EXHIBIT 10.10
AGREEMENT OF LEASE
TRI-STATE CONSUMER INSURANCE COMPANY
AND
STARBUCKS CORPORATION
SUBLEASE AND CONSENT
This SUBLEASE (the "Sublease") is entered into as of the 25th day of
November 1998, by and between STARBUCKS CORPORATION, a Washington corporation
("Sublandlord") and COMMUNITY NETWORKS, a___________ (d/b/a __________________)
("Subtenant").
RECITALS
A. Sublandlord is a party to that certain lease (the "Master Lease") dated
as of January __, 1996 with TRI-STATE CONSUMER INSURANCE COMPANY ("Master
Landlord") for certain premises commonly known as Suite 202 (comprising 2215
gross rentable square feet resulting in 1883 usable square feet) at 0 Xxxxxxx
Xxxx, Xxxxxxx, XX 00000 (the "Premises") and legally described on Exhibit A
attached to the Master Lease. A copy of the Master Lease is attached hereto.
B. Subtenant wishes to sublease from Sublandlord all of the Premises (the
"Subleased Premises").
C. Master Landlord is willing to approve this Sublease, all on the terms
and conditions hereinafter set forth.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties agree as follows:
1. Sublease. On the terms and conditions stated herein, Sublandlord hereby
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subleases the Subleased Premises to Subtenant and Subtenant hereby subleases the
Subleased Premises from Sublandlord. Except only as otherwise stated herein,
Subtenant accepts the Subleased Premises subject to all the terms and conditions
of the Master Lease. Unless otherwise defined herein, all capitalized terms used
in this Sublease shall have the meanings given such terms in the Master Lease.
2. Term. The term (the "Sublease Term") of this Sublease shall commence on
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the date Sublandlord tenders possession of the Subleased Premises to Subtenant
(the "Commencement Date"). If Subtenant shall not receive possession of the
Premises by January 1, 1999, Subtenant shall have the right to terminate this
Sublease. The Commencement Date is currently estimated to be December 1, 1998.
Sublandlord shall deliver written notice to Subtenant of its tender of
possession and such notice conclusively shall establish the Commencement Date.
The Sublease Term shall expire May 31, 2001, to coincide exactly with the
expiration of the initial Term of the Master Lease or upon such earlier date as
this Sublease may be canceled or terminated pursuant to any of the provisions of
this Sublease, the Master Lease or pursuant to law (the "Expiration Date").
Notwithstanding anything to the contrary contained in this Sublease, Subtenant
shall not have the right to exercise the option to extend in the Master Lease.
3. Base Rent.
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3.1 Rent shall begin to accrue thirty (30) days after possession of
the Premises is tendered to Subtenant, subject to an extension of one (1) day
for each day of delay, if any, that the Commencement Date is later than December
1, 1998 (the "Rent Commencement Date"); provided however, that Subtenant shall
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deliver to Sublandlord a check in an amount equal to the payment of the first
full month's installment of rent upon its execution of this Sublease which
amount shall be applied to the Base Rent first due. Commencing on the Rent
Commencement Date and throughout the Term, Subtenant shall pay Sublandlord in
advance on the first day of each and every month, at its address set forth in
Section 17 below, without demand, notice, abatement, deduction or offset, annual
rent ("Base Rent") at the rates set forth below in equal monthly installments on
or before the first day of each calendar month of the Term:
Lease Year Base Rent Monthly
---------- --------- -------
Installment
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all $44,300.00 $3,691.67
3.2 Partial Months. If the Sublease Term includes any partial
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calendar months, the monthly installment of Base Rent for such months shall be
prorated based on a thirty (30) day month.
3.3 Late Charges and Interest. If any monthly installment of Base
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Rent and/or any other payments to be made by Subtenant to Sublandlord hereunder
is not paid by the fifth (5th) day following the due date thereof, a service
charge equal to the greater of $100.00 or five percent (5%) of the past due
amount shall become immediately due and payable. Sublandlord and Subtenant agree
that the late charges provided for herein represent a fair and reasonable
estimate as to the additional administrative, processing and accounting costs
that will be incurred by Sublandlord as a result of any late payments by
Subtenant hereunder. In addition to the foregoing late charges, any amounts owed
by Subtenant to Sublandlord shall bear interest from the date due until paid at
the lesser of (a) twelve percent (12%) per annum, or (b) the maximum rate of
commercial interest allowed by applicable law.
4. Additional Charges. Notwithstanding any provision to the contrary
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contained herein, in the event Subtenant's default, acts, omissions or occupancy
result in a charge against Sublandlord or the Premises, Subtenant shall pay the
entire amount of such charge to Sublandlord.
5. Condition of Subleased Premises.
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5.1 Subtenant acknowledges that it has had an opportunity to
thoroughly inspect the Subleased Premises and Subtenant agrees to accept the
Subleased Premises "as is, where is," with all faults.
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5.2 SUBTENANT ACKNOWLEDGES THAT SUBLANDLORD HAS NOT MADE AND WILL
NOT MAKE ANY WARRANTIES TO SUBTENANT WITH RESPECT TO THE QUALITY OF CONSTRUCTION
OF ANY LEASEHOLD IMPROVEMENTS OR TENANT FINISHES WITHIN THE SUBLEASED PREMISES
OR AS TO THE CONDITION OF THE SUBLEASED PREMISES OR THE PREMISES, WHETHER
EXPRESS, STATUTORY, IMPLIED OR OTHERWISE, AND THAT SUBLANDLORD EXPRESSLY
DISCLAIMS ANY IMPLIED WARRANTY THAT THE SUBLEASED PREMISES ARE OR WILL BE
SUITABLE FOR SUBTENANT'S USE OR INTENDED COMMERCIAL PURPOSES.
6. Use and Operations.
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6.1 Use. Subtenant shall use the Subleased Premises solely for
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offices.
6.2 Operating Requirements. In addition to complying with all
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operational requirements imposed on Subtenant by the terms of the Master Lease
(as incorporated herein in Section 8), Subtenant agrees as follows:
(a) Subtenant's operations shall at all times be first class
and in keeping with the highest commercial standards.
(b) Subtenant shall not create or permit a nuisance or
otherwise interfere with or disturb Sublandlord, Master Landlord, any
neighboring tenants or any of their employees, contractors, agents or invitees.
(c) Subtenant shall not operate in any manner that increases
the rate for or invalidates any policy of insurance carried by Sublandlord or
Master Landlord.
6.3 Rules. Subtenant shall comply with any reasonable rules and
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regulations established by Sublandlord or Master Landlord for the Subleased
Premises and communicated to Subtenant in writing.
6.4 Compliance with Law. Subtenant, at its expense, shall comply
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promptly with all laws, rules, and regulations made by any governmental
authority having jurisdiction over the Subleased Premises. Subtenant shall not
be responsible for any structural repairs to the Premises pursuant to Article 9
(a) of the Master Lease.
7. Subordination: Incorporation of Master Lease.
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7.1 Incorporation of Master Lease. Except to the extent hereinafter
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provided, this Sublease is subject and subordinate to all of the covenants,
agreements, terms, provisions, conditions and obligations of the Master Lease.
Subtenant agrees that all rights and privileges granted hereunder are subject to
the limitations imposed on Sublandlord by the Master Lease and that, except as
expressly provided herein, Sublandlord is not granting any rights or privileges
to Subtenant that are not expressly
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Premises or any alteration, addition or change to the Demised Premises costing
less than $20,000 that does not affect the structural, mechanical or electrical
integrity of the Demised Premises or Building.
7. ACTIVITIES INCREASING FIRE INSURANCE RATES. Lessee shall not do
or suffer anything to be done on the Premises which will increase the rate of
fire insurance on the Building.
8. ASSIGNMENT AND SUBLETTING.
(a) Lessee will not by operation of law or otherwise, assign,
mortgage or encumber this Lease, nor sublet or permit the Demised Premises to be
used by others (except to RIPCO Real Estate Company at any time after the twenty
four (24) month anniversary of the Commencement Date hereof with respect to a
sublet of the whole Premises), in whole or in part, without Lessor's prior
express written consent in each instance. The consent by Lessor to any
assignment or subletting (including a sublease to RIPCO Real Estate Company)
shall not in any manner be construed to relieve Lessee from obtaining Lessor's
express written consent to any other or further assignment or subletting nor
shall any such consent by Lessor serve to, relieve or release Lessee from its
obligations to fully and faithfully observe and perform all of the terms,
covenants and conditions of this Lease on Lessee's part to be observed and
performed.
(b) If Lessee shall desire to assign or to sublet all or any
portion of the Demised Premises, Lessee shall give notice thereof to Lessor and
in said notice shall set forth the name and address of the proposed assignee or
sublessee, information as to financial condition of such assignee or sublessee
and proposed use which assignee or sublessee desires to make of the Demised
Premises. Said notice shall bear the signature of the proposed sublessee or
assignee or an officer or managing partner, as the case may be, attesting to its
accuracy. Lessee shall in addition, at Lessor's request, furnish such other
further information as Lessor may reasonably request concerning such proposed
assignment or subletting. If Lessor does not respond to Lessee's request within
fifteen (15) days thereof, Lessor shall be deemed to have consented to such
request.
(c) As a condition of Lessor's consent to any assignment or
subletting:
(i) Lessee at the time of requesting Lessor's consent
shall not be in default of any of the terms, covenants and conditions which are
the obligations of the Lessee hereunder;
(ii) Each assignee of this Lease shall assume in writing
all of the terms, covenants and conditions of this Lease on the part of Lessee
hereunder to be performed and observed, to the extent they accrue after the date
of the assignment;
(iii) An original or duplicate original of the instrument
of assignment and assumption shall be delivered to Lessor within ten (10) days
following the execution thereof;
(iv) Any instrument of sublease shall specifically state
that each sublease is subject to all of the terms, covenants and conditions of
this Lease; and
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both Master Landlord and Sublandlord. Any permitted alterations, additions or
improvements shall be completed in a first-class manner using all-new equipment,
furnishings and fixtures. Subtenant shall submit its plans and specifications
for its initial improvements to Master Landlord and to Sublandlord as soon as
practicable after the execution of this Sublease. Subtenant shall use only
first-class, reputable contractors approved by Sublandlord to perform any work
in the Subleased Premises and shall coordinate with Sublandlord's work.
Subtenant shall not commence any work upon the Subleased Premises until it has
provided Master Landlord and Sublandlord with a copy of an executed construction
contract and a building permit for such work. Subtenant shall perform all work
in accordance with the requirements of the Master Lease, at Subtenant's sole
expense.
8.2 Upon Master Landlord or Sublandlord's request, Subtenant shall
remove any and all alterations, additions, improvements and signage from the
Subleased Premises which were installed by Subtenant upon the expiration or
termination of the Sublease and shall repair any damage caused by such removal.
8.3 Before commencing any alterations, additions or improvements using
outside contractors, Subtenant shall notify Master Landlord and Sublandlord of
the expected commencement and completion dates of the work and shall permit
Master Landlord and Sublandlord to post a notice of non-responsibility on the
Subleased Premises. Subtenant shall not permit any mechanics' or materialmen's
liens to be levied against the Premises or the property on which it is located
for any labor or material furnished to Subtenant or to its agents or contractors
and shall indemnify and hold Sublandlord and Master Landlord harmless from and
against any such claims. If Subtenant has not removed any lien within ten (10)
days after the lien is filed, then Sublandlord may pay the lienholder and
Subtenant shall reimburse Sublandlord for such costs as additional rent.
9. Repair and Maintenance: Surrender.
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9.1 Repair and Maintenance. Subtenant, at Subtenant's expense, shall
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keep the Subleased Premises in good order, condition and repair in accord with
the provisions of the Master Lease
9.2 Surrender. Upon the expiration or termination of this Sublease,
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Subtenant shall surrender the Subleased Premises to Sublandlord in broom clean
condition, in comparable or better than the condition in which the Subleased
Premises were delivered at the beginning of the Initial Term, ordinary wear and
tear excepted, and in accordance with all applicable terms and standards of the
Master Lease.
10. Compliance with Master Lease. Notwithstanding anything to the contrary
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contained in this Sublease, neither Sublandlord nor Subtenant shall not do or
permit anything to be done by its employees, agents, contractors or invitees
which would constitute a violation or breach of any of the terms, conditions or
provisions of the Master
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Lease or which would cause the Master Lease to be terminated or forfeited by
virtue of any rights of termination or forfeiture reserved by or vested in
Master Landlord. Sublandlord and Subtenant shall each indemnify, defend and hold
the other harmless from and against any and all losses, claims, liabilities,
damages, costs or expenses (including, without limitation, reasonable attorneys'
fees and disbursements) arising from Sublandlord's or Subtenant's respective
actions, omissions or failure to perform or observe any of the terms and
conditions of the Master Lease (as and to the extent incorporated herein) or
this Sublease, as they relate to the Subleased Premises or the Premises.
Sublandlord's and Subtenant's obligations and indemnity in this Section shall
survive the expiration or sooner termination of this Sublease.
11. Default.
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11.1 The occurrence of any one or more of the following events shall
constitute a default and breach of this Sublease by Subtenant:
(a) The failure by Subtenant to make any payment of Base Rent,
additional rent, or any other payment required to be made by Subtenant
hereunder, as and when due.
(b) The failure by Subtenant to observe or perform any of the
covenants, conditions, or provisions of this Sublease to be observed or
performed by Subtenant (including the terms of the Master Lease which have been
incorporated herein by reference), other than the payment of sums due hereunder,
where such failure shall continue for a period of fifteen (15) days after
written notice thereof from Sublandlord to Subtenant; provided, however, that if
the nature of Subtenant's default is such that more than fifteen (15) days are
reasonably required for its cure, then Subtenant shall not be deemed to be in
default if Subtenant commences such cure within such fifteen (15) day period and
thereafter diligently pursues such cure to completion.
(c) The occurrence of any act or omission that is, or with the
giving of notice or passage of time would be, a default under the Master Lease.
11.2 In the event of any breach hereunder by Subtenant, Sublandlord
shall have all of the rights and remedies available at law or in equity or
available to Master Landlord against Sublandlord under the Master Lease, as if
such breach occurred under such document.
11.3 If Subtenant defaults in the performance of any of its
obligations under this Sublease, other than its obligation to pay Base Rent to
Sublandlord, Sublandlord, without being under any obligation to do so and
without thereby waiving such default, may remedy such default for the account
and at the expense of Subtenant.
12. Insurance: Indemnity.
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12.1 Subtenant's Insurance. Throughout the Term of this Sublease,
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Subtenant shall, for the benefit of Sublandlord and Master Landlord, obtain
and keep in full force and effect insurance as required by the Master
Lease.
12.2 Waiver of Subrogation. Neither Sublandlord nor Subtenant shall
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be liable to the other or to any insurance company (by way of subrogation
or otherwise) insuring the other party for any loss or damage to any
building, structure or other tangible property, or any resulting loss of
income and benefits, even though such loss or damage might have been
occasioned by the negligence of such party, its agents or employees if any
such loss or damage is covered by insurance benefiting the party suffering
such loss or damage or was required to be covered by insurance pursuant to
this Sublease. Sublandlord and Subtenant shall require their respective
insurance companies to include a standard waiver of subrogation provision
in their respective policies.
12.3 Indemnification by Subtenant. Subtenant shall defend,
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indemnify, and hold Sublandlord and Sublandlord's agents, officers,
directors, employees, and contractors harmless against and from any and all
injuries, costs, expenses, liabilities, losses, damages, injunctions,
suits, actions, fines, penalties, and demands of any kind or nature
(including reasonable attorneys' fees) arising in connection with any and
all third party claims arising out of (a) injuries occurring within the
Subleased Premises; (b)any intentional acts or negligence of Subtenant or
Subtenant's agents, employees, or contractors; (c) any breach or default in
the performance of any obligation on Subtenant's part to be performed under
this Sublease; or (d) the failure of any representation or warranty made by
Subtenant herein to be true when made. This indemnity does not include the
intentional or negligent acts or omissions of Sublandlord or its agents,
officers, contractors or employees. This indemnity shall survive
termination of this Sublease only as to claims arising out of events that
occur prior to termination of the Sublease.
13. Assignment: Subletting. Subtenant shall not assign, mortgage, pledge,
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encumber or otherwise transfer this Sublease or any interest in the
Subleased Premises, nor shall Subtenant further sublet all or any part of
the Subleased Premises, nor allow the Subleased Premises or any part
thereof to be used or occupied by anyone other than Subtenant. Any transfer
of a partnership interest, if Subtenant is a partnership, or shares of
stock, if Subtenant is a corporation, shall be deemed an assignment. Should
Subtenant desire to assign, sublet or otherwise transfer any rights under
this Sublease or all or a portion of the Premises, to (i) a parent,
subsidiary, affiliate, division or corporation controlling, controlled by
or under common control with Subtenant; (ii) a successor corporation
related to Subtenant by merger, consolidation, non-bankruptcy
reorganization or government action; or (iii) a purchaser of substantially
all of the Subtenant's assets, then Subtenant may proceed with such
transfer upon its delivery to Sublandlord of(a) a written notice of same;
(b) copies of documents evidencing and describing the transaction, redacted
to delete any proprietary or confidential information; (c) a written
statement giving contact information for the transferee; and (d) a written,
executed
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covenant running from Subtenant to Sublandlord that such transferee has the
financial ability to pay sums due hereunder and has a net worth not less than
that of Subtenant.
14. Brokers. Other than Xxxx Xxxx of Equis of New York, Inc., Sublandlord
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and Subtenant hereby warrant and represent to each other that they have dealt
with no brokers or agents in connection with the Subleased Premises or this
Sublease or Subtenant's leasing of the Subleased Premises, and that no other
broker(s) or agent(s) brought the Subleased Premises and/or the other party to
the attention of the indemnifying party. Sublandlord and Subtenant hereby agree
to indemnify, defend and hold each other harmless from and against any and all
claims, losses, liabilities, damages, costs or expenses (including, without
limitation, reasonable attorneys' fees and disbursements) arising or resulting
from the indemnifying party's breach or alleged breach of its warranty and
representation contained in this Section. The provisions of this Section shall
survive the expiration or sooner termination of this Sublease.
15. Notices. Whenever a provision is made under this Lease for any demand,
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notice or declaration of any kind, or where it is deemed desirable or necessary
by either party to give or serve any such notice, demand or declaration to the
other party, it shall be in writing and served either personally or sent by
United States mail, certified, postage prepaid. Notices to Subtenant shall be
given at the Premises. Notices to Sublandlord shall be given to the address set
forth below:
By Mail: X.X. Xxx 00000
Xxxxxxx, XX 00000-0000
By Overnight Delivery: 0000 Xxxx Xxxxxx Xxxxx, 0xx Xxxxx
Xxxxxxx, XX 00000
Attn: Property Management Department
With a duplicate copy to the attention of the Law and Corporate Affairs
Department at the same address.
Notices given hereunder shall be deemed to have been given on the date of
personal delivery (or the first business day thereafter if delivered on a
non-business day) or two (2) days after the date of mailing. Each party shall
have the right to change its notice addresses from time to time by written
notice given in accordance with this Section; provided, however, that legal
service of process may always be served on Subtenant by service on the employee
in charge of the Subleased Premises.
16. Parking. Sublandlord makes no representations with respect to parking
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at the Subleased Premises. Subtenant agrees that it has the sole responsibility
for investigating parking and ensuring that adequate parking exists for its
intended use.
17. Security Deposit. Upon execution of this Sublease by Subtenant,
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Subtenant shall deposit with Sublandlord the sum of Three Thousand Six Hundred
Ninety
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One and 67/100 Thousand Dollars ($3,691.67), which sum shall be held by
Sublandlord as security for the full and faithful performance of all terms,
conditions and agreements contained in this Lease by Subtenant. In the event of
any default by Subtenant hereunder, or in the event Sublandlord advances sums on
Subtenant's behalf, Sublandlord shall have the right to use the security deposit
to recover its expenditures, and Subtenant shall, within ten (10) days request
of Sublandlord, restore the deposit to its original amount. Sublandlord may
commingle the deposit with Sublandlord's other funds and shall not be required
to pay interest on the deposit.
18. Governing Law: Sectional Headings. This Sublease shall be governed,
--------------------------------
enforced and regulated by the laws of the state where the Subleased Premises are
located. The sectional headings herein are inserted for convenience only and
shall not be used in any way to limit or modify the terms and provisions of this
Sublease.
19. Partial Invalidity. If any term or provision of this Sublease, or any
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application thereof, shall be found invalid or unenforceable by a court of
competent jurisdiction, the remainder of this Sublease and any other
application thereof shall not be affected thereby, but shall remain in full
force and effect.
20. Entire Agreement. This Sublease, together with: (a) all schedules
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attached to and referenced in this Sublease and (b) all of the terms and
provisions of the Master Lease wholly or partially incorporated herein,
constitutes the entire agreement between the parties hereto concerning the
matters set forth herein, and any prior or contemporaneous agreement or
understanding (whether oral or written) between such parties with respect to the
subject matter herein shall have no force or effect.
21. Changes. This Sublease shall not be modified or amended except by a
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writing signed by the party against whom enforcement of the modification or
amendment is sought.
22. Unexecuted/Undelivered Drafts. Unless and until executed and delivered
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by all parties to this Sublease, this Sublease is, and shall remain, a draft
only, and delivery or discussion of the draft shall not be construed as an offer
or commitment with respect to the proposed transaction to which the draft
pertains. No party to the proposed transaction (and no person or entity related
to any such party) will be under any legal obligation with respect to the
proposed transaction or any similar transaction, and no offer, commitment,
undertaking, estoppel or obligation of any nature whatsoever shall be implied in
fact, in law or in equity, unless and until the formal Sublease providing for
the transaction has been executed and delivered by all parties hereto.
23. Binding Effect. The terms and provisions of this Sublease shall bind
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and inure to the benefit of Sublandlord and Subtenant and their respective
successors and assigns, but this Section shall not give Subtenant any rights to
assign this Sublease or to sub-sublet the Subleased Premises except as and if
allowed by some other Section(s) of this Sublease.
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24. Conflict in Terms. If any provision of this Sublease (express or
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implied) shall be in unintentional conflict with the terms of the Master Lease,
the terms of the Master Lease shall be controlling. Any capitalized terms used
but not defined in this Sublease shall have the meanings ascribed to them in the
Master Lease.
25. Holding Over. In the event of any holding over by Subtenant after the
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expiration or any termination of this Sublease without the prior written consent
of Sublandlord, Subtenant shall pay as liquidated damages one hundred fifty
percent (150%) of the amount of all rental which was payable by Subtenant
immediately prior to such expiration or termination, pro rated on a daily basis
for the entire holdover period. In the event of any unauthorized holding over,
Subtenant shall also indemnify Sublandlord against all claims for damages by any
other tenant to whom Sublandlord or Master Landlord may have subleased all or
any part of the Subleased Premises effective upon the expiration or termination
of this Sublease. Any such holding over, without the prior written consent of
Sublandlord, shall create only a tenancy at sufferance relationship with
Subtenant and shall not operate to renew or extend this Sublease for any period
of time.
26. Utilities. Subtenant shall pay directly to the utility provider or
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reimburse Sublandlord for any and all utilities consumed at or for the Subleased
Premises. To the extent practicable, Subtenant, at its sole cost and expense,
shall cause each utility providing service to the Subleased Premises to be
separately metered or submetered. In addition, Subtenant shall reimburse
Sublandlord for its Pro Rata Share of any utilities for which submetering is not
practical, unless Subtenant's use of such utilities is disproportionate to the
size of its space, in which event the cost of such utilities shall be equitably
divided. For the purposes of this Sublease, refuse and recycling services are
utilities.
27. No Waiver. No oral waiver, delay in enforcing, or failure to enforce,
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any right(s) (including but not limited to the right to collect late charges and
interest) of either party under this Sublease shall prevent, hinder or delay
such party's future enforcing of any such right(s), with respect to the same or
any other matter.
28. Joint and Several Liability. Each person executing this Sublease shall
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be jointly and severally liable for the full performance of all obligations
imposed hereunder, including without limitation the payments of all amounts
required hereby.
29. Attorneys' Fees. If either party to this Sublease brings an action to
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enforce the terms hereof or to declare rights hereunder, the prevailing party in
any such action, on trial or appeal, shall be entitled to its reasonable
attorneys' fees to be paid by the losing party as fixed by the court.
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IN WITNESS WHEREOF, Sublandlord and Subtenant have hereunto caused this Sublease
to be duly executed as of the date first set forth above.
SUBTENANT: SUBLANDLORD:
COMMUNITY NETWORKS, STARBUCKS CORPORATION,
a NY corporation a Washington corporation
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By /s/ Xxxxx X. Xxxxxxx By
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Xxxxx X. Xxxxxxx
----------------------------- ----------------------
Title: VP HR & ADMINISTRATION Title:
---------------------- ---------------
Consented to this 30th day of November, 1998.
MASTER LANDLORD
TRI-STATE CONSUMER INSURANCE COMPANY
By [SIGNATURE ILLEGIBLE]
-----------------------------
-----------------------------
Title: President
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Sublandlord Notary Acknowledgment
STATE OF WASHINGTON )
) ss.
COUNTY OF KING )
On this ____ day of , l99______, before me, the undersigned, a Notary
Public in and for the State of Washington, duly commissioned and sworn,
personally appeared _______________, to me known to be the ______________of
STARBUCKS CORPORATION, a Washington corporation, the corporation that executed
the foregoing instrument and acknowledged the said instrument to be the free and
voluntary act and deed of said corporation for the uses and purposes therein
mentioned, and on oath stated that he is authorized to execute said instrument.
WITNESS my hand and official seal hereto affixed the day and year this
certificate above written.
_________________________________________
NOTARY PUBLIC, in and for the State
of Washington, residing at ______________
Commission expires: _____________________
Print Name: _____________________________
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Subtenant Notary Acknowledge
STATE OF New York )
) ss.
COUNTY OF Onondaga )
On this 30th day of November, 1998 before me, the undersigned, a Notary
Public in and for the State of New York duly commissioned and sworn, personally
appeared Xxxxx Xxxxxxx, to me known as, or providing satisfactory evidence that
he is the VP HR & Admin. of Community Networks a _____________the party that
executed the foregoing instrument and acknowledged the said instrument to be the
free and voluntary act and deed of said Xxxxx Xxxxxxx for the uses and purposes
therein mentioned and on oath stated that he is authorized to execute said
instrument.
WITNESS my hand and official seal hereto affixed the day and year in this
certificate above written.
/s/ Xxxxx X. Xxxxx
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NOTARY PUBLIC, in and for the State
of New York, residing at Onondaga County
My Commission expires 9-7-99
Print Name: Xxxxx X. Xxxxx
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XXXXX X. XXXXX
Notary Public, State of New York
[SEAL] Qualified in Onondaga County
Reg. 016L5017617
My Comm. expires 9-7-99
-----------------------------------------
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Master Landlord Notary Acknowledgment
STATE OF New York )
) ss.
COUNTY OF Nassau )
On this 30th day of November, 1998 before me, the undersigned, a Notary
Public in and for the State of New York duly commissioned and sworn, personally
appeared Xxxxx Xxxx, to me known as, or providing satisfactory evidence that she
is the President of Tri-State Consumer Ins. Co. a ____________the party that
executed the foregoing instrument and acknowledged the said instrument to be the
free and voluntary act and deed of said Xxxxx Xxxx for the uses and purposes
therein mentioned and on oath stated that he is authorized to execute said
instrument.
WITNESS my hand and official seal hereto affixed the day and year in this
certificate above written.
/s/ Xxxxx X. XxXxxx
-----------------------------------------
NOTARY PUBLIC, in and for the County of
Suffolk, residing at 0 Xxxxxxx Xxxx,
[XXXXXXXXX], XX
My Commission expires 7/15/1999
Print Name: Xxxxx X. XxXxxx
------------------------------
XXXXX X. XxXXXX
NOTARY PUBLIC, State of New York
No. 02MC801XXXX
Qualified in Suffolk County
Commission Expires July 16, 1999
14
LEASE, made this ___ day of January, 1996, between, Tri-State Consumer
Insurance Company, whose address is 0 Xxxxxxx Xxxx, Xxxxxxx, Xxx Xxxx 00000,
hereinafter called ("Lessor") and STARBUCKS CORPORATION, a corporation organized
and existing under the laws of the State of Washington, having a place of
business located at 0000 Xxxx Xxxxxx Xxxxx (98134), X.X. Xxx 00000, Xxxxxxx,
XX 00000-0000 (hereinafter called "Lessee").
For and in consideration of the covenants herein, contained and upon the
terms and conditions herein set forth, Lessor and Lessee agree as follows:
1. DESCRIPTION. Lessor, as the owner of the Building (as defined below),
hereby leases to Lessee and Lessee hereby leases from Lessor, the following
space: Xxxxx 000 consisting of 2,215 gross rentable square feet (resulting in
1,883 usable square feet) on, the Second Floor as outlined on Exhibit A
(hereinafter called "Demised Premises" or "Premises"), together with a right in
common to use the common facilities, all as shown on the plan or plans initialed
by the parties thereto, marked Exhibit A attached hereto and made part of the
Lease in the building known as 0 Xxxxxxx Xxxx, Xxxxxxx, Xxx Xxxx 00000
(hereinafter called the "Building"), together with the right to use in common
with the other lessees of the Building, their invitees, customers and employees,
those public areas of the common facilities as hereinafter defined. Lessor
represents to Lessee that the loss factor for the Demised Premises is fifteen
percent (15%).
2. TERM.
(a) The Premises are leased for an initial term of five (5) years, one (1)
month (plus, if the Commencement Date is not the first day of a month, the
period from the Commencement Date to the end of the then current month)
commencing on the Commencement Date, and ending at 12:00 midnight on the day
preceding the fifth (5th) anniversary of the second full month of the Term
hereof. The Commencement Date shall be the later of (i) February 1, 1996 or (ii)
the date that Lessor notifies Lessee that Lessor has Substantially Completed (as
defined below) all of the work to be done in the Demised Premises by Lessor and
delivers the said Premises to Lessee, provided that the Commencement Date shall
always be the first day of the month following the month in which Lessor
provides Lessee 10 days prior written notice that the Premises are Substantially
Completed. For the purposes of this paragraph, "Substantially Completed" shall
mean (a) so completed as to allow the Lessee to take possession of the Demised
Premises and conduct its normal business therein, (b) Lessee has been given the
opportunity to inspect Lessor's work in the Demised Premises and (c) Lessor has
completed, to Lessee's reasonable satisfaction, any repairs to defects in
Lessor's work and any punchlist times noted during Lessee's inspection. The
Demised Premises shall not be deemed to be substantially completed if any
details of construction, decoration or mechanical adjustment or any cleanup
remains to be done to the Demised Premises, or any part thereof, that would, in
Lessee's reasonable judgment, materially impair, reduce or hinder its ability to
utilize the Demised Premises for the purpose intended hereby. In the event the
Premises are not Substantially Completed on or before April 1, 1996, Lessee may
cancel this Lease with no further obligation hereunder on the part of either
party with respect to the other. Notwithstanding the foregoing, Lessee's right
to cancel is conditional upon Lessee having final plans for the Premises within
ten (10) business days of the date hereof. Within ten (10) business days after
the Commencement Date, Lessor and Lessee shall execute a written acknowledgment
of the Commencement Date,
but Lessor's and Lessee's failure to execute such acknowledgement shall not
affect the actual Commencement Date. Lessor shall promptly correct all defects
in Lessor's work in the Demised Premises and all failures of the Lessor's work
to conform to the requirements set forth in this Lease that are discovered
within sixty (60) days after the date Lessee first occupies the Demised
Premises. Lessor shall bear all costs of correcting Lessor's work. Lessor and
Lessee shall each give the other prompt written notice after discovering the
existence of any such defects or nonconformities in Lessor's work and Lessee
shall be deemed to have waived this right if notice is not given within ten (10)
days of discovery.
(b) Lessee shall have the option in its discretion, provided no Event
of Default (as defined below) has occurred under this Lease that remains uncured
at the commencement of the Extended Term, to extend the Term of this Lease for
an additional five (5) year period beyond the expiration of the Initial Term
(the "Extended Term"). Lessee shall notify Lessor, in writing, at least ninety
(90) but not more than one hundred twenty (120) days prior to the
expiration of the Initial Term of Lessee's desire to exercise said option. All
terms of this Lease shall remain in full force and effect during the Extended
Term. Failure by Lessee to timely notify Lessor in writing of its exercise of
the option shall constitute a waiver of the option.
(c) For purposes of this Lease, the Initial Term and the Extended Term
may collectively hereinafter be referred to as the "term" or the "Term";
provided if Lessee does not exercise its option, the Initial Term shall
constitute the entire term of this Lease.
(d) Notwithstanding anything to the contrary herein, Lessee may, by
written notice given at least ninety (90) days prior to the twenty four (24)
month anniversary of the Commencement Date, elect to cancel this Lease and upon
payment by Lessee to Lessor of Ten Thousand Dollars ($10,000.00) (the
"Cancellation Fee"), which may be paid at any time before such 24 month
anniversary, the Lessee's leasehold of the Premises shall be deemed cancelled as
of the twenty four (24) month anniversary of the Commencement Date. In the
event Lessee so elects to cancel, Lessee shall vacate the Premises on or before
the 24 month anniversary of the Commencement Date or Lessee shall be deemed a
holdover tenant and Section 23 hereof shall govern the rental payments due.
Lessee's failure to vacate shall not entitle Lessee to any refund or return of
the Cancellation Fee.
(e) If Lessee cancels this Lease as provided above, Lessor shall grant
RIPCO Real Estate Company a right of first refusal to assume this Lease on
the prevailing terms and conditions. Said right of first refusal must be
exercised by RIPCO within ten (10) days of receipt of notice from the Lessor of
such right.
3. BASIC RENT.
(a) The Lessee shall pay to the Lessor at the address of the Lessor
hereinabove set forth, without notice, demand, off-set or deduction, a basic
rent (hereinafter referred to as "Basic Rent") in the amount of $40,423.80
payable in advance on the first day of each and every month during the Term
hereof in equal monthly installments of $3,368.65 each. In accordance with, and
in furtherance of, Section 3(c) hereof, Lessee has paid to Lessor upon the
signing of this Lease the sum of $3,368.65 representing Basic Rent for the first
month of the term hereof for which Basic Rent is due.
2
(b) Commencing on the thirteenth (13th) full month following the
Commencement Date, and annually thereafter, including any renewals or extensions
thereto, the Basic Rent shall be increased by four (4%) percent, on a compounded
basis so that each year the Basic Rent shall be increased by four (4%) percent
over the prior year.
(c) Notwithstanding the forgoing, Lessee shall not be required to
make payments of Basic Rent for the first month after the Commencement Date of
this Lease.
4. USE AND [*ILLEGIBLE] premises for a general office space and for
[*ILLEGIBLE] may lawfully be used for these purposes.
5. CARE AND [*ILLEGIBLE] no act of waste and shall take good care of
[*ILLEGIBLE] therein, and shall, in the use and occupancy of [*ILLEGIBLE] of the
federal, state and municipal government [*ILLEGIBLE] make all necessary repairs
to the Premises, [*ILLEGIBLE] if any, including, without limitation, those
[*ILLEGIBLE] [*ILLEGIBLE] of the federal, state and municipal governments
[*ILLEGIBLE] repair has been made necessary by misuse or neglect [*ILLEGIBLE] or
licensees, in which event Lessor shall [*ILLEGIBLE] to Lessor, as additional
rent, immediately [*ILLEGIBLE] made by Lessee to the Premises, which are so
attached to the premises that may [*ILLEGIBLE] removed without material injury
to the Premises, shall become the property of Lessor upon installation. Not
later than the last day of the term, Lessee shall, at Lessee's expense, remove
all Lessee's personal property and those improvements made by Lessee which have
not become the property of Lessor, including trade fixtures movable 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
Premises in as good condition as they were at the beginning of the term,
reasonable wear and damage by fire, the elements, casualty, or to the cause not
due to the misuse or neglect by Lessee, Lessee's agents, Servants, visitors or
licensees excepted.
Except in the event of a holdover tenancy, all property of Lessee
remaining on the Premises after the last day of the term of this Lease shall be
conclusively deemed abandoned and may be removed by Lessor, and Lessee shall
reimburse Lessor for the cost of such removal. Lessor may have any such property
stored at Lessee's risk and expense.
6. ALTERATIONS, ADDITIONS OR IMPROVEMENT. Lessee shall not, without first
obtaining the written consent of Lessor, make any alterations, additions or
improvements in, to or about the premises. Such consent shall not be
unreasonably withheld or delayed. Any alterations to the Building's HVAC's
plumbing or electrial systems may only be made by Lessor's designated
contractors or by a contractor selected by Lessee, which contractor is
appropriately licensed in the trade in which such contractor is performing work
at the Building, maintains appropriate levels of insurance and which contractor
provides Lessor with evidence of said license and insurance prior to commencing
work at the Building. Notwithstanding the foregoing, Lessor's consent shall not
be required in connection with decorations to the Demised
3
Premises or any alteration, addition or change to the Demised Premises costing
less than $20,000 that does not affect the structural, mechanical or electrical
integrity of the Demised Premises or Building.
7. ACTIVITIES INCREASING FIRE INSURANCE RATES. Lessee shall not do or
suffer anything to be done on the Premises which will increase the rate of fire
insurance on the Building.
8. ASSIGNMENT AND SUBLETTING.
(a) Lessee will not by operation of law or otherwise, assign,
mortgage or encumber this Lease, nor sublet or permit the Demised Premises to be
used by others (except to RIPCO Real Estate Company at any time after the twenty
four (24) month anniversary of the Commencement Date hereof with respect to a
sublet of the whole Premises), in whole or in part, without Lessor's prior
express written consent in each instance. The consent by Lessor to any
assignment or subletting (including a sublease to RIPCO Real Estate Company)
shall not in any manner be construed to relieve Lessee from obtaining Lessor's
express written consent to any other or further assignment or subletting nor
shall any such consent by Lessor serve to, relieve or release Lessee from its
obligations to fully and faithfully observe and perform all of the terms,
covenants and conditions of this Lease on Lessee's part to be observed and
performed.
(b) If Lessee shall desire to assign or to sublet all or any
portion of the Demised Premises, Lessee shall give notice thereof to Lessor and
in said notice shall set forth the name and address of the proposed assignee or
sublessee, information as to financial condition of such assignee or sublessee
and proposed use which assignee or sublessee desires to make of the Demised
Premises. Said notice shall bear the signature of the proposed sublessee or
assignee or an officer or managing partner, as the case may be, attesting to its
accuracy. Lessee shall in addition, at Lessor's request, furnish such other
further information as Lessor may reasonably request concerning such proposed
assignment or subletting. If Lessor does not respond to Lessee's request within
fifteen (15) days thereof, Lessor shall be deemed to have consented to such
request.
(c) As a condition of Lessor's consent to any assignment or
subletting:
(i) Lessee at the time of requesting Lessor's consent shall
not be in default of any of the terms, covenants and conditions which are the
obligations of the Lessee hereunder;
(ii) Each assignee of this Lease shall assume in writing all
of the terms, covenants and conditions of this Lease on the part of Lessee
hereunder to be performed and observed, to the extent they accrue after the date
of the assignment;
(iii) An original or duplicate original of the instrument of
assignment and assumption shall be delivered to Lessor within ten (10) days
following the execution thereof;
(iv) Any instrument of sublease shall specifically state that
each sublease is subject to all of the terms, covenants and conditions of this
Lease; and
received by Lessee from a sublease or assignment of the
attorneys' fees, brokerage commissions and costs [*ILLEGIBLE] the Demised
Premises for the new tenant) (exclusive of rent [*ILLEGIBLE] Demised Premises)
which is in excess of [*ILLEGIBLE] pursuant to this Lease shall constitute
Additional Rent hereunder [*ILLEGIBLE] Lessee to Lessor.
Lessor's consent to any proposed assignment or subletting shall not
be unreasonably withheld or unduly delayed. In determining reasonableness,
however, Lessor may take into consideration the financial conditions or business
history of the proposed assignee or subleasee, the specific use to which the
Demised Premises will be put and the impact of all of the foregoing on other
tenants of Lessor and the Building as a whole.
If this Lease shall be assigned, or if the Demised Premises or any
part thereof be sublet or occupied by any person or persons other han Lessee in
breach of this Section 8, Lessor may, after default by Lessee, collect rent from
the assignee, subtenant or occupant and apply the net amount collected (which
may be treated by Lessor as rent or as use and occupany) to the rent herein
reserved but no such assignment, subletting, occupancy or collection of rent
shall be deemed a waiver of the covenants in this paragraph, nor shall it be
deemed acceptance of the assignee, subtenant or occupant as a tenant, or a
release of Lessee from the full performance by Lessee of all the terms,
conditions and covenants of this Lease.
Each permitted assignee or transferee shall assume and be deemed to
have assumed this Lease and shall be and remain liable jointly and severally
with Lessee for the payment of rent, additional rent and adjustment of rent, and
for the due performance of all the terms, covenants, conditions and agreements
herein contained on Lessee's part shall be performed for the term of this Lease
and any renewals and modifications hereof. No assignment shall be binding on
Lessor unless, as hereinbefore provided such assignee or Lessee shall deliver to
Lessor a duplicate original of the instrument of assignment which contains a
covenant of assumption by the assignee of all the obligations aforesaid and
shall obtain from Lessor the aforesaid written consent prior thereto. Any
assignment, sublease or agreement permitting the use and occupancy of the
Premises to which Lessor shall not have expressly consented in writing shall be
deemed null and void and of no force and effect and Lessee shall bear all costs
and expenses (including attorney's fees) of Lessor resulting from any wrongful
assigning of this Lease.
Notwithstanding the foregoing, Lessee may, without Lessor's prior
written consent, sublet all or any portions of the Demised Premises or assign
the Lease to (i) a parent, subsidiary, affiliate division or corporation
controlling, controlled by or under common control with Lessee; (ii) a successor
corporation related to lessee by merger, consolidation, non-bankruptcy
reorganization or government action; (iii) a purchaser of substantially all of
the Lessee's assets located in the Demised Premises, provided that as of the
date of such transfer, the purchaser has the reasonable financial ability to
perform its obligations with respect to this Lease and/or the Demised Premises
and provided further that Lessee shall remain liable for payments due hereunder
subsequent to any such transfer. For the purpose of this Lease, any sale or
transfer or Lessee's capital stock though any public exchange, or redemption or
issuance of additional stock of any
5
class shall not be deemed an assignment, subletting or any other transfer of the
Lease or the Demised Premises.
9. COMPLIANCE WITH RULES AND REGULATIONS.
(a) Lessee shall observe and comply with the rules and regulations as
lessor may reasonably prescribe, from time to time, on a uniform basis to all
the Building's tenants, on written notice to the Lessee, for the safety, care
and cleanliness of the Building and the comfort, quiet and convenience of other
occupants of the Building. Lessee shall not place load upon any floor of the
Demised Premises exceeding the floor load per square foot area for which it was
designed to carry and which is allowed by law. Lessor reserves the right, but
shall not have the obligation, to prescribe acting reasonably, the weight and
position of all safes, business machines and mechanical equipment. Such
installations shall be placed and maintained by Lessee, at Lessee's expense, in
settings sufficient to absorb and prevent unreasonable vibration, noise and
annoyance. Notwithstanding anything contained herein to the contrary, Lessee's
obligations to comply with laws relating to the physical condition of the
Demised Premises is strictly limited to those that pertain to the physized
conditions of improvements constructed or requested by Lessee and those that
pertain to repairs and maintenance required as a result of Lessee's operation
upon the Demised Premises. Lessee shall not be required to make structural
changes to the Demised Premises or to install any sprinkler system in the
Demised Premises that may be required under applicable laws. Lessor shall be
responsible for all such repairs.
(b) The lessor reserves the following rights:
(i) To change the name of the building;
(ii) To install, change and maintain a building sign or signs on the
exterior or interior of the Building;
(iii) To approve all sources furnishing sign painting and lettering,
ice, shoe shining, vending machines, mobile and vending service, catering, and
the like services used at the Premises.
(iv) To have pass keys to the Demised Premises, which shall be
retained by Lessor for use in the operation and maintenance of the Building;
(v) Subject to Section 17, at any time in the event of an emergency,
and otherwise at reasonable times, upon 24 hours' prior notice, to take any and
all measures, including inspections, repairs, alterations, additions and
improvements to the Premises or to the Building, as may be necessary or
desirable for the safety, protection and preservation of the Premises or the
building or Lessor's interests therein, or as may be necessary or desirable in
the operation or improvement of the Building or in order to comply with all the
laws, orders and requirements of governmental or other authority provided,
however, that Lessor shall not unreasonably interfere with Lessee's operations.
(c) Violation of reasonably promulgated rules and regulations shall
constitute a material breach hereunder and after the expiration of the
applicable notice and cure periods
may be the basis for an action of eviction notwithstanding Lessee's timely
payment of all moneys due hereunder.
10. DAMAGES TO BUILDING/WAIVER OF SUBROGATION.
(a) If the Demised Premises or any part thereof be damaged by fire or
other casualty, Lessee shall give immediate notice thereof to Lessor and shall
continue in force and effect except as hereinafter set forth.
(b) If the Demised Premises are partially damaged or rendered
partially unusable by fire or other casualty, the damages thereto shall be
repaired by and at the expense of the Lessor.
(c) If the Demised Premises are totally damaged and rendered wholly
unusable by fire or other casualty, then the Lessor shall have the right to
elect not to restore the same as hereinafter provided.
(d) If the Demised Premises are rendered wholly unusable (whether or
not the Demised Premises are damaged in whole or in part) or if the Building
shall be so damaged that Lessor shall decide to demolish it or not to restore
it, then in any of such events, Lessor may elect to terminate this Lease by
written notice to Lessee given within ninety days after such fire or casualty
specifying the date of the casualty as the date of termination, and upon such
notice the term of this lease shall expire as fully and completely as if such
date were the date set forth above for the termination of this lease, and Lessee
shall forthwith quit, surrender and vacate the premises without prejudice to
Lessor's right and remedies against Lessee under the Lease provisions in effect
prior to such termination, and any Basic Annual Rent or Additional Rent owing
for the period prior to the date of termination shall be paid up to such date
and any payments of Basic Annual Rent or Additional Rent made by Lessee which
were on account of any period subsequent to such date shall be returned to
Lessee. Unless Lessor shall serve a termination notice as provided for herein,
Lessor shall make the repairs and restorations with all reasonable dispatch
subject to delays due to adjustment of insurance claims, labor troubles and
causes beyond Lessor's control.
(e) Lessor and Lessee each hereby releases and waives the right of
recovery against the other or any other claiming through or under each of them
by way of subrogation or otherwise, for damage as a result of fire or other
insured against casualty. Lessor's and Lessee's insurance policies shall contain
a clause providing that such a release or waiver shall not invalidate the
insurance if such clause is available. If such clause is not available then the
foregoing waiver shall be void. In the event that there are additional premiums
for such inclusion the party in whose favor such waiver is intended shall have
the option to either pay the additional premiums or waive the condition that the
other's policy contain the same. Lessee acknowledges that Lessor will not carry
insurance on Lessee's furniture and/or furnishings including decorating or any
fixtures or equipment, records, improvements or appurtenances removable by
Lessee and agrees that Lessor will not be obligated to repair any damage thereto
or replace the same nor will Lessor carry flood or water damage insurance.
(f) Lessee hereby waives the provisions of Section 227 of the Real
Property Law and agrees that the provisions of this Article shall govern and
control in lieu thereof.
(g) Notwithstanding anything to the contrary contained in this Lease
during any period after a damage or destruction and until the restoration of the
Demised Premises have been Substantially Completed, the Lessee shall be entitled
to an abatement of Basic Annual Rent for the unusable portion of the Demised
Premises on a per square foot basis.
(h) Notwithstanding anything to the contrary contained in this Lease,
in the event of damage or destruction to the Demised Premises or the Building,
Lessee shall have the right to terminate this Lease under the following
conditions: (a) the damage renders the Demised Premises insufficient for
Lessee's normal use for sixty (60) consecutive days in Lessee's reasonable
business judgment; (b) the damage is such that the Demised Premises cannot be
(or are not) restored within one hundred eighty (180) days from the date of
damage; or (c) the damage or destruction occurs during the last six (6) months
of the Term (or any Extended Term) and Lessee has not previously exercised any
option rights it may have for succeeding extension or renewal terms.
11. EMINENT DOMAIN. If Lessee's use of the Premises is materially affected
due to the taking by eminent domain of (a) the Premises or any part thereof or
any estate therein; or (b) any other part of the Building, the appurtenances
thereto or the real property upon which the Building is located; then in either
event, at the Lessee's option, which option must be exercised within twenty (20)
days of receipt of notice of such proposed taking, this Lease shall terminate on
the date when title vests pursuant to such taking. The rent, and any additional
rent, shall be apportioned as of said termination date any basic or additional
rent paid for any period beyond said date shall be repaid to Lessee. Lessee
shall not be entitled to any part of the award for such taking or any payment in
lieu thereof, but Lessee may file a separate claim for Lessee's fixtures and for
moving expenses, provided the same shall in no way affect or diminish Lessor's
award. In the event of a partial taking which does not effect a termination of
this Lease, but does deprive Lessee of the used more than twenty-five (25%)
percent of the Demised Premises, Lessee shall have option to be exercised within
twenty (20) days of receipt of notice of the proposed taking to cancel this
Lease when title vests pursuant to such taking and if Lessee does not cancel
this Lease, then there shall be an adjustment of the basic rent, additional rent
and Proportionate Share, as hereinafter defined depending upon the extent to
which the Demised Premises and Building may be taken.
12. BANKRUPTCY OF LESSEE AND OTHER DEFAULTS.
12.1
(a) Events of Bankruptcy. The following shall be Events of Bankruptcy
--------------------
under this lease.
(1) Lessee's becoming insolvent, as that term is defined in
Title 11 of the United States Code, entitled Bankruptcy, 11 U.S.C. Section 101,
et. seq. (the "Bankruptcy Code") or under the insolvency laws of New York State;
(2) The appointment of a receiver or custodian for any or all of
Lessee's property or assets;
(3) The filing of a volutary petition under the provisions of the
Bankruptcy Code or other insolvency laws;
(4) The filing of an involuntary petition against Lessee as the
subject debtor under the Bankruptcy Code or other insolvency laws, which is
either not dismissed within sixty (60) days of filing, or results in the
issuance of an order for relief against the debtor, whichever is later; or,
(5) Lessee's making or consenting to an assignment for the benefit of
creditors of a common law composition of creditors.
(b) Lessor's Remedies.
(i) Termination of Lease. Upon the occurrence of an Event of
--------------------
Bankruptcy, Lessor shall have the right to terminate this lease by giving ninety
(90) days prior written notice to Lessee, provided, however, that this Section
12.1(b)(i) shall have no effect while a case in which Lessee is the subject
debtor under the Bankruptcy Code is pending, unless Lessee or its Trustee in
Bankruptcy is unable to comply with the provisions of Sections 12.1(b)(v),
12.1(b)(vi) and (vii) below. If Lessee or its Trustee is unable to comply with
Sections 12.1(b)(v), 12.1(b)(vi) and (vii) below, this lease shall automatically
cease and terminate, and Lessee shall be immediately obligated to quit the
premises upon the giving of notice pursuant to this Section 12.1(b)(i). Any
other notice to quit, or notice of Lessor's intention to reenter is hereby
expressly waived. If lessor elects to terminate this lease, everything contained
in this lease on the part of the Lessor to be done and performed shall cease
without prejudice, subject however, to the right of Lessor to recover from
Lessee all rent and any other sums accrued up to the time of termination or
recovery of possession by Lessor, whichever is later, and any other monetary
damages or loss or reserved rent sustained by Lessor.
(ii) Suit for Possession. Upon termination of this lease pursuant to
-------------------
Section 12.1(b)(i), Lessor may proceed to recover possession under and by virtue
of the provisions of the laws of the State of New York, or by such other
proceedings, including reentry and possession, as may be applicable.
(iii) Reletting of Premises. Upon termination of this lease pursuant
---------------------
to Section 12.1(b)(i), the Lessor may, but is not obligated to relet the
premises (though Lessor shall be obligated to use reasonable efforts to mitigate
its damages provided lessor shall be deemed to have acted reasonably by listing
the premises with a reputable commercial real estate brokerage firm) for such
rent and upon such terms as are not unreasonable under the circumstances and, if
the full rental reserved under the lease (and any of the costs, expenses or
damages indicated below) shall not be realized by Lessor, Lessee shall be liable
for all damages sustained by Lessor, including, without limitation, deficiency
in rent, reasonable attorneys' fees, brokerage fees, and expenses of placing the
premises in good order and repair (excluding the cost of any alterations
required by the new tenant). Lessor, in putting the premises in good order may,
at Lessor's option, make such alterations, repairs, or replacements in the
premises as Lessor, in Lessor's sole
judgment and acting reasonably, considers advisable and necessary for the
purpose of reletting the premises, and the making of such alterations, repairs,
or replacements shall not operate or be construed to release Lessee from
liability hereunder as aforesaid. Lessor shall in no event be liable in any way
whatsoever for failure to relet the premises (provided Lessor uses reasonable
efforts to do so), or in the event that the premises are relet, for failure to
collect the rent thereof under such reletting, and in no event shall Lessee be
entitled to receive any excees, if any, or such net rent collected over the sums
payable by Lessee to Lessor hereunder.
(iv) Monetary Damages. Any damage or loss of rent sustained by Lessor
----------------
Any damage or loss of rent sustaned by Lessor as a result of an Event of
Bankruptcy may be recovered by Lessor, at Lessor's option, at the time of the
reletting, or in separate actions, from time to time, as said damage shall have
been made more easily ascertainable by successive relettings, or, in a single
proceeding deferred until the expiration of the term of this lease or any
renewal term or in a single proceeding prior to either the time of reletting or
the expiration of the term of this lease or any renewal term, in which event
Lessee agrees to pay Lessor the difference between the present value of the rent
reserved under this lease on the date of breach, discounted at eight (8%)
percent per annum, and the fair market value of the lease on the date of breach.
In the event Lessee becomes the subject debtor in a case under the Bankruptcy
Code, the provisions of this Section 12.1(b)(iv) may be limited by the
limitations of damage provisions of the Bankruptcy Code.
(v) Assumption or Assignment by Trustee. In the event Lessee becomes
-----------------------------------
the subject debtor in a case pending under the Bankruptcy Code, Lessor's right
to terminate this lease pursuant to this Section 12.1 shall be subject to the
rights of the Trustee in Bankruptcy to assume or assign this lease. The Trustee
shall not have the right to assume or assign this lease unless the Trustee;
(1) promptly cures all defaults under this lease;
(2) promptly compensates Lessor for monetary damages incurred as
a result of such default; and,
(3) provides adequate assurance of future performance all of
which shall be subject to the laws of the United States of America and the
orders of direction of the Bankruptcy Court.
(vi) Adequate Assurance of Future Performance. Lessor and Lessee
----------------------------------------
hereby agree in advance that adequate assurance of future performance, as used
in Section 12.1(b)(v) above, shall mean that all of the following minimum
criteria must be met:
(1) The Trustee must pay to Lessor, at the time the next payment
of rent is then due under this lease, in addition to such payment of rent, an
amount equal to the next three (3) months' rent due under this lease, said
amount to be held by Lessor in escrow until either the Trustee or Lessee
defaults in its payment of rent or other obligations under this lease (whereupon
Lessor shall have the right to draw upon such escrowed funds) or until the
expiration of this lease or renewal term (whereupon the funds shall be returned
to the Trustee or Lessee);
(2) The Lessee or Trustee must agree to pay to the Lessor, at
any time the Lessor is authorized to and does draw on the funds escrowed
pursuant to Section 12.1(b)(vi)(1) above, the amount necessary to restore such
escrow account to the original level required by such provision;
(3) Lessee must pay its estimate pro rata share of the cost of
all services provided by Lessor (whether directly or through agents or
contractors, and whether or not the cost of such services is to be passed
through to Lessee) in advance of the performance or provision of such services;
(4) The Trustee must agree that Lessee's business shall be
conducted in a first class manner, and that no liquidating sales, auctions, or
other non-first class business operations shall be conducted on the premises;
(5) The Trustee must agree that the use of the premises as
stated in this lease will remain unchanged;
(6) The Trustee must agree that the assumption or assignment of
this lease will not violate or affect the rights of other tenants in the
Building. All of the foregoing shall be subject to the laws of the United States
of America and the orders of direction of the Bankruptcy Court.
(vii) Failure to Provide Adequate Assurance. In the event Lessee is
unable to;
(1) cure its defaults;
(2) reimburse Lessor for its monetary damages;
(3) pay the rent due under this lease, or any other payments
required of Lessee under this lease, on time (or within ten (10) days of written
notice that it is overdue); or,
(4) meet the criteria and obligations imposed by Section
12.1(b)(vi) above, then Lessee agrees in advance that it has not met its burden
to provide adequate assurance of future performance, and this lease may be
terminated by Lessor in accordance with Section 12.1(b)(i) above.
12.2 Default of Lessee.
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(a) Events of Default. The following shall be Events of Default under
-----------------
this Lease:
(i) Lessee's failure to pay any monthly installments of Basic
Rent or Additional Rent, the amount of which has been ascertained, (as required
in this lease) within ten (10) days after notice from Lessor that same is
overdue.
(ii) Lessee's failure to make any other payment required under
this Lease if such failure shall continue beyond the time period specified by
the making of such payment, after notice of the amount of such payment is given
to Lessee by Lessor. If no time period is specifically set forth within which
Lessee must make such payments, Lessee shall be required to make such payment
within thirty (30) days of Lessor's notice to Lessee of the amount of such
payment.
(iii) Lessee's violation or failure to perform any of the other
terms, conditions, covenants or agreements herein made by Lessee, if such
violation or failure continues for a period of thirty (30) days after Lessor's
written notice thereof to Lessee; provided, however, that if the violation or
failure cannot be cured within thirty (30) days Lessee shall not be considered
to be in default hereunder if it commences the cure within such thirty (30) day
period and continue to diligently prosecute same.
(b) If an event of default as hereinabove specified in Section
12.2(a)(i), (ii) or (iii) shall occur, and shall not be cured within the time
period specified in Lessor's notice, or if Lessee shall commence a cure as
provided in Section 12.2(a)(iii) and shall fail to diligently proceed with such
cure, then:
(i) Lessor may give Lessee a fifteen (15) day notice of its
intention to end the term of this lease, and thereupon, at the expiration of
said fifteen day period, this lease shall expire as fully and completely as if
that day were the date herein originally fixed for the expiration of the term,
and Lessee shall then quit and surrender the premises to Lessor but Lessee shall
continue to remain liable as hereinafter provided.
(ii) Lessor, without prejudice to any other right or remedy of
Lessor, held hereunder or by operation of law, and notwithstanding any waiver of
any breach of a condition or event of default hereunder, may at its option and
without further notice, dispossess Lessee and any legal representative or
successor of Lessee or other occupant of the premises by summary proceedings or
other appropriate suit, action or proceeding and remove his, her or its effects
and hold the Demised Premises as if this lease had not been made.
12.3 Notwithstanding any such default, reentry, expiration and/or
dispossession by summary proceeding or other action or proceeding, as provided
in Paragraph 12.2(b) above, Lessee shall continue to be liable during the full
period which would otherwise have constituted the balance of the term hereof,
and shall pay as liquidated damages at the same times as the Basic Rent and
Additional Rent and other charges that become payable under the terms hereof,
together with reasonable attorneys' fees, a sum equivalent to the Basic Rent and
Additional Rent and other charges reserved herein (less only the net proceeds of
reletting as hereinafter provided), and Lessor may rent the Demised Premises for
a term or terms which may be less than or exceed the period which would
otherwise have been the balance of the term of this lease without releasing the
original Lessee from any liability, applying any monies collected, first to the
expense of resuming or obtaining possession, next to restoring the premises to a
rentable condition, then to the payment of any brokerage commissions and legal
fees in connection with the reletting of the Demised Premises and then to the
payment of the Basic Rent, Additional Rent and other charges
due and to become due to Lessor hereunder, together with reasonable legal fees
of Lessor therefor.
Lessor's failure to do, observe, keep and perform any of the terms,
covenants, conditions, agreements or provisions of this Lease required to be
done, observed, kept or performed by Lessor, for a period greater than thirty
(30) days after written notice by Lessee to Lessor of said failure (except if
the nature of Lessor's obligation is such that more than thirty (30) days are
required for its performance, then Lessor shall not be deemed in default if it
commences performance within the thirty (30) day period and thereafter
diligently pursues the cure to completion), shall be deemed a default by Lessor
and a material breach of the Lease; then, Lessee may, at its option, with or
without notice or demand of any kind to Lessor or any other person, have any one
or more of the following described remedies in addition to all other rights and
remedies provided at law or in equity or elsewhere herein: (i) remedy such
default or breach and deduct the costs including but not limited to, attorney
fees thereof from the installments of rent next falling due; (ii) pursue the
remedy of specific performance; (iii) terminate this Lease; and/or (iv) seek
money damages for loss arising from Lessor's failure to discharge its
obligations under the Lease. Nothing contained in this Lease shall relieve
Lessor of its duty to effect the repair, replacements, correction or maintenance
required of it pursuant to this Lease, nor shall lessor be relieved of its
obligation to restore the affected services or utilities, and this Section shall
not be construed to obligate Lessee to undertake any such work.
12.4 WAIVER OF TRIAL BY JURY AND COUNTERCLAIM:
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VENUE; AND REDEMPTION
---------------------
(a) Lessor and Lessee do hereby mutually agree to waive trial by jury
in any action, proceeding or counterclaim brought by either Lessor or Lessee
against the other with regard to any matters whatsoever arising out of or in any
way connected with this lease, the relationship of Lessor and Lessee and
Lessee's use or occupancy of the Demised Premises, provided such waiver is not
prohibited by any laws of the State of New York. Any action or proceeding
brought by either party hereto against the other, directly or indirectly,
arising out of this agreement, shall be brought in a court in Nassau County and
all motions in any such action shall be made in Nassau County, Lessee hereby
expressly waives all rights of redemption as provided in (S)761 et seq. of the
Real Property Actions and Proceedings Law of the State of New York.
(b) Lessee hereby agrees that in any action or summary proceeding
brought by Lessor for the recovery of Basic Rent or Additional Rent, it will
not interpose noncompulsory any counterclaim or any setoff not will Lessee seek
to consolidate any such action or proceeding with any other action or
proceeding.
13. SUBORDINATION OF LEASE. Lessee agrees that this Lease and the Lessee's
interest herein shall be subordinate to any mortgage, deed of trust, ground or
underlying lease, or any method of financing or refinancing now or hereafter
placed against the land and building of which the Demised Premises form a part,
and to renewals, modifications, replacements, refinancings, consolidations and
extensions thereof. Upon request of Lessor, Lessee agrees to execute and deliver
any and all documents, subordinating its rights under this Lease as aforesaid
provided the same are drawn by Lessor or Mortgagee or their attorneys at no cost
to the Lessee. No financing or refinancing hereunder shall affect the Lessee's
right to use the Premises so long
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as Lessee is not in default hereunder. Notwithstanding anything to the contrary
herein, this Article 13 shall be self-operative with no further instrument of
subordination required to give effect hereto. Notwithstanding the foregoing,
Lessee shall not be obligated to subordinate this Lease or attorn to any
transferee of Lessor's interest under this Lease unless such transferee agrees
in writing that Lessee shall not be disturbed under this Lease as long as Lessee
is not in default under this Lease beyond any applicable notice and cure period.
Lessee shall give to any mortgagee, by registered mail, a copy of any
notice of default served upon the Lessor, provided that prior to such notice,
Lessee has been notified, in writing, (by way of Notice of Assignment of Rents
and Leases) of the address of such mortgagees. In addition, if Lessor shall have
failed to cure such default within the time provided for in this lease, then the
mortgagees shall have an additional thirty (30) days within which to cure such
default or if such default cannot be cured within that time, then such
additional time as may be necessary if within such thirty (30) days, any
Mortgagee has commenced and is diligently pursuing the remedies necessary to
cure such default (including but not limited to commencement of foreclosure
proceedings, if necessary to effect such cure), in which event this lease shall
not be terminated while such remedies are being so diligently pursued.
Notwithstanding anything to the contrary herein, Lessee shall cooperate with
Lessor and any mortgagee with respect to any financing, refinancing and any
matter relating thereto including notices in case of default by Lessor.
Lessee shall promptly execute a modification of this lease incorporating
therein any changes required by such mortgagee or prospective mortgagee
provided, however, that Lessee shall not be required to make any changes or
amendments to the Term, Basic Annual Rent or Additional Rent, nor shall any
modification affect the operation of Lessee's business change the size or
location of the Demised Premises or change any other Basic Business Terms or
increase any charge or expense to be incurred by Lessee pursuant to the terms of
this Lease.
14. SECURITY. Lessee has deposited with Lessor the sum of Three Thousand
Three Hundred Sixty Eight Dollars and 65/100 Cents ($3,368.65) as security for
the faithful performance and observance by Lessee of the terms, provisions and
conditions of this Lease; it is agreed that in the event Lessee defaults in
respect of any of the terms, provisions and conditions of this Lease, including,
but not limited to, the payment of Basic Rent and Additional Rent, Lessor may
use, apply or retain the whole or any part of the security so deposited to the
extent required for the payment of any Basic Rent and Additional Rent or any
other sum as to which Lessee is in default beyond the expiration of the
applicable cure period or for any sum which Lessor may expend or may be required
to expend by reason of Lessee's default beyond the expiration of the applicable
cure period in respect of any of the terms, covenants and conditions of this
Lease, including but not limited to, any damages or deficiency in the re-letting
of the premises, whether such damages or deficiencies accrued before or after
summary proceedings or other re-entry by Lessor. In no event may security be
used by the Lessee as a credit or right of offset to its obligation to pay rent.
Within fifteen (15) days after written notice to Lessee that any portion of the
security deposit has been used or applied as provided herein, Lessee shall
replace the same with Lessor. Lessor shall have the same remedies for failure to
replace the security deposit as Lessor has for failure to pay Basic rent. In the
event that Lessee shall fully and faithfully comply with all of the terms,
provisions, covenants and conditions of this lease, the security shall be
returned to Lessee, within thirty (30) days, after the date fixed as the end of
the Lease and after delivery of entire possession of the Demised Premises to
Lessor. In the event of
a sale of the land and building or leasing of the building, of which the Demised
Premises form a part, Lessor shall transfer the security to the vendee or lessee
and the Lessor shall upon acknowledgment of receipt of the security deposit by
such transferee be deemed released by Lessee from all liability for the return
of such security, and Lessee agrees to look solely to the new Lessor for the
return of said security; and it is agreed that the provisions hereof shall apply
to every transfer or assignment made of the security to a new Lessor. Lessee
further covenants that it will not assign or encumber or attempt to assign or
encumber the monies deposited herein as security and that neither Lessor nor its
successors or assigns shall be bound by any such assignment, encumbrance,
attempted assignment or attempted encumbrance.
Lessor's security shall be held in a short-term interest bearing
account, the interest earned thereon shall be accrued and shall be held by the
Lessor as additional security hereunder. At the end of the Term, interest on the
security deposit shall be earned for the benefit of the Lessee. Lessor shall,
however, be entitled to deduct on an annual basis that portion of the interest
permitted by law to be retained by Lessor provided that the amount so deducted
does not exceed one (1%) percent of the security.
15. RIGHT TO CURE LESSEE'S BREACH. If Lessee breaches any covenant or
condition of this Lease, Lessor may, on reasonable notice to Lessee (except that
no notice need be given, in case of an emergency), cure such breach at the
expense of the Lessee and the reasonable amount of all expenses, including
attorneys' fees, expended by Lessor in so doing shall be deemed additional rent
payable on demand. If such amounts are not paid within fifteen (15) days of
demand therefor, such amounts shall bear interest at the then prevailing "Prime
Rate" plus two percent (2%) per annum until payment is made. "Prime Rate" shall
mean the "Prime Rate" of leading money center banks as published in the New York
--------
Times, or if no longer published therein, another national newspaper, from time
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to time.
16. MECHANIC'S LIENS. Lessee shall, within sixty (60) days after notice
from Lessor, discharge or satisfy by bonding or otherwise any mechanic's liens
for materials or labor claimed to have been furnished to the Premises on
Lessee's behalf.
17. RIGHT TO INSPECT AND REPAIR. Lessor may enter the Demised Premises but
shall not be obligated to do so (except as required by any specific provision of
this Lease) at any reasonable time so as not to unreasonably interfere with
Lessee's operations and on 24 hours prior notice to Lessee (except that no
notice need be given in case of emergency) for the purpose of inspection or the
making of such repairs, replacement or additions, to, on and about the Premises
or the Building, as Lessor deems necessary or desirable. Lessee shall have no
claims or cause of action against Lessor by reason thereof.
18. SERVICES TO BE PROVIDED BY LESSOR; LESSOR'S EXCULPATION.
(a) Subject to intervening laws, ordinances, regulation and executive
orders, while Lessee is not in default under any of the provisions of this
Lease, Lessor agrees to furnish;
(b) Heating, ventilating and air conditioning (herein "HVAC"), as
appropriate for the reason, together with lighting and electric energy for the
common facilities shall be from
8:00 a.m. to 6:00 p.m. on Monday through Friday and 9:00 a.m. to 2:00 p.m. on
Saturday except for the holidays set forth on Exhibit B attached hereto and made
a part hereof. All other HVAC ("Overtime HVAC") shall be billed at $18 per hour
for each additional hour for which the Lessee utilizes the HVAC system. Overtime
HVAC shall be paid as Additional Rent hereunder. The Lessor, at its expense,
shall have a 3-hour spring timer installed in the Premises, which timer shall be
the basis for the determation of Overtime HVAC.
(c) Cold and hot water for drinking and lavatory purposes available
twenty-four hours every day.
(d) Elevator service available twenty-four (24) hours every day.
(e) Restroom supplies and exterior window cleaning when reasonably
required, including:
(f) Maintenance and cleaning of the common areas except for the
holidays set forth on Exhibit B attached hereto and made a part hereof; and
(g) Cleaning of the Demised Premises each day Monday through Friday
except for the holidays set forth on Exhibit B attached hereto and made a part
hereof.
(h) Lessor shall have no liability to Lessee for any loss, damage or
expense which Lessee may sustain or incur by reason of any change, failure,
inadequacy or defect in the supply or character of HVAC to the common area or
common area lighting furnished to the Building or if the quantity or character
of the HVAC or common area lighting is no longer available or satisfactory for
Lessee's requirements so long as the foregoing does not arise from any
conditions or acts within the control and dominion of Lessor, its agents or
employees. Notwithstanding the foregoing, Lessor may make such changes to the
common area lighting and HVAC as it deems necessary in its sole discretion
acting reasonably.
19. INTERRUPTION OF SERVICES OR USE. Lessor shall not be responsible for
any interruption of any utilities servicing the Building which arise from
conditions or acts not within the control and dominion of Lessor or Lessor's
agents and employees. Notwithstanding anything to the contrary in this Lease, if
any failure or interruption of service occurs by reason of the negligence or
willful act of Lessor or Lessor's employees, agents or contractors, or
conditions within the reasonable control of Lessor or Lessor's employees, agents
or contractors, and such failure or interruption of service continues unabated
for five (5) consecutive days, Basic Rent and Additional Rent shall be abated
from the date of such interruption or failure in the same proportion as the
rentable area that Lessee reasonably determines is unfit for its normal uses
bears to the rentable area of the entire Demised Premises. If any such failure
or interruption of service continues for 30 consecutive days, Lessee shall have
the right to terminate this Lease upon written notice to Lessor; provided,
however, Lessee may not cancel if such failure or interruption cannot be cured,
using reasonable efforts, within such thirty day period.
20. ELECTRICITY, HEATING, VENTILATING AND AIR CONDITIONING; GAS.
(a) Lessee may, at its expense, have a separate electric service and
meter from LILCO for electrical service. If so installed, Lessee will pay
directly to LILCO the bills for electric service to the Demised Premises. Lessee
shall pay to LILCO any deposits required for the provision of electric service
to the Demised Premises. In the event Lessor is unable to arrange a separate
electric service, in whole or in part, to the Demised Premises, Lessor may, at
Lessor's expense, install a separate electric submeter for the Demised Premises,
in which event Lessee shall pay to Lessor for the electricity consumed in the
Demised Premises at the same rates as Lessor shall pay to LILCO plus the
appropriate allocable portion of the taxes billed to Lessor by LILCO (based upon
the square footage of the Demised Premises).
(b) Until such time as Lessee has a separate meter installed, Lessee
shall intentionally pay $2.25 per square foot for electric service as Additional
Rent. This amount shall change by such amount (on a percentage basis) and at
such time as Long Island Lighting Company shall change rates to the Building,
provided Landlord documents such changes to Tenant's reasonable satisfaction.
(c) Lessee shall pay its "Proportionate Share" (as defined below) of
all gas charges levied by LILCO on the Building at the rate per cubic foot that
the Building is billed by LILCO.
(d) Lessor shall have no liability to Lessee for any loss, damage or
expense which Lessee may sustain or incur by reason of any change, failure,
inadequacy or defect in the supply or character of the electrical energy or HVAC
furnished to the Demised Premises or if the quantity or character of the
electrical energy or HVAC is no longer available or satisfactory for Lessee's
requirements so long as such loss, damage or expense results from any conditions
or acts within the control and dominion of Lessee, its agents or employees.
Notwithstanding anything to the contrary in this Lease, if any failure or
interruption of service occurs by reason of the negligence or willful act of
Lessor or Lessor's employees, agents or contractors, or conditions within the
reasonable control of Lessor or Lessor's employees, agents or contractors, and
such failure or interruption of service continues unabated for five (5)
consecutive days, Basic Rent and Additional Rent shall be abated from the date
of such interruption or failure in the same proportion as the rentable area that
Lessee reasonably determines is unfit for its normal uses bears to the rentable
area of the entire Demised Premises. If any such failure or interruption of
service continues for 30 consecutive days, Lessee shall have the right to
terminate this Lease upon written notice to Lessor; provided, however; Lessee
may not cancel if such failure or interruption cannot be cured, using reasonable
efforts, within such thirty day period.
21. ADDITIONAL RENT. It is expressly agreed that Lessee will pay in
addition to the Basic Rent provided in Article 3 above, an additional rental to
cover the Lessee's "Proportionate Share" (as hereinafter defined) of the
increased cost to Lessor, for each of the categories enumerated herein, over the
"Base Period Costs" (as hereinafter defined) for said categories.
(a) TAX ESCALATION. If the Real Estate Taxes for the Building at which
the Demised Premises are located for any Lease Year or proportionate part
thereof, during the Lease Term, shall be greater than the Base Real Estate Taxes
(adjusted proportionately for periods less than a Lease Year) then Lessee shall
pay to Lessor as additional rent, its proportionate share, as hereinafter
defined, of all such excess Real Estate Taxes.
(b) As assumed in this Article, the words and terms which follow mean
and include the following:
(i) "Base Real Estate Taxes" shall mean those real estate taxes
for the 1996 Town Tax year (January 1-December 31) and the 1995/1996 School Tax
year (July 1-June 30) for the Building, as said amounts shall finally be
determined.
(ii) "Real Estate Taxes" shall mean the property taxes and
assessments imposed upon the Building. If due to a future change in the method
of taxation, any franchise, income or profit tax shall be levied against Lessor
in substitution for, or in lieu of, any tax which would other constitute a Real
Estate Tax, such franchise, income or profit tax shall be deemed to be a Real
Estate Tax for the purposes hereof. Notwithstanding anything in this Lease to
the contrary, Real Estate Taxes shall not include any assessments upon the
Building (including, but not limited to, any assessments covering the initial
costs of development of the Building that Lessor elects to be placed against the
Building in the form of an assessment or tax payable over a term of years; i.e.,
sewers initially installed, connection of utilities or fees for connecting
utilities, installation of required traffic control devices, off-site street
work, etc.), or any franchise corporate, estate, inheritance, succession, income
or transfer tax of Lessor except as stated above.
(c) Lease Year. As used in this Lease, Lease Year shall mean the
twelve (12) month period commencing with the Commencement Date, and each twelve
(12) month period thereafter. Once the base costs are established, in the event
any lease period is less than twelve (12) months, then the costs for the
categories listed above shall be adjusted (on an actual per diem basis) to equal
the proportion that said period bears to twelve (12) months, and Lessee shall
pay to Lessor as additional rent for such period, an amount equal to Lessee's
proportionate share, as hereinafter defined, of the excess for said period over
the adjusted base with respect to each of the aforesaid categories.
(d) Payment. At any time, and from time to time, after the
establishment of the costs for each of the referred to above, Lessor shall
advise the Lessee in writing of Lessee's proportionate share with respect to
each of the categories as estimated for the next twelve (12) month period (and
for each succeeding twelve (12) month period or proportionate part thereof if
the last period prior to the Lease's termination is less than twelve (12)
months) as then known to the Lessor, and thereafter, the Lessee shall pay as
additional rent, its Proportionate Share, as hereinafter defined, of these costs
for the periods affected by such advice in equal monthly installments, such new
rates being applied to any months for which the rental shall have already been
paid which are affected by the Tax escalation costs above referred to, as well
as the expired months of the current period, the adjustment for the then expired
months to be made at the payment of the next succeeding monthly rental, all
subject to final adjustment at the expiration of each Lease Year as defined in
Subparagraph (c) hereof (or proportionate part hereof, if the last period prior
to the Lease's termination is less than twelve (12) months).
Notwithstanding anything herein, contained to the contrary, in the
event the last period prior to the Lease's termination is less than twelve (12)
months, the costs during said period
shall be proportionately reduced on an actual per diem basis to correspond to
the duration of said final period.
(e) Books and Records. Lessor shall maintain books of account in
regard to all of its operating expenses and taxes. On request of Lessee no more
frequently than once each year, Lessor shall exhibit copies of all such books
and records, together with back-up bills and statements to Lessee during
Lessor's normal business hours. Any disagreement with respect to any one or more
of said charges if not satisfactorily settled between Lessor and Lessee shall be
referred by either party to an independent certified public accountant to be
mutually agreed upon and if such an accountant cannot be agreed upon, the
American Arbitration Association may be asked by either party to select an
arbitrator, whose decision on the dispute will be final and binding upon both
parties, who shall jointly share any cost of such arbitration. Pending
resolution of said dispute the Lessee shall pay to Lessor the sum so billed by
Lessor subject to its ultimate resolution as aforesaid.
If, after Lessee shall have made a payment of Additional Rent for Real
Estate Taxes, Lessor shall receive a refund of any portion of the Real Estate
Taxes payable during any Lease year upon which such payment of Additional Rent
shall have been based, as a result of a reduction of such Real Estate Taxes by
final determination of legal proceedings, settlement or otherwise, Lessor shall,
within 20 days after receiving the refund, pay to Lessee, Lessee's proportionate
share of the refund.
22. LESSEE'S ESTOPPEL. Lessee shall, from time to time, on not less than
ten (10) days' prior written request by Lessor, execute, acknowledge and deliver
to Lessor a written statement certifying that the Lease is unmodified and in
full force and effect, or that the Lease is in full force and effect as modified
and listing the instruments of modification; the dates to which the rents and
charges have been paid; and, to the best of Lessee's knowledge, whether or not
Lessor is in default hereunder, and if so, specifying the nature of the default.
It is intended that any such statement delivered pursuant to this Article 22 may
be relied on by a prospective purchaser of Lessor's interest or mortgagee of
Lessor's interest or assignee of any mortgage of Lessor's interest.
23. HOLDOVER TENANCY. If Lessee holds possession of the Premises after the
term of this Lease, Lessee shall become a tenant from month to month under the
provisions herein. For the first thirty (30) days of a holdover tenancy, the
basic rent shall be the then prevailing basic rent during the last month of the
term set forth in Article 3 hereof, for days thirty-one (31) through ninety (90)
at a monthly basic rent equal to one and one half (1-1/2) times the basic rent
paid during the last month of the term set forth in Article 3 hereof and for all
days after ninety (90), at a basic monthly rent equal to two (2) times the basic
rent during the last month of the term set forth in Article 3 hereof, plus, in
all cases, the additional rent provided for in Article 21 for the period of the
hold over.
24. RIGHT TO SHOW PREMISES. Lessor may show the Premises to prospective
purchasers and mortgagees; and, during the three (3) months prior to termination
of either the Initial Term or the Extended Term of this Lease, to prospective
tenants, during regular business hours (i.e., between 8:30 a.m and 5:30 p.m.) on
reasonable notice to Lessee.
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25. LATE CHARGE. Anything in this Lease to the contrary notwithstanding, at
Lessor's option, Lessee shall pay a "Late Charge" of two percent (2%) on the
first late payment made during any Lease year and five percent (5%) on each late
payment thereafter during such Lease year, each late payment being any
installment of rent or additional rent paid more than ten (10) days after the
due date thereof, to cover the extra expense involved in handling delinquent
payments.
26. INSURANCE. Lessee covenants to provide on or before the Commencement
Date (i) a comprehensive policy of general liability insurance and (ii) a policy
insuring against damage to property each naming the Lessor as an additional
named insured, insuring Lessee and Lessor against any liability commonly insured
against and occasioned by accident resulting from any act or omission on or
about the Premises and any appurtenances thereto or any property damage
occurring on, in or adjacent to the Demised Premises. Such policy is to be
written by an insurance company qualified to do business in the State of New
York reasonably satisfactory to Lessor. The liability policy shall be with
limits in the aggregate of not less than One Million Dollars ($1,000,000.00)
coverage and the property damage insurance shall be in an amount of not less
than Five Hundred of Thousand Dollars ($500,000). Said limits shall be subject
to periodic review and Lessor reserves the right to increase said coverage
limits no more frequently than twice during the Lease Term, if in the reasonable
opinion of Lessor, said coverage becomes inadequate and is less than that
commonly maintained by tenants in similar buildings in the area by tenants
making similar uses. At least fifteen (15) days prior to the expiration or
termination date of any policy, the Lessee shall deliver a renewal or
replacement policy with proof of the payment of the premium therefor. Each said
policy shall contain an endorsement providing that the policy may not be
cancelled or terminated without at least fifteen (15) days notice to Lessor and
an endorsement that no act or failure to act of Lessee shall invalidate the
coverage afforded Lessor under the policy.
27. NO OTHER REPRESENTATIONS. No representations or promises shall be
binding on the parties hereto except those representations and promises
contained herein or in some future writing signed by the party making such
representation(s) or promise(s).
28. QUIET ENJOYMENT. Lessor covenants that if, and so long as, Lessee pays
the rent, and any additional rent as herein provided, and performs the covenants
hereof, Lessor shall do nothing to affect Lessee's right to peaceably and
quietly have, hold and enjoy the Premises for the term herein mentioned, subject
to the provisions of this Lease.
29. INDEMNITY. If insurance required to be maintained by Lessee does not
cover claims against Lessor, Lessee shall indemnify and save harmless Lessor and
its agents against and from (a) any and all claims (i) arising from (x) the
conduct or management by Lessee, its subtenants, licensees, its or their
employees, agents, contractors or invitees on the Demised Premises or of any
business therein, or (y) any work or thing whatsoever done, or any condition
created (other than by Lessor for Lessor's account) in or about the Demised
Premises during the term of this Lease or during the period of time, if any,
prior to the Commencement Date that Lessee may have been given access to the
Demised Premises, or (ii) arising from any negligent or otherwise wrongful act
or omission of Lessee or any of its subtenants or licensees or its or their
employees, agents, contractors, or invitees, and (b) all costs, expenses and
liabilities incurred in or in connection with each such claim or action or
proceeding brought thereon.
case any action or proceeding be brought against Lessor by reason of any such
claim, Lessee, upon notice from Lessor, shall resist and defend such action or
proceeding.
Lessor shall defend, indemnify, and hold Lessee and Lessee's agents,
officers, directors, employees, and contractors harmless against and from any
and all injuries, costs, expenses, liabilities, losses, damages, injunctions,
suits, actions, fines, penalties, and demands of any kind or nature (including
reasonable attorneys' fees) by or on behalf of any person, entity, or
governmental authority occasioned by or arising out of (a) any acts, negligence,
or default performed solely by Lessor or Lessor's agents, employees, or
contractors, (b) Lessor's failure to comply with any laws, ordinances,
requirements, orders, directions, rules or regulations of any federal, state, or
municipal governmental authority or agent of record affecting the Demised
Premises or the Building, (c) any failure by Lessor to perform any of the
agreements, terms, covenants, conditions of this Lease on Lessor's part to be
performed or any environmental pollution, damage, condition or problem,
including without limitation, the presence of any hazardous substances, asbestos
or other toxic waste as defined in any federal, state, or municipal governmental
or quasi-governmental laws, rules, regulations, or ordinances in or about the
Demised Premises or the Building that are (i) existing in the Demised Premises
or the Building prior to Lessee's occupancy of the Demised Premises, or (ii)
caused by the acts, omissions or negligence of Lessor, its agents, servants,
independent contractors, or invitees or (iii) caused by another tenant's
negligence or intentional acts, and not caused by Lessee's use of the Demised
Premises. This indemnity shall expire at the end of the applicable statutes of
limitation for the matters indemnified for herein. Nothing herein shall waive or
release Lessor's right to seek indemnity and/or contribution from Lessee.
30. PARAGRAPH HEADINGS. The paragraph headings in this Lease and position
of its provisions are intended for convenience only and shall not be taken into
consideration in any construction or interpretation of this Lease or any of
its provisions.
31. APPLICABILITY TO HEIRS AND ASSIGNS. The provisions of this Lease shall
apply to, bind and inure to the benefit of Lessor and Lessee and their
respective heirs, successors, legal representations and assigns. It is
understood that the term "Lessor" as used in this Lease means only the owner, a
mortgagee in possession or a term lessee of the Building, so that in the event
of any sale of the Building or any lease thereof, or if a mortgagee shall take
possession of the Premises, the Lessor named herein shall be and hereby is
entirely freed and relieved of all covenants and obligations of Lessor hereunder
accruing thereafter, and it shall be deemed without further agreement that the
purchaser, the term lessee of the Building, or the mortgagee in possession has
assumed and agreed to carry out any and all covenants and obligations of Lessor
hereunder.
32. PARKING SPACES. Lessee's occupancy of the Demised Premises shall not
include the use of any reserved parking spaces. Lessee shall have the right to
use the parking areas located around the Building in common with the other
tenants of the Building. Lessee shall, upon request, promptly furnish to Lessor
the license numbers of the cars operated by Lessee and its subtenants,
licensees, invitees, concessionaires, officers and employees. If required by
Lessor, Lessee agrees that the parking of Lessee, its employees and invitees'
automobiles shall be in spaces designated for Lessee. Lessor reserves the right
to designate a portion of the parking around the building as visitor parking.
33. LESSOR'S LIABILITY FOR LOSS OF PROPERTY. Lessor shall not be
liable for any loss or property from any cause whatsoever, including, but not
limited to (i) theft or burglary from the Demised Premises, and any such loss
arising there from, other than if such loss results from the negligence or
willful misconduct of Lessor, its agents, servants or invitees, or (ii) defects,
errors or omissions in the construction or design of the Demised Premises and/or
the Building including the structural and non-structural portions thereof, and
Lessee covenants and agrees to make no claim for any such loss at any time
except as specifically provided to the contrary herein.
34. PARTIAL INVALIDITY. If any of the provisions of this Lease, or
the application thereof to any person or circumstances, shall to any extent, be
invalid or unenforceable, the reminder of this Lease, or the application of
such provisions or provisions to persons or circumstances other than those to
whom or which it is held to be invalid or unenforceable, shall not be affected
thereby, and every provision of this Lease shall be valid and enforceable to the
fullest extent permitted by law, except if tenant's use of the Demised Premises
is not permitted by the operation of the foregoing, except illegal acts by the
principles or employees of the tenant.
35. BROKER. Lessor and Lessee warrant and represent that they dealt
with no broker other than Real Estate Strategies, Inc. in connection with this
transaction and each hereby indemnifies the other against any claims of any
broker other than Real Estate Strategies, Inc. (collectively, the "Brokers") by
reason of such broker having had any conversations or dealings with such party
in connection with this transaction. If either party has breached the foregoing
provisions, such party agrees to reimburse the other party for any damages it
might sustain by reason of such claims including the cost of defending any
action in connection therewith and any reasonable legal fees in connection
therewith. Lessor shall pay any commission or fee owing to Broker in connection
with the Lease.
36. PERSONAL LIABILITY. Notwithstanding anything to the contrary
provided in this Lease, it is specifically understood and agreed, such agreement
being a primary consideration for the execution of this Lease by Lessor, that
there shall be absolutely no personal liability on the part of the Lessor, or
its successors, assigns or any mortgagee in possession (for the purposes of this
paragraph, collectively referred to as "Lessor"), with respect to any of the
terms, covenants and conditions of this Lease, and that Lessee shall look solely
to the equity of Lessor in the Building for the satisfaction of each and every
remedy of Lessee in the event of any breach by Lessor of any of the terms,
covenants and conditions of this Lease to be performed by Lessor. Such
exculpation of liability shall be absolute and without exception whatsoever.
37. NO OPTIONS. The submission of this Lease Agreement for
examination does not constitute a reservation of, or option for, the Premises
and this Lease Agreement shall become effective only upon execution and delivery
thereof by Lessor and Lessee.
38. DEFINITIONS. A Proportionate Share. Lessee's Proportionate
Share, wherever that phrase is used, shall be 7.38 percent, which the parties
agree reflects the ratio of the rentable square footage of the Demised Premises
to the gross square footage of the Building measured from outside of outside
wall to outside of outside wall (as determined by Lessor's architect or
engineer).
(a) Common Facilities. Common facilities shall mean the non-assigned
parking areas; lobby; elevator(s); fire stairs; public hallways; public
lavatories, all other general Building facilities that service all Building
tenants; air conditioning; fan rooms; janitors' closets; electrical closets;
telephone closets; elevator shafts and machine rooms; flues; stacks; pipe shafts
and vertical ducts with their enclosing walls. Lessor may at any time close
temporarily any Common Facility to make repairs or changes therein or to effect
construction, repairs or changes within the Building, or to discourage
non-tenant parking, and may do other such acts in and to the Common Facility as
in its judgment may be desirable to improve the convenience thereof.
(b) Force Majeure. Force Majeure shall mean and include those
situations beyond Lessor's or Lessee's control, including by way of example and
not by limitation, acts of God; accidents; repairs; strikes; shortages of labor,
supplies or materials; inclement weather; or where applicable, the passage of
time while waiting for any adjustment of insurance proceeds.
39. NOTICES. All notices, demands and requests under this Lease shall be in
writing and shall be sent by United States registered or certified mail, postage
prepaid, return receipt requested or by Federal Express or other similar
overnight carrier or by hand delivery or by facsimile followed by telephonic
confirmation of receipt with a signature accepting delivery and addressed as
follows:
(a) If to Lessor:
Tri-State Consumer Insurance Company
0 Xxxxxxx Xxxx
Xxxxxxx, Xxx Xxxx 00000
Attn: Xxxxx X. Xxxx
with a copy to:
Xxxxxx, Xxxxxx & Xxxxxx
EAB Plaza
Uniondale, New York 11556-0111
Attn: Xxxx X. Xxxxxxx, Esq.
Tel: 000-000-0000
Fax: 000-000-0000
(b) If to Lessee:
Starbucks Corporation
X.X. Xxx 00000
Xxxxxxx, XX 00000-0000
Attention: Property Management Department
Tel: 000-0000
Fax: (000) 000-0000
by overnight mail to:
0000 Xxxx Xxx., Xxxxx
Xxxxxxx, XX 00000
With a duplicate copy to the attention of the Legal Department
at the same address.
Either party may, by notice given to the other party, designate
a new address to which notices, demands and requests shall be sent and,
thereafter, any of the foregoing shall be sent to the address most recently
designated by such party. Notices, demands and requests which shall be served
upon Lessor or Lessee in the manner aforesaid shall be deemed to have been
served or given for all purposes under this Lease at the time such notice,
demand or request shall be received or returned as having been "refused" or
"undeliverable". Notices given by an attorney for a party shall be deemed given
by such party.
40. ACCORD AND SATISFACTION. No payment by Lessee or receipt by
Lessor of a lesser amount than the rent and additional charges payable hereunder
shall be deemed to be other than a payment on account of the earliest stipulated
basic rent and additional rent, nor shall any endorsement or statement on any
check or any letter accompanying any check or payment for rent or additional
rent be deemed an accord and satisfaction, and Lessor may accept such check or
payment without prejudice to Lessor's right to recover the balance of such rent
and additional rent or pursue any other remedy provided herein or by law.
41. EFFECT OF WAIVERS. No failure by Lessor or Lessee 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
thereof, shall constitute a waiver by Lessor of any such breach or of such
covenant, agreement, term or condition. No consent or waiver, express or implied
by either party to or of any breach of any covenant, condition or duty of the
other party shall be construed as a consent or waiver to or of any other breach
of the same or any other covenant, condition, or duty, unless in writing signed
by the waiving party.
42. INITIAL LEASEHOLD IMPROVEMENTS. Lessor agrees that prior to the
commencement of the term hereof, Lessor will do any and all work shown on the
plans and specifications attached hereto as Exhibit C irrespective of the party
responsible for payment thereof. Lessor will pay the first $31,010 (the "Work
Allowance") of the cost of such work. Any amounts due which relate to work at
the Demised Premises in excess of the Work Allowance shall be paid by Lessee
within ten (10) days of demand therefor, provided that Lessor shall have
received Lessee's written consent to incur the additional expense prior to
commencing Lessor's work.
At such time that Lessee's space is Substantially Completed,
same shall be measured by Lessor's and Lessee's architect from inside of glass
to inside of glass, or mid-point of demising walls. In the event that the usable
square footage increases or decreases by 66 square feet plus or minus, the basic
rent and Lessee's Proportionate Share shall be appropriately adjusted and this
Lease shall be deemed amended by the writing, which shall be signed by both
Lessor and Lessee, reflecting such adjustment provided in no event shall Lessee
be responsible for more than one hundred (100) square feet of increased space as
a result of such measurements.
43. DIRECTORY LISTINGS. Lessor shall provide Lessee with directory
listings on the main floor of the Building identifying the Lessee and its suite
within the Demised Premises, at no additional cost to Lessee.
44. CONSENTS. Whenever Lessor is requested by Lessee to issue its
consent, Lessor's consent shall be timely delivered and shall not be
unreasonably withheld.
45. NO SMOKING. Lessee agrees and acknowledges that smoking is
prohibited within the Building and outside the main entrances (front and rear)
of the Building and will cause its guests, employees and agents to comply with
this provision.
46. WINDOW TREATMENTS. Lessee recognizes and agrees that, as of the
date of this Lease, window coverings, vertical blinds, shades and other types of
window treatments shall not be provided by Lessor but may be installed by
Lessee, at its cost and expense. In the event Lessee elects to install window
coverings or window treatments, Lessee shall request Lessor's permission to
install such window treatments, which permission may be withheld by Lessor in
its sole discretion.
47. KEYPAD SECURITY. Lessor, at its cost and expense, shall have a
keypad security system installed on the exterior main entrance doors to the
Building. Lessor shall provide Lessee with the necessary codes to afford access
to Lessee. Nothing herein shall limit Lessor's rights to change the exterior
security system at any time, in Lessor's sole discretion.
48. ACCESS. Notwithstanding anything to the contrary herein, Lessee
agrees that RIPCO and any assignee, sublessee or successor hereunder thereto
shall have a right of access through a common interior doorway, which Lessee
shall leave unlocked at all times.
IN WITNESS WHEREOF, the parties hereto have hereunto set their
hands and seals the day and year first above written.
TRI-STATE CONSUMER INSURANCE COMPANY
By: /s/ Xxxxx Xxxx
--------------------------
Xxxxx Xxxx
President
STARBUCKS CORPORATION
By: /s/ Xxxxxx Xxxxxxx
---------------------------
Xxxxxx Xxxxxxx
CEO/Chairman
Accepted as to Section 2(e):
RIPCO II Real Estate Corp.
By:[*ILLEGIBLE]
--------------------------
EXHIBIT B
HOLIDAYS
1. New Year's Day 6. Thanksgiving Day
2. Washington's Birthday 7. Day After Thanksgiving
3. Memorial Day 8. Christmas Day
4. Independence Day
5. Labor Day
EXHIBIT C
TRISTATE CONSUMER INSURANCE
OFFICE INTERIOR SPECIFICATION
Note: Any reference to "Landlord" or "TriState" refers to TriState Consumer
Insurance Company. TriState has designated STRUCTURE TECH, INC. to act as their
Construction Managers, and MoJo Xxxxxx Architects, for the work. All
correspondence regarding the following should be directed accordingly.
1. PARTITIONS
----------
A. Demising partitions shall be constructed of 3-5/8" 25 gauge steel
studs with two layers of 5/8" fire code drywall from floor to
underside of steel roof deck. These will be provided as per Town Code.
LANDLORD will erect lineal interior office partitions in accordance
with approved plan. Studs shall be 3-5/8" 25 gauge steel, 24" on
center, with a single layer of 5/8" drywall on both sides. Joints
shall be taped and spackled, three coats. Exterior corners shall be
furnished with metal corner beads. Studs shall be erected from
finished floor to 6" above ceiling. Drywall installation in accordance
with U.S. Gypsum specifications. All toilet walls shall receive water
resistant drywall and 2 1/2" sound xxxxx. Batt insulation for
conference rooms and executive offices.
B. Sound Baffles and Filler Panels
-------------------------------
Where any type of partition intersects a window mullion, a filler
panel shall be provided. Sound baffles and filler panels shall have
the same sound transfer coefficient as the material of which the
partition is constructed.
2. DOOR BUCKS AND HARDWARE
-----------------------
A. Ordinary Doors
--------------
Interior doors will be 3'-0" x 7'-0" hollow core paint grade in office
areas. Such doors will be set in one piece steel buck equipped with
one and one-half pair 4 1/2" door butts and cylindrical latchset of
standard building finish. Master keying will be provided by TRISTATE.
Doors will have removable lock cores for keying system. All doors
shall be undercut as required.
B. Corridor Entry Doors
--------------------
Entry doors shall be 3'-0" x 7'-0" solid core wood white oak veneer.
Such doors will be set in one piece steel buck equipped with one and
one-half pair 4 1/2" door butts and cylindrical lockset of standard
building finish. Master keying will be provided by TRISTATE. Doors will
have removable lock cores for keying system. All doors shall be undercut
as required.
C. Hardware
--------
1. Door closures shall be provided for all doors opening on public
corridors and at other locations where closures are required by building
codes.
2. A heavy duty floor stop shall be provided for every door.
3. All hardware shall be Schlage, Taco, Arrow, or equal.
D. Door Saddles and Reducing Strips
--------------------------------
Door saddles or reducing strips shall be furnished between carpeted and
non-carpeted areas.
3. CEILINGS
--------
Throughout the general offices, a mechanically attached acoustic ceiling
system will be provided. Existing shall be reused wherever possible. In
the General Office areas, a 2x4 lay-in ceiling Xxxxxxxxx Minaboard shall
be provided. In the Reception Area, and (1) office, the tile shall be
Xxxxxxxxx Second Look 2' x 2' upgraded material.
4. FLOORING
--------
TRISTATE will provide commercial grade carpeting in the OFFICE AREAS,
or VCT in general office areas, accounting/support function offices;
storage areas, lounge and file room. A 4" vinyl wall base in either
straight or cove shape will be provided throughout.
5. WALL TREATMENT
--------------
A. Painting
--------
1. Initial painting of all walls, vertical furring, non-acoustically
treated ceiling, doors, door bucks, and all masonry, gypsum board or
metal surfaces not having a factory finish to consist of one prime
coat, and one finish coat of paint, flat finish (doors and trim may
be in matching semi-gloss finish) in not more than a total of three
selected colors, two of which may be used in a private office or
other enclosed space, and one of which may be used in general office
area. Patch samples shall be submitted by TRISTATE for approval by
TENANT prior to application of the final coat.
2. Painting shall be done in ALL areas not receiving Vinyl
Wallcovering.
B. Wall Covering
-------------
1. Vinyl wall covering may be specified at additional cost to Tenant.
6. LIGHTING
--------
A. Fixtures
--------
1. 2x4 recessed lighting fixtures with rapid start ballasts and an
acrylic prismatic plastic diffuser will be standard.
2. Where required by design conditions, a 2' x 2' fixture will be
installed. Where air conditioning ducts or other obstructions will not
permit the use of standard depth fluorescent fixtures, a shallow type
fixture will be substituted so as to maintain adjacent ceiling levels.
The number of fixtures furnished and installed will be adequate to
furnish a lighting level of 75 foot candles in office and work areas,
and 55 foot candles in hallways and technician's areas.
B. Switches
--------
All single pole switches, or 3-way switches, and associated wiring
facilities required to service the lighting fixtures shall be provided
in locations and quantities shown. Breaker control shall be provided to
lighting fixtures except when otherwise mutually agreed with Tenant.
7. ELECTRICAL AND TELEPHONE
------------------------
A. Metering
--------
Since contracting for LILCO provided service is the responsibility of
TENANT, TRISTATE shall furnish, install, and connect all wiring,
cabinets, and switches in order to perform the metering function by the
utility. All deposits shall be paid by TENANT, when applicable. Meters
are located in building meter room.
B. Distribution System
-------------------
1. Distribution panels for lighting and electrical equipment shall be
of the circuit breaker type including counter-pulsation equipment.
2. Electrical power and distribution panels shall be installed with
circuit breakers, safety switches, conduit, and required wiring
facilities to such panel for Tenant. The Tenant's special business
machines, pantry, employee lunch room, and other special electrical
requirements are an additional expense to Tenant and will be determined
during the planning stage of the installation, but prior to lease
signing.
3. All circuit wiring from the lighting and power panels to the various
outlets shall be as selected by TRISTATE as Building Standard and in
accordance with local electrical codes.
4. Electrical receptacles shall be circuited separately from lighting
fixtures and in accordance with local codes but no more than eight
duplex receptacles shall be included on one circuit.
5. Low voltage wiring without conduit may be run in peripheral
enclosures and/or hung ceiling to the extent practicable and permitted
by local codes.
C. Convenience and Telephone Outlets
---------------------------------
1. TRISTATE will install 120 volt convenience duplex receptacles
in the walls in general accordance with Tenant layout,
such location being adjusted to follow good practice, but with a maximum
of 3 per 100 square feet.
2. Kitchen and copying rooms will have an additional wall mounted
dedicated outlet for their respective equipment.
3. The telephone and computer distribution system is to be provided by
Tenant. TRISTATE shall furnish electrical outlets and coordinate the
incoming main telephone line. All New York Telephone fees shall be paid
by Tenant. No isolated grounding or power conditioning has been
included.
8. PLUMBING
--------
A. Tenant shall utilize the existing toilets.
9. HEATING, VENTILATION AND AIR CONDITIONING
----------------------------------------
A. Office Area Air Conditioning/Heating
------------------------------------
1. Galvanized steel ductwork for air distribution including:
a. Supply ductwork, ceiling return plenum.
b. Fresh air intake.
c. Registers, grilles, diffusers, balancing dampers.
d. Insulation of ductwork in hung ceilings not used as return
plenums.
e. All ductwork design and construction as per ASHRAE.
2. Zoning of air conditioning as possible utilizing existing
equipment wherever possible.
B. Office Area Ventilation:
-----------------------
1. Air exhaust in accordance with local/state codes, standard of
ASHRAE.
2. Exhausts to be of the roof or ceiling mounted centrifugal type
with curbs, backdraft damper, birdscreens, and disconnect
switches. Light switch control fans.
C. Equipment
---------
1. Existing equipment will be utilized.
10. MILLWORK
--------
None included in base rent.
11. ADDITIONAL WORK
---------------
A. Items Included in Specification
-------------------------------
1. Tenant may at any time request additional work of the TRISTATE.
Additional quantities of fixtures or materials such as are provided
for in this specification. These shall be provided by TRISTATE as
extras at unit prices to be provided upon request.
B. Approval of Costs
-----------------
1. Unless expressly so authorized in writing by Tenant, TRISTATE
shall not proceed with any item of work or material at Tenant
expense until Tenant has received and approved an estimate of the
cost thereof.
EXCLUSIONS AND CLARIFICATIONS
-----------------------------
1. Telephone equipment or cabling.
2. Utility Deposit Fees.
3. Installation of Tenant supplied equipment other than as specified in
previous section.
4. Security required at the time of delivery of Tenant supplied equipment and
furnishings.
5. Signage of any type.
6. Any special lighting fixtures, equipment power, or those electrical
requirements not referenced herein.
7. Security locking systems, grand master keying, card access systems, etc.
8. Furnishings, desks, chairs, landscape partitions, file cabinets, tables,
etc.
9. Pneumatic tube system.
10. Burglar Alarms.
11. Satellites equipment, or connection.
12. Computer equipment, or connection.
13. Internal music system.
14. Permit fees.
15. Bullet proof glass, closed circuit cameras, shielded or reinforced vault
areas.
16. Environmental or hazardous material handling.
17. Window treatments or decorations.
