agent in connection with the negotiations or the
consummation of this Lease or any arrangements with respect thereto.
32. NOTICES
-------
All notices provided for or desired to be sent by the parties shall be
in writing, and shall be deemed to have been fully given when deposited in the
United States mail, certified or registered, postage prepaid, or by prepaid
overnight mail delivery service providing written evidence of delivery, and
addressed as follows:
- 27 -
to Tenant at: ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, or to such other
place as Tenant may from time to time designate in a notice to Landlord; with a
copy to: ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, Attn: ▇▇▇▇▇ ▇▇▇▇▇, Esq., 1800 Lincoln ▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇;
to Landlord at: ▇▇▇▇▇ ▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇, or to such other place as Landlord may from time to time designate in a
notice to Tenant.
All notices personally delivered shall be deemed received on the date
of delivery. The date of notice by certified mail shall be deemed to be the
date of certification thereof. The date of notice by overnight mail service
shall be the date the airbill is signed by the recipient.
33. RELATIONSHIP
------------
The relationship between the parties hereto is solely that of landlord
and tenant and nothing contained herein shall constitute or be construed as
establishing any other relationship between the parties, including, without
limitation, the relationship of principal and agent, employer and employee or
parties engaged in a partnership or joint venture. Without limiting the
foregoing, it is specifically understood that neither party is the agent of the
other and neither is in any way empowered to bind the other to use the name of
the other in connection with the construction, maintenance or operation of the
Premises, except as otherwise specifically provided herein.
34. COMPLETE AGREEMENT
------------------
It is hereby mutually agreed and understood that this Lease contains
all agreements, promises and understandings between Landlord and Tenant and that
no verbal or oral agreements, promises or understandings shall or will be
binding upon either the Landlord or Tenant in any dispute, controversy or
proceeding at law, and any addition, variation or modification to this Lease
shall be void and ineffective unless in writing signed by the parties hereto.
If any term or provision of this Lease or the application thereof to
any person or circumstance is, to any extent, invalid or unenforceable, the
remainder of this Lease, or the application of such term or provision to persons
or circumstances other than those as to which it is held invalid or
unenforceable, shall not be affected thereby, and each term and provision of
this Lease shall be valid and be enforced to the fullest extent permitted by
law.
- 28 -
35. AUTHORITY FOR EXECUTION
-----------------------
(a) If Landlord signs as a corporation, the person or persons
executing this Lease on behalf of Landlord do hereby covenant and warrant that
Landlord is a fully authorized and existing corporation, that Landlord has and
is qualified to do business in the state where the Premises are located, that
the corporation has full right and authority to enter into this Lease, and that
the person or persons signing on behalf of the corporation were authorized to do
so. If Landlord signs as a partnership, the person or persons executing the
Lease on behalf of Landlord do hereby covenant and warrant that Landlord is a
valid and existing partnership and that the person or persons so executing and
initialing as required in this Section 35 have authority to do so on behalf of
Landlord in accordance with the Partnership Agreement, and that this Lease is
binding upon Landlord in accordance with its terms and enforceable against the
assets of the partnership and the general partners, individually.
(b) This Lease shall not be binding upon the Tenant unless the Term
Sheet is executed and the first page of Landlord's Worksheet and the first page
of this Lease Agreement is initialed by the President, a Vice President,
Secretary or an Assistant Secretary of the Tenant, or by any other person to
whom authority to execute or initial any such instrument shall be delegated in
writing by any of such officers.
36. BINDING EFFECT
--------------
The covenants and agreements contained in this Lease are binding upon
and shall inure to the benefit of the parties hereto and their respective heirs,
executors, administrators, successors, legal representatives and assigns.
37. EXECUTION
---------
Landlord and Tenant have executed this Lease by signing and dating the
Term Sheet, and by initialling the first page of this Lease Agreement.
38. RULES
-----
Tenant, its employees and invitees, shall comply with the reasonable
rules of Landlord, posted from time to time, provided:
(a) Tenant is given at least ten (10) days' advance notice of such
changes;
(b) they are for the safety, care, order, or cleanliness of the
Common Areas;
- 29 -
(c) they do not unreasonably and materially interfere with Tenant's
conduct of its business or Tenant's use and enjoyment of the
Premises; and
(d) they do not require payment of additional moneys.
39. FORCE MAJEURE
-------------
The period of time during which either party is prevented or delayed
in any performance or the making of any improvements or repairs or fulfilling
any obligation under this Lease, other than the payment of Base Rent, Extended
Term Rent, or any other rent or charges due pursuant to this Lease, due to
unavoidable delays caused by fire, catastrophe, strikes or labor trouble, civil
commotion, Acts of God, the public enemy, governmental prohibitions or
regulations or inability to obtain materials by reason thereof, or any other
causes beyond such party's reasonable control, shall be added to such party's
time for performance, and such parties shall have no liability by reason of such
delay.
40. AMERICANS WITH DISABILITIES ACT OF 1990
---------------------------------------
The Landlord represents and warrants that:
A. Landlord and the property of which the Premises form a part are
in compliance with the Americans With Disabilities Act of 1990, 42 U.S.C. (S)(S)
12101 et seq. (1992), as amended, and with all applicable rules and regulations
promulgated pursuant to the Act, hereinafter referred to as the "ADA".
B. Covenants and agrees with the Tenant that, so long as this Tenant
leases the Premises, the Landlord will:
1. Not cause or permit any activity to take place on or in the
property of which the Premises form a part in violation of the ADA;
2. Promptly comply with any and all amendments to the ADA
affecting the Landlord and the property of which the Premises may form a part;
3. Notify Tenant in writing of any violations of the ADA and will
forward to Tenant such additional information as to any violations as required
by Tenant;
4. Remedy all violations of the ADA on the property of which the
Premises form a part, in a timely manner, and in accordance with all applicable
requirements of the ADA, at the sole cost of the Landlord.
- 30 -
If the Landlord fails to remedy such violations or otherwise fails to
comply with the regulations within a reasonable period of time, considering the
circumstances, the Tenant may declare this Lease to be terminated upon thirty
(30) days written notice to Landlord.
C. Notwithstanding anything to the contrary in this Section 40,
Tenant covenants and agrees with Landlord that, during the entire term of this
Lease and any extensions thereof:
(i) Tenant shall notify Landlord in writing of any violations
of the ADA and will forward to Landlord such additional
information as to any violations as required by Landlord;
(ii) Tenant shall remedy all violations of the ADA in the
Premises, including Tenant's entrance, in a timely manner
and in accordance with all applicable requirements of the
ADA, at the sole costs of Tenant; and
(iii) Tenant shall comply with all ADA requirements
applicable to the Premises, and Tenant agrees to indemnify,
defend and hold harmless Landlord from any and all
liabilities, claims, damages, penalties, expenditures,
losses, or charges, including but not limited to, all costs
of investigation, monitoring, legal representation, remedial
response, removal, restoration or permit acquisition, which
may now or in the future be undertaken, suffered, paid,
awarded, assessed, or otherwise incurred as a result of any
noncompliance with the requirements of the ADA with respect
to the Premises, or as a result of any investigation,
monitoring, remedial response, or remedial work undertaken
in the Premises.
If the Tenant fails to remedy such violations or otherwise fails to
comply with the regulations, Landlord may cause such remedial work to be done at
Tenant's sole cost and expense, or declare this Lease in default.
D. Landlord agrees to indemnify, defend and hold harmless Tenant
from any and all liabilities, claims, damages, penalties, expenditures, losses,
or charges, including but not limited to, all costs of investigation,
monitoring, legal representation, remedial response, removal, restoration or
permit acquisition, which may now or in the future be undertaken, suffered,
paid, awarded, assessed, or otherwise incurred as a result of any noncompliance
with the requirements of the ADA on the property of which the Premises form a
part, or as a result of any investigation, monitoring, remedial response, or
remedial work undertaken on the property of the Landlord of which the Premises
form a part.
- 31 -
41. MEMORANDUM OF LEASE
-------------------
At the request of any party to this Lease, Landlord and Tenant shall
execute a memorandum of lease containing such information as shall be required
by the appropriate state statutes, and such other information as may reasonably
be required. The requesting party shall, at its sole cost, record the
memorandum of lease in the appropriate governmental offices for giving notice of
interests in real property for the city or county, as the case may be, where the
Property is located.
42. CONTINGENT ON SPECIAL USE PERMIT
--------------------------------
This Lease is expressly contingent on the issuance of a Special Use
Permit for the construction and operation of Tenant's office space. Landlord
shall promptly apply for and diligently pursue such Special Use Permit to
issuance.
43. SECURITY
--------
Security coverage for the Buildings shall be 24 hours a day, 365 days
per year with, at a minimum, one guard stationed at the new west entrance
security station. Escort services to Tenant's employees vehicles in the parking
lot will be provided upon request. Security services shall be provided at
reasonably necessary levels as determined by Landlord. Security services shall
be included in Operating Expenses, but Tenant's share of the costs of Security
services shall be 50%.
Landlord warrants and represents that the cost of said Security shall
not exceed $.60 per square foot per year for Years 1 and 2.
Notwithstanding any of the other terms contained in this paragraph or
in the definition of Operating Expenses including the definitions under Term
Sheet 9.2. the Tenant reserves the right, upon sixty (60) days' written notice
to Landlord, to elect to provide its own security services for its Premises, in
which case (i) the charge for such services billed to Tenant by Landlord shall
discontinue effective the latter of sixty (60) days after notice is received by
Landlord or when Landlord is no longer responsible to provide any pay for said
security services for the Premises; and (ii) Tenant warrants and represents that
the security services which it will provide will be done solely at Tenant's sole
costs and expense; and (iii) Tenant shall provide Landlord with a copy of the
executed Service Contract with Tenant's security agency for the period such
services are rendered/to be rendered: and Iv) Tenant agrees to indemnify and
hold Landlord harmless from the against any and all claims, damages, suits, etc.
of any kind whatsoever related in any way to the contracting with or performance
of said security services; and (v) Tenant shall provide Tenant's contractor's
insurance certificate naming Tenant and Landlord as additional insureds with
- 32 -
coverage reasonably acceptable to Landlord. To the extent that future tenants
require Tenant will receive a pro-rata reduction for the cost of said security
services.
- 33 -
EXHIBIT A
BUILDINGS:
SEE ATTACHED PLANS
- 34 -
EXHIBIT B
Page 1 of 2
PREMISES:
[This Exhibit is described in Section 1(g) of this document.]
- 35 -
EXHIBIT B
Page 2 of 2
[This Exhibit is described in Section 1(g) of this document.]
- 36 -
EXHIBIT C
COMMENCEMENT DATE AGREEMENT
---------------------------
An Agreement made this _____ day of _______________, 19__, by and
between _______________ (hereinafter called "Landlord") and _______________
(hereinafter called "Tenant").
W I T N E S S E T H:
WHEREAS, on _______________, 19__, Landlord and Tenant entered into a
lease (the "Lease") relating to certain office premises located at
_______________; and
WHEREAS, the term of the Lease has commenced, pursuant to Section 3 of
the Lease; and
WHEREAS, the parties desire to confirm the Term Commencement Date and
Term Expiration Date;
NOW, THEREFORE, in consideration of the mutual covenants herein
contained, Landlord and Tenant agree as follows:
1. The Term Commencement Date of the Lease is _______________.
2. Tenant's obligation to pay Rent under the Lease will commence on
_______________.
3. The Term Expiration Date of the Lease is _______________, subject
to the Lease provisions relating to default and termination.
4. The execution of this Agreement shall not constitute the exercise
by Tenant of any option it may have to extend the term of the Lease.
5. The Lease is in full force and effect and is hereby ratified and
confirmed.
IN WITNESS WHEREOF, Landlord and Tenant have caused this Agreement to
be duly executed on the date first above written.
LANDLORD
By:
----------------------------
- 37 -
Its:
----------------------------
TENANT
By:
----------------------------
Its:
----------------------------
- 38 -
EXHIBIT D
JANITORIAL SERVICES
1. Cleaning Services Performed Daily on Business Days:
--------------------------------------------------
A. Dust tile flooring or vacuum carpeted areas.
B. Empty and clean wastepaper baskets.
C. Clean and disinfect drinking fountains and water coolers.
D. Light dusting of furniture.
E. The following cleaning services in the Premises including the
lavatories, cafeteria and kitchen areas and in Common Areas:
i. Empty wastepaper receptacles.
ii. Sweep and wet mop flooring.
iii. Clean and disinfect all fixtures and wash and polish mirrors
and shelves.
iv. Fill toilet tissue, soap and towel dispensers.
F. Spot clean entrance doors.
2. Cleaning Services Performed Weekly on Business Days:
---------------------------------------------------
A. Dust baseboards, chair rails, file cabinets and desk equipment.
B. Machine buff resilient flooring.
C. Remove smudges and scuff marks from all painted surfaces and glass
partitions wherever possible.
3. Cleaning Services Performed Semi-annually on Business Days:
----------------------------------------------------------
A. Wash interior of all outside windows annually. (Exterior windows
will be washed at least every six months.)
B. Strip, as required, and wax all resilient flooring.
- 39 -
4. Tenant understands that Landlord may substitute for any of the methods or
devices set forth in this Exhibit D, other methods or devices which achieve
comparable results.
- 40 -
EXHIBIT E
ESTOPPEL CERTIFICATE
--------------------
_______________, of _______________, the Tenant, gives this estoppel
certificate to _______________, of _______________, the Purchaser. The Tenant
has entered into a Lease dated _______________, with _______________, as
Landlord, for the following space: .
The Purchaser has requested the information and representations in
this certificate with regard to the Lease because it wishes to acquire an
interest in the property known as _______________, which includes the property
that is the subject of the Lease. The Tenant acknowledges that the Purchaser
intends to rely on the information and representations the Tenant makes in this
certificate in Purchaser's acquisition of the property.
The Tenant stated as follows:
1. A copy of all documents that constitute its Lease are attached to
this certificate, and there are no understandings or verbal agreements that
affect or amend the terms of the Lease.
2. The monthly Base Rent payments under the Lease are $__________,
with Additional Rent due under the Lease as follows: .
3. The Lease term ends on _______________, with the following
renewal options: _______________, all subject to the Lease provisions relating
to default and termination.
4. To the best knowledge of Tenant, no notice has been received by
Tenant of any default which has not been cured.
5. The Lease is in full effect.
Dated:
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Tenant
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EXHIBIT "F"
LANDLORD'S WORK
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EXHIBIT G
SEE ATTACHED PLANS OF TENANT
LEASE MODIFICATION AGREEMENT
No. 1
THIS AGREEMENT, made this 31 day of May, 1994, by and between THE
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HAGUE CORPORATION (hereinafter referred to as "Landlord") and ACC CORP.
(hereinafter referred to as "Tenant");
WHEREAS, Landlord and Tenant are parties to a certain Lease Agreement
dated January 25, 1994 (the "Lease") for premises (the "Premises") located in
the buildings (the "Buildings") located at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇;
and
WHEREAS, Landlord and Tenant desire to modify the Lease;
NOW, THEREFORE, in consideration of the above and other good and
valuable consideration, the receipt and legal sufficiency of which is hereby
acknowledged, Landlord and Tenant hereby agree as follows:
1. Section 43 of the Lease, entitled "Security", shall be deleted in
its entirety, and in its place the following shall be inserted:
"43. Security-
Security coverage at the Buildings shall be twenty-four (24)
hours a day, three hundred sixty-five (365) days per year with,
at a minimum, one guard posted at the security guard house in the
parking lot area near Gate H, said guard house to be equipped
with, surveillance monitors for the interior and exterior of
Tenant's entryway to the Premises, electronic controls for Gate
H, and a buzzer and telephone system for Tenant's employees to
page the guard house from inside the entryway to Tenant's
Premises. After business hours, Tenant's employees may request
escort from the entrance to the Buildings to the parking lot.
Security services shall be provided at reasonably necessary
levels as determined by Landlord. Security services shall be
included in Operating expenses (as such item is defined in the
Lease), but Tenant's share of the costs of Security services
shall be 50%" Landlord warrants and represents that the costs of
said Security services shall not exceed $.60 per square foot for
years 1 and 2 of the Lease term.
2. Tenant, in executing this Lease Modification Agreement,
acknowledges that:
(i) The Lease is modified only as indicated herein;
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(ii) Tenant does not know of any default by Landlord of the
terms, covenants or conditions of the Lease;
(iii) As of the date of this Lease Modification Agreement, there
are no existing set-offs, counterclaims or defenses against Landlord whatsoever
to the enforcement of the provisions of the Lease or this Agreement;
(iv) Tenant, to its knowledge, is not in default of the Lease beyond
any applicable periods of grace and notice, nor does any set of any set of [sic]
facts exist which, with the passage of time, would constitute a default.
3. As modified and amended hereby, the parties hereto hereby ratify
and affirm the Lease.
4. This Agreement may not be modified or extended except in writing,
signed by the parties hereto.
5. This Agreement contains the entire agreement of the parties
hereto with respect to the matters contained herein.
THE HAGUE CORPORATION
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇, President
-------------------------------
Authorized Signatory
ACC CORP.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------------
Authorized Signatory
LEASE MODIFICATION AGREEMENT
NO. 2
THIS AGREEMENT, made this 31st day of May, 1995, by and between
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THE HAGUE CORPORATION (hereinafter referred to as "Landlord") and ACC CORP.
(hereinafter referred to as "Tenant");
WHEREAS, Landlord and Tenant are parties to a certain Lease Agreement
dated January 25, 1994, as modified by a certain Lease Modification Agreement
No. 1 dated May 31, 1994, (hereinafter collectively referred to as the "Lease"),
for premises (hereinafter referred to as the "Premises") located in certain
buildings (hereinafter referred to as the "Buildings") located at ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇; and
WHEREAS, Tenant has occupied the Premises effective July 1, 1994,
following a substantial completion of Landlord's and Tenant's work; and
WHEREAS, Landlord and Tenant desire to modify the Lease to reflect the
rentable square footage and related rent and additional charges based on the
rentable square footage of the Premises;
NOW, THEREFORE, in consideration of the above and other good and
valuable consideration, the receipt and legal sufficiency of which is hereby
acknowledged, Landlord and Tenant hereby agree as follows:
1. Item number 8 of the Term Sheet shall be modified by deleting the
reference to "Section 1(k)" and changing it to "Section 1(l)", and by changing
Tenant's Percentage Share from "27.24%" to "28.54%".
2. Item number 9 of the Term Sheet shall be modified by changing the
rentable square feet from "72,526" to "76,000" or as per Exhibit "B".
3. Item number 10 of the Term Sheet shall be modified by changing
the reference to "Section 3" to "Section 4", and by changing the Term
Commencement Date from "5/1/94" to "7/1/94", and by changing the Rent
Commencement Date from "7/1/94" to "9/1/94".
4. Item number 11 of the Term Sheet shall be modified by changing
the reference to "Section 3" to "Section 4".
5. Item number 12 of the Term Sheet shall be modified by deleting
the reference to "Section 4" and changing it to "Section 5".
6. Item number 13 of the Term Sheet shall be modified by changing
the reference to "Section 4" to "Section 5".
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7. Item number 14 of the Term Sheet shall be modified as follows:
by changing the reference to "Section 5(a)" to "Section 6(a)", and by changing
the Base Rent and Monthly Installment Amount schedules to the following:
Base Rent:
$532,000.00/yr. years 1-2 (based on $7.00 p.s.f.)
$646,000.00/yr. years 3-5 (based on $8.50 p.s.f.)
$722,000.00/yr. years 6-10 (based on $9.50 p.s.f.)
Monthly Installment Amount:
$44,333.33/mo. years 1-2
$53,833.33/mo. years 3-5
$60,166.66/mo. years 6-10
8. Item number 15 of the Term Sheet shall be modified by changing
the Extended Term Base Rent from $761,523.00 per year and $63,460.25 per month
to $798,000.00 per year and $66,500.00 per month.
9. Item number 17 of the Term Sheet shall be modified by changing
the reference to "Section 8" to "Section 9".
10. Section 1(k) of the Lease, at page 2, shall be changed by
deleting the reference to "July 1" and inserting "September 1".
11. Section 1(l) of the Lease, at page 2, shall be modified by
deleting the reference to "27.24%" on line 3, and "72,526" on line 4, and
inserting "28.54%" and "76,000", respectively, or as per Exhibit "B".
12. Section 2(a) of the Lease, at page 3, shall be modified by
deleting the reference to "72,526" and inserting "76,000", or as per Exhibit
"B".
13. Section 4(a) of the Lease, at page 4, shall be modified by
deleting the reference to "May" on line 2 and inserting "July", and by deleting
the reference to "July" on the seventh line of the first paragraph and inserting
"September".
14. Section 6(a) of the Lease, at page 6, shall be modified by
deleting the Base Rent, Monthly Installment amount and Extended Term Base Rent
schedules and replacing them with the following:
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Base Rent:
$532,000.00/yr. years 1-2 (based on $7.00 p.s.f.)
$646,000.00/yr. years 3-5 (based on $8.50 p.s.f.)
$722,000.00/yr. years 6-10 (based on $9.50 p.s.f.)
Monthly Installment Amount:
$44,333.33/mo. years 1-2
$53,833.33/mo. years 3-5
$60,166.66/mo. years 6-10
Extended Term Base Rent: $761,523.00/yr.
(based on $10.50 p.s.f.) $63,460.25/mo.
15. Section 8 of the Lease, at page 9, shall be modified by deleting
the number "$3,142.80" on the third line of the last paragraph, and inserting
"$3,293.33" (referencing the monthly installment amount for janitorial
services).
16. Section 9 of the Lease, at page 10, shall be modified by deleting
the number "240" on the fourth line of the paragraph to "228".
17. Section 24 of the Lease, at page 19, shall be modified by
deleting the reference to "27.24%" in Section 24(b), and inserting "28.54%" and
also by deleting "27.24%" (based on 72,526 rentable square feet)" and inserting
"28.54" (based on 76,000 rentable square feet)." in paragraph 24(c).
18. Annexed hereto as Exhibit 1 are copies of the pages in the Lease
which show the changes made as agreed to above in the format of the original
Lease, although such pages are not intended for insertion into the Lease.
19. Exhibit "B" of the Lease is incorrect and shall be changed to
reflect the inclusion of all of the second floor of buildings 16 and 16A, to
become part of the demised premises. The revised Exhibit "B" shall be annexed
to the Lease Agreement at a future date.
20. Tenant, in executing this Lease Modification Agreement
acknowledges that the Lease is modified only as indicated herein, and that this
agreement contains the entire agreement of the parties hereto with respect to
the matters contained herein.
THE HAGUE CORPORATION
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇, President
--------------------------------
Authorized Signatory
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ACC CORP.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------
Authorized Signatory
ACKNOWLEDGMENTS
STATE OF NEW YORK )
COUNTY OF MONROE ) SS
On this 31 day of May , 1995, before me personally came
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▇▇▇▇▇ ▇. ▇▇▇▇▇, to me personally known, who, being by me duly sworn, did depose
and say that he resides at Rochester, New York; that he is the President of THE
HAGUE CORPORATION, the corporation described in, and which executed the within
Lease Modification Agreement as Landlord, and that the [sic] signed his name
thereto by order of the board of directors of said corporation.
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------
Notary Public
STATE OF NEW YORK)
COUNTY OF MONROE)
On this 31st day of May , 1995, before me personally came
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ , to me personally known, who being by me duly sworn, did
------------------
depose and say that (s)he resides at Rochester, NY ; that (s)he is the
----------------- ----
CFO of ACC CORP , the Corporation described in, and which executed
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the within Lease Modification Agreement as Tenant, and that (s)he signed her/his
name thereto by order of the directors of said corporation.
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------
Notary Public