EXHIBIT 10.4
Lease agreement, dated as of February 31, 1996 (sic), between
ParaComm, Inc. and Cornell University c/▇ ▇▇▇▇▇▇ Real Estate
Services, Inc.
LEASE AGREEMENT
THIS LEASE AGREEMENT, hereinafter called the Lease, is made and entered
into on the date, between the parties, and upon the terms and
conditions hereinafter set forth.
1. Short Description of Terms. This Lease is an integrated
agreement. The format used in this paragraph is for the convenience of
the parties. The terms in this paragraph are controlled by the Lease
in its entirety.
A. Date of Lease: February 31, 1996
B. Landlord: Cornell University
c/▇ ▇▇▇▇▇▇ Real Estate Services, Inc.
146 Langmuir Lab
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▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
C. Tenant: ParaComm, Inc.
145 Langmuir Lab
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D. Term of Lease: (1) Beginning: May 1, 1996
(2) Ending: April 30, ▇▇▇▇
▇. ▇▇▇▇▇▇▇: Office
F. Description of Premises: Room(s) 145
Building: Langmuir Lab
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▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
G. Rentable Square Feet: 725
H: Rent: Annually: $8,700.00
Monthly: $ 725.00
I. Security Deposit: Total Deposit: $ 725.00
Date Received: 12/01/95
2. Premises. Landlord, for and in considerations of the rents,
covenants and agreements, and upon the terms and conditions set forth
herein, hereby leases to the Tenant, and Tenant hereby hires from the
Landlord, the Premises set forth above, together with the right in
common with other tenants entitled thereto, to use the halls, elevators
(if any), and stairways in the building of which the Premises are a
part (hereinafter call the Building) for purposes of ingress and
egress, and of any land and parking areas which Landlord may designate
(hereinafter called the Grounds) for any use by Tenant, its employees,
and invitees.
3. Square Footage. Tenant hereby acknowledges that the total square
footage represented in section one is comprised of the total Rentable
Square Footage for the space plus a fifteen percent common area factor.
4. Rent. Tenant shall pay the rental set forth above in consecutive
monthly installments, in advance, on the first day of each month. If
rent is not paid by the tenth of the month, it shall be subject to a
late charge equal to two percent (2%) per month of such unpaid amount
to cover Landlord's additional administrative costs and other losses
and expenses resulting from said late payment.
5. Security Deposit. Tenant hereby deposits with Landlord the amount
set forth above as security for the faithful performance by Tenant of
the terms hereof, to be returned to Tenant (without interest) on the
full and faithful performance by Tenant of the provisions hereof, less
any deductions necessary for damage, breakage, cleaning, unpaid and due
rent, etc., and only after an agent of the Landlord has inspected the
Premises. Under no circumstances shall the security deposit be used as
any month's rent or the last month's rent.
6. Manner of Payment. Tenant agrees to pay (a) rent and (b) all
other sums, impositions, costs, expenses, and other payments which
Tenant assumes or agrees to pay in any of the provisions of this Lease
(hereinafter called "Additional Rent") at the Landlord's address above
or at such other address as the Landlord may designate in writing, and
to make such payments in lawful money of the United States of America,
without demand by the Landlord, and without counterclaim, deduction, or
set off. The rent for the calendar month of the Term, if either is not
a full month, shall be apportioned.
7. Use. The Tenant shall use and occupy the Premises for the
purposes set forth above and for no other purpose. The Tenant shall
comply with all laws, orders, and regulations of the Federal, State,
and Municipal Governments, or any of their departments, and the
regulations of the Board of Fire Underwriters governing such use.
Tenant shall procure and maintain in force during the Term all permits,
authorizations, and licenses necessary for Tenant's business use and
operation in the premises. Tenant covenants that neither it nor any
assignee nor subtenant will (a) use or permit to be used any part of
the Premises for any dangerous or noxious trade or business, (b)
transport to or from, dispose of, use, store, handle, or generate any
flammable substances or explosives or hazardous or toxic substances in
quantities or concentration which are unsafe or otherwise not suitable
for the Premises, (the foregoing shall not be construed to prohibit
Tenant from using the Premises for reasonable and suitable laboratory
purposes, provided accepted laboratory safety procedures and
precautions appropriate to the Premises are employed), or (c) cause or
maintain any nuisance, waste, or injury to the Premises. Tenant shall
conform to the Rules and Regulations now or hereinafter established by
Landlord, and changed from time to time, for the general safety, care,
and cleanliness of the entire Premises; the preservation of good order
therein; and the comfort, quiet, and convenience of the other tenants.
The Tenant shall not without Landlord's written consent: (a) abandon
the Premises or suffer the Premises to become vacant or deserted; (b)
assign, mortgage, pledge or encumber this Lease, in whole or in part;
(c) underlet or sublet the Premises or any part thereof.
8. Services and Utilities. A. At its own expense, Landlord agrees
to provide the following services and utilities:
(1) Electricity for normal business use;
(2) Heat to a reasonable temperature during normal business hours;
(3) Cold water for drinking, lavatory, and toilet purposes, and
hot water for lavatory purposes;
(4) Regular cleaning and janitorial services as follows:
(a) Clean lavatories daily;
(b) Empty wastebaskets daily;
(c) Vacuum or dust mop floors weekly;
(d) Wash exterior of windows semi-annually;
(5) Necessary lawn care and snow removal;
(6) Replace burnt out light bulbs and ballasts.
B. At its own expense, Tenant agrees to provide the following
services and utilities:
(1) Telephone service;
(2) Place large boxes and trash, other than normal wastebasket
trash, in dumpster;
(3) Dust and clean desk tops, ashtrays, telephones, furniture,
machines, lab equipment and sinks, interior of windows, and
window ▇▇▇▇▇ as necessary;
C. If utility costs in the Building are materially increasing,
Landlord reserves the right to pass Tenant's pro-rata share of the cost
of such increases on to Tenant, as determined in Landlord's sole and
absolute discretion;
D. Landlord shall not be liable for any consequential damages arising
out of its provision of services and utilities or any failure to
provide services and utility.
9. Construction. A. Landlord and Tenant agree to complete the
items of work and materials required, if any, under the terms of a Work
Letter executed by Landlord and Tenant in connection with this lease.
B. Tenant shall not without Landlord's written consent make or allow
to be made any structural alterations, additions or improvements to the
Premises, including electrical and plumbing connections, without first
submitting plans thereof and obtaining the written approval of the
Landlord permitting the carrying out of said structural alterations,
additions, or improvements. All improvements made by Tenant to the
Premises, which are attached to the Premises, including, but not
limited to, carpets, drapes, and anything bolted, nailed, plumbed, or
otherwise secured in a manner customarily deemed to be permanent, shall
become the property of Landlord upon termination of the Lease. The
Tenant shall, within ten (10) days after filing, discharge any
mechanic's lien for materials or labor claimed to have been furnished
to the Premises on Tenant's behalf.
10. Maintenance. A. Landlord will, at its own expense;
(1) Repair as necessary the exterior of the Building;
(2) Repair as necessary the common areas of the Building;
(3) Repair as necessary the Grounds, including parking areas;
(4) Make all necessary structural repairs and repairs to the
Building Utility systems.
B. Tenant will, at its own expense:
(1) Repair as necessary the interior of the Premises, excluding
structural repairs and repairs to the Building Utility
systems;
(2) Make all repairs and replacement to the Premises, Building,
Building Utility systems, and Grounds, necessitated by the
negligence of Tenant, its employees, customers, invitees,
and assignees.
11. "As Is" Condition. Landlord leases, and Tenant agrees to accept,
Premises in an "as is" condition. Landlord makes no warranties,
representations, or promises as to the condition of the Premises,
Building, or Grounds, except as herein expressly set forth. Tenant
agrees that it has examined said Premises and takes the same in their
present conditions and state of repair. The taking of possession of
the Premises and said Building and Grounds were in satisfactory
conditions at the time such possession was so taken. Landlord makes no
representation or warranty that the Premises are suitable for Tenant's
purposes, and Tenant agrees that any measures necessary to make the
Premises suitable and safe or to otherwise adapt the Premises for its
purpose (e.g. fume hoods, drains, or other work to ventilation,
electrical, plumbing, or other systems) shall be undertaken at Tenant's
expense in accordance with the provisions of Paragraph 8.
12. Indemnity. Tenant agrees to hold and save Landlord harmless from,
and indemnify Landlord against, any and all claims of any party for
damage, loss, or injury (including death) of whatever nature, including
costs of legal defense, arising out of use or occupancy of the
Premises, or out of any act, omission, or negligence of Tenant or
anyone claiming under Tenant.
13. Insurance. A. The Tenant agrees to obtain comprehensive general
liability insurance to include both bodily injury and property damage
liability insurance. Such insurance shall name Landlord as an
additional named insured. The limits of liability shall be not less
than one million dollars ($1,000,000.00) combined single limit for
bodily injury and property damage liability. Each such policy shall
contain a provision that it cannot be canceled or amended insofar as it
relates to the Leased Premises without at least thirty (30) days prior
written notice to the Landlord. Tenant also agrees to provide Landlord
with a Certificate of Insurance showing evidence of Workers'
Compensation Insurance. In addition, Tenant agrees to obtain Builder's
Risk Insurance covering Landlord during construction or renovation by
the Tenant, and to carry Workers' Compensation Insurance affording
applicable statutory coverage and containing statutory limits on
employees at all times. A Certificate of Insurance at inception and
each renewal period shall be provided to Landlord by Tenant.
B. Notwithstanding any other provisions contained herein, in the
event of any loss or damage to the Premises and/or any contents, Tenant
shall look solely to Insurance in its favor. Tenant shall obtain for
each policy of such insurance, provisions waiving the right of
subrogation against the Landlord for loss or damage within the scope of
the insurance; and Tenant hereby does for itself and its insurers waive
all such insured claims against the Landlord.
14. Property Loss or Damage. All merchandise, furniture, and property
of any kind, nature, and description, belonging to Tenant or any person
claiming by, through, or under Tenant, which may be in, on, or about
the Premises during the continuance of this Lease, or any extension or
renewal thereof, is to be at the sole risk and hazard of Tenant; and if
the whole or any part thereof shall be destroyed or damaged by fire,
water, steam, smoke, cold, by the leakage or bursting of water privies,
or in any other way or manner, no part of said loss or damage is to be
charged to or to be borne by Landlord in any case whatsoever.
15. Interference. A. In the case the Premises, during the term
hereby created, shall be destroyed or damaged by fire or other
unavoidable casualty so that the same shall be thereby rendered unfit
for Tenant for its business purposes, or in case Tenant shall be
prevented from using said Premises by reason of any action on the part
of municipal or state officers through no fault, neglect, or willful
act of his own, his agents, servants, or employees, then the rent
hereinbefore reserved, or a just proportionate part thereof, according
to the nature and extent of the injury sustained, shall be suspended or
abated until the said Premises shall have been put in proper condition
for use of Tenant in its business purpose, or until Tenant is permitted
to resume the use thereof by said municipal or state officers. In case
of fire, Tenant shall give immediate notice thereof to Landlord. If
the Premises be so damaged that Landlord shall decide not to rebuild,
the term hereby created shall cease, and the accrued rent be paid up to
the time of the fire, or refunded to Tenant for such period beyond the
time of the fire, as Tenant may have paid the same. If the damage
results from the fault of the Tenant, or Tenant's agents, servants,
visitors, or licensees, Tenant shall not be entitled to any abatement
or reduction of rent, except to the extent, if any, that Landlord
receives the proceeds of rent insurance in lieu of such rent.
B. The Tenant shall not be entitled to claim a constructive eviction
from the Premises unless Tenant shall have first notified Landlord in
writing of the condition or conditions giving rise thereto, and, if the
complaints be justified, unless Landlord shall have failed within a
reasonable time after receipt of said notice to remedy such conditions.
16. Condemnation. If the Premises or any part thereof or any estate
therein, be taken by virtue of eminent domain, this Lease shall
terminate on the date when title vests pursuant to such taking, the
rent and Additional Rent shall be apportioned as of said date, and any
rent paid for any period beyond said date shall be repaid to Tenant.
Tenant shall not be entitled to any part of the award or any payment in
lieu thereof; but Tenant may file a claim against the taking authority
for any taking of fixtures and improvements owned by Tenant, and for
moving expenses.
17. Entry. The Landlord may enter the Premises at any time, on
reasonable notice to Tenant (except that no notice need be given in
case of emergency), for any legal purpose. Landlord may show the
Premises to prospective purchasers, mortgagees, and Tenants upon
reasonable notice to Tenant.
18. Subordination. This Lease shall be subject and subordinate to all
underlying leases and to mortgages which may now or hereinafter affect
such leases or the real property of which the Premises is a part, and
also to all renewals, modifications, consolidations, and replacements
of said underlying leases and said mortgages. Although no instrument
or act on the part of Tenant shall be necessary to effectuate such
subordination, Tenant will, nevertheless, execute and deliver such
further instruments confirming such subordination of this Lease as may
be desired by the holders of said mortgages or by any of the lessors
under such underlying leases. Tenant hereby appoints Landlord
attorney-in-fact, irrevocably, to execute and deliver any such
instrument for Tenant. If any underlying lease to which this Lease is
subject terminates, Tenant shall, on timely request, attorn to the
owner of the reversion.
19. Liens. The Tenant shall have no power to do any act or make any
contract which may create or be the foundation for any lien, mortgage,
or other encumbrance upon any interest in property of the Landlord,
including the Premises, Building, and Grounds, it being agreed that
this Lease may not be subordinated to the interest of any other party
without the express written consent of the Landlord, which consent the
Landlord may withhold for any reason or no reason.
20. Estoppel Certificates. Tenant shall, from time to time, upon not
less than ten (10) days prior written request by Landlord, execute,
acknowledge, and deliver to Landlord a written statement certifying
that this Lease is unmodified and in full force and effect (or that the
same is in full force and effect as modified, listing the instruments
of modification), the dates to which the rent and other charges have
been paid, and whether or not to the best of Tenant's knowledge
Landlord is in default hereunder (and, if so, specifying the nature of
the default).
21. Default. If the Tenant defaults in the payment of rent or
Additional Rent or defaults in the performance of any of the covenants
or conditions hereof, Landlord may give to Tenant notice of such
default, and if Tenant does not pay the rent or Additional Rent default
within five (5) days, or cure such other default within ten (10) days,
after the giving of such notice (or, if such other default is of such
nature that it cannot be completely cured within such ten (10) days, if
Tenant does not commence such curing within such (10) days thereafter
and proceed with reasonable diligence and in good faith to cure such
default), or if the default is irreversible and not capable of cure; or
if the Tenant has engaged in any act or activity unreasonably dangerous
or hazardous to the Premises, the Building, or to the other occupants
or tenants of the Building, then Landlord may terminate this Lease with
not less than three (3) days notice to Tenant, and on the date
specified in said notice the term of this Lease shall terminate, and
Tenant shall then quit and surrender the Premises to Landlord, but
Tenant shall remain liable as hereinafter provided. If this Lease
shall have been so terminated by Landlord, Landlord may at any time
thereafter resume possession of the Premises by any lawful means and
remove Tenant or other occupants and their effects, and use any legal
remedy.
22. Landlord's Right to Cure. If Tenant breaches any covenant or
condition of this Lease, Landlord may, on reasonable notice to Tenant
(except that no notice need be given in case of emergency), cure such
breach at the expense of Tenant and the reasonable amount of all
expenses, including attorneys' fees, incurred by Landlord in do so
shall be deemed Additional Rent payable on demand.
23. Other Tenants. Landlord shall not be liable to Tenant for failure
to enforce or for violation of any Rules and Regulations or the breach
of any covenant or condition in any Lease by any other tenant.
24. Agreement to Lease. The Tenant agrees to pay the rent and other
charges as required in the Lease. The Tenant agrees to do everything
required in the Lease. Landlord agrees that if Tenant pays the rent
and is not in default under this Lease, Tenant may peaceably and
quietly have, hold, and enjoy the Premises for the Term of this Lease.
25. End of Term. No later than the last day of the Term, Tenant
shall, at Tenant's expense, remove all of Tenant's personal property
and those improvements made by Tenant which have not become the
property of Landlord, including trade fixtures, cabinet work, moveable
paneling, partitions and the like, repair all injury done by or in
connection with the installation or removal of said property and
improvements, and surrender the leased Premises broom clean and in as
good condition as they were at the beginning of the Term, reasonable
wear, and damage by fire, the elements, casualty, or other causes not
due to the misuse or neglect by Tenant or Tenant's agents, servants,
visitors, or licensees, excepted. All property of Tenant remaining on
the Premises after the last day of the Term of this Lease shall be
conclusively deemed abandoned and may be removed by Landlord, and
Tenant shall reimburse Landlord for the cost of such removal. Landlord
may, but is not obligated to, have any such property stored. Such
storage shall be at Tenant's risk and expense.
26. Option to Renew (if applicable). Tenant, if such option is
granted above and if not in default under any of the terms hereof,
shall have the option to renew the term of the Lease for the period set
forth above, by giving notice in writing to Landlord no later than
ninety (90) days prior to the end of the original term. The terms and
conditions hereof shall also apply to the renewal term shall be as set
forth above. If the option to renew is not set forth above, then
Tenant shall have no option to renew.
27. Holding Over. In the event Tenant remains in possession of the
leased Premises after expiration of this Lease and without the
execution of a new Lease, it shall be deemed to be occupying the
Premises as a holdover tenant from month to month (and not from year to
year), and subject to all the obligations, conditions and provisions of
this Lease except that Tenant shall pay for each day the Tenant holds
over rent at twice the rate of the rental herein before provided to be
paid. Such holdover, month to month tenancy shall be cancelable by
either party upon thirty (30) days written notice to the other.
28. Notice. Any notice by either party to the other shall be in
writing and shall be deemed to be duly given only if delivered
personally or mailed by registered or certified mail in a postpaid
envelope addressed to the addresses first given above, or at such other
addresses as Tenant or Landlord, respectively, may designate in
writing. Notice shall be deemed to have been duly given if delivered
personally, upon delivery thereof, and if mailed, upon the third (3rd)
day after the mailing thereof.
29. No Broker. The parties agree that no real estate broker or
salesperson was involved in this transaction.
30. Relocation. Notwithstanding anything to the contrary contained in
this Lease, the parties acknowledge that it may become necessary for
Landlord to reallocate the space Lease in the Building from time to
time as conditions warrant. If it becomes necessary for Landlord to
reallocate space in order to accommodate the needs of other tenants,
Tenant agrees to relocate subject to the following conditions:
(1) Ninety (90) days prior written notice by Landlord;
(2) Allocation of comparable space to Tenant by Landlord;
(3) Written consent by Tenant which shall not be unreasonably
withheld;
(4) Compensation for the reasonable value of and expense, loss,
damage or interruption of business caused by the relocation
either by Landlord or by tenant for whose benefit the
relocation is made.
31. Miscellaneous. This lease contains the entire agreement between
the parties respecting the matters herein set forth and supersedes all
prior agreements between the parties hereto respecting such matters.
Paragraph headings herein contained are for convenience only and shall
not be considered in construing this Lease. Time is of the essence
with respect to all matters provided in this Lease. If any party
obtains a judgement or decree against any other party by reason of this
Lease, reasonable attorneys' fees, as fixed by the court, shall be
included in such judgement or decree. The Lease shall be construed and
enforced in accordance with the laws of the State of new York. No
waiver by Landlord of any default of Tenant shall be implied or
inferred, and no written waiver thereof shall constitute, a waiver of
any other default of Tenant, whether of the same or of any other nature
or type and whether preceding, concurrent or succeeding; and no failure
or delay on the part of Landlord to exercise any right it may have by
the terms hereof or by law upon the default of Tenant, shall prevent
the exercise thereof by Landlord at any time when Tenant shall continue
to be so in default and no such failure or delay and no waiver of
default shall operate as a waiver of any other default, or as a
modification in any respect of the provisions of this Lease. As used
herein "Landlord" means the entity(ies) who is or are the owner or
owners of the Premises at the time in question, whether singular or
plural in number and whether named in this Lease as Landlord or having
become the successor or successors in interest of the same. In the
event Landlord conveys its interest in the Premises, then it shall
thereupon be automatically freed relieved from all obligations under
this Lease which arise or accrue after the date of such conveyance.
"Tenant" as used herein means the party, whether singular or plural in
number; provided, however, that Tenant does not include any entity
claiming under any assignment or other transfer prohibited by this
Lease and this definition does not alter the provisions of the Lease
relating to assignment or subletting. If there shall be more than one
entity constituting Tenant, their obligations shall be joint and
several, and any notice required or permitted by the terms of this
Lease may be given by or to any one thereof, and shall have the same
force and effect as if given by or to all thereof. The consent by
Landlord to any act by Tenant requiring the Landlord's approval shall
not be deemed to waive or render unnecessary Landlord's consent to any
subsequent similar acts. To the extent such waiver is permitted by
law, the parties waive trial by jury in any action or proceeding
brought in connection with this Lease or Premises. Unless otherwise
stated, this Lease is binding on all parties who lawfully succeed to
the right or take the place of the Landlord or the Tenant. Any
provision(s) of this Lease which shall be to any extent in violation of
the law or ordinance which shall prove to be to any extent
unenforceable, invalid, void, or illegal, shall in no way affect,
impair, or invalidate any other provisions hereof, and the remaining
provisions, except those provisions that are made subject to or
conditions upon such unenforceable, invalid, void, or illegal
provision(s), shall nevertheless remain in full force and effect. No
payment by Tenant or receipt by Landlord of a lesser amount than the
monthly rent shall be deemed to be other than on account of the
earliest stipulated rent, nor shall any endorsement or statement on any
check or any letter accompanying any check or payment as rent be deemed
to be an accord and satisfaction, and Landlord may accept such payment
without prejudice to Landlord's right to recover the balance of such
rent or pursue any other remedy. Landlord shall have the right to
credit Tenant's payments towards any due or past due item(s) it so
desires, notwithstanding any specification of Tenant. This Lease can
be changed only by an agreement in writing signed by Landlord and
Tenant.
IN WITNESS WHEREOF, the parties have executed this Leases as of the
date first above written.
LANDLORD, Cornell University TENANT, ParaComm, Inc.
Real Estate Department
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ /s/▇▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇.
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Director
of Real Estate