EXHIBIT 10.5
[LOGO OF COMMUNITY NETWORKS]
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Existing Lease Abstract
Building: 00-00 Xxxxxxxx Xxxx.
Lease Date: March 19,1999
Landlord: Standard Motor Products
Tenant: Community Networks
Premises: Portion of the 2nd floor (Westerly half of floor)
Rentable Area: Approximately 21,112 RSF
Lease Term: Ten years and four months
Lease Commencement: March 19, 1999
Lease Expiration: July 18, 2009
Rent Commencement: July 19,1999
Base Rent: Year 1: $102,000.00 / year
Year 2: $102,000.00 / year
Year 3: $144,500.00 / year
Year 4: $148,835.00 / year
Year 5: $153,300.05 / year
Year 6: $157,899.05 / year
Year 7: $162,635.02 / year
Year 8: $167,516.72 / year
Year 9: $172,542.22 / year
Year 10: $177,718.49 / year
Electricity: $1500 per month, subject to survey
Real Estate Taxes: Tenant shall pay their proportionate share of a
direct pass-through of actual Real Estate Tax
increases over and above a 1998/1999 fiscal year.
Operating Expense: Tenant shall pay their proportionate share of a
direct pass-through of actual operating expense
increases in excess of the 1999 calendar year.
Use: Telecommunications services, telephone switching
stations, general, executive and sales offices and
uses incidental hereto.
Sublet/Assignment: Tenant may sublet all or a portion of the premises
or assign the lease with prior written consent of
owner, which may not be unreasonably withheld or
delayed.
Termination Option(s): N/A
Expansion Option(s): N/A
Equis
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09/01/99
[LOGO OF COMMUNITY NETWORKS]
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Security Deposit: $125,000, to be reduced annually by $15,000 each
year until the deposit reaches $36,000.
Right of First Refusal: N/A
Renewal Option(s): Tenant shall have two consecutive five (5) year
renewal options.
Equis
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09/01/99
INSERTS TO STANDARD FORM OF OFFICE LEASE
(REB OF NY FORM 2/94)
between
STANDARD MOTOR PRODUCTS, INC. ("Owner")
and
COMMUNITY NETWORKS, INC. ("Tenant")
for a portion of the 2nd Floor in the Building at
00-00 Xxxxxxxx Xxxxxxxxx, Xxxx Xxxxxx Xxxx, Xxx Xxxx
("demised premises" or "Demised Premises")
================================================================================
1. approximately ten (10) years and four (4) months to commence on the
date on which Owner notifies Tenant that it has delivered vacant
possession of the Demised Premises to Tenant free of all tenants and
other occupants and with all of Owner's Work (hereinafter defined)
substantially completed (the "Commencement Date") and to end on the
last day of the month in which the tenth (10th) anniversary of the
Rent Commencement Date (hereinafter defined) occurs,
2. telecommunications services, telephone switching stations, general,
executive and sales offices and uses incidental thereto
Article 3
---------
3. , which consent shall not be unreasonably withheld or delayed.
3A. Tenant may make non-structural alterations which do not effect
Building facilities and which cost in the aggregate less than $50,000
without the prior consent of Owner but only upon giving notice to
Owner. Owner agrees that with respect to Xxxxxx's initial alterations
Owner shall notify Tenant of its consent or that it is not consenting
within ten (10) days of actual receipt of Tenant's plans and
specifications.
4. reasonably
4A. With respect to any installations which require the prior consent of
Owner, Tenant may request that Owner make a determination at that time
whether Owner will require that said installation be removed upon
expiration or earlier termination of the Lease.
4B. reasonable
Article 4
---------
5. , provided that Owner agrees that during the exercise of any right of
entry or making any repairs, replacements or improvements or
performing any work in the Demised Premises under any of the
provisions of this Lease, Owner shall use reasonable efforts (but
shall not be required to do any word on an overtime basis) under the
circumstances, to minimize interference with the conduct of Xxxxxx's
business and its use of the Demised Premises.
6. Notwithstanding anything to the contrary, Tenant shall not be
responsible for any damage or injury to the demised premises or the
Building caused by or resulting from the negligence or willful
misconduct of Owner, its agents, employees or servants or by the
breach of or failure to perform any covenants, obligations or
agreements of Owner, its agents, employees or servants under this
Lease.
Article 6
---------
7. Owner represents to Tenant that the floor load per square foot area
of the demised premises is 120 pounds per square foot.
8. Notwithstanding anything to the contrary contained in this Lease,
Owner shall be responsible, at Owner's expense, to comply with any
legal requirements relating to the physical condition of all parts of
the Demised Premises if there is a change in the applicable legal
requirements and the changed legal requirements apply to all real
estate generally and not just to the specific manner of use of the
Demised Premises by Xxxxxx, and Owner shall be responsible, at Owner's
expense, for compliance with any governmental law, order, regulation
or requirement relating to the removal, encapsulation, or other
treatment of any asbestos containing materials or hazardous materials
located within or about the Demised Premises, and for the removal of
any asbestos or asbestos containing materials or other hazardous
materials within or about the Demised Premises, unless the presence of
any such asbestos or hazardous materials was caused by Tenant.
Article 9
---------
8A. not
Article 13
----------
9. upon at least forty-eight (48) hours notice--
10. Notwithstanding anything to the contrary contained in this Lease,
Tenant and its employees shall have access to the Demised Premises 24
hours per day, seven days a week.
Article 14
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11. to the extent such vault is use by Tenant. Notwithstanding anything to
the contrary contained in this Lease, Tenant shall be entitled to
trench outside the Building, at Tenant's expense, to access area fiber
optic hook-ups. Xxxxxx agrees to indemnify Owner for any costs on
expenses incurred by Owner on account of the above Tenant work.
Article 15
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11A. Notwithstanding anything to the contrary contained in this Lease,
Tenant shall have no obligations to cure violations that are of record
as of the Commencement Date, if any, which shall be the responsibility
of Owner at its sole cost and expense.
Article 17
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12. twenty (20)
13. business
14. and such default shall continue for more than five (5) days after
notice thereof has been given to Tenant,
15. further
Article 18
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16. beyond the applicable notice and cure period,
17. reasonable
Article 24
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18. Notwithstanding anything to the contrary contained in this Lease, if
Owner does not deliver vacant possession of the Demised Premises to
Tenant with all of Owner's Work substantially completed on or before
May 1, 1999, Tenant, at its option, may terminate this Lease upon
thirty (30) days notice to Owner, in which event this Lease shall
terminate unless Owner delivers vacant possession of the
2
demised premises to Tenant with all of Owner's Work substantially
completed within said thirty (30) day period.
Article 25
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19. or Tenant
20. or payment by Tenant
21. or Tenant, as the case may be,
22. the party to be charged with such waiver
Article 27
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22A. the obligations of Owner and Tenant to
22B. Owner and
22C. or Tenant
22D. or Tenant
Article 28
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23. Whenever a provision is made under this Lease for any demand, 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 by hand delivery against written receipt, or nationally
recognized overnight courier providing for written evidence of
delivery, or sent by United States certified mail, return receipt
requested, postage prepaid, addressed at the addresses set forth below
or at such other address as either party may advise the other from
time to time: Notices given by certified mail shall be deemed given
three (3) business days after deposit in the United States mail as
aforesaid; notices given by hand delivery or overnight courier shall
be deemed given upon receipt (or refusal of receipt) during regular
business hours.
If to Tenant:
Community Networks, Inc.
00-00 Xxxxx Xxxxxx, Xxxxx 000
Xxxx Xxxxxx Xxxx, Xxx Xxxx 00000
Attention: Xx. Xxxxx Xxxxxxx
with a duplicate copy to:
Xxxxxxx Xxxxxx Xxxx & Ball P.C.
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000-5617
Attention: Xxxxxx X. Xxxx, Esq.
If to Owner:
Standard Motor Products, Inc.
00-00 Xxxxxxxx Xxxxxxxxx
Xxxx Xxxxxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Xxxxxx
------------------
Article 33
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23A. All Rules and Regulations set forth herein shall be applied to all
tenants of the Building in a non-discriminatory manner. In the event
of a conflict between the
3
terms of this Lease and the Rules and Regulations, the terms of the Lease
shall govern.
Article 34
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24. beyond the applicable notice and cure period
25. the Security Deposit shall be maintained in an interest bearing
account and all interest shall accrue and be added to and become a
part of the Security Deposit less a 1% per annum administrative fee to
Owner.
Article 35
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26. twenty (20)
27. , to Xxxxxx's actual knowledge
STANDARD MOTOR PRODUCTS, INC.
By: /s/ Xxxxx Xxxxxx
-------------------------
Name: XXXXX XXXXXX
Title: TREASURER
COMMUNITY NETWORKS, INC.
By: /s/ Xxxxx X. Xxxxxxx
--------------------------
Name: Xxxxx X. Xxxxxxx
Title: VP - HR & Admin
4
RIDER ANNEXED TO AND FORMING PART OF LEASE DATED March 19, 1999, BETWEEN
STANDARD MOTOR PRODUCTS, INC., AS OWNER, AND COMMUNITY NETWORKS, INC., AS
TENANT, COVERING A PORTION OF THE SECOND FLOOR IN THE BUILDING AT 00-00 XXXXXXXX
XXXXXXXXX, XXXX XXXXXX XXXX, XXX XXXX
37. Rental Payments:
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37.1 Supplementing the second unnumbered paragraph of this Lease,
Tenant shall pay to Owner the base annual rent (the "Base Rent") for the demised
premises as set forth below and additional rent for the demised premises as
herein set forth. Additional rent shall consist of all other sums of money as
shall become due and payable by Tenant to Owner pursuant to the terms of this
Lease, for default in payment of which Owner shall have the same remedies as a
default in the payment of Base Rent. Tenant shall pay to Owner Base Rent as
follows:
(a) One Hundred Two Thousand and 00/100 Dollars ($102,000) per annum
($8,500 per month) for the period commencing on the Rent Commencement Date
(hereinafter defined) and continuing thereafter until the second
anniversary of the Rent Commencement Date;
(b) One Hundred Forty Four Thousand Five Hundred and 00/100 Dollars
($144,500.00) per annum ($12,041.67 per month) for the period commencing on
the day after the second anniversary of the Rent Commencement Date and
continuing thereafter until the third anniversary of the Rent Commencement
Date;
(c) One Hundred Forty Eight Thousand Eight Hundred Thirty Five and
00/100 Dollars ($148,835.00) per annum ($12,402.92 per month) for the
period commencing on the day after the third anniversary of the Rent
Commencement Date and continuing thereafter until the fourth anniversary of
the Rent Commencement Date;
(d) One Hundred Fifty Three Thousand Three Hundred and 05/100
Dollars ($153,300.05) per annum ($12,775.00 per month) for the period
commencing on the day after the fourth anniversary of the Rent Commencement
Date and continuing thereafter until the fifth anniversary of the Rent
Commencement Date;
(e) One Hundred Fifty Seven Thousand Eight Hundred Ninety Nine and
05/100 Dollars ($157,899.05) per annum ($13,158.25 per month) for the
period commencing on the day after the fifth anniversary of the Rent
Commencement Date and continuing thereafter until the sixth anniversary of
the Rent Commencement Date;
(f) One Hundred Sixty Two Thousand Six Hundred Thirty Six and 02/100
Dollars ($162,635.02) per annum ($13,553.00 per month) for the period
commencing on the day after the sixth anniversary of the Rent Commencement
Date and continuing thereafter until the seventh anniversary of the Rent
Commencement Date;
(g) One Hundred Sixty Seven Thousand Five Hundred Sixteen and 72/100
Dollars ($167,516.72) per annum ($13,959.73 per month) for the period
commencing on the day after the seventh anniversary of the Rent
Commencement Date and continuing thereafter until the eighth anniversary of
the Rent Commencement Date;
(h) One Hundred Seventy Two Thousand Five Hundred Forty Two and
22/100 Dollars ($172,542.22) per annum ($14,378.52 per month) for the
period commencing on the day after the eighth anniversary of the Rent
Commencement Date and continuing thereafter until the ninth anniversary of
the Rent Commencement Date; and
-1-
RIDER ANNEXED TO AND FORMING PART OF LEASE DATED , 1999, BETWEEN STANDARD
MOTOR PRODUCTS, INC., AS OWNER, AND COMMUNITY NETWORKS, INC., AS TENANT,
COVERING A PORTION OF THE SECOND FLOOR IN THE BUILDING AT 00-00 XXXXXXXX
XXXXXXXXX, XXXX XXXXXX XXXX, XXX XXXX
(i) One Hundred Seventy Seven Thousand Seven Hundred Eighteen and
49/100 Dollars ($177,718.49) per annum ($14,809.87 per month) for the
period commencing on the day after the ninth anniversary of the Rent
Commencement Date and continuing thereafter until the tenth anniversary of
the Rent Commencement Date.
Tenant shall be entitled to an abatement of the monthly Base Rent
during the four month period commencing on the Commencement Date and ending four
months thereafter ("Abatement Period"), provided that Tenant shall not be in
default beyond applicable notice and cure period under any term or condition of
this Lease either at the commencement of the Abatement Period or at any time
during the Abatement Period. If Tenant shall be in default beyond applicable
notice and cure period under any term or condition of this Lease at any time
during the Abatement Period, such Abatement Period shall terminate as of the
date of such default beyond applicable notice and cure period. The day after the
last day of the Abatement Period shall be deemed to be the Rent Commencement
Date.
37.2 Rent shall be calculated on a per diem basis for any partial calendar
month.
38. Electric Current:
----------------
38.1 (a) As of the date of this Lease, the monthly electricity fee
("MEF") is $1,500.00 per month, which amount has been based upon Xxxxxx's
projected electricity costs taking into account Tenant's use of the
Premises as a telecommunications services provider with telephone switching
stations in the Premises. Within ninety (90) days after Tenant has
commenced the operation of its business at the Premises, Owner, at its cost
sole and expense, shall cause a survey to be made by a reputable
independent electrical engineer or consultant selected by Owner ("Survey")
to determine Xxxxxx's actual electrical usage and demand requirements.
After such Survey has been made, Owner shall deliver a copy thereof to
tenant and the MEF shall be retroactively adjusted to reflect the actual
cost incurred by Owner in connection with Tenant's electrical usage at the
Premises, and if such actual cost is more than the initial MEF, Tenant
shall pay the difference to Owner, and if such actual cost is less than the
initial MEF, Owner shall pay the difference to Tenant.
(b) In the event Tenant shall disagree with the Survey, Tenant
shall so notify Owner within thirty (30) days after receiving such Survey,
setting forth in reasonable detail the items of the Survey that tenant
disputes. If within thirty (30) days from Xxxxxx's notice to Owner that it
disputes the Survey, Owner and Tenant have not resolved the dispute,
Tenant, at the expense of Tenant, may select and retain a different
independent reputable engineer, reasonably acceptable to Owner, to make its
own electrical Survey (hereinafter called "Tenant's Survey") of the
Premises. Tenant shall send Xxxxxx's Survey to Owner and to the engineer
who made Owner's Survey. In the event that within thirty (30) days from
said receipt of tenant's Survey, Owner and tenant still have not settled
the dispute, then the adjusted MEF shall be determined by a third (3rd)
engineer or expert selected by the two (2) initial engineers. If the
adjusted MEF shall be determined by the third engineer or expert, the fee
of such third engineer or expert shall be paid by whichever of Owner of
Tenant whose Survey is more at variance with the determination of such
third engineer or expert. If, however, the parties settle or compromise the
dispute, the fee of any such third engineer or expert shall be equally
divided between the parties. In the event of any such dispute, tenant
agrees to pay to Owner the adjusted MEF based on Owner's Survey as if no
dispute existed, but if Owner and tenant subsequently agree to a lesser
amount, or if the above mentioned third engineer or expert determines that
a lesser amount is due, then Owner shall thereafter promptly reimburse
tenant to the extent of any overpayments, retroactive to the commencement
date.
-2-
RIDER ANNEXED TO AND FORMING PART OF LEASE DATED , 1999, BETWEEN STANDARD
MOTOR PRODUCTS, INC., AS OWNER, AND COMMUNITY NETWORKS, INC., AS TENANT,
COVERING A PORTION OF THE SECOND FLOOR IN THE BUILDING AT 00-00 XXXXXXXX
XXXXXXXXX, XXXX XXXXXX XXXX, XXX XXXX
(c) Notwithstanding anything to the contrary contained in this
Lease, it is the intention of the parties hereto, and the aforementioned
engineer(s) shall take same into account when conducting any Survey, that
no profit whatsoever shall be made by Owner in connection with electricity
charges to Tenant, and Tenant shall be entitled to the benefit of any and
all reductions, abatements and/or discounts received by Owner.
(d) In the event that the cost of electric current shall increase
or decrease or Tenant's use of electric current materially increases or
decreases at any time during the term hereof, both Owner and Tenant agree
to make a corresponding adjustment to the monthly fee charged to Tenant for
the use of such electric current. In the event that bills hereunder are not
paid within twenty (20) days after the same are rendered, Owner may,
without further notice, discontinue the service of electric current to the
demised premises without releasing Tenant from any liability under this
Lease and without Owner or Owner's agent incurring any liability for any
damage or loss sustained by Tenant by such discontinuance of service.
Tenant shall permit the Meter Reading Firm to have access to the demised
premises from time to time during normal business hours.
38.2 Owner, at Owner's sole cost and expense, shall be responsible
for any repair, maintenance and replacement of any electric meter, panel board
and all wires, wiring, feeders and risers serving the demised premises. Tenant
shall not make or perform, or permit the making or performance of, any
alterations to wiring installations or other electrical facilities in or serving
the demised premises or any additions to the business machines, office equipment
or other appliances (other than typewriters and similar low energy consuming
office machines) in the demised premises which utilize electrical energy,
without the prior consent of Owner in each instance, which consent shall not be
unreasonably withheld or delayed.
38.3 Tenant covenants that Xxxxxx's use and consumption of electric
current shall not at any time exceed the capacity of any of the electrical
facilities and installations in or otherwise serving or being used in the
demised premises. Owner represents that it will provide 400 amps of electric
power to the demised premises. ln order to insure that such capacity is not
exceeded and to avert any possible adverse effect upon the electrical facilities
and installations of the Building, Tenant shall, upon the submission by Owner to
Tenant of written notice, promptly cease the use of any of Tenant's Electrical
Facilities which Owner reasonably believes will cause Tenant to violate the
preceding sentence of this Paragraph 38.3.
38.4 Owner shall not in any way be liable or responsible to Tenant
for any loss, damage or expense which Tenant may sustain or incur as a result of
an interruption in the supply of electric current to the demised premises or a
change in the quantity or character of such current.
38.5 Tenant shall furnish and install, at Tenant's sole cost and
expense, all original and replacement lighting tubes, lamps, bulbs, fixtures and
ballasts as Tenant may require in the demised premises. Owner shall leave for
Tenant's use, all replacement lighting tubes, lamps, bulbs, fixtures and
ballasts presently existing in the demised premises.
39. Real Estate Tax Escalation:
--------------------------
39.1 Definitions: For the purposes of this Article 39:
39.1.1 "Taxes" shall mean the aggregate of the following items
assessed, levied, confirmed or imposed at any time by any taxing or other
authority, on, against, or in respect of, or which may be or become a lien upon,
the Building and/or the land upon which the Building is located: (a) real estate
taxes; (b) assessments (including, without limitation, assessments for public
improvements or benefits, whether or not commenced or
-3-
RIDER ANNEXED TO AND FORMING PART OF LEASE DATED , 1999, BETWEEN STANDARD
MOTOR PRODUCTS, INC., AS OWNER, AND COMMUNITY NETWORKS, INC., AS TENANT,
COVERING A PORTION OF THE SECOND FLOOR IN THE BUILDING AT 00-00 XXXXXXXX
XXXXXXXXX, XXXX XXXXXX XXXX, XXX XXXX
completed during the term of this Lease); (c) water charges; (d) sewer rents;
(e) vault taxes; (f) any other tax, levy, impost, charge or assessment, however
designated; and (g) any tax, levy, impost, charge or assessment, however
designated, general, special, ordinary or extraordinary, foreseen or unforeseen,
levied, assessed or imposed by any taxing or other authority, against or with
respect to such land and/or Building, the occupancy thereof, or the rents or
profits therefrom or the collection thereof, to the extent that the same shall
be in substitution of or in lieu of all or any portion of any item set forth
herein, or in lieu of any addition or increase in any item or any portion
thereof set forth herein. Notwithstanding the foregoing, Real Estate Taxes shall
not include (a) any inheritance, estate, succession, transfer, gift, franchise
or capital stock tax; (b) any income taxes arising out of or related to
ownership and operation of income-producing real estate; (c) any excise taxes
imposed upon Owner based upon gross or net rentals or other income received by
it; or (d) assessments for improvements completed prior to the Commencement
Date.
39.1.2 "Base Tax Year" shall mean the fiscal year commencing
July 1, 1998 and ending June 30, 1999.
39.1.3 "Base Tax" shall mean the amount of Taxes, as finally
determined, payable by Owner for the Base Tax Year.
39.1.4 "Tax Year" shall mean each twelve (12) month period
falling wholly or partly within the term of this Lease and commencing on the
first day next succeeding the Base Tax Year or any anniversary of said date.
39.1.5 "Tenant's Proportionate Share" shall mean, and the
parties hereto agree that the same shall be, five and sixty-five hundredths
percent (5.65%).
39.2 If the Taxes for any Tax Year shall be greater than the Base
Tax (the amount of such excess being hereinafter referred to as the "Tax
Excess"), Tenant shall pay Owner as additional rent for such Tax Year, in
addition to any other additional rent required under this Lease, commencing on
the later of(a) July 1, 1999, or (b) the Rent Commencement Date, an amount equal
to Tenant's Proportionate Share of such Tax Excess (such amount of additional
rent being hereinafter referred to as the "Tax Payment"). The Tax Payment shall
be prorated, if necessary, for the first and final Tax Years. Tenant shall pay
the Tax Payment based on the Taxes (which, to the extent necessary, may be
estimated by Owner in its sole discretion) as initially assessed, levied or
imposed, subject to an adjustment, if any.
39.3 Before or after the beginning of each Tax Year, Owner shall
submit to Tenant a written statement (hereinafter referred to as the "Tax
Statement") with respect to such Tax Year, which Tax Statement shall set forth
the following: (a) the Tax Year covered by the Tax Statement; (b) the Base Tax;
(c) the Taxes (which, to the extent necessary, may be estimated by Owner in its
sole discretion) for the Tax Year covered by the Tax Statement; (d) the Tax
Excess; and (e) a computation of Tenant's Proportionate Share of the Tax Excess
(the Tax Payment) for the Tax Year covered by the Tax Statement and the amount
of the equal monthly installments thereof.
39.4 After Owner has submitted to Tenant the Tax Statement with
respect to any Tax Year, Tenant shall pay Owner, as additional rent for such Tax
Year, the Tax Payment shown on such Tax Statement as due Owner for such Tax
Year, in equal monthly installments, in advance, on the first day of each and
every month, together with the monthly installments of fixed rent, commencing
with the installment of fixed rent next due after the date of submission of such
Tax Statement but not prior to the Rent Commencement Date. Each installment of
such Tax Payment due shall be in an amount equal to one-twelfth (1/12th) of such
Tax Payment.
39.5 If a Tax Statement showing a Tax Payment due Owner for any Tax
Year is submitted by Owner to Tenant after the commencement of the Tax Year in
respect of which such Tax Statement is rendered, and after the time when one or
more installments thereof
-4-
RIDER ANNEXED TO AND FORMING PART OF LEASE DATED ___, 1999, BETWEEN STANDARD
MOTOR PRODUCTS, INC., AS OWNER, AND COMMUNITY NETWORKS, INC., AS TENANT,
COVERING A PORTION OF THE SECOND FLOOR IN THE BUILDING AT 00-00 XXXXXXXX
XXXXXXXXX, XXXX XXXXXX XXXX, XXX XXXX
would have otherwise been due and payable had such Tax Statement been submitted
to Tenant at or prior to the commencement of such Tax Year, Tenant shall pay
Owner, as additional rent, within twenty (20) days after the submission of such
Tax Statement, an amount equal to the total of all the monthly installments that
are unpaid and due for the period elapsed prior to the first day of the month
next succeeding the month during which such Tax Statement is submitted. Such
amount due shall be equal to the product obtained by multiplying the Tax Payment
due for such Tax Year by a fraction, the denominator of which shall be twelve
(12), and the numerator of which shall be the number of months of such Tax Year
elapsed prior to the first day of the month next succeeding the month during
which such Tax Statement is submitted. Appropriate credit, if any, against such
amount due shall be given in accordance with the provisions of Paragraph 39.6
hereof.
39.6 Until submission by Owner to Tenant of the Tax Statement for the
second and each subsequent Tax Year, Tenant shall continue to pay Owner, as
additional rent, on the first day of each and every month of the then current
Tax Year until the first day of the month next succeeding the month during which
such Tax Statement is submitted, the monthly installment of the Tax Payment for
the Tax Year immediately preceding such current Tax Year. The total amount of
such monthly payments paid during such current Tax Year shall be credited
towards the Tax Payment due Owner for such current Tax Year or towards the
amount due Owner pursuant to the provisions of Paragraph 39.5 hereof, and
appropriate adjustment, as of the end of the month during which such Tax
Statement is submitted, shall be made between Owner and Tenant.
39.7 If during the term of this Lease, the Taxes (or any portion
thereof) for any Tax Year shall be payable, in full or in quarterly or other
installments, on any date or dates other than as required on the date hereof,
the Tax Payment due Owner hereunder for such Tax Year shall be due and payable
in full within twenty (20) days after the submission by Owner to Tenant of a
statement therefor.
39.8 If the Base Tax is reduced as a result of a final determination
of any appropriate proceeding, settlement or otherwise, then the Base Tax, as
finally determined, shall be regarded as the Base Tax, and the Tax Payment
theretofore paid or payable by Tenant hereunder with respect to any Tax Year
shall be adjusted on the basis of such reduction. In such event, Tenant shall
pay Owner, as additional rent, within ten (10) days after receipt of a written
statement from Owner setting forth the amount and basis of such adjustment, any
deficiency between the amount of such Tax Payment as theretofore computed and
the amount thereof due as a result of such adjustment. If Owner shall receive a
refund of Taxes for any Tax Year during which Xxxxxx has paid a Tax Payment, as
a result of a final determination of any proceeding, settlement or otherwise,
then the proceeds of such refund, less reasonable attorneys' fees and all other
fees, costs and expenses incurred in securing the same, shall be applied and
allocated to the period for which such refund was obtained, and Owner shall
either pay Tenant Tenant's Proportionate Share of such net amount allocated to
said period or, at Owner's sole option, credit the amount thereof against any
amount then or thereafter becoming due to Owner under the provisions of this
Lease or otherwise. Tenant's Proportionate Share of such net amount shall be
limited to the amount of additional rent paid by Tenant to Owner for such period
pursuant to this Article 39 on the basis of the initial assessment prior to such
reduction.
39.9 Owner shall be under no obligation to contest the Taxes for any
Tax Year or to refrain from contesting the same, and may settle any such contest
on such terms as Owner in its sole discretion shall consider proper.
39.10 If the first day of the term of this Lease is not the first day
of a Tax Year, or if the final day of the term of this Lease is not the final
day of a Tax Year, then the Tax Payment due as additional rent hereunder for
such first or final Tax Year shall be equal to the product obtained by
multiplying the Tax Payment for such Tax Year, calculated in accordance with the
provisions of this section, by a fraction, the denominator of which shall be
twelve (12), and the numerator of which shall be the number of months commencing
in such first or final Tax Year. If a Tax Statement is submitted to Tenant at or
after the expiration or termination of this
-5-
RIDER ANNEXED TO AND FORMING PART OF LEASE DATED ___,1999, BETWEEN STANDARD
MOTOR PRODUCTS, INC., AS OWNER, AND COMMUNITY NETWORKS, INC., AS TENANT,
COVERING A PORTION OF THE SECOND FLOOR IN THE BUILDING AT 00-00 XXXXXXXX
XXXXXXXXX, XXXX XXXXXX XXXX, XXX XXXX
Lease, Tenant shall pay Owner the Tax Payment due within twenty (20) days after
such submission.
40. Owner's Work:
------------
40.1 Owner shall, at Owner's sole cost and expense, in accordance
with the plan attached hereto as Schedule B (the "Owner's Work"), perform
Owner's Work. It is acknowledged that Owner and Xxxxxx will both be performing
work in the demised premises prior to the Commencement Date. Each party shall
use its best efforts to avoid interfering with the performance by the other
party of its work. As used herein, the terms "substantial completion" shall mean
that Owner shall have substantially completed the work, subject only to punch
list items which do not prevent Xxxxxx's use of the demised premises for the
conduct of Tenant's business without unreasonable interference.
40.2 Owner may make minor changes to the plan attached hereto as
Schedule B without the consent of Tenant, but only if required in order to
obtain necessary governmental approvals to perform the work shown thereon and
provided that none of such changes shall materially affect the use and operation
of the Demised Premises for the conduct of Xxxxxx's business.
40.3 Tenant acknowledges that from time to time Owner may make
alterations, additions, installations or improvements in or to the Building or
any part thereof (whether or not Owner is required to make the same pursuant to
this Lease or otherwise), and that such work may continue for some time. Tenant
may suffer inconveniences and may possibly be deprived of full enjoyment of
Building areas, facilities or services, due to noise, debris, blocking of such
areas, temporary loss of facilities or services or for any other reason. In no
such event shall Owner be liable to Tenant solely by reason of the making of any
such alterations, additions, installations or improvements, or by reason of the
manner thereof, nor shall Tenant be entitled to any abatement of rent in
connection therewith, and the same shall not constitute an eviction, either
actual or constructive. Owner shall endeavor to be diligent with respect to all
such work and shall endeavor to the extent practical to perform such work,
except in cases of emergency, at times and in such manner as will minimize any
inconvenience to Tenant to the extent practical to perform such work, except in
cases of emergency, at times and in such manner as will minimize any
inconvenience to Tenant.
41. "As-Is" Condition:
----------------
Xxxxxx has examined and inspected the demised premises, and except for
Owner's Work agrees to accept said demised premises in their condition existing
on the Commencement Date of the term hereof. Owner shall not be obligated to
perform any work within the demised premises unless otherwise expressly provided
herein. Owner warrants that as of the Commencement Date of this Lease the
demised premises shall be free of any Hazardous Substances and to the best
knowledge of Owner, the demised premises are in compliance with the Americans
with Disability Act (as defined below).
42. Indemnity, Liability Insurance:
------------------------------
42.1 Tenant shall indemnify and hold Owner and Owner's managing agent
harmless from and against any and all claims by or on behalf of any person, firm
or corporation, arising from any work or thing whatsoever done by or on behalf
of Tenant in or about the demised premises, and shall indemnify and hold Owner
and Owner's managing agent harmless from and against any and all claims arising
from any breach or default on the part of Tenant in the performance of any
covenant or agreement on the part of Tenant to be performed or observed pursuant
to the terms of this Lease, or arising from any act or negligence of Tenant, or
any of its agents, contractors, servants, employees or licensees, and from and
against all costs, losses, injuries, expenses and liabilities, including,
without limitation, reasonably attorneys' fees, resulting from any such claim or
action or proceeding brought thereon; and in the event that any action or
proceeding is brought against Owner or Owner's managing agent by reason of any
such
-6-
RIDER ANNEXED TO AND FORMING PART OF LEASE DATED ___, 1999, BETWEEN STANDARD
MOTOR PRODUCTS, INC., AS OWNER, AND COMMUNITY NETWORKS, INC., AS TENANT,
COVERING A PORTION OF THE SECOND FLOOR IN THE BUILDING AT 00-00 XXXXXXXX
XXXXXXXXX, XXXX XXXXXX XXXX, XXX XXXX
claim, Tenant, upon notice from Owner, shall resist or defend, at Xxxxxx's sole
cost and expense, such action or proceeding by counsel satisfactory to Owner.
42.1.1 Owner shall indemnify and hold Tenant harmless from and
against any and all claims by or on behalf of any person, firm or corporation,
arising from any work or thing whatsoever done by or on behalf of Owner in or
about the Building and shall hold Tenant harmless from and against any and all
claims arising from any breach or default on the part of Owner in the
performance of any covenant or agreement on the part of Owner to be observed or
performed pursuant to the terms of this Lease, or arising from any act or
negligence of Owner or any of its agents, contractors, servants, employees or
licensees, and from and against all costs, losses, injuries, expenses and
liabilities, including, without limitation, reasonable attorneys' fees,
resulting from any such claim or action or proceeding brought thereon; and in
the event that any action or proceeding is brought against Tenant by reason of
such claim, Owner, upon notice from Tenant, shall result or defend, at Owner's
sole cost and expense, such action or proceeding with counsel satisfactory to
Tenant.
42.2 Tenant shall, at its sole cost and expense, provide on or before
the Commencement Date of this Lease and keep in force at all times during the
term of this Lease, for the benefit of Owner, Owner's managing agent and Tenant,
a policy of commercial general liability insurance protecting Owner, Owner's
managing agent and Tenant against any liability whatsoever occasioned by
accident on or about the demised premises or any appurtenances thereto, and an
endorsement to such policy whereby the insurer shall insure Tenant's indemnity
obligation pursuant to Article 8 and Paragraph 42.1 hereof. Such policy shall be
written by good and solvent United States insurance companies doing and licensed
to do business in the State of New York and reasonably satisfactory to Owner,
and the limits of liability thereunder shall not be less than the amount of One
Million Dollars ($1,000,000) in respect of any one person, in the amount of Two
Million Dollars ($2,000,000) in respect of any one accident, and in the amount
of Two Million Dollars ($2,000,000) in respect of property damage. Prior to the
Commencement Date of the term of this Lease, Tenant shall deliver to Owner a
certificate evidencing such policy and endorsement. Such policy or certificate
shall require the insurer to give at least thirty (30) days written notice to
Owner prior to the cancellation, expiration or material modification thereof.
Such insurance may be carried under a blanket policy covering the demised
premises and other locations, if any, of Tenant, provided such blanket policy
conforms in amounts and all other respects to the provisions of this Lease. Each
insurance policy maintained by Tenant pursuant to this Article 42.2 shall
expressly provide that no act or omission of Tenant shall affect the validity of
such policy, its enforceability by Owner or Owner's managing agent, or the
continued responsibility thereunder, as regards Owner and Owner's managing
agent, of the insurer. Owner shall be named as an additional insured on each
insurance policy.
42.3 The provisions of this Article 42 shall be in addition to and
not in limitation of the provisions of Article 8 hereof.
42.4 Owner shall maintain during the term of this Lease, insurance
against loss or damage by fire and such other risk and hazards as are insurable
under present and future standard forms of fire and extended coverage insurance
policies, to the Building for the full insurable value thereof. Tenant shall
pay, as additional rent, its proportionate share of any increase in fire
insurance premiums (excluding any increase which are the direct result of any
acts or omissions of other tenants in the Building) applicable to the Building
after December 31, 1999 over the cost thereof for the 1999 calendar year. Each
such payment shall be made to Owner within twenty (20) days after demand by
Owner thereof. Owner and Tenant agree that Xxxxxx's proportionate share shall be
five and sixty-five hundredths percent (5.65%). Owner shall maintain throughout
the term of the Lease general liability insurance for the entire Building.
42.5 This Lease shall contain a mutual waiver of subrogation for all
insured losses.
-7-
RIDER ANNEXED TO AND FORMING PART OF LEASE DATED , 1999, BETWEEN
STANDARD MOTOR PRODUCTS, INC., AS OWNER, AND COMMUNITY NETWORKS, INC., AS
TENANT, COVERING A PORTION OF THE SECOND FLOOR IN THE BUILDING AT 00-00 XXXXXXXX
XXXXXXXXX, XXXX XXXXXX XXXX, XXX XXXX
43. Tenant's Alterations:
--------------------
In accordance with the provisions of Article 3 hereof, Tenant shall
not make, or permit the making of, any alterations, additions, installations or
improvements in or to the Building or any part thereof except with the prior
written consent of Owner. Owner acknowledges that Tenant may desire to make
certain interior alterations, additions, installations and improvements in and
to the demised premises (including the construction of offices, doors, interior
windows, interior signs and any construction required under Article 38 hereof)
and Owner agrees not to unreasonably withhold or delay its consent provided that
such changes do not affect the structural integrity of or utility systems in the
Building and do not materially or adversely affect the value of the demised
premises. Tenant shall have the right to erect exterior signs subject to Owner's
approval as to size, location and content, which approval shall not be
unreasonably withheld. All alterations, additions, installations and
improvements made pursuant to Article 3 hereof and this Article 43 shall be made
(a) at Tenant's sole cost and expense, (b) in accordance with the plans approved
by Owner which approval shall not be unreasonably withheld or delayed and (c) at
such times and in such manner as Owner may designate, and shall otherwise be
made in accordance with the terms and conditions set forth in Article 3 hereof
and this Article 43. All materials and equipment incorporated in the demised
premises pursuant to Article 3 hereof and this Article 43 shall be new and of
first quality and no such materials or equipment shall create a lien or
encumbrance against the Property. In the event of a conflict between the
provisions of this Section 43 and the provisions of Insert 3A to Section 3 of
the Lease, Insert 3A shall govern.
44. Fuel:
----
Tenant shall pay to Owner, as additional rent, Xxxxxx's proportionate
share of all fuel and heat-related costs which Owner shall actually incur with
respect to the Building during the term of this Lease as set forth in this
Article 44. On the first day of each calendar month, Tenant shall pay to Owner
an amount ("Tenant's Share") equal to one twelfth (1/12) of Tenant's
proportionate share of increases in fuel and heat-related costs over the 1999
base year amount (which shall be an amount not less than $55,290.15) which will
be incurred actually by Owner with respect to the Building as estimated by Owner
in a statement delivered from time to time by Owner to Tenant. Commencing
January 1, 2000, and after the end of each calendar year, Owner shall deliver to
Tenant copies of all fuel and heat-related bills received by Owner in connection
with the Building for such calendar year, together with a written statement
reflecting Xxxxxx's proportionate share thereof and the amount paid by Tenant
toward Xxxxxx's Share for such calendar year. Owner and Tenant agree that
Xxxxxx's proportionate share shall be five and sixty-five hundredths percent
(5.65%). If Tenant's proportionate share of such actual costs shall exceed the
amount paid by Tenant toward Tenant's Share for such calendar year, Tenant shall
pay to Owner the amount of such excess within twenty (20) days after receipt of
said statement. If said amount paid toward Xxxxxx's Share shall exceed Xxxxxx's
proportionate share of such actual costs, Owner shall reimburse Tenant for the
amount of said excess within twenty (20) days after submission of such statement
or shall credit the amount of said excess to succeeding payments by Tenant of
Tenant's Share.
45. Water and Sewer:
---------------
Owner shall deliver to Tenant a copy of all water and sewer bills
received by Owner for the Building. Within twenty (20) days after submission by
Owner to Tenant of said bills, Tenant shall pay, as additional rent, its
proportionate share of any increase in each water and sewer bill received by
Owner over a 1999 base year. Owner and Tenant agree that the Tenant's
proportionate share shall be five and sixty-five hundredths percent (5.65%).
46. Sprinklers:
----------
Owner shall maintain a sprinkler system to protect the Building from
the risks and hazards of fire. Owner shall deliver to Tenant a copy of the bills
reflecting the actual sprinkler maintenance charges for the Building. Within
twenty (20) days after submission by
-8-
RIDER ANNEXED TO AND FORMING PART OF LEASE DATED , 1999, BETWEEN
STANDARD MOTOR PRODUCTS, INC., AS OWNER, AND COMMUNITY NETWORKS, INC., AS
TENANT, COVERING A PORTION OF THE SECOND FLOOR IN THE BUILDING AT 00-00 XXXXXXXX
XXXXXXXXX, XXXX XXXXXX XXXX, XXX XXXX
Owner to Tenant of said bills, Tenant shall pay, as additional rent, its
proportionate share of any increase in the sprinkler maintenance charges over a
1999 base year. Owner and Tenant agree that the Tenant's proportionate share
shall be five and sixty-five hundredths percent (5.65%).
47. Parking:
-------
Owner shall provide Tenant with the exclusive use of six (6)
automobile parking spaces available in the parking lot at the corner of 38th
Street and 36th Avenue in Queens, New York. Said spaces shall be specifically
designated as "reserved" for Tenant and used solely for passenger vehicles (but
not for the storage thereof). Owner may at any time move said spaces to another
area within said parking lot.
48. Intentionally Omitted
49. Limitation of Liability:
-----------------------
Whether Owner or any successor in interest be an individual, joint
venture, tenancy in common, co-partnership, unincorporated association or other
unincorporated aggregate of individuals or a corporation (all of which are
referred to herein, individually and collectively, as the "Owner"), then,
anything elsewhere to the contrary notwithstanding, if at any time Owner shall
be or shall become liable to Tenant under the terms of this Lease or otherwise,
such liability of Owner shall be limited to Owner's interest in the demised
premises and no other property or assets of Owner shall be subject to levy,
execution or other enforcement procedure for the satisfaction of Xxxxxx's
claims.
50. Saving Provision:
----------------
If any provision of this Lease, or its application to any situation,
shall be invalid or unenforceable to any extent, the remainder of this Lease, or
the application thereof to situations other than those as to which it is 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.
51. Lease Not Binding Unless Executed:
---------------------------------
Submission by Owner of this Lease for execution by Xxxxxx shall confer
no rights nor impose any obligations on either party unless and until both Owner
and Tenant shall have executed this Lease and duplicate originals thereof shall
have been delivered by each party to the other.
52. Interest on Late Payments:
-------------------------
If Owner shall not have received any payment due Owner from Tenant
under the provisions of this Lease, including, without limitation, any payment
of fixed rent, additional rent or any portion, installment or adjustment
thereof, then interest shall become due and owing to Owner on such payment from
the date which is ten (10) days after when it was due, and the amount thereof
shall constitute additional rent under the terms of this Lease and shall be
collectible as such. The interest shall be computed at the rate of five percent
(5%) per annum over the prime rate of The Chase Manhattan Bank, N.A., or its
successor in interest, then in effect, but in no event shall such interest be
computed at a rate in excess of the maximum legal rate of interest then
chargeable to Tenant in the State of New York. The payment of interest as
provided in this Article 52 shall be without prejudice, and in addition, to any
of Owner's rights and remedies under this Lease or at law for the default by
Tenant in fulfilling the covenant to pay fixed or additional rent beyond the
applicable notice and cure period.
53. Intentionally Omitted
54. Intentionally Omitted
-9-
RIDER ANNEXED TO AND FORMING PART OF LEASE DATED , 1999, BETWEEN
STANDARD MOTOR PRODUCTS, INC., AS OWNER, AND COMMUNITY NETWORKS, INC., AS
TENANT, COVERING A PORTION OF THE SECOND FLOOR IN THE BUILDING AT 00-00 XXXXXXXX
XXXXXXXXX, XXXX XXXXXX XXXX, XXX XXXX
55. Security:
--------
55.1 Supplementing Article 34 hereof, Tenant shall deposit with Owner
as a security deposit, upon the execution of this Lease, the sum of Sixty Two
Thousand Five Hundred and 00/100 Dollars ($62,500.00) and upon the Rent
Commencement Date an additional Sixty Two Thousand Five Hundred and 00/100
Dollars ($62,500.00) for a total security deposit of One Hundred Twenty Five
Thousand and 00/100 Dollars ($125,000.00), to be paid and delivered to Owner.
The deposit shall be reduced annually on the anniversary of the Commencement
Date by $15,000.00 each year until the Security Deposit is reduced to
$36,000.00.
55.2 Said deposit shall be held by Owner, with interest, as security
for the faithful performance by Tenant of all of the terms, covenants and
conditions of this Lease by Xxxxxx to be performed, observed and/or complied
with hereunder. It is agreed that in the event Tenant defaults beyond the
applicable notice and cure period in respect of any of the terms, covenants or
conditions of this Lease, including, but not limited to, the payment of Base
Rent, additional rent or any other sum or charge to be paid by Tenant hereunder
Owner may (but shall not be required to) use, apply or retain the whole or any
part of said deposit to the extent required for the payment of Base Rent,
additional rent reserved hereunder or any other sum or charge to be paid by
Tenant hereunder, or for any costs, expenses (including, but not limited to, any
damages or deficiency in the reletting of the demised premises, whether such
damages or deficiency accrued before or after summary proceedings or other re-
entry by Owner) paid, incurred or suffered by Owner.
55.3 Should all or any portion of said deposit be used, applied,
retained or drawn by Owner, Tenant shall, upon the written demand by Owner,
forthwith remit to Owner an amount in cash sufficient to restore said deposit to
the then applicable amount. Tenant's failure to so restore within twenty (20)
days after the date of the giving of such demand shall constitute a default
under this Lease.
55.4 In the event that Tenant shall fully and faithfully observe,
perform and comply with all of its obligations hereunder, said deposit, together
with all interest accrued thereon, shall be returned in full to Tenant after the
date fixed as the date of the termination or expiration of this Lease by the
terms, covenants and conditions hereof, and after delivery of entire possession
of the demised premises to Owner in accordance with the terms of this Lease.
55.5 Owner may deliver or assign its rights to and interest in said
deposit to the purchaser or lessee of Owner's interest in the demised premises
in the event such interest be sold, transferred, assigned, Leased or otherwise
conveyed, and thereupon Owner shall be released and discharged from any further
liability to Tenant or otherwise with respect to said deposit.
55.6 In the event that Tenant desires that the Security Deposit be in
the form of a letter of credit, Xxxxxx may deliver to Owner a clean,
unconditional and irrevocable letter of credit (the "Letter of Credit") in the
amount of the then required Security Deposit, issued in favor of Owner by a bank
reasonably acceptable to Owner. Tenant shall deliver a certificate of renewal or
replacement Letter of Credit to Owner at least thirty (30) days prior to the
expiration of the Letter of Credit then being held by Owner.
56. Assignment and Subletting:
-------------------------
Tenant may sublet all or a portion of the demised premises or assign
this Lease with Owner's prior written consent which shall not be unreasonably
withheld or delayed provided that:
(a) Tenant shall furnish Owner with the name and business address of
the proposed subtenant or assignee, a counterpart of the proposed subleasing or
assignment
-10-
RIDER ANNEXED TO AND FORMING PART OF LEASE DATED , 1999, BETWEEN
STANDARD MOTOR PRODUCTS, INC., AS OWNER, AND COMMUNITY NETWORKS, INC., AS
TENANT, COVERING A PORTION OF THE SECOND FLOOR IN THE BUILDING AT 00-00 XXXXXXXX
XXXXXXXXX, XXXX XXXXXX XXXX, XXX XXXX
agreement, and reasonably satisfactory information with respect to the nature
and character of the business of the proposed subtenant or assignee together
with current financial information and references reasonably satisfactory to
Owner.
(b) In the reasonable judgment of the Owner the proposed subtenant
or assignee is financially responsible with respect to its proposed obligations
under the proposed agreement and is of a character and engaged in a business
which is in keeping with the standards of the Building.
(c) An executed duplicate original in a form reasonably satisfactory
to Owner for review by Owner's counsel of such subleasing or assignment
agreement shall be delivered to Owner at least thirty (30) days prior to the
effective date thereof. In the event of any assignment, Xxxxxx will deliver to
Owner at least thirty (30) days prior to the effective date thereof an
assumption agreement wherein the assignee agrees to assume all of the terms,
covenants and conditions of this Lease to be performed by Xxxxxx hereunder and
which provides that Xxxxxx named herein and such assignee shall, after the
effective date of such assignment, be jointly and severally liable for the
performance of all of the terms, covenants and conditions of this Lease.
(d) Without limiting the terms upon which Tenant may assign or
sublet, Xxxxxx further agrees that it shall not at any time publicly advertise
at a rental rate less than the fixed rent plus any additional rent then payable
hereunder, for assignment or sublease of all or part of the demised premises
(but listing of the Demised Premises with a broker shall not violate this
section).
(e) Tenant shall have no right to assign this Lease or sublet the
same to any party who is dealing with or has dealt with Owner or Owner's agent
with respect to space then still available for rent in the Building within the
twelve (12) months immediately preceding Owner's receipt of Xxxxxx's notice
pursuant to Section (h) of this Article 56.
(f) Tenant shall not be in default beyond the applicable notice and
cure period with respect to its obligations under this Lease and shall have
complied and shall comply with each of the provisions in this Article 56 and
Owner shall not have made any election as provided in Section (h) of this
Article 56.
(g) The consent by Owner to any assignment, subletting or occupancy
shall not in any wise be construed to relieve Xxxxxx from obtaining the express
consent in writing of Owner to any further assignment or subletting.
(h) If Tenant shall desire to assign this Lease or sublet the
demised premises, Tenant shall send Owner written notice thereof at least ninety
(90) days prior to the intended date thereof, which notice shall contain the
terms and conditions of any such proposed assignment or subletting. Provided
that the assignee or subtenant's proposed use for the demised premises differs
in any material way from the current use. Owner shall have the right within
sixty (60) days after receipt of Tenant's notice to cancel this Lease with
respect to the portion of the demised premises to be assigned or sublet, Owner
shall notify Tenant in writing of such cancellation, in which event, such
cancellation shall become effective upon the proposed date of such assignment or
subletting and such date shall then be deemed to be the expiration of the term
of this Lease with respect to the portion of the demised premises to be assigned
or sublet subject to all the provisions hereof relating thereto and Tenant shall
be responsible for all obligations and payments to be made by it accruing prior
to such expiration date. Provided that the assignee or subtenant's proposed use
for the demised premises differs in any material way from the current use, in
the event Tenant proposes to assign or sublet seventy-five percent (75%) or more
of the demised space, Owner shall have the right to cancel this Lease, in its
entirety with respect to the demised premises in the manner set forth above.
(i) If Tenant should sublet the entire demised premises for a rental
in excess of the sum of fixed rent stipulated herein and additional rent arising
hereunder, then
-11-
RIDER ANNEXED TO AND FORMING PART OF LEASE DATED ___, 1999, BETWEEN STANDARD
MOTOR PRODUCTS, INC., AS OWNER, AND COMMUNITY NETWORKS, INC., AS TENANT,
COVERING A PORTION OF THE SECOND FLOOR IN THE BUILDING AT 00-00 XXXXXXXX
XXXXXXXXX, XXXX XXXXXX XXXX, XXX XXXX
Tenant shall pay to Owner fifty (50%) of the excess amount actually paid to
Tenant less "Transfer Expenses". "Transfer Expenses" shall mean (i) the
reasonable out-of-pocket costs and expenses of Tenant in making such sublease
such as brokers' fees, attorneys' fees and advertising fees, (ii) any fees paid
to Owner pursuant to the terms of this Lease, (iii) the cost of improvements or
alterations made by Tenant expressly for the purpose of preparing the Demised
Premises for such subtenant, and (iv) the unamortized cost of any Tenant's
property leased to and used by such subtenant. in determining Transfer Expenses,
the costs set forth in clauses (i), (ii) and (iii) shall be amortized on a
straight-line basis over the term of the sublease and the costs set forth in
clause (iv) shall be amortized on a straight-line basis over the greater of (x)
the longest useful life of such improvements, alterations or property (as
permitted pursuant to the Internal Revenue Code of 1986, as amended) or (y) the
term of the sublease.
(j) Tenant hereby waives any claim against Owner for money damages
which it may have based upon any assertion that Owner has unreasonably withheld
or unreasonably delayed any consent to an assignment or subletting pursuant to
this Article 56. Tenant agrees that its sole remedy shall be an action or
proceeding to enforce such provision or for specific performance.
(k) Tenant shall reimburse Owner within twenty (20) days after
demand for any reasonable costs, fees and expenses that may be incurred by Owner
in connection with such sublease or assignment, including but not limited to the
cost of making investigations as to the acceptability of the proposed subtenant
or assignee and reasonable legal costs incurred in connection with the granting
of any requested consent.
(l) No sublease or assignment shall be valid and no sublessee or
assignee shall take possession of the demised premises or any part thereof,
until an executed counterpart of such sublease or assignment has been delivered
to Owner.
(m) Each sublease and assignment shall provide that it is subject
and subordinate to this Lease and to matters to which this Lease is or shall be
subordinate, and shall further provide that in the event of termination, re-
entry or dispossession by Owner under this Lease, Owner may, at its option take
over all of the right, title and interest of Xxxxxx, as sublessor or assignor
under such sublease or assignment, and such subtenant or assignee shall, at
Owner's option, attorn to Owner pursuant to the then executory provisions of
such sublease or assignment except that Owner shall not (i) be liable for any
previous act or omission of Tenant under such sublease or assignment (ii) be
subject to any offset not expressly provided in such sublease or assignment
which therefore accrued to such subtenant or assignee against Tenant or (iii) be
bound by any previous modification of such sublease or assignment (unless
previously consented to by Owner) or by any previous prepayment of more than one
month's rent or equivalent assignment consideration.
(n) In the case of all subleases and assignments under this Article
56, Tenant shall and will remain fully liable for the payment of the fixed rent
and any additional rent due or to become due hereunder and for the performance
of al the covenants, agreements, terms, provisions and conditions contained in
this Lease on the part of the Tenant to be performed and all acts and omissions
of any subtenant or assignee or anyone claiming through or under any subtenant
or assignee, which shall be in violation of any of the obligations of this
Lease, shall be deemed to be a violation of Tenant.
(o) For the purposes hereof, it is understood that a sale, transfer
or other disposition by Tenant of control of Tenant by transfer of a majority of
the shares of stock of Tenant shall be subject to Owner's consent, which consent
shall not be unreasonably withheld or delayed.
(p) Notwithstanding anything to the contrary contained in this
Lease, Tenant may, upon ten (10) days written notice to Owner but without
Owner's prior written consent, and without Owner having any right to terminate
this Lease or share in any consideration or profit therefor, assign or transfer
its entire interest in this Lease and the
-12-
RIDER ANNEXED TO AND FORMING PART OF LEASE DATED , 1999, BETWEEN
STANDARD MOTOR PRODUCTS, INC., AS OWNER, AND COMMUNITY NETWORKS, INC., AS
TENANT, COVERING A PORTION OF THE SECOND FLOOR IN THE BUILDING AT 00-00 XXXXXXXX
XXXXXXXXX, XXXX XXXXXX XXXX, XXX XXXX
leasehold estate hereby created, or sublease the entire demised premises, to a
successor corporation of Tenant, which for the purposes of this Lease shall mean
either (a) any corporation or other business entity which controls, is
controlled by, or under common control with, Tenant (a "related corporation"),
or (b) a corporation or other business entity into which or with which Tenant,
its corporate successors or assigns, is merged or consolidated, in accordance
with applicable statutory provisions for the merger or consolidation of
corporations, provided that by operation of law or by effective provisions
contained in the instruments of merger or consolidation the liabilities of the
corporations or other business entities participating in such merger or
consolidation, or (c) a corporation or other business entity acquiring
substantially all of Tenant's assets located in the Demised Premises, or (d) any
successor to a successor corporation becoming such by any of the methods
described in subdivisions (a), (b) and (c) above; provided, however, that Tenant
shall have no such right to assign or transfer to a successor corporation unless
Tenant shall not be in default in the performance of any of its obligations
under this Lease beyond the applicable notice and cure period and with respect
to subdivision (c) above, 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. For the purposes hereof "control" shall be
deemed to mean ownership of not less than fifty percent (50%) of all of the
voting stock of such corporation, or not less than fifty percent (50%) of all of
the legal and equitable interest in any other business entity, or the possession
of the power, directly or indirectly, to direct or cause the direction of
management and policy of a corporation or other business entity, whether through
the ownership of voting securities, common directors or officers, the
contractual right to manage the business affairs of such business entity, or
otherwise. Notwithstanding anything to the contrary contained in this Lease (x)
any sale or transfer of Tenant's capital stock through any public exchange, or
redemption or issuance of additional stock of any class, shall not be deemed an
assignment, subletting or any other transfer of this Lease or the Demised
Premises and (y) any successor corporation may use the demised premises for any
lawful use.
57. Survival of Obligations:
-----------------------
The following obligations of Owner and Tenant shall survive the
expiration or earlier termination of this Lease: (i) Tenant's obligation to pay
fixed and additional rent under this Lease and Owner's obligation to refund any
excess payments of additional rent under this Lease (including but not limited
to, said obligations of Owner and Tenant under Articles 37, 38, 39, 40, 43, 45,
46 and 47 hereof) and (ii) the obligations of Owner and Tenant pursuant to
Article 58 hereof.
58. Brokers:
-------
Owner and Tenant represent and warrant that it has dealt with no
broker, finder, agent or any other person in connection with the negotiation or
execution of this Lease or the showing or leasing of the demised premises other
than Xxxxxxx-Xxxxx and Equis of New York, Inc. (collectively, the "Broker") and
Owner and Tenant shall indemnify and hold the other harmless from and against
any and all liability, cost or expense (including, without limitation,
reasonable attorneys' fees) resulting from any claims of whatsoever nature of
any broker, finder, agent or any other person claiming to have been involved in
any manner whatsoever other than Xxxxxxx-Xxxxx and Equis of New York, Inc. in
the leasing of the demised premises, in the execution of this Lease or in the
negotiation thereof. Owner shall be responsible to pay the Broker pursuant to a
separate agreement.
59. Environmental Compliance:
------------------------
(a) (i) Xxxxxx agrees to comply with all applicable environmental
laws, rules and regulations ("Environmental Laws") regarding Xxxxxx's use of the
demised premises.
(ii) Owner agrees to comply with all applicable Environmental
Laws regarding Owner's use of the building.
-13-
RIDER ANNEXED TO AND FORMING PART OF LEASE DATED 1999, BETWEEN STANDARD
MOTOR PRODUCTS, INC., AS OWNER, AND COMMUNITY NETWORKS, INC., AS TENANT,
COVERING A PORTION OF THE SECOND FLOOR IN THE BUILDING AT 00-00 XXXXXXXX
XXXXXXXXX, XXXX XXXXXX XXXX, XXX XXXX
(b) Tenant shall bear all costs and expenses incurred by Owner
associated with any required compliance resulting solely and directly from (i)
Tenant's use of the demised premises, (ii) the presence, use of storage of any
Hazardous Substance (as defined below) on or under or in the demised premises,
or the spill, discharge or release of any Hazardous Substance from the demised
premises including, but not limited to, state agency fees, engineering fees,
clean-up costs, filing fees, suretyship expenses and costs and expenses to third
parties caused solely and directly by Tenant. The foregoing undertaking shall
survive the termination or sooner expiration of this Lease and surrender of the
demised premises and shall also survive sale, or lease or assignment of the
demised premises by Owner. Tenant shall promptly provide Owner with copies of
all correspondence, reports, notices, orders, findings, declarations and other
materials relevant to Tenant's compliance with applicable Environmental Laws.
Tenant hereby agrees to execute such documents Owner reasonably deems necessary
and to make such applications as Owner reasonably requires to assure compliance
with Environmental Laws, by Xxxxxx.
(c) Tenant shall not generate, store, manufacture, refine,
transport, treat, dispose of, or otherwise permit to be present on or about the
demised premises, any Hazardous Substances. As used herein, Hazardous Substances
shall be defined as any "hazardous chemical", "hazardous substance" or similar
term as defined in the Comprehensive Environmental Responsibility Compensation
and Liability Act, as amended (43 U.S.C. 960J et seq.), any rules or regulations
-- ---
promulgated thereunder, or in any other present or future applicable legal
requirement dealing with environmental protection (except for commercial
reasonable amounts of Hazardous Substances used for cleaning and other uses
customary in commercial Buildings, with respect to which Tenant shall comply
with all present or future applicable legal requirements dealing with
environmental protection and all Environmental Laws).
(d) Tenant and Owner shall defend, indemnify and hold harmless each
other and each mortgagee of the demised premises from and against any and all
claims, fines, penalties, liabilities, losses, damages, judgments, causes of
action, costs and expenses (including reasonable attorneys' fees and expenses)
which may be incurred by Tenant or Owner or any such mortgagee or threatened
against Tenant or Owner or any such mortgagee, relating to or arising out of any
breach by Tenant or Owner of their respective obligations hereunder of this
Article 59, which indemnification shall survive the expiration or sooner
termination of this Lease.
(e) Owner acknowledges that Tenant is installing a generator and
fuel tank at the Building of which the demised premises forms a part and Tenant
agrees to maintain same in compliance with the terms hereof.
60. Tenant may at its own cost and expense access fiber optic cables to
the demised premises. All work plans with respect to the access of fiber optic
cables must be approved by Owner, such approval not to be unreasonably withheld,
and Tenant shall be responsible for repairing any and all damage to the Building
and the property upon which it is situated.
61. Renewal Option:
--------------
In the event Tenant is not in default beyond the applicable notice and
cure period of any terms of this Lease, Tenant shall have an option to renew
this Lease for two (2) consecutive additional five (5) year periods upon the
condition that Tenant gives to Owner notice at least one hundred twenty (120)
days prior to the expiration of the then existing initial term or renewal term
of said Lease of its intention to renew; the amount of rent for said renewal
periods shall be equal to the fair market rental value for the demised premises.
In the event Owner and Tenant cannot agree on the fair market rental value then
same shall be submitted to arbitration.
-14-
RIDER ANNEXED TO AND FORMING PART OF LEASE DATED , 1999, BETWEEN
STANDARD MOTOR PRODUCTS, INC., AS OWNER, AND COMMUNITy NETWORKS, INC., AS
TENANT, COVERING A PORTION OF THE SECOND FLOOR IN THE BUILDING AT 00-00
XXXXXXXX XXXXXXXXX, XXXX XXXXXX XXXX, XXX XXXX
62. Fair Market Rent/Determination:
------------------------------
For purposes of determining the Fair Market Rent, the following
procedure shall apply:
(i) Owner and Tenant shall each contemporaneously deliver to the
other a written notice (each a "Rent Notice") on a date mutually
agreed upon, but in no event later than one hundred twenty (120) days
prior to the Expiration Date and, if no date is mutually agreed upon,
then on the one hundred twentieth 9120th) day prior to the Expiration
date, which Rent Notice shall set forth each of their respective
determinations of the Fair Market Rent (Owner's determination of the
Fair Market Rent is referred to as "Owner's Determination" and
Tenant's determination of the Fair Market Rent is referred to as
"Tenant's Determination"). If Owner shall fail or refuse to give such
Rent Notice as aforesaid, Owner's Determination shall be deemed to be
equal to the Fixed Annual Rent then payable by Tenant on the
Expiration Date, and if Tenant shall fail or refuse to give such Rent
Notice as aforesaid, Tenant's Determination shall be deemed to be
equal to the Fixed Annual Rent then payable by Tenant on the
Expiration Date. If neither Owner nor Tenant shall deliver a Rent
Notice as aforesaid, the Fair Market Rent shall be deemed to be equal
to the Fixed Annual Rent then payable by Tenant on the Expiration
Date.
(ii) If Owner's Determination and Xxxxxx's Determination are not
equal and Xxxxxx's Determination is lower than Owner's Determination,
and either Determination exceeds an amount equal to the Fixed Annual
Rent then payable by Tenant on the Expiration Date, Owner and Tenant
shall attempt to agree upon the Fair Market Rent. If Tenant's
Determination is higher than Owner's Determination, the Fixed Annual
Rent for the applicable Renewal Term shall be equal to Owner's
Determination. If Owner and Tenant shall mutually agree upon the
determination (the "Mutual Determination") of the Fair Market Rent,
their determination shall be the Fixed Annual Rent for the Renewal
Term, and shall be final and binding upon the parties. If Owner and
Tenant shall be unable to reach a Mutual Determination within ten (10)
days after delivery of both Determinations to each party, Owner and
Tenant shall jointly select an independent real estate appraiser (the
"Appraiser") whose fee shall be borne equally by Owner and Tenant. In
the event that Owner and Tenant shall be unable to jointly agree on
the designation of the Appraiser within five (5) days after they are
requested to do so by either party, then the parties agree to allow
the American Arbitration Association, or any successor organization to
designate the Appraiser in accordance with the rules, regulations
and/or procedures then obtaining of the American Arbitration
Association or any successor organization.
(iii) The Appraiser shall conduct such heatings and
investigations as he may deem appropriate and shall, within thirty
(30) days after the date of designation of the Appraiser, choose
either Owner's or Tenant's Determination and such choice by the
Appraiser shall be conclusive and binding upon Owner and Tenant. Each
party shall pay its own counsel fees and expenses, if any, in
connection with any arbitration under this Article 62. The Appraiser
appointed pursuant to this Article 62 shall be an independent real
estate appraiser with at least ten (10) years experience in leasing
and valuation of properties which are similar in character to the
Building, and a member of the American Institute of Appraisers of the
National Association of Real Estate Boards and a member of the Society
of Real Estate Appraisers. The Appraiser shall not have the power to
add to, modify or change any of the provisions of this Lease.
(iv) It is expressly understood that in connection with any
determination of the Fair Market Rent pursuant to this Article 62, the
following criteria shall be considered, among other things, in the
determination:
-15-
RIDER ANNEXED TO AND FORMING PART OF LEASE DATED______, 1999, BETWEEN
STANDARD MOTOR PRODUCTS, INC., AS OWNER, AND COMMUNITY NETWORKS, INC., AS
TENANT, COVERING A PORTION OF THE SECOND FLOOR IN THE BUILDING AT 00-00
XXXXXXXX XXXXXXXXX, XXXX XXXXXX XXXX, XXX XXXX
(A) the fact that the Base Tax Year provided herein
shall not change for the purpose of calculating the Tax
Payment payable pursuant to this Lease;
(B) the fact that Tenant shall have no further right to
renew this Lease except as set forth herein;
(C) the fact that Owner shall not obligated to perform
any work in the Demised Premises to prepare the same for
Xxxxxx's occupancy;
(D) the fact that Tenant shall not be entitled to any
free rent or other similar credit against the Fixed Annual
Rent; and
(E) whether or not Owner is or is not obligated to pay
a brokerage commission with respect to the applicable
Renewal Term.
After a determination has been made of the Rental Value for the
applicable Renewal Term, the parties shall execute and deliver to
each other an instrument setting forth the Fixed Annual Rent for
the applicable Renewal Term as hereinabove determined.
63. Owner's Interests.
-----------------
Owner represents and warrants to Tenant that as of the date
hereof, (i) Owner is authorized to execute this Lease, (ii) no consent of
any third party (other than any governmental authority, as applicable) is
required in connection with any of Tenant's rights under this Lease,
including, without limitation, Tenant's right to make alterations, install
and maintain signage, assign this Lease or sublet the Demised Premises, and
(iii) fee title to the Building of which the demised premises forms a part
is held by the New York City Industrial Development Authority (the "XXX")
pursuant to a financing arrangement with the XXX, upon repayment of certain
moneys borrowed by Owner from the XXX, title will revert back to Owner.
Owner agrees to hold Tenant harmless and indemnify Tenant for any loss,
costs or expenses incurred by Tenant as a result of the failure of such
representation and warranty to be true.
64. Subordination.
-------------
This Lease is subject and subordinate to that certain mortgage
between the New York City Industrial Development Agency and the United
States Trust Company of New York. Owner's right and privilege to
subordinate this Lease is conditioned upon Owner procuring from any such
mortgagee a written agreement (hereinafter referred to as a "Non-
Disturbance Agreement"), which shall be delivered to Tenant, providing in
substance that (i) so long as Tenant substantially performs the obligations
imposed upon tenant hereunder with the applicable notice or cure period,
its tenancy will not be disturbed, nor its rights under this Lease affected
by, any default under such mortgage nor shall tenant be named as a
defendant in any foreclosure proceeding, (ii) any such mortgagee or
purchaser of Owner's interest through foreclosure sale or deed in lieu
thereof shall permit any insurance proceeds or condemnation award to be
used as provided under applicable sections hereof and in the event of any
foreclosure under any such mortgage or deed of trust, or a granting of a
deed in lieu thereof, shall otherwise assume the obligations of Owner under
this Lease and (iii) that the Non-Disturbance Agreement shall be binding
upon and inure to the benefit of the successors or assigns of the parties
thereto. Owner shall use Owner's best efforts to obtain a Non-Disturbance
Agreement from the current mortgagees, if any.
65. It is expressly agreed and understood that neither Owner nor
Tenant shall be liable or responsible to the other for any consequential
damages, including but not limited to, loss of business which Tenant or
Owner may sustain or incur as a result of an interruption of services being
supplied to the Building or any default by Owner or Tenant under the Lease.
-16-
RIDER ANNEXED TO AND FORMING PART OF LEASE DATED , 1999, BETWEEN
STANDARD MOTOR PRODUCTS, INC., AS OWNER, AND COMMUNITY NETWORKS, INC., AS
TENANT, COVERING A PORTION OF THE SECOND FLOOR IN THE BUILDING AT 00-00
XXXXXXXX XXXXXXXXX, XXXX XXXXXX XXXX, XXX XXXX
IN WITNESS WHEREOF, Owner and Xxxxxx have respectively executed this
Lease as of the day and year first above written.
STANDARD MOTOR PRODUCTS, INC.,
as Owner
By:/s/ Xxxxx Xxxxxx
----------------------------
Name: XXXXX XXXXXX
Title: TREASURER
COMMUNITY NETWORKS, INC., as Tenant
By:/s/ Xxxxx X. Xxxxxxx
----------------------------
Name: XXXXX X. XXXXXXX
Title: VP HR & XXXXX
-17-
RIDER ANNEXED TO AND FORMING PART OF LEASE DATED , 1999, BETWEEN
STANDARD MOTOR PRODUCTS, INC., AS OWNER, AND COMMUNITY NETWORKS, INC., AS
TENANT, COVERING A PORTION OF THE SECOND FLOOR IN THE BUILDING AT 00-00
XXXXXXXX XXXXXXXXX, XXXX XXXXXX XXXX, XXX XXXX
SCHEDULE B
Owner's Work/Base Building
. Provide tie-ins to the Building fire and life safety systems
. Provide main sprinkler loop outside the demised premises, Tenant, at
Tenant's expense, will provide a pre-action valve system.
. Isolate HVAC system servicing demised space from other systems.
. Provide pad space for Tenant's diesel emergency generator and day tank
and access to same from rear platform.
. Provide access way for an electrical conduit from generator to
Xxxxxx's ATS switch located at the Tenant's service breaker as
designated by the Owner.
. Provide demising partitions and access ways in accordance with all
codes having jurisdiction (to be defined further subject to
architectural plans).
. Provide all interior demo (Tenant to provide a Demolition Plan).
. Provide the right and access to install horizontal and vertical
conduit for fiber optics, subject to Owner's approval, which shall not
be unreasonably withheld.
. Provide one ADA compliant lavatory.
. Deliver premises in broom cleaning condition.
-18-
EXHIBIT A
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[GRAPHIC]
FLOOR PLAN
[GRAPHIC]
CERTIFICATE OF OCCUPANCY
[GRAPHIC]
FLOOR PLAN
[GRAPHIC]
FLOOR PLAN
[GRAPHIC]
FLOOR PLAN
