Exhibit 10.8
Form SB-2
Skypath Networks, Inc.
OFFICE BUILDING LEASE
This OFFICE BUILDING LEASE (the "Lease") is made and entered into on this
1st day of February, 2002, between the parties and upon the terms and conditions
hereinafter set forth. If any provision relating to which a blank is to be
filled in, is not filled in, it is inapplicable.
SECTION 1. INFORMATION
1.1 Date of Execution of the Lease:
1.2 Identity of "Landlord": 300 Metro Center LLC
c/o Summit Management Corporation
000 Xxxxx Xxxx Xxxxxx
Xxxxxxxxxx, Xxxxx Xxxxxx 00000-0000
1.3 Identity of "Tenant": Skypath Networks, Inc.
XX XXX 0000
Xxxxxxxxxx, XX 00000
1.4 Description of the "Building": 000 Xxxxx Xxxxxx Xxxxxxxxx
Xxxxxxx, Xxxxx Xxxxxx 00000
A portion of a Professional Office Building designated as Unit Number 150A
located at 000 Xxxxx Xxxxxx Xxxxxxxxx, Xxxxxxx, Xxxxx Xxxxxx which contains for
purposes of the Lease and as determined by the Landlord for rental purposes, the
number of square feet on which the floor thereof as is set forth on Exhibit "A"
(all Exhibits are annexed hereto and made a part hereof).
1.5 Description of the "Premises":
That portion of the Building, which is described on, Exhibit "A"; an
aggregate of 4000 square feet, which is 9.3% of the Building's total rentable
and/or saleable space ("Tenant's Share").
1.6 "Term" of the Lease: 3 Years
"Initial Term": 02/01/2003 thru 01/31/2006
"Commencement Date": the date upon which the Premises are ready for the
Tenant's use: as defined in Paragraph 2.6 hereof or the date upon which the
Premises are occupied by the Tenant, but in no event later than 02/01/2003.
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1.7 "Purpose":
1.8 "Security Deposit": $5,000
1.9 "Rent" (see Additional Rent provisions below and in Paragraph 3):
A. From Feb 1, 2003 through Jan 31, 2005, $17.91 per square foot,
which is an aggregate of $60,094 per year.
B. From Feb 1, 2005 through Jan 31, 2006, $18.50 per square foot,
which is an aggregate of $62,900 per year.
1.10 "Base Year": 2002
SECTION 2. IMPROVEMENTS
2.1 Section 2 shall be inapplicable if, at the date of execution hereof,
the Premises are immediately ready for the Tenant's use.
2.2 Any work on the Building to be completed by the Landlord prior to
occupancy by the Tenant shall be done expeditiously so that the
Premises shall be substantially complete (i.e., completed sufficient
for general use, but subject to corrections, installations,
adjustments, alterations, and other work which does not prevent or
substantially interfere with the Tenant's use of the Premises or
access thereto). "Landlord's Improvements", shall be that work which
is described on Exhibit "B".
2.3 "Tenant's Improvements" shall mean that work which is to be performed
by or for the Tenant and paid for by the Tenant as herein provided
with the Landlord's prior approval. If, at the date of execution
hereof, the plans for Tenant's Improvements have been determined, the
parties shall initial it and/or shall attach the same hereto as an
Exhibit. If Tenant's Improvements are not so determined, the Tenant
shall furnish plans and specifications for Tenant's Improvements to
the Landlord not later than fourteen (14) days from the date of the
execution of the Lease, outlining and indicating any additional work,
which the Tenant will require, for the Landlord's consent and
approval.
2.4 Any Tenant's Improvements shall be done at the Tenant's sole expense
and by a contractor approved by the Landlord. The Tenant shall cause
Tenant's Improvements to be done in a good and workmanlike manner, in
compliance with all building, fire, and other laws and ordinances and
the requirements of the Board of Fire Underwriters. Tenant's
Improvements shall be promptly commenced at the earliest practicable
date and shall be diligently prosecuted to completion. Any Tenant's
Improvements, which do not conform to the requirements of this Lease,
may be removed and replaced by the Landlord at the Tenant's expense.
The Landlord shall have the right to complete, at the Tenant's
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expense, any Tenant's Improvements commenced but uncompleted. Any
materials, finishes, or other Tenant's Improvements not approved by
the Landlord prior to its use or installation shall be deemed to be
prohibited hereby. The Landlord's approval shall be rendered
expeditiously and shall not be unreasonably withheld.
2.5 All contractors and workmen executing Tenant's Improvements shall
comply with the rules and regulations set forth by the Landlord or the
Landlord's Agent (Property Manager). The Landlord reserves the right
to require a damage deposit or bond to cover any misuse or damage to
the Common Elements of the Building of which the "Premises" form a
part.
2.6 The Premises shall be deemed to be "ready for Tenant's use" (see
Paragraph 1.6) when the Landlord's Improvements are substantially
complete, or the Tenant has occupied the Premises, whichever shall
first occur.
SECTION 3. ADDITIONAL RENT
3.1 As Additional Rent, the Tenant shall pay Tenant's Share of increases
in the Landlord's Expenses, as follows:
3.1.1 The Landlord has reasonably estimated its "Expenses" as herein
defined per square foot, for the Base Year, determined on the basis of
the total square feet of rentable space in the Building. Such
estimated Expenses per square foot are set forth on Exhibit "C". If,
for the Base Year or any year thereafter, the Landlord's Expenses or
any individual Expense shall have increased or may reasonably be
anticipated to increase over the Expenses on Exhibit "C", the Tenant
shall pay Tenant's Share thereof in the same manner as provided for
payments and reconciliation in Paragraph 3.2 hereof. The Landlord
shall use its best efforts to control the costs of Expenses.
3.1.2 For purposes hereof, "Expenses" are as follows:
A. Real estate taxes upon the parcel of real estate on which the
Building is located or upon the Building, wherein increases
result either from an increase of valuation or rate of tax. Such
taxes shall include: all taxes and special assessments of every
kind and nature assessed and levied against the Building (as a
complete taxable entity) and Land, including, but not limited to,
real estate taxes on the Building and Land and any taxes upon the
Building or Land levied or imposed by any governmental tax
authority in addition to, in lieu of, or as a substitute for real
estate taxes, installments, and interest on assessments for
public betterments or public improvements (such assessments to be
paid over the longest period permitted by law); all personal
property taxes upon elevators, air conditioning equipment, or
similar equipment of the Building, and expenses including, but
not limited to, legal expenses of any proceedings for abatement
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of taxes and assessments with respect to the first or any
subsequent calendar year or fraction of a calendar year.
B. Landlord's Expenses for the Building and Land shall include,
without limitation, the following: cost for security if, in the
discretion of the Landlord, a change of the Building conditions
so warrants, premiums for insurance of any kind normally carried
by owners of similar properties including fire, casualty, and
liability insurance upon elevators, common areas and the parking
lot or, if there be any mortgage on the Land or Building, or
both, insurances may be required by the holder of such mortgage;
salaries and wages of employees of the Landlord or its Managing
Agent to the extent engaged in operating, maintaining, managing,
or cleaning of the Building or Land, including indirect wages
such as the cost of benefits for medical, surgical, general
welfare (including group life insurance and retirement benefits)
workmen's compensation insurance premiums, payroll taxes, and any
other indirect salaries relating thereto; fuel, oil, gas,
electricity, and telephone charges not chargeable to individual
Tenants; cost of building and cleaning supplies and equipment;
cost of maintenance, cleaning and repairs of the Building or
Land; cost of maintenance, replacement, cleaning and repair of
elevators; cost of periodic painting of leased Premises in the
Building; cost of window cleaning; cost of security protection
provided within and without the Building, if any; cost of snow
removal and care of landscaping; management fees paid to third
parties at rates consistent with the type of occupancy and the
services rendered; payments under service contracts with
independent contractors for any of the foregoing, and all other
reasonable expenses paid in connection with the operation,
cleaning, management, and maintenance of the Building and Land.
Provided, however, that in connection with the foregoing cost of
maintenance, cleaning, and repairs, the Landlord agrees that it
will diligently use its best efforts to obtain efficient services
at a cost which is fair and reasonable under all the
circumstances involved. The cost of the Landlord's compliance
with the provisions of the Occupational Safety and Health Act of
1970 as may be amended from time to time, and the regulations
promulgated thereunder or any other Federal, State, or Local law,
statute, ordinance, act, or regulation requiring expenditures by
the Landlord, other than those which are paid for by any Tenant
under the provisions hereof, and the cost of interest or other
finance charges of any mortgage loan or loans upon the Building
and/or Land from time to time. No capital or depreciation
improvements or depreciation shall be deemed "Expenses".
3.2 Such Additional Rent shall be in the nature of Rent for purposes of
determining the Landlord's rights in respect thereto. Within thirty
(30) days after the end of March, June, September, and December of
each year, the Landlord shall furnish to the Tenant a Statement
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showing the Additional Rent due for the three months just ended. Each
Statement shall be prepared, signed, and certified to be correct by
the Landlord, and if the Landlord is a corporation, the Statement
shall be signed and certified to be correct by an Officer of the
Landlord. The Tenant shall pay the Landlord the Additional Rent within
thirty (30) days after receipt of the Statement. The Landlord will
permit the Tenant to examine, during regular business hours, its books
and records with respect to the operating costs of the Building in
which the Leased Premises are located. In all Statements rendered
hereunder, amounts for periods partially within and partially without
the accounting periods shall be appropriately apportioned, and any
items, which are not determinable at the time of an invoice, shall be
included therein on the basis of the Landlord's estimate.
SECTION 4. PREMISES
The Landlord, in consideration of the rentals, covenants, and agreements to
be paid, kept, and performed by the Tenant as herein provided, hereby demises
and leases unto the Tenant the Premises described above, together with the right
in common with other Tenants entitled thereto, to use the common facilities,
bathrooms, halls, elevators, and stairways in the Building for purposes of
ingress and egress and as may be regulated from time to time.
SECTION 5. PURPOSE
The Premises shall be used solely for the purpose set forth above and not
for any unlawful purpose. Any use of the Premises in violation of this provision
may be enjoined by the Landlord without prejudice to any other remedy therefore.
SECTION 6. RENTAL
The Tenant shall pay the rentals set forth herein in consecutive, equal
monthly installments, in advance, at the office of the Landlord, on the first
business day of each month during each Term. Rent for the calendar month during
which Rent shall begin to accrue and for the last calendar month of a Term, if
either is not a full month, shall be apportioned.
SECTION 7. RIGHTS AND OBLIGATIONS OF THE LANDLORD
7.1 So long as the Tenant shall not be in Default hereunder, the Landlord
shall provide and pay the costs of providing when due:
7.1.1 Removal of waste paper and other materials from the Common Areas of
the Building, excluding, however, dangerous, contaminated, or
potentially harmful or hazardous waste materials for which it shall be
the Tenant's obligation to remove or have removed; periodic cleaning
of the Common Areas of the Building. Any cleaning services beyond
those provided by the Landlord to all Tenants shall be at the expense
of the Tenant and;
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7.1.2 Water for domestic purposes, the Tenant paying for any unusual or
excessive use of water and;
7.1.3 Self-operating passenger elevator service on a 24-hour basis; and
with the Landlord's consent on each occasion, freight elevator service
and;
7.1.4 Electrical energy service to the Common Areas of the Building. The
Landlord shall provide separately metered electric service to the
Leased Premises. (Tenant shall be liable for payment of all separately
metered electric service to the Premises.) The Landlord shall provide
heating, ventilating, and air conditioning service to the Leased
Premises. (Tenant shall be liable for its Tenant's Share of the cost
of gas and electricity used to produce heating, ventilating, and air
conditioning from the Building's central plant. (See Paragraph 8.8
hereof.) The Landlord shall invoice the Tenant monthly and;
7.1.5 Maintenance of the roof, exterior, and structural members of the
Building as hereinafter provided and;
7.1.6 Washing of exterior surfaces of windows annually, and interior
surfaces of the Common Areas of the Building at reasonable intervals
and;
7.1.7 The Landlord will provide a waste receptacle at a location on the
site of the Building and provide for regular removal.
7.2 The Landlord does not warrant that any of the above listed services
will be free of interruption, delay, or failure and shall have no
responsibility or liability for: failure of operation, delays, lapses,
or cessation of such services arising out of labor disputes, strikes,
fire, storm, flood, freezing, earthquake, explosion, civil disorder,
acts of the public enemy, vandalism, sabotage, delay in
transportation, energy, labor or fuel shortages, unavoidable casualty,
mechanical failures, negligence or fault of contractors,
subcontractors or suppliers, or any other cause beyond the control of
the Landlord. In any event, the Landlord shall have no liability for
consequential damages arising from any delay, lapse, or cessation of
such services or any other services to be performed by the Landlord
under this Lease.
7.3 The Landlord shall have the following rights, exercisable without
Notice and without liability to the Tenant for damage or injury to
property, persons, or business and without effecting an eviction
(constructive or actual) or disturbance of the Tenant's use or
possession or giving rise to a claim for set off or abatement of
rentals:
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7.3.1 To inspect the Premises at reasonable times, including before and
after business hours and during the last six months of a Term, to show
them to prospective tenants, or at any reasonable time to prospective
purchasers of the Building and;
7.3.2 To change the name or street address of the Building and;
7.3.3 To take any and all measures, including inspection, making repairs,
alterations, additions, and improvements to the Premises or to the
Building as may be in the opinion and at the discretion of the
Landlord necessary or desirable for the safety, protection,
improvement, enlargement, or preservation of the Premises or the
Building, or as may be necessary or desirable in the operation of the
Building and;
7.3.4 To grant to anyone the exclusive right to conduct any business or
render any service in or to the Building, provided such exclusive
right should not operate to exclude the Tenant from the use expressly
permitted herein. To designate the use of any portion of the Building,
so long as such use complies with any applicable zoning ordinance, and
to designate vending machine operators and caterers serving the
Building and;
7.3.5 To close the Building after regular business hours and on Sundays and
legal holidays, subject however, to the Tenant's right to admittance,
under such regulations as the Landlord may prescribe from time to time
and; tenant may erect a building mounted sign on the Route 95 face of
the building after the first anniversary of this lease upon written
request to the landlord and proof of financial stability.
7.3.6 To prevent the Tenant from erecting signs or other communications on
the Building or the Premises; except on Building Directories or such
signs and other communications for the purpose of directing the
Tenant's invitees to the Premises for which the Tenant must have the
Landlord's prior written approval and;
7.3.7 To close doors, entry-ways, Common Areas, and all or portions of the
parking lot for the purpose of effecting repairs, remodeling,
redecorating, alterations, or additions, so long as reasonable access
is provided to the Premises.
SECTION 8. TENANT'S UNDERTAKINGS
The Tenant further agrees that the Tenant shall:
8.1 Use its best efforts to conserve energy, fuel, and water, and provide
electrical energy service to the Premises and;
8.2 Observe the rules established from time to time by the Landlord, and
by the Condominium Association to which this Lease is subject and
subordinate to, which shall be applicable to all Tenants, and shall be
for the general safety, care, and cleanliness of the Building, the
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preservation of good order therein, and the comfort, quiet, and
convenience of the Tenants therein. Landlord shall not be responsible
for the failure of other Tenants to observe the same, but shall use
its best efforts to insure same and;
8.3 At the Tenant's own expense, promptly observe and comply with all
ordinances, requirements, orders, directives, rules, and regulations
of the Federal, State, and Local governments and all governmental
authorities, or any National or Local Board of Fire Insurance
Underwriters affecting the Premises or appurtenances thereto or any
part thereof, or the use or occupancy thereof whether the same are now
in force or may in the future be passed, enacted, or directed and;
8.4 Maintain, at its expense, public liability insurance for injury to
persons and property in a sum not less than $1,000,000 per each
occurrence, or such higher sum as the Landlord may require in the
future, naming the Landlord as an additional insured; and maintain, at
its expense, "all risk" property insurance, insuring against loss of
any property of the Tenant, its employees or invitees; all such
insurance relating to the Premises and the Building; and all such
insurance containing a waiver of any right of subrogation which such
insurance carrier might have against the Landlord, its servants, or
invitees; and the Tenant agrees that it shall indemnify, defend, and
hold harmless the Landlord from all liability, loss, cost, expense,
and damage from and against any and all suits, claims, and demands of
every nature, including counsel fees, by reason of any damage or
injury to any person, property, or thing which may arise from or be
due to the use of the Premises or Building by the Tenant or the
conduct of the Tenant's business or profession or from any activity,
work, or thing done, permitted, or suffered by the Tenant in or about
work or thing done, permitted, or suffered by the Tenant in or about
the same; and will further indemnify, defend, and hold harmless the
Landlord from any and all claims arising from any breach or default on
the Tenant's part pursuant to the Terms of this Lease, or arising from
any act or neglect of the Tenant or any of the Tenant's agents,
contractors, servants, employees, or invitees and from and against all
costs, counsel fees, expenses, and liabilities incurred in connection
with any such claim or action or proceeding brought thereon, and if
any action or proceeding be brought against the Landlord by reason of
any such claim, the Tenant, or its insurer, upon Notice from the
Landlord, agrees to resist and defend at the Tenant's or insurer's
expense, such action or proceeding by counsel satisfactory to the
Landlord; further, the Tenant assumes all risk of damage, and waives
any claim against the Landlord, excluding, however, those resulting
from the negligence of the Landlord or its agents and servants, in
respect to property in, upon, or about the Premises or Building, to
whomsoever belonging, waiving all claims with respect to such damage
thereof against the Landlord and agreeing to indemnify, defend, and
save the Landlord harmless from and against all loss, cost, damage,
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expense, or claims by others; such damages to include, without
limiting the generality of the foregoing, damages due to the Building
or any part thereof becoming out of repair or due to the happening of
any accident in or about the Building or Premises or due to any act or
neglect of any Tenant of the Building or any employee or invitee of
the Tenant or any trespasser, or caused in any manner by rain, snow,
ice, wind, frost, water, steam, sewerage, gas, odors, chemicals,
freezing radiation, or by the bursting, leakage, or overflow from
windows, doors, walls, ceilings, floors, sprinklers, pipes, faucets,
roofs, gutters, sinks, toilets, or other fixtures, including damage to
fixtures, furniture, furnishings, books, records, papers, films, and
all types of equipment and all other tangible personal property
situated on the Premises and;
8.5 Use the Premises solely for purposes compatible with a First-Class
Office Building; and free from objectionable noises or odors and;
8.6 Refrain from placing in the sewerage system any chemical, waste, or
substance which may require special treatment or may cause damage or
injury to the sewerage system and to pay the cost of any repair or
damages in the sewerage system necessitated by any violation of this
undertaking and;
8.7 Refrain from obstructing the sidewalks and;
8.8 Pay the Landlord for the Tenant's share of costs for heating and air
conditioning based upon the Tenant's share of the Landlord's actual
costs as determined by the Landlord. The Landlord shall provide the
Tenant with actual copies of bills for expenses for natural gas and
electricity for operating the Building's central heating and air
conditioning plants. The Landlord shall xxxx the Tenant monthly, and
the Tenant shall pay the Landlord not later than fifteen (15) days
thereafter. The billing described herein shall be in the nature of
Additional Rent per Paragraph 3.2 hereof. The Tenant's failure to
reimburse the Landlord shall constitute a Default per Paragraph 16.1.1
hereof and;
8.9 Tenant shall keep the interior of the Premises neat and clean and will
maintain the Premises in good order, condition, and repair as the same
are in at the Commencement of the Term, or may be put in during the
continuance thereof, including, without limitation, replacement of all
glass in doors and windows, replacement of light bulbs, keeping in
good order and proper repair lighting fixtures, interior walls,
floors, ceilings, equipment, and apparatus of every kind, nature, and
description, reasonable use and wear and tear thereof, and damage by
fire and other casualty only accepted. The Tenant shall not permit or
commit any waste in these Premises and;
8.10 The Tenant agrees that the Landlord shall not be responsible or liable
to the Tenant or those claiming by, through, or under the Tenant, for
any loss or damage that may be occasioned by or through acts or
omissions of persons occupying other portions of the Building or
Buildings of which the Building Complex of the Leased Premises form a
part.
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SECTION 9. TENANT'S REPAIRS, ALTERATIONS, AND SURRENDER
9.1 The Tenant, at its own expense, shall keep the Premises in good repair
and tenantable condition during each Term of this Lease, except as
otherwise specifically undertaken by the Landlord, and shall promptly
and adequately repair all damage to the Premises and all fixtures,
piping, apparatus, or equipment used in connection therewith, and
shall replace the same or integral parts thereof, as necessary, and
shall replace portions of carpets damaged, under the supervision of
and at the direction of the Landlord, and due to any cause whatsoever.
Such repairs and replacements shall be effected with all due dispatch
and shall be of good and workmanlike quality and class equal to the
original work or installation. If the Tenant shall become aware of any
needed repairs, replacements, or restorations to the Premises or
Building, which it is the Landlord's obligation to make under this
Lease, a Notice shall be promptly given to the Landlord.
9.2 The Tenant shall make no alterations, installations, additions, or
improvements, including the installation of window furnishings in or
to the Premises, without the prior written consent of the Landlord,
which consent shall not be unreasonably withheld and, if such consent
is given, only by contractors or mechanics approved by the Landlord,
and at the Tenant's expense. All Tenant's Improvements and all such
alterations, installations, improvements, and additions shall be
deemed to be part of the Building and to belong to the Landlord,
including any property which has in any way been affixed to the
floors, walls, and/or ceiling of the Premises, subject, however, to
the provisions of Paragraph 9.3.
9.3 All business and office machines, furniture, and other items of
personal property owned or installed by the Tenant in the Premises, at
its expense, shall remain the property of the Tenant (and any taxes
thereon shall be borne by the Tenant), and, subject to Paragraph 19
and Paragraph 30, may be removed by the Tenant at anytime provided
that the Tenant shall, at its expense, repair any damages, holes, or
openings caused or occasioned by such removal. Any such personal
property of the Tenant left upon the Premises after the termination of
the Lease may, at the election of the Landlord, be removed at Tenant's
expense and sold, stored, or discarded, or be deemed to have been
abandoned and to belong to the Landlord.
9.4 At the termination of the Lease, the Tenant shall promptly yield up
and surrender the Premises, clean and in as good condition and repair
as at the Commencement of Tenant's occupancy of the Premises or in
which it may be later put, ordinary wear and tear and damage by fire
or other insured casualty only excepted. Further, the Tenant shall
remove from the Premises all goods and effects.
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SECTION 10. FIRE, CASUALTY, AND EMINENT DOMAIN
10.1 In the event of damage or destruction to the Building or Premises
during a Term by fire or other casualty, the Landlord shall, as soon
as practicable, commence and continue with all reasonable diligence to
repair the same; provided, however, in the event that the cost of such
repairs would exceed either the sum of $50,000 or the amount
recoverable from the Landlord's fire and casualty policies (which the
Landlord shall maintain at the Landlord's expense) by a sum in excess
of $10,000 then upon Notice to the Tenant given not later than ninety
(90) days after the occurrence of such casualty, the Landlord shall
have the right to terminate this Lease as of the time of such
casualty. In the event that such damage or destruction may be
reasonably expected to take in excess of six months from the date of
such casualty to repair and during such six-month period, the Tenant
would be substantially deprived of all beneficial use of the Premises,
the Tenant shall have the right to terminate this Lease by Notice
given not later than thirty (30) days following the time of such
casualty. Until the Premises are restored by the Landlord, there shall
be an equitable abatement of Rent.
10.2 In the event that the entire Building or such portion thereof, as
would deprive the Tenant of all beneficial use of the Premises, is
taken or condemned by any competent authority for any public or
quasi-public use or purpose, or is sold as a result of an impending
taking or condemnation (a "taking"), this Lease shall terminate as of
the date of the taking. If a taking relates only to a portion of the
Building and the Tenant is not deprived of all beneficial use of the
Premises, Landlord shall make any restoration necessary to make the
Premises entirely tenantable and the Lease shall continue without
reduction of the Rent. In any event of a taking, the entire award
(other than any moving expenses available to the Tenant) shall belong
to the Landlord.
10.3 The Tenant specifically waives all claims for any value of its
Leasehold Interest or Lease, and it agrees to be entitled to no
apportionment of the Condemnation Award, and that the Landlord shall
be entitled to the entire amount of the Award. Nothing herein shall
prohibit the Tenant from receiving any separate award for its trade
fixtures and equipment, business interruption, and relocation
expenses.
SECTION 11. SUBORDINATION
This Lease is subject and subordinate to all mortgages, which may now or
hereafter affect the real property of which the Premises form a part. This Lease
is subject and subordinate to the Condominium Declaration whether or not the
same shall be on record and shall continue to be subordinate to any Amendments
to said Condominium Declaration as the Condominium Declaration may be amended
from time to time. This clause shall be self-operative and no further instrument
of subordination shall be required by any mortgagee. The Tenant acknowledges
that it is leasing a condominium unit as referenced herein. In confirmation of
such subordination, the Tenant shall execute promptly any certificate that the
Landlord may request. The Tenant hereby constitutes and appoints the Landlord,
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as the Tenant's attorney-in-fact to execute any such certificate or certificates
for and on behalf of the Tenant. If, in connection with obtaining financing for
the Land and/or Building, or of any ground or underlying lease, a banking,
insurance or other recognized institutional lender shall request reasonable
modifications in this Lease as a condition to such financing, the Tenant will
not unreasonably withhold, delay, or defer its consent thereto, provided that
such modifications do not increase the obligations of the Tenant hereunder or
materially and adversely affect the Leasehold Interest hereby created or the
Tenant's use and enjoyment of the Premises.
SECTION 12. ATTORNMENT AND ESTOPPEL CERTIFICATES
12.1 In the event that a mortgagee, or any purchaser at foreclosure sale or
judicial proceedings, shall succeed to the interest of the Landlord,
this Lease, nevertheless, shall continue in full force and effect and
the Tenant shall, and does hereby agree to, attorn to such mortgagee
or purchaser and to recognize such mortgagee or purchaser as its
Landlord.
12.2 The Tenant, within ten (10) days after written request of the Landlord
or a mortgagee, shall furnish a written certificate stating whether
this Lease has been supplemented or amended, and if so, the manner
thereof; the existence of any Landlord's or Tenant's Default and the
nature of any such alleged Default; the existence of any offsets,
counter-claims, or defenses to the Lease; the Commencement Date and
time of termination; and any other matter as may be reasonably
requested Such certificate may be relied upon by the party requesting
the same.
SECTION 13. EXTERIOR REPAIRS AND QUIET ENJOYMENT
Upon receiving written Notice by the Tenant of the need of repairs to the
Building portions for which the Landlord is responsible hereunder, the Landlord
shall make repairs as it shall deem necessary as soon as practicable. The
Tenant, paying the Rent and performing all the covenants, terms, and conditions
in this Lease contained to be performed on the part of the Tenant, may
peacefully hold and enjoy the Premises during each Term hereof without any
lawful let or hindrance by the Landlord or any person claiming by, through, or
under it.
SECTION 14. NO REPRESENTATIONS BY LANDLORD
No representations or promises with respect to the Premises or the Building
or the grounds adjacent thereto, except as herein expressly set forth, have been
made by the Landlord or any other party on the Landlord's behalf (including any
real estate broker), and the Tenant agrees that it has examined the Premises and
takes the same in their present condition and state of repair, except to the
extent of the Landlord's Improvements to be performed therein. The taking of
possession of the Premises by the Tenant shall be conclusive evidence against
the Tenant that the Premises were in satisfactory condition at the time such
possession was so or is taken.
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SECTION 15. ASSIGNMENT
The Tenant shall not assign, mortgage, pledge, or otherwise encumber this
Lease or its interest herein, or sublet the whole or any part of the Premises
without obtaining, on each occasion, the consent in writing of the Landlord;
provided, however, that the Landlord shall not unreasonably withhold its consent
to any assignment of this Lease or subletting of the Premises. In case of any
such assignment, the Assignee shall assume in writing to the Landlord the
performance and observance of all the covenants, terms, and conditions in this
Lease contained, to be kept and performed on the part of the Tenant, and such
writing of assumption shall be delivered to the Landlord simultaneously with
said assignment. In the event of any such assignment or subletting,
notwithstanding any assumption hereof by the Assignee or Subtenant, the Tenant
shall remain primarily liable for the performance of all said covenants, terms,
and conditions. Notwithstanding the foregoing, if the Tenant desires to assign
this Lease or sublet any portion or all of the Premises, the Landlord shall be
notified. In the case of a desired assignment of this Lease, when the Landlord
has entered into a new Lease with the Assignee, this Lease shall terminate
except to the extent of rights of the parties, which have vested prior to the
effective date of the new Lease.
SECTION 16. LANDLORD'S REMEDIES
16.1 If, at anytime subsequent to the date of this Lease, any one or more
of the following events (an "Event of Default") shall happen, time
being of the essence:
16.1.1 The Tenant shall Default in the due and punctual payment of the Rent
within ten (10) days of the due date thereof; or
16.1.2 The Tenant shall Default in the due and punctual payment of any
Additional Rent within thirty (30) days after being invoiced thereof
by the Landlord; or
16.1.3 The Tenant shall Default in the due and punctual payment of any
Additional Rent for the payment of the Tenant's Share of the
Landlord's Cost of heating and air conditioning expense (per Paragraph
7.1.4) within fifteen (15) days after being invoiced thereof by the
Landlord (per Paragraph 8.9 hereof); or
16.1.4 The Tenant shall neglect or fail to perform or observe any of the
other covenants or agreements herein contained on the part of the
Tenant to be performed or observed and the Tenant shall fail to remedy
the same within twenty (20) days after Notice to the Tenant specifying
such neglect or failure, or if such Event of Default is of such a
nature that the Tenant cannot reasonably remedy the same within such
twenty (20) day period, the Tenant shall fail to commence promptly to
remedy the same and to prosecute such remedy to completion with all
due diligence and continuity; or
16.1.5 The Tenant's Leasehold Interest in the Premises shall be taken on
execution or by other process of law; or
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16.1.6 The Tenant shall seek or consent to or acquiesce in the appointment
of any receiver or liquidator of the Tenant or of all or any
substantial part of its property; or
16.1.7 A petition shall be filed against the Tenant under any law seeking
any reorganization, arrangement, readjustment, composition,
liquidation, dissolution, stay, injunction, or other similar relief
under any present or future State statute, law, or regulation and
shall remain undismissed or unstayed for an aggregate of sixty (60)
days, or if any debtor in possession (whether or not the Tenant),
receiver, or liquidator of the Tenant or of all or any substantial
part of the Tenant's properties or of the Premises shall be appointed
without the consent or acquiescence of the Tenant and such appointment
shall remain undismissed or unstayed for an aggregate of sixty (60)
days; then, in any such case (1) if such Event of Default shall occur
prior to the Commencement Date, this Lease shall terminate without
further Notice or act on the part of the Landlord; and (2) if such
Event of Default shall occur after the Commencement Date, the Landlord
may terminate this Lease by Notice to the Tenant, specifying a date
not less than five (5) days after the giving of such Notice on which
this Lease shall terminate and this Lease shall come to an end on the
date specified therein as fully and completely as if such date was the
date herein originally fixed for the termination hereof, and the
Tenant shall then quiet and peacefully surrender the Premises to the
Landlord but the Tenant shall remain liable as hereafter provided. All
costs and expenses incurred by or on behalf of the Landlord occasioned
by such Event of Default including, without limiting the foregoing
generality, attorney's fees, and other costs of collection, recovery
of possession, and the exercise of any right or remedy permitted the
Landlord hereunder, shall be paid by the Tenant.
16.2 Upon any such expiration or termination of this Lease, the Tenant
shall quit and peacefully surrender the Premises to the Landlord, and
the Landlord, upon or at after such expiration or termination, may,
without further Notice, enter upon and the Premises and possess and
repossess itself thereof, by force, summary proceedings, ejectment, or
otherwise, and may dispossess the Tenant and remove the and all other
persons and property from the Premises and may have, hold, and enjoy
the Premises and the right to receive all rental income of and from
the same.
16.3 At anytime or from time to time after any such expiration or
termination, the landlord may re-let the Premises or any part thereof,
in the name of the Landlord or otherwise, for such term or terms
(which may be greater or less than the period which otherwise have
constituted the balance of the Term of this Lease) and on such
conditions (which may include concessions or free Rent) as the
Landlord, in its uncontrolled discretion, may determine and may
collect and receive the Rents therefore. The Landlord shall in no way
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be responsible or liable for any failure to re-let the Premises or any
part thereof, or for any failure to collect any Rent due upon any such
re-letting.
16.4 No such expiration or termination of this Lease shall relieve the
Tenant of its liability and obligations under this Lease, and such
liability and obligations shall survive any such expiration or
termination. In the event of any such expiration or termination,
whether or not the Premises or any part thereof shall have been
re-let, the Tenant shall pay to the Landlord the Rent, Additional
Rent, and all other sums and charges required to be paid by the Tenant
up to the time of such expiration or termination of this Lease, and
thereafter the Tenant, until the end of what would have been the Term
of this Lease in the absence of such expiration or termination, shall
be liable to the Landlord for, and shall pay to the Landlord, as and
for liquidated and agreed current damages for the Tenant's Default:
(a) the equivalent of the amount of the Rent, Additional Rent, and the
other sums and charges which would be payable under this Lease by the
Tenant if this Lease were still in effect, less (b) the net proceeds
of any re-letting effected pursuant to the provisions of Paragraph
16.3 hereof, after deducting all the Landlord's Expenses in connection
with such re-letting, including, without limitations, removal and
warehousing of the Tenant's property, removal of the Tenant's
Improvements, all repossession costs, brokerage commissions, legal
expenses, attorney's fees, alteration costs, and expenses of
preparation of the Premises for such re-letting. The Tenant shall pay
such damages (herein called "deficiency") to the Landlord monthly on
the days on which the Rent would have been payable under this Lease if
this Lease were still in effect, and the Landlord shall be entitled to
recover from the Tenant each monthly deficiency as the same shall
arise; or, at anytime after any such expiration or termination,
whether or not the Landlord shall have collected any monthly
deficiencies as aforesaid, the Landlord shall be entitled to recover
from the Tenant, and the Tenant shall pay to the Landlord, on demand,
as and for liquidated and agreed final damages for the Tenant's
Default, the entire amount of the deficiency, if the Premises have
been re-let, or, if the Premises have not been re-let, the Rent for
the balance of the Term, the Additional Rent (based upon the then
current Additional Rent) for the balance of the Term, any other
charges which may reasonably be anticipated hereunder for the balance
of the Term and the Landlord's Expenses as set forth above. If, after
the Landlord has recovered the foregoing from the Tenant, the Landlord
shall re-let the Premises or a part thereof, it shall reimburse the
Tenant to the extent the Tenant has paid amounts to the Landlord and
in amounts not to exceed the Rent, Additional Rent, charges, and
expenses actually paid by the Tenant to the Landlord.
16.5 All sums due to the Landlord from the Tenant under this Lease which
are not paid when due (due dates shall not be extended by any periods
of grace granted under this Lease for this purpose), whether or not a
default hereunder has occurred or been declared by the Landlord, shall
bear interest at the rate of fifteen percent (15%) per annum until
paid in full, payable to the Landlord on demand.
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16.6 The Tenant hereby expressly waives, so far as permitted by law, the
service of any Notice of Intention to re-enter provided for in any
statute, or of the institution of legal proceedings to that end, and
the Tenant, for and on behalf of the Tenant and all persons claiming
through or under the Tenant also waive any and all right of redemption
or re-entry or repossession or to restore the operation of this Lease
in case the Tenant shall be dispossessed by a judgment or by warrant
of any court or judge or in case of re-entry or repossession by the
Landlord or in case of any expiration or termination of this Lease,
the Landlord and the Tenant, so far as permitted by law, waive and
will waive trial by jury in any action, proceeding, or counterclaim
brought by either of the parties hereto against the other on any
matters whatsoever arising out of, or in anyway connected with, this
Lease, the relationship of the Landlord and the Tenant, the Tenant's
use or occupancy of the Premises, or any claim of injury or damage.
The terms "enter", "re-enter", "entry" or "re-entry", as used in this
Lease, are not restricted to their technical legal meaning.
16.7 In the event of any breach or threatened breach by the Tenant of any
of the covenants, agreements, terms, or conditions contained in this
Lease, the Landlord shall be entitled to enjoin such breach or
threatened breach and shall have the right to invoke any right and
remedy allowed at law or in equity or by statute or otherwise as
though re-entry, summary proceedings, and other remedies were not
provided for in this Lease.
16.8 Each right and remedy of the Landlord provided for in this Lease shall
be cumulative and shall be in addition to every other right or remedy
provided for in this Lease or now or hereafter existing at law or in
equity or by statute or otherwise, and the exercise or beginning of
the exercise by the Landlord of any one or more of the rights or
remedies provided for in this Lease or otherwise shall not preclude
the simultaneous or later exercise by the Landlord of any or all other
rights or remedies provided for in this Lease or now or hereafter
existing at law or in equity or by statute or otherwise.
SECTION 17. LANDLORD'S RIGHT TO PAY MONEY TO EFFECT PERFORMANCE
If the Tenant at anytime or from time to time shall fail to perform any of
the covenants, terms, and conditions in this Lease contained to be performed on
the part of the Tenant, the Landlord may immediately, or at anytime thereafter,
after giving written Notice to the Tenant, perform the same for the account of
the Tenant, and in any such event, any monies paid by the Landlord for such
purpose shall be deemed to be Additional Rent due hereunder and shall be payable
forthwith to the Landlord upon rendition of an invoice therefore.
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SECTION 18. NO WAIVER
The failure of the Landlord to seek redress for violation of, or to insist
upon the strict performance of, any covenant, term, or condition of this Lease
or any of the rules established by the Landlord under the provisions of this
Lease, shall not prevent a subsequent act, which would have originally
constituted a violation, from having all the force and effect of an original
violation. The receipt by the Landlord of Rent, with knowledge of the breach of
any such covenant, term, condition, or rule shall not be deemed a waiver of such
breach and no provision of this Lease shall be deemed to have been waived by the
Landlord unless such waiver be in writing signed by the Landlord. No act or
thing done by the Landlord, its servants and agents, during the Term of this
Lease shall constitute an eviction by the Landlord, nor shall it be deemed an
acceptance of a surrender of the Premises, and no agreement to accept such
surrender shall be valid unless in writing, signed by the Landlord.
SECTION 19. SECURITY DEPOSIT
The Tenant has deposited with the Landlord the sum set forth above as
Security for the full and faithful performance and observance by the Tenant of
all the covenants, terms, and conditions herein contained to be performed and
observed by the Tenant, and the Landlord may use, apply, or retain the whole or
any part of said Security to the extent required for the payment of any Rent or
any sum as to which the Tenant is in Default in respect to any of the covenants,
terms, or conditions of this Lease. Said sum (to the extent permitted by law,
without interest), or any balance thereof, shall be returned to the Tenant after
the time fixed as the expiration of this Lease provided that the Tenant shall
have fully performed all of the said covenants, terms, and conditions. It is
agreed that said Security is not an advance payment of, or on account of the
Rent herein reserved, or any part of settlement thereof, or a measure of the
Landlord's damages, and in no event shall the Tenant be entitled to a return or
particular application of said sum or any part thereof, until the end of the
Term hereby granted. In the event of a sale of the Land and Building, the
Landlord shall have the right to transfer the Security to the vendee and the
Landlord shall thereupon be released from all liability for the return of such
Security.
SECTION 20. HOLDING OVER
If the Tenant shall hold possession of the Premises beyond the Term without
Landlord's written consent, the Tenant shall pay to the Landlord double the Rent
plus the Additional Rent then applicable for each month during which the Tenant
shall retain such possession, and also shall pay all damages sustained by the
Landlord on account thereof. The provisions of this Paragraph shall not operate
as a bar or as a waiver by the Landlord of any right of re-entry or any remedy
or election provided under Section 16 hereof or available to the Landlord under
common law.
SECTION 21. NO BROKER
The Tenant represents that the Premises, or any portion of the Building,
were not presented to it or to any person representing it by any broker or other
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person, and that no other broker or person was involved in the leasing of the
Premises, and warrants that no claim for commission for said leasing shall be
presented to the Landlord, and shall indemnify and hold harmless the Landlord
from any such claims and any legal fees incidental thereto.
SECTION 22. NOTICE
All Notices and other communications authorized or required hereunder shall
be in writing and shall be given by mailing the same by certified or registered
mail, return receipt requested, postage prepaid, to the parties at their
addresses set forth above, or in the case of the Tenant, to the Premises, or in
either case, to such other person or at such other address as either party may
hereafter designate by Notice to the other party.
SECTION 23. CAPTIONS
The Captions appearing in this Lease are intended only as a matter of
convenience and for reference and in no way define, limit, or describe the scope
of this Lease or the intent of any provision hereof.
SECTION 24. RECORDING OF LEASE
The parties agree that this Lease shall not be recorded, but the Landlord
and the Tenant hereby agree upon request of either party to enter into a
Memorandum of Lease in recordable form, setting forth the actual time of
commencement and time of termination of this Lease and such other provisions,
except rental provisions, with respect to the Lease as will put on Notice any
third party of the existence of this Lease.
SECTION 25. PARTIES AND DEFINITIONS
The terms "Landlord" and "Tenant" wherever used in this Lease shall include
the successors and assigns of said parties (subject to the assignment provisions
hereof), and if either of the parties shall not be a corporation or partnership,
said term shall include the heirs, executors, and administrators of said party,
wherever the context requires or permits of such construction, and all of the
covenants, terms, and conditions herein contained shall be binding upon and
inure to the benefit of the heirs, executors, administrators, successors, and
said assigns of the parties in the same manner as if they were expressly
mentioned. The term "Tenant" as used in this Lease shall include all signatories
hereto as Tenants, and, if there be more than one Tenant, their obligations
hereunder shall be joint and several. The term "Landlord" as used in this Lease
means only the owner for the time being of the Land and Building, so that in the
event of any sale of the Land and Building, the Landlord shall be and it hereby
is entirely freed and relieved of all covenants and obligations of the Landlord
hereunder, it being understood and agreed that the purchaser has assumed and
agreed to carry out any and all obligations of the Landlord hereunder.
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SECTION 26. PARTIAL INVALIDITY
If any term, covenant, condition, or provision of this Lease or the
application thereof to any person or circumstances shall, at anytime or to any
extent, be invalid or unenforceable, the remainder of this Lease, 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, covenant, condition, and provision of this Lease shall
be valid and enforceable to the fullest extent permitted by law.
SECTION 27. SUBMISSION OF INSTRUMENT
Submission of this instrument for examination shall not be binding upon the
Landlord in anyway and no lease or obligation on the part of the Landlord to
enter into a lease shall arise until this instrument has been executed and
delivered to the Landlord by the Tenant and has been executed and delivered to
the Landlord. Such submission shall not constitute an offer, but the Tenant's
execution hereof shall constitute an offer, which may be accepted only by the
Landlord's execution and delivery hereof to the Tenant.
SECTION 28. AMENDMENTS, ADDITIONS, AND DELETIONS TO LEASE
Any alterations or deletions herein were made in the Lease before execution
and any additional provisions to which the parties have agreed and which are
added herein or in any Addenda attached hereto shall be considered a part
thereof.
SECTION 29. PARKING
The Landlord shall provide parking spaces for the Building, and the Tenant
shall be entitled to reasonable use of said parking spaces free of charge. The
Tenant acknowledges, however, that the Landlord will provide such spaces at the
rate of one (1) space per 250 square feet of space in the Building, and that
said spaces shall not be assigned spaces but shall be available to the Tenant
and other Tenants on a "first come-first serve basis". At no time shall there
are less than 20 parking spaces to serve the Building and any additions thereto.
The Tenant further warrants and covenants that its use of the parking spaces
shall not interfere with the reasonable use of said spaces by any other Tenant
of the Building.
SECTION 30. LANDLORD'S LIEN
All fixtures, furniture, machinery, equipment, and improvements of whatever
kind or nature, goods, wares, and merchandise of every kind and nature that may
be in, about, or upon the Premises and/or Building, hereby are and shall be and
shall stand pledged for the fulfillment of the covenants, terms, and conditions
herein contained to be kept and performed on the part of the Tenant, and shall
not be taken down or removed from said Premises during the Term of this Lease or
any continuance thereof, without the written consent of the Landlord, except so
far as the stock-in-trade, goods, wares, and merchandise is concerned in the
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regular course of business of the Tenant. In case of a breach of any of the
covenants, terms, or conditions of this Lease to be kept and performed on the
part of the Tenant, said pledged property, without further demand or Notice, may
be sold at auction or private sale after publishing Notice thereof in some
newspaper published in the town or county in which said Premises are located, at
least once, three (3) days before the date of such sale, and the proceeds of
such sale, after payment of expenses, applied to the payment of any amount for
which the same are pledged as aforesaid.
SECTION 31. INDEPENDENT COVENANTS
Each and every one of the covenants and agreements contained in this Lease
shall be for all purposes construed to be separate and independent covenants,
and the waiver of the breach of any covenant contained herein by the Landlord
shall in no way or manner discharge or relieve the Tenant from the Tenant's
obligations to perform each and every one of the covenants contained herein.
IN WITNESS WHEREOF, the parties have executed this Lease on the date set
forth above.
WITNESS: 300 Metro Center LLC
By: /s/
--------------------------
Xxxxxxx Xxxxxxxx, Xx.
Duly Authorized Agent
WITNESS: TENANT'S NAME
Skypath Networks, Inc.
By: /s/
--------------------------
Xxxxx X. Paolo
President
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EXHIBIT "A"
Description of Building and Premises
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EXHIBIT "B"
Landlord's Improvements
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EXHIBIT "C"
LANDLORD'S ESTIMATED EXPENSES
per square foot of rentable space in
the Building for Base Year
ANNUAL COST PER
COST SQ. FT.
-------- --------
Security 0.00 0.00
Fuel (for heating and air conditioning) 0.00 0.00
Electricity (for Premises power and lighting) 0.00 0.00
Snow Plowing 2,695.00 0.07
Landscape Maintenance 14,131.00 0.38
Water and Sewer 5,162.00 0.22
Insurance 3,496.00 0.10
Window Washing 325.00 0.01
Trash Removal 3,350.00 0.09
Common Area Janitorial 5,500.00 0.15
Janitorial Services for Premises 0.00 0.00
Elevator Service 1,177.00 0.03
Pay Telephone 472.00 0.01
Real Estate Taxes 72,260.00 1.97
--------- ----
TOTAL $167,149.00 = $4.63
========== ====
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