Document is copied.
EXHIBIT 10.9
LEASE
INTERNATIONAL BUSINESS MACHINES CORPORATION, Landlord
AND
FED CORPORATION, Tenant
TABLE OF CONTENTS
Title Page
PREMISES..................................................................... 3
USE OF PREMISES.............................................................. 3
USE OF COMMON AREAS.......................................................... 4
TERM, EXTENSION AND BUILD OUT................................................ 5
RENT......................................................................... 7
SERVICES AND UTILITIES....................................................... 8
ASSIGNMENT, SUBLETTING & RECAPTURE........................................... 9
ALTERATIONS.................................................................. 9
SIGNS........................................................................11
CARE OF PREMISES.............................................................12
NOTICE.......................................................................12
LANDLORD'S TITLE.............................................................13
CERTAIN RIGHTS RESERVED TO LANDLORD..........................................13
DEFAULT UNDER OTHER LEASES...................................................14
WAIVER OF CLAIMS.............................................................15
HOLDING OVER.................................................................15
RULES........................................................................16
SUBORDINATION................................................................16
DEFAULT......................................................................17
MECHANICS' LIENS.............................................................20
EMINENT DOMAIN...............................................................21
CASUALTY.....................................................................21
INSURANCE....................................................................22
CONDITION OF PREMISES........................................................23
INDEMNITY....................................................................23
QUIET ENJOYMENT..............................................................24
PARKING......................................................................24
ENVIRONMENTAL MATTERS........................................................25
LIMITATION ON LIABILITY......................................................30
ESTOPPEL CERTIFICATE.........................................................31
ACCESS TO THE PREMISES.......................................................31
MISCELLANEOUS................................................................32
IBM-ESDC SALE-LEASEBACK......................................................32
Rider A - IBM Rules (As of February 17, 1997)
Rider B - List of Recognized Holidays
Rider C - Services Provided by the Landlord
Rider D - Loading Dock Access/Use by Tenants Rules and Responsibilities
Exhibit A1 - FED Occupied Space, Bldg. 310
Exhibit A2 - FED Occupied Space, Bldg. 334 Second Floor
Exhibit A3 - FED Occupied Space, Bldg. 330C First Floor
Exhibit A4 - FED Occupied Space, Bldg. 320B First Floor
Exhibit B - Parking Plan
Exhibit C - Environmental Consent Order
Exhibit D - Chemical Storage, Handling, and Waste Disposal practices in FED
Corporation's Organic thin films Laboratory
Schedule A - Base Rent Computation Schedule
Schedule B - Base Rent Payment Schedule
Schedule C - Utilities/Services Pricing
Schedule D - Computed Utilities Schedule
Schedule E - Loan Amortization Schedule
LEASE
This Lease, made the 28th day of May 1999 is between INTERNATIONAL BUSINESS
MACHINES CORPORATION, a New York corporation, having its principal office at
Armonk, New York (hereinafter called the "Landlord") and FED CORPORATION, a
Delaware corporation, having its principal office at 1580 Route 52, Hopewell
Junction, New York 12533 (hereinafter called the "Tenant").
This Lease replaces and supersedes the prior lease between Landlord and
Tenant, dated December 20, 1993 and all amendments thereto which, subject to the
following sentence, are hereby deemed to be no longer in effect .
Notwithstanding the foregoing, all provisions of the prior lease between
Landlord and Tenant, originally dated December 20, 1993, as amended, expressly
stated in the prior lease to survive expiration or termination of the prior
lease, shall remain in full force and effect.
PARAGRAPH 1. PREMISES.
The Landlord hereby leases to the Tenant, and the Tenant hereby hires and
takes from the Landlord, from the Commencement Date (as that term is defined in
Paragraph 4(a)), and for the duration of the Term (as that term is defined in
Paragraph 4(a)), those premises outlined and described in EXHIBITS A1 through A4
hereto (hereinafter called the "Premises"). The Premises shall be located in
portions of buildings numbered 310, 334, 330C and 320B at 1580 Route 52,
Hopewell Junction, New York 12533 (hereinafter collectively and individually
called the "Building"). The land and all improvements (including the Building of
which the Premises form a part) located at Hudson Valley Research Park, 1580
Route 52, Hopewell Junction, New York 12533 are hereinafter called the "Site."
PARAGRAPH 2. USE OF PREMISES.
(a) Permitted Uses.
Subject to subparagraph (b) below, the Tenant may use and occupy (1) that
part of the Premises described as Office Space in EXHIBIT A1, EXHIBIT A2, and
EXHIBIT A3 (hereinafter referred to as "office space") solely for office
purposes, such as administrative and executive activities and break area, and
for no other purpose; (2) that part of the Premises described as Storage Space
in EXHIBIT A1, EXHIBIT A3, and EXHIBIT A4 for storage of process and development
tools and equipment and for no other purpose; (3) that part of the Premises
described as Clean Space and Dry Lab Space in EXHIBIT A3 (hereinafter referred
to as "manufacturing space") for semiconductor-like production of flat panel
video displays, and for no other purpose. In addition to the semiconductor-like
process steps, this production involves but is not limited to display assembly
and test and the following processes: glass frit sealing, glass milling, cutting
and polishing, ceramic substrate polishing, phosphor screen coating, and organic
matter coating; and (4) that part of the Premises described as Wet Lab Space in
EXHIBIT A1 for use as a research and development Laboratory supporting the
Tenant's organic thin film processes, and for no other purpose. Except as
provided in Paragraph 29, the Tenant shall, at its sole cost, obtain all
governmental licenses and permits required by the Laws for the Tenant's
permitted uses.
(b) Restrictions on Use.
(1) The Tenant shall not use the Premises or permit the Premises to be
used in any manner which (i) violates any current or future Laws (defined
in PARAGRAPH 10), including any certificate of occupancy, environmental
permit issued to the Tenant or issued to the Landlord and disclosed to the
Tenant, Consent Orders attached hereto, or covenants, conditions or
restrictions filed on the public record which affect the Site; (ii) causes
or is reasonably likely to cause damage to any part of the Site; (iii)
violates a requirement or condition of any insurance policy covering any
part of the Site of which the Tenant is made aware, or increases the cost
of such policy; (iv) constitutes or is reasonably likely to constitute a
nuisance, annoyance or inconvenience to other tenants or occupants on the
Site or interferes with the use and occupancy of any part of the Site by
other tenants or occupants; (v) impairs or is reasonably likely to impair
the maintenance, operation or repair of any part of the equipment,
facilities or systems located on the Site; (iv) interferes with, or is
reasonably likely to interfere with, the transmission or reception of
microwave, television, radio, telephone or other communication signals by
antennae or other facilities located on, in and about the Site; or (vii)
violates the Rules and Regulations described in Rider A (the "IBM Rules")
or such other rules, regulations and procedures promulgated by the Landlord
pursuant to PARAGRAPH 17.
(2) The Tenant shall not use or permit the use of the Premises for
governmental or quasi-governmental functions (such as a private corporation
which is funded primarily by a government agency); any type of political
organization or function; any manner of political activity (including
activity which generates political or social debate or issues); retail
banking; food services (except vending machine operations), or for a
medical or dental practice.
(3) Chemical use and storage in Wet Lab Space shall be restricted to
the chemicals and the not-to-exceed quantities specified in EXHIBIT D.
PARAGRAPH 3. USE OF COMMON AREAS.
(a) Except as provided elsewhere in this Lease and subject to compliance
with the IBM Rules, the Landlord hereby grants to the Tenant a nonexclusive
license to use, and to permit its directors, contractors, agents and employees
(hereinafter collectively called "Tenant's Agents") to use in the course of
conducting business at the Premises the following (herein called the "Common
Areas"):
(1) any and all elevators, common stairways, lobbies, common hallways,
rest rooms, the cafeteria and other portions of the Building which, by
their nature, are manifestly designed and intended for common use by the
occupants of the Building, and for pedestrian ingress to and egress from
the Premises and for any other such manifest purposes, and
(2) any and all parts of the Site which, by their nature, are
manifestly designed and intended for common use by the occupants of the
Building for pedestrian and vehicular ingress to and egress from the
Premises.
(b) Notwithstanding the provisions of Paragraph 3(a), neither the Tenant
nor the Tenant's Agents shall be entitled to the use of or access to any part of
buildings 303, 304, 309, 312, 315, 316, 323, 325, 327, 328, 329, 330F, 331, 335,
338, 343, 385, 386, 630, 640, 650, 650A, and 690 without the prior written
permission of the Landlord.
(c) In the Landlord's sole discretion, the Landlord may change, improve,
rearrange and otherwise modify the Common Areas both within and without the
Building and on all parts of the Site and use the Common Areas for other
purposes, and nothing herein contained shall be deemed to grant to the Tenant
any right of approval thereof; provided, that no such changes will interfere
unreasonably with the Tenant's use of or ingress to or egress from the Premises.
(d) The license to use the Common Areas shall be exercised in common with
the exercise thereof by the Landlord and any others occupying the Building and
other buildings on the Site, and any other Person (defined in PARAGRAPH 33(m))
who may now or hereafter have any right to use any or all of the areas which are
the subject of such license, and their respective officers, directors,
contractors, employees and invitees.
PARAGRAPH 4. TERM, EXTENSION, AND BUILD-OUT.
(a) The term of this Lease (herein called the "Term") shall be for a period
of five (5) years, to commence on June 1, 1999 (the "Commencement Date"), unless
sooner terminated as hereinafter provided.
(b) Commencement Date. As of the Commencement Date, the Landlord and Tenant
agree that the Tenant is in possession of the premises, except for the B/310
Organic Thin Films Laboratory space. The Landlord shall deliver possession of
the new B/310 Organic Thin Films Laboratory portion of the Premises to the
Tenant on or before August 1, 1999 in the Substantially Completed condition
hereinafter described in subparagraph (f).
(c) Extension Option.
(1) The Tenant is hereby granted the option to extend the Term for all
of the Premises except for any and all portions of the Premises in IBM
Building 310 for one period of one year subject to and upon the provisions
set forth in this subparagraph and subject to a Rent to be determined by
the Landlord in its sole discretion..
(2) This extension shall commence at the expiration of the Term.
(3) The Tenant shall exercise this option by notice to the Landlord
not later than six (6) months prior to the expiration of the Term.
(4) This extension shall be upon all of the provisions of this Lease.
The Premises shall be accepted by the Tenant "as is" and in its existing
condition at the time the extension commences, and the Landlord shall not
be obligated to make any leasehold improvements or contribute funds
therefore.
(5) The Tenant shall not assign its rights under this subparagraph,
except in connection with an assignment of this Lease permitted by
paragraph 7 of this Lease.
(6) If the Tenant fails duly and timely to exercise its option to
extend the Term, the option shall thereupon automatically terminate and
expire.
(7) If at the time the Tenant exercises its option to extend the Term
or at anytime thereafter until commencement of the extension period, the
Tenant shall be in default as set forth in paragraphs 14 and 19 of this
Lease in the performance of its obligations under this Lease, the Tenant's
exercise of the extension option hereunder shall become void and
unenforceable.
(d) Build-out. The Landlord shall build the new B/310 Organic Thin Films
Laboratory portion of the Premises described in EXHIBIT A1 to the Tenant's
requirements provided that the Landlord, in its sole discretion, determines that
the Tenant's requirements do not decrease the value of the Premises or
determines that such build-out is not in the best interest of the Landlord. The
total cost of the build-out shall be paid by the Tenant as part of the Base Rent
amortized over the term of this lease as per Schedule B. Notwithstanding
anything in this Lease to the contrary, the full amount of the unpaid balance of
the build-out cost shall become immediately due and payable in full upon any
early termination or expiration of this Lease. A schedule of such amounts is
provided in Schedule E. The forgoing is not intended to limit other rights and
remedies of IBM.
(e) Delay. If the Landlord is unable to deliver possession of the new B/310
Organic Thin Films Laboratory portion of the Premises described by Exhibit A1
Substantially Completed, on or before August 1, 1999, for any reason or cause,
this Lease shall not end and all provisions of this Lease shall continue in
effect except that rent shall abate for the period that possession by the Tenant
is delayed, until the new B/310 Organic Thin Films Laboratory portion of the
Premises are Substantially Completed, provided that abatement shall occur only
if the Landlord's inability to deliver possession did not result from
interference by the Tenant.
(f) Substantially Completed. The words "Substantially Completed" shall mean
the occurrence of all of the following: (1) construction by the Landlord of the
Premises such that the remaining work to be done to render the Premises fully
completed adjustments or decoration which will not interfere with the Tenant's
use and enjoyment of the Premises; (2) the utility services have been installed
and are operational for use by the Tenant; and (3) all means of ingress and
egress, parking granted to the Tenant and loading areas authorized for use by
the Tenant, are available for use by the Tenant. The Tenant's taking total or
partial occupancy of the Premises or the Landlord's having Substantially
Completed the Premises, shall not relieve the Landlord of its obligation to
proceed diligently to complete those items listed in this section. With the sole
exception of the new B/310 Organic Thin Films Laboratory space, the Tenant
agrees that as of the date this Lease is signed by the Tenant, the Landlord has
fulfilled any and all of the Landlord's obligations with respect to the
construction and maintenance of the Premises.
(g) Prior to the Commencement Date, the Tenant agrees to vacate completely
the Storage space located at Column S-30 in Bldg. 330C and to deliver possession
of the space to the Landlord in good condition, reasonable wear and tear
excepted. Tenant at its expense, shall remove all of its personal property from
the Storage space at Column s-30 in Bldg. 330C prior to the Commencement Date
PARAGRAPH 5. RENT.
(a) Base Rent and Additional Rent.
(1) The Tenant shall pay the annual rent (the "Base Rent") for the
entire Premises in monthly installments in advance, on the first day of
every calendar month during the Term, pursuant to Schedules A and B hereto.
The Tenant shall pay additional rent, as described hereafter, when
invoiced.
(2) From the Commencement Date until the end of the Term, Base Rent
shall include those services described in Rider C (except as otherwise
provided in Rider C) and in Paragraph 6 hereto.
(3) The Tenant shall pay as additional rent the price for utilities or
services listed in Schedule C consumed on that portion of the Premises
described as other than office space in EXHIBITS A1 and A3. The Schedule C
utilities and services provided to the Tenant on the Commencement Date
include, but are not limited to: Electricity, Domestic Water, De-Ionized
Water, Chilled Water, Low Temperature Chilled Water, High Temperature Hot
Water, Compressed Air, Bulk Gases and Industrial, and Fluoride Waste
Drainage and Treatment and within Bldg. 310 Organic Thin Films Laboratory
Solvent Drainage and Treatment. The amount of additional rent, where
applicable, for utilities will be based upon meter readings and will be
billed monthly. The amount of additional rent for utilities where meters
are not applicable, will be billed monthly pursuant to Schedule D. The
Tenant shall promptly notify the Landlord of changes (increase/decrease) in
utility use where meters are not used. Once each calendar year of the Term,
the prices listed in Schedule C are subject to change upon written notice
from the Landlord to the Tenant.
(b) Payment of Rent. The Tenant will pay the rent, including Base Rent and
additional rent as hereinafter described, without deduction, set off or demand,
to Scribcor Inc., as agent for IBM Lease Administration, P.O. Box 809224,
Chicago, Illinois 60680, or to such other Person (defined in PARAGRAPH 33(m)) or
at such other place as the Landlord may designate in writing. The words Base
Rent and additional rent are sometimes together called the "rent." Checks for
the payment of rent shall be made payable to "International Business Machines
Corporation." No payment by the Tenant or receipt by the Landlord of a lesser
amount than the correct amount of rent due hereunder shall be deemed to be other
than a payment on account; nor shall any endorsement or statement on any check
or any letter accompanying any check or payment be deemed to effect or evidence
an accord and satisfaction. The Landlord may accept such check or payment
without prejudice to the Landlord's right to recover the balance or pursue any
other remedy provided in this Lease or at law or in equity.
PARAGRAPH 6. SERVICES AND UTILITIES.
(a) The Landlord shall furnish the Tenant with the following services and
utilities in the Premises, subject to the provisions of PARAGRAPH 5.
(1) JANITOR SERVICE, except in storage space, in and about the
Premises, each day except on Saturdays, Sundays and holidays (the
"Holidays") listed in Rider B hereto. As to the Office Space, the Landlord
will provide weekly trash removal and monthly general cleaning. As to the
other areas of the Premises (except Storage Space), the Landlord will
provide daily trash removal. The Tenant shall not provide any additional or
alternative janitor service without the Landlord's written consent. If the
Landlord consents, such janitor service shall be at the Tenant's sole cost
and responsibility and the Tenant shall pay the Landlord a reasonable fee
to coordinate these multiple janitorial services. The Tenant shall not
provide any janitor service in the Premises except through a Person
satisfactory to the Landlord; provided, that if the Landlord determines
that such Person will cause labor disharmony on the Site, rejection of that
Person shall not be subject to challenge by the Tenant.
(2) HEAT AND AIR CONDITIONING whenever heat or air conditioning shall,
in the Landlord's sole judgment, be required for the comfortable occupation
of the Premises. Whenever heat generating machines or equipment or lighting
fixtures are used in the Premises and affect the temperature otherwise
maintained by the Building air conditioning system, the Landlord may
install supplementary air conditioning units in or for the benefit of the
Premises, and the cost of installation, operation and maintenance thereof
shall be paid by the Tenant as additional rent to the Landlord.
(3) WATER for drinking, lavatory and toilet purposes.
(4) ELECTRICITY for uses within the Office Space and Storage Space,
provided that (i) the connected electrical load of the use does not exceed
an average of three watts per square foot of that portion of the Premises;
(ii) the electricity so furnished for such use will be at nominal 120 volt
single phase and that no electrical circuit for the supply of such use will
have a current capacity exceeding 15 amperes and (iii) such electricity
will be used only for equipment and accessories normal to office usage.
(b) No Warranties. The Landlord does not warrant that any of the services
or utilities listed above, in Rider C, in Schedule C, in Paragraph 5, or
elsewhere will be free of or from interruption. ALL IMPLIED WARRANTIES,
INCLUDING MERCHANTABILITY AND FITNESS OR USE FOR A PARTICULAR PURPOSE, ARE
HEREBY DISCLAIMED. Any interruption of service or utilities shall never be
deemed an eviction or disturbance of the Tenant's use and possession of the
Premises or any part thereof, or render the Landlord liable to the Tenant for
damages, or relieve the Tenant from performance of the Tenant's obligations
under this Lease.
(c) Conservation. Notwithstanding anything to the contrary set forth in
this PARAGRAPH or elsewhere in this Lease, the Landlord shall have the right to
institute policies, programs and measures as may be necessary or desirable, in
the Landlord's reasonable judgment, for the conservation and/or preservation of
energy or energy-related services, or as may be required to comply with any
applicable Laws, whether mandatory or voluntary.
PARAGRAPH 7. ASSIGNMENT, SUBLETTING & RECAPTURE.
The Tenant shall not, whether voluntarily or by operation of the Laws,
assign, encumber or otherwise transfer this Lease or any interest herein, or
sublet the Premises or any part thereof, or permit the Premises to be occupied
by anyone other than the Tenant or the Tenant's Agents (defined in PARAGRAPH
3(a)). An assignment shall include any transfer of any interest in this Lease or
the Premises by the Tenant pursuant to a merger, division, consolidation or
liquidation, or pursuant to change in ownership of the Tenant involving a
transfer of voting control in the Tenant (whether by transfer of partnership
interests, corporate stock or otherwise), or any pledge of any interest in this
Lease as collateral for a loan. Any assignment in violation of the foregoing
prohibitions shall be void.
PARAGRAPH 8. ALTERATIONS.
(a) If the Tenant requests that the Landlord make alterations in or
additions to the Premises, and the Landlord agrees, such work will be performed
under separate written contract to be negotiated between the Landlord and
Tenant. The Tenant shall not make or permit anyone to make any alterations in or
additions to the Premises (hereinafter collectively called "Improvements") or
install any equipment of any kind which will require any Improvements to the
Premises, or which require the use of the Building Service Systems (defined
below), without the Landlord's advance written consent in each instance. The
Landlord may consent to the Tenant's request to make improvements after the
Tenant furnishes the Landlord with plans and specifications therefor, names and
addresses of contractors who will perform the work, and indemnification of the
Landlord against claims, costs, damages, liabilities and expenses, each in form
and amount satisfactory to the Landlord. The Landlord agrees to provide prompt
review of Tenant's alteration request, 60 days or less depending on the
complexity of the project, and will call for a project review meeting if any
problems surface during the course of this review that require further input or
discussion from the Tenant. The Landlord will not unreasonably delay the
commencement of a Landlord-approved alteration project as long as the Tenant has
complied with the requirements set forth in paragraph 8(a). All Improvements
shall be installed in a good and workmanlike manner and only new, high grade
materials shall be used. Whether the Tenant furnishes the Landlord the foregoing
or not, the Tenant hereby agrees to indemnify, defend and hold the Landlord
harmless from and defend it against any and all claims, actions, damages,
liabilities and expenses of every kind and description which may arise out of or
be connected in anyway with the Improvements or the installation thereof. Before
commencing any work in the Premises or delivering any materials into the
Building, the Tenant shall furnish the Landlord with a certificate of insurance
from all contractors performing labor or furnishing materials, insuring the
Landlord against all claims, costs, damages, liabilities and expenses which may
arise out of or be connected in anyway with the Improvements or the installation
thereof. The Tenant shall promptly furnish information regarding increase in the
use of utilities, environmental services, and other services by the Tenant which
the parties agree will be the basis for additional rent to be charged to the
Tenant pursuant to this Lease. The Tenant shall ensure all work performed is in
full compliance with the most current version of the "199X Contractor Guide", as
referenced in Rider A. The words "Building Service Systems" mean the electrical,
HVAC, mechanical, plumbing (including all environmental systems), safety and
health and telecommunication (voice/data/signal) systems that service the
Building up to the point of localized distribution to the Premises. Such systems
provide the main source of supply and distribution throughout the Building. The
word "Structure" shall mean bearing walls, roof, exterior walls, support beams,
foundation, window frames, floor slabs and support columns of the Building.
(b) The Tenant shall pay the cost of all Improvements and installation
thereof and also the cost of redecorating the Premises occasioned by them. All
Improvements shall comply with all insurance requirements known to the Tenant,
and with all Laws applicable to the work and to the Tenant.
(c) Upon completing any Improvements, the Tenant shall promptly furnish the
Landlord with contractors' affidavits and full and final waivers of lien.
(d) The privilege herein granted to the Tenant to make Improvements to the
Premises is conditioned upon the Tenant's contractors, workmen, employees
working in harmony and not interfering with the workmen, employees and
contractors of the Landlord or of any other tenant. All hardware and non-trade
fixtures and all Improvements, temporary or permanent, in or upon the Premises,
whether placed there by the Landlord or the Tenant shall, unless the Landlord
requests their removal in accordance with subparagraph (e) below, become the
Landlord's property and shall remain upon the Premises at the end of the Term,
however ended, without compensation, allowance or credit to the Tenant.
(e) The Landlord may require the Tenant to remove some or all of the
Improvements (including equipment required by Improvements as aforesaid in
subparagraph (a)), hardware and non-trade fixtures at the end of the Term,
however ended, whether installed by or on behalf of the Tenant before or after
the start of the Term. The Tenant shall remove the same within thirty (30) days
after the end of the Term and the Tenant shall repair all damage to the Premises
caused thereby; except that the Tenant shall not be required to remove pipes and
wires concealed in the floors, walls, or ceiling, provided that the Tenant
properly cuts and caps the same and seals them off in a safe, lawful, and
workmanlike manner. If, after the Landlord's request, the Tenant does not remove
items it is required hereunder to remove within thirty (30) days after the end
of the Term, however ended, the Landlord may remove the same and repair all
damages caused thereby, and the Tenant shall pay to the Landlord upon demand the
cost of such removal and repair of all damage.
(f) The Tenant shall remove the Tenant's Personal Property from the
Premises at the end of the Term, however ended. If not so removed within thirty
(30) days after the end of the Term, however ended, the Landlord may do so and
the Tenant shall pay the Landlord upon demand the cost of such removal and
repair of all damage. All such items not removed by the Tenant as required above
shall become the Landlord's property without compensation, allowance or credit
by the Landlord to the Tenant.
(g) Subparagraph (e), this subparagraph (g), and the indemnification
provisions contained in this Paragraph 8 shall survive the end of the Term,
however ended.
PARAGRAPH 9. SIGNS.
At its expense, the Tenant may place its signs within the Premises without
the Landlord's consent, provided the signs (a) comply with the Law; (b) cannot
be seen from outside of the Premises; and (c) do not affect the Building Systems
or Structure, health and safety of occupants in the Building or the environment.
With the Landlord's consent as to size, color, manner and style, the Tenant may,
at its expense, place signs on the entrance doors to the Premises which comply
with the Law. At the Tenant's expense, the Landlord shall place directional
signs in the hallways leading to the Premises. Except for the foregoing, the
Tenant shall not permit or suffer any signs, logos, symbols, advertisements or
notices to be displayed, inscribed upon or affixed on any part of the outside or
inside of the Premises, or in any other part of the Building, or on the Site.
PARAGRAPH 10. CARE OF PREMISES.
(a) At the expiration or earlier termination of this Lease, for whatever
reason, the Tenant shall return the Premises to the Landlord in the condition
required by the provisions of this Lease. During the Term, the Tenant will take
good care of the Premises and the Building fixtures and appurtenances located
within the Premises, and all Improvements (defined in PARAGRAPH 8(a)) to the
Premises; will maintain the Premises and make all repairs thereto, including
repair of all damage resulting from the negligence or willful misconduct of the
Tenant or Tenant's Agents (defined in PARAGRAPH 3(a)); will suffer no waste or
injury; will execute and comply with all federal, state and local laws, rules,
orders, statutes, directives, ordinances and regulations (collectively herein
called the "Laws"), at any time issued or enforced by any lawful authority, as
well as the IBM Rules, which in each case are applicable to the Tenant's use,
manner of use or occupancy of the Premises; and will repair, at or before the
end of the term all injury done by the installation or removal of Tenant's
Personal Property and the Improvements.
(b) At any time, whether voluntarily or pursuant to governmental
requirements, the Landlord may, and, where required by this Lease, shall, at its
cost, make repairs and improvements in or to the Building and the Site, or any
part thereof; provided, that (i) the Landlord shall give the Tenant reasonable
notice of any intention to enter the Premises (unless doing so is impractical or
unreasonable because of an emergency), and (ii) any such repair and improvement
does not interfere unreasonably with the Tenant's use of or ingress to or egress
from the Premises. Upon prior notice to the Tenant, the Landlord may close
entrances, doors, corridors, elevators or other facilities, provided that any
such action shall not materially interfere with the Tenant's operations within
the Premises or the Tenant's ingress to or egress from the Premises. Provided
the Landlord has given prior notice (unless impracticable or unreasonable
because of an emergency), the Landlord shall not be liable to the Tenant for any
expense, injury, loss or damage resulting from work done in or upon, or the use
of, any adjacent or nearby building, land, street or alley, except to the extent
caused by the gross negligence or willful misconduct of the Landlord or the
Landlord's directors, employees, agents or contractors (hereinafter collectively
called "Landlord's Agents"), and in no event shall rent or other monetary
obligations hereunder of the Tenant be suspended, reduced, abated or otherwise
affected.
PARAGRAPH 11. NOTICE.
Any notice, request, communication or demand under this Lease shall be in
writing and shall be considered properly delivered when addressed as hereinafter
provided, given or served personally or by overnight private express service
carrier, or given by registered or certified mail (return receipt requested) and
deposited in the United States general or branch post office, or by IBM Internal
Certified Mail. Any notice, request, communication or demand by the Landlord to
the Tenant shall be addressed to the Tenant at the Premises until otherwise
directed in writing by the Tenant. Any notice, request, communication or demand
by the Tenant to the Landlord shall be addressed to Mr. Roy G. Dieterle, IBM
Corporation, Hudson Valley Research Park, Building 300-44X, 1580 Route 52,
Hopewell Junction, New York 12533, with copies addressed simultaneously to the
Landlord, Office of Area Counsel, IBM Corporation, 1580 Route 52, Hopewell
Junction, New York 12533-6531, until otherwise directed in writing by the
Landlord. Rejection or other refusal to accept a notice, request, communication
or demand or the inability to deliver the same because of a changed address of
which no notice was given shall be deemed to be receipt of the notice, request,
communication or demand sent.
PARAGRAPH 12. LANDLORD'S INTEREST
The Landlord's interest in the property subject to this Lease is and always
shall be paramount to the Tenant's interest in this Lease, and nothing herein
contained shall empower the Tenant to do any act which shall encumber the
Landlord's interest in the property subject to this Lease,
PARAGRAPH 13. CERTAIN RIGHTS RESERVED TO LANDLORD.
(a) The Landlord reserves the following rights to be exercised in the
Landlord's sole discretion:
(1) To change the name of street address of the Site or Building
without liability of the Landlord to the Tenant. The Landlord shall provide
the Tenant with reasonable advance notice of such change.
(2) To install and maintain a sign or signs on the exterior of the
Building or other areas of the Site.
(3) To grant to anyone the exclusive right to conduct any particular
business or undertaking in the Building or on any part of the Site.
(4) To take any and all measures, including audits, inspections,
charges, alterations, repairs and improvements of and to the Premises or
elsewhere in the Building or on the Site, as may be necessary or desirable
for the safety, protection or preservation of the Premises and other parts
of the Building or the Site or the Landlord's interests therein, or as may
be necessary or desirable in the operation of the Building or the Site.
(5) To approve the weight, size and location of safes, vaults,
vertical files and other heavy equipment and articles in and about the
Premises and elsewhere in the Building so as not to exceed the legal live
load per square foot designated by the Landlord's structural engineers, and
to require all such items and furniture and similar items to be moved into
or out of the Building only at such times and in such manner as the
Landlord shall direct in writing. The Tenant shall not install or operate
machinery or any mechanical devices of a nature not directly related to the
Tenant's ordinary use of the Premises without the prior written consent of
the Landlord, which it will not unreasonably withhold or delay. Movement of
the Tenant's Personal Property and Improvements into or out of the Building
and within the Building is entirely at the Tenant's risk and
responsibility, and the Landlord reserves the right to require permits, if
required by Law, before allowing the same to be moved into or out of the
Building.
(6) To establish reasonable security controls for the purpose of
regulating all property and packages on the Site, both personal and
otherwise, to be moved into or out of the Building or on the Site, and all
Persons using the Building or the Site. The Landlord, in its sole
discretion, may exclude any of the Tenant's Agents or Vendors from the Site
or any portion thereof if the Landlord has any reason to believe that such
Tenant's Agent or Vendor poses a security risk to the Landlord, the Site,
or any occupant of the Site. In exercising the foregoing right, the
Landlord may, but shall not be required to furnish the Tenant or any other
Person with the grounds of why the Landlord has reason to believe such
Tenant's Agent or Vendor poses a security risk.
(7) To establish reasonable security controls to regulate delivery and
service of supplies and the use of the loading docks, receiving areas and
freight elevators.
(8) If prior to the end of the Term the Tenant vacates the Premises,
to decorate, remodel, repair, alter or otherwise prepare the Premises for
re-occupancy.
(9) To constantly have pass keys to the Premises, provided access
shall be upon the prior reasonable notice to the Tenant, except in the
event of an emergency. The Landlord shall not have access to secured areas
designated by the Tenant, except in an emergency.
(b) The Landlord may enter the Premises and may exercise any or all of the
foregoing rights hereby reserved without being deemed guilty of an eviction or
disturbance of the Tenant's use or possession and without being liable in any
manner to the Tenant; provided, that the Landlord gives the Tenant the notice
required elsewhere in this Lease, or if no notice period is specified, then a
reasonable notice, of any intention to enter the Premises (unless doing so is
impractical or unreasonable because of an emergency as reasonably determined by
the Landlord).
(c) Loading dock access may be granted to the Tenant via key lock or badge
lock. The terms and conditions of this privilege are specified in Rider D to
this Lease.
PARAGRAPH 14. DEFAULT UNDER OTHER LEASES.
If the term of any lease made by the Tenant for any space on the Site,
other than this Lease, shall be terminated or terminable after the making of
this Lease because of any default by the Tenant under such other lease, such
fact shall constitute a default under this Lease and shall empower the Landlord,
at the Landlord's sole option, to terminate this Lease by notice to the Tenant.
PARAGRAPH 15. WAIVER OF CLAIMS.
(a) Unless caused by the gross negligence or willful misconduct of the
Landlord or Landlord's Agents (defined in PARAGRAPH 10(b) the Tenant hereby
releases the Landlord and Landlord's Agents from and waives all claims for
injury (including death) to any Person and damage to any property sustained by
the Tenant or Tenant's Agents (defined in PARAGRAPH 3(a), resulting from the
Building or Premises or any part of either or any equipment or appurtenance
becoming out of repair, or resulting from any accident, assault or robbery on or
about the Site, or resulting directly or indirectly from any act, omission or
neglect of any other Person, including other tenants and their licensees and
invitees. This PARAGRAPH shall apply especially, but not exclusively, to the
flooding of the Premises, and to damage caused by refrigerators, sprinkling
devices, air conditioning apparatus, water, snow, frost, steam, excessive heat
or cold or humidity, falling plaster or ceiling components, broken glass,
blocked drains, failed pumps, failed electrical systems, sewage, gas, odors or
noises, or the bursting or leaking of pipes or plumbing fixtures, or the failure
or interruption of any building or utility system, and shall apply whether any
such damage results from the act, omission or neglect or of any Person, other
than the Landlord or Landlord's Agent's willful misconduct, including other
tenants and their licensees and invitees, and whether such damage be caused by
or results from any thing or circumstance above mentioned or referred to, or any
other thing or circumstance whether of a like nature or of a wholly different
nature. If any such damage, whether to the Premises or to the Building or to the
Site, or any part thereof, or whether to the Landlord or to other tenants in the
Building or Site, results from any negligence or willful misconduct of the
Tenant or Tenant's Agents, the Landlord may, in its sole discretion, repair such
damage and the Tenant shall, upon demand by the Landlord, reimburse the Landlord
forthwith for the total cost of the repairs as additional rent. Neither party
shall be liable to the other for any damages caused by a negligent act or
omission to the extent either has recovered insurance proceeds therefor and the
insurance company which has paid one party hereto has waived in writing its
rights of subrogation against the other party hereto.
(b) As a material part of the consideration to the Landlord, the Tenant
hereby assumes all risk or damage to or loss, theft or misappropriation of
property located in, upon or about the Site or in any motor vehicles owned by,
leased by, or being used by the employees of the Tenant or Tenant's Agents or
its employees and located on the Site, unless caused by the willful misconduct
of the Landlord.
PARAGRAPH 16. HOLDING OVER.
(a) If the Tenant remains in possession of the Premises or any part thereof
after the end of the Term, however ended, the Tenant shall pay the Landlord a
rental at double the rate of the Base Rent and additional rent specified in this
Lease for the entire Premises for the time the Tenant remains in possession of
any part of the Premises, and in addition thereto, shall pay the Landlord for
all damages, whether consequential, special, incidental or otherwise, sustained
by reason of the Tenant's retention of possession. The provisions of this
PARAGRAPH do not waive the Landlord's rights of reentry or any other rights
hereunder or which are available at law or in equity.
(b) The word "possession" shall include continued occupancy of Persons or
of items that the Tenant is required by PARAGRAPH 8 to remove but which continue
to remain in the Premises beyond the end of the Term by more than five (5) days.
PARAGRAPH 17. RULES.
The Tenant shall observe faithfully and comply strictly with the IBM Rules,
modifications thereto, and such other rules, regulations and procedures
promulgated from time to time by the Landlord, which in the Landlord's judgment
reasonably exercised, are necessary for the safety, security, care or
cleanliness of the Building and Site or for the preservation of good order
therein. The Landlord will not be liable to the Tenant for violation of such
rules, regulations or procedures by any other tenant or occupant or their
respective employees, agents, invitees, licensees, or contractors.
PARAGRAPH 18. SUBORDINATION.
(a) This Lease shall be subordinate and subject at all times to all ground
or underlying leases and to any mortgage or deed of trust covering the Site, the
Building, other buildings on the Site, or which at any time hereafter shall be
made, and to all renewals, modifications, consolidations, or replacements
thereof, and to all advances made, or hereafter to be made, upon the security of
any such mortgage or deed of trust. The Tenant shall execute instruments
subordinating this Lease to any such lease, mortgage or deed or trust as the
Landlord shall request, failing which the Tenant shall be in default hereunder
and, without limiting other remedies available to the Landlord hereunder, the
Landlord may act as the Tenant's attorney-in-fact for such purposes.
(b) If the Landlord commits any act or omission which would give the Tenant
the right under this Lease to damages from the Landlord or the right to
terminate this Lease, the Tenant agrees that it will not sue for such damages or
terminate this Lease until (i) it shall have given written notice of the claimed
act or omission to the Landlord and to the holder of the indebtedness or other
obligations secured by any mortgage or deed of trust affecting the Premises or
of any ground or underlying lease, if the name and address of such holder have
been furnished to the Tenant, and (ii) in light both of the time required to
effect a remedy and of the impact of the act or omission on the Tenant's
business operations at the Premises, a reasonable period of time for remedying
the act or omission has elapsed following the giving of the notice. During such
time, the Landlord and such holder, or either of them, and Landlord's Agents,
will be entitled to enter upon the Premises and do whatever may be necessary to
remedy the act or omission.
PARAGRAPH 19. DEFAULT.
(a) Default By Tenant. All rights and remedies of the Landlord herein
enumerated shall be cumulative, and none shall exclude any other right or remedy
available at Law or in equity.
(1) The occurrence of any one or more of the following events shall
constitute a default by the Tenant and a breach of this Lease: (i) the
Tenant fails to make a payment of Base Rent or additional rent or any other
monetary obligation when the same shall become due and payable hereunder
and such failure shall continue for more than ten (10) days after notice by
the Landlord, or (ii) the Tenant fails to promptly and fully perform or
observe any of the other provisions in this Lease to be performed or
observed by the Tenant and the failure shall continue for more than twenty
(20) days after notice by the Landlord specifying the nature of such
failure, or if the failure so specified shall be of such a nature that the
same cannot be reasonably cured or remedied within said twenty (20) days
period, the Tenant shall not have commenced to cure or remedy the failure
in good faith within such twenty (20) day period and thereafter shall have
diligently proceeded to cure or remedy it, (unless the act or omission of
the Tenant or occurrence involves a hazardous or emergency condition which
shall be cured by the Tenant forthwith upon the Landlord's demand), or
(iii) the leasehold interest or property of the Tenant is levied upon under
execution or is attached by process of Law, or (iv) at any time prior to or
during the Term, the Tenant makes an assignment for the benefit of
creditors, or a receiver is appointed for any property of the Tenant, or
any voluntary or involuntary petition or similar pleading under any section
or sections of any bankruptcy Law shall be filed by or against the Tenant,
or any voluntary or involuntary proceeding in any court or tribunal shall
be instituted to declare the Tenant in solvent or unable to pay the
Tenant's debts, and in the case of any involuntary petition or proceeding,
the petition or proceeding is not dismissed within thirty (30) consecutive
days from the date it is filed.
(2) If the Tenant defaults hereunder, and at any time thereafter, (i)
if the Term shall not have commenced, the Landlord may cancel and terminate
this Lease effective three (3) days after receipt of notice by the Tenant,
or (ii) if the Term shall have commenced, the Landlord may serve upon the
Tenant a notice that this Lease and the Term will terminate on a date to be
specified therein, (which shall not be less than three (3) days after the
date the Landlord's notice is received), and upon the date so specified by
the Landlord in its notice, this Lease and the then unexpired Term shall
terminate and come to an end as fully and completely as if the date
specified in the Landlord' notice was the day herein definitely fixed for
the end of the Term, and the Tenant shall then quit and surrender the
Premises to the Landlord, but the Tenant shall remain liable as hereinafter
set forth; provided, however, that if the Tenant shall fail to make timely
payment of rent and such failure shall continue for two (2) consecutive
months, or if the Tenant shall default in the performance of an obligation
in this Lease on its part to be performed, including the timely payment of
rent, two (2) or more times in any period of six (6) months then, not
withstanding that each act or omission shall have been cured within the
period after the giving of notices as herein provided, any further default
in the performance of any obligation under this Lease on its part be
performed shall be deemed to be deliberate and the Landlord thereafter may
serve the aforesaid notice of termination without affording to the Tenant a
further opportunity to cure the default.
(3) Upon termination of this Lease by the Landlord as herein above
provided, the Landlord may terminate all services and reenter the Premises
either by force or otherwise, and by summary proceedings or otherwise,
dispossess the Tenant and the legal representative of the Tenant or any
other occupant of the Premises, and remove all effects therefrom without
being deemed in any manner guilty of trespass, eviction or forcible
detainer, and hold the Premises as if this Lease had not been made.
(4) If the Tenant defaults under this Lease, the Landlord shall have
the right to terminate this Lease and receive from the Tenant, in addition
to the other remedies provided in this Lease:
(i) any unpaid rent which is due and owing to the Landlord at the
time of such termination or reentry; plus
(ii) the present value of the unpaid rent which would have been
earned under this Lease after termination or re- entry minus the
amount of such rental loss (net of expenses) that the Tenant proves
could be reasonably avoided; plus
(iii) any other amount specific and documented necessary to
compensate the Landlord for all the detriment proximately caused by
the Tenant's failure to perform its obligations under this Lease or
which in the ordinary course of things would be likely to result
therefrom; and
(iv) at the Landlord's election, such other amounts in addition
to or in lieu of the foregoing as may be permitted from time to time
by applicable Law or in equity.
As used in this PARAGRAPH, "present value" shall mean the sums due and owing the
Landlord hereunder as if this Lease had not been terminated, such sums being
discounted from the date these sums were otherwise due under this Lease to the
date actually paid to the Landlord. The discount rate shall be two percent (2%)
above the prime rate published in the Wall Street Journal on the date of
termination of this Lease.
(5) Any and all property which may be removed from the Premises by the
Landlord pursuant to the authority of this Lease or by Law or in equity, to
which the Tenant has or may have an interest, may be handled, removed or
stored by the Landlord at the Tenant's risk and cost, and the Landlord
shall in no event be responsible for the value, preservation or safekeeping
thereof. The Tenant shall pay to the Landlord upon demand as additional
rent any and all expenses incurred by the Landlord to remove and store such
property so long as the same shall be in the Landlord's possession or under
the Landlord's control. Any property of the Tenant which is not removed
from the Premises or retaken from storage by the Tenant within sixty (60)
days after the end of the Term, however terminated, shall be presumed to
have been conveyed by the Tenant to the Landlord under this Lease as a bill
of sale without further compensation, allowance or credit by the Landlord
to the Tenant.
(6) The Tenant shall pay upon demand all costs and charges, including
the fees of counsel, agents and others retained by the Landlord, incurred
by the Landlord to enforce or carry out the Tenant's obligations hereunder
or incurred by the Landlord in any litigation, negotiation or transaction
in which the Tenant causes the Landlord, without the Landlord's fault, to
become involved or concerned, plus interest from the date of payment at the
rate of 1.5% percent per month.
(7) The Tenant hereby expressly waives the service of notice of
intention to reenter or to institute legal proceedings to that end and
waives any and all rights of redemption granted by or under any present or
future Laws by reason of the Tenant being evicted or dispossessed for any
cause, or by reason of the Landlord obtaining possession of the Premises
because of the Tenant's violation of any of the provisions of this Lease or
otherwise. The words "reenter," "enter" and "reentry" as used in this
Lease, are not restricted to their technical legal meaning.
(8) If the Tenant breaches or threatens breach of any of the
provisions of this Lease on its part to be performed hereunder, the
Landlord shall have the right of injunction and the right to invoke any
remedy allowed at Law or in equity as if reentry, summary proceedings and
other remedies were not herein provided for. Mention in this Lease of any
particular remedy shall not preclude the Landlord from pursuing any other
remedy available at Law or in equity.
(9) The delivery of keys to any agent or employee of the Landlord
shall not be considered as a termination of this Lease or a surrender of
the Premises.
(10) The Landlord and the Tenant hereby waive trial by jury in any
action, proceeding or counterclaim brought by either of them against the
other on any matters not relating to personal injury but otherwise arising
out of or in any way connected with this Lease, the relationship of the
Landlord and the Tenant, the Tenant's use or occupancy of the Premises, or
any statutory remedy. The Tenant further agrees that it shall not interpose
any counterclaim in summary proceeding or in any action based on nonpayment
of rent or any other payment required of the Tenant hereunder to be made to
the Landlord.
(b) Default by Landlord.
(1) The occurrence of any one or more of the following events shall
constitute a default by the Landlord and a breach of this Lease: (i) the
Landlord fails to make a payment of any monetary obligation to the Tenant
as and when the same shall become due and payable hereunder and such
failure shall continue for more than ten (10) consecutive days after notice
by the Tenant, or (ii) the Landlord fails to promptly and fully perform or
observe any of the other provisions in this Lease to be performed or
observed by the Landlord and the failure shall continue for more than
twenty (20) consecutive days after notice by the Tenant specifying the
nature of such failure, or if the failure so specified shall be of such a
nature that the same cannot be reasonably cured or remedied within said
twenty (20) day period, the Landlord shall not have commenced to cure or
remedy the failure in good faith within such twenty (20) day period and
thereafter shall have diligently proceeded to cure or remedy it, (unless
the act or omission of the Landlord or occurrence involves a hazardous or
emergency condition which shall be cured by the Landlord forthwith upon the
Tenant's demand), or (iii) at any time prior to or during the Term, the
Landlord makes an assignment for the benefit of creditors, or a receiver is
appointed for any property of the Landlord, or any voluntary or involuntary
petition or similar pleading under any section or sections of any
bankruptcy Law shall be filed by or against the Landlord, or any voluntary
or involuntary proceeding in any court or tribunal shall be instituted to
declare the Landlord insolvent or unable to pay the Landlord's debts, and
in the case of any involuntary petition or proceeding, the petition or
proceeding is not dismissed within thirty (30) consecutive days from the
date it is filed.
(2) If the Landlord defaults hereunder and at any time thereafter, (i)
if the Term shall not have commenced, the Tenant may cancel and terminate
this Lease effective three (3) days after notice to the Landlord, or (ii)
if the Term shall have commenced, the Tenant may serve upon the Landlord a
notice that this Lease and the Term will terminate on a date to be
specified therein, (which shall not be less than three (3) or more than
thirty (30) days after the date the Tenant's notice is given), and upon the
date so specified by the Tenant in its notice, this Lease and the then
unexpired Term shall terminate and come to an end as fully and completely
as if the date specified in the Tenant's notice was the day herein
definitely fixed for the end of the Term, and the Tenant shall then quit
and surrender the Premises to the Landlord, but the Tenant may pursue any
remedy at Law or in equity by reason of the Landlord's default; except that
in no event shall the Landlord be liable to the Tenant or any other Person
for any consequential, special or indirect damages and the Tenant hereby
waives and releases the Landlord from any claims therefor.
PARAGRAPH 20. MECHANICS' LIENS.
The Tenant shall not permit any mechanics' or materialmen's liens to be
filed against the Site, the Building, the Landlord, the Empire State Development
Corporation, or against the Tenant's interest in the Premises. The Landlord
shall have the right at all reasonable times to post and keep posted on the
Site, including the Building and the Premises, any notices which it deems
necessary for protection from such liens. If any mechanics' or materialmen's
liens are so filed by reason of acts or omissions of the Tenant or Tenant's
Agents, the Tenant shall remove the lien by payment, bonding or other method of
discharge within thirty (30) days after the lien is filed, failing which the
Landlord, at its election, may pay and satisfy the same. In such event, the sums
so paid by the Landlord, including expenses and reasonable attorneys' fees,
shall be due and payable by the Tenant at once as additional rent upon written
demand.
PARAGRAPH 21. EMINENT DOMAIN.
(a) If the whole or a substantial part of the Premises shall be lawfully
condemned or taken in any manner, this Lease and the Term shall forthwith cease
and terminate on the date of the taking of possession by the condemning
authority and the Landlord shall be entitled to receive the entire award granted
in the proceeding for recovery of the Landlord's fee and leasehold interests
without any payment to the Tenant, the Tenant hereby assigning to the Landlord
the Tenant's interest in the award, if any. The rent shall be apportioned as of
the date the Tenant no longer has access to the Premises by reason of such
taking. The Tenant may file a separate claim in the proceedings to recover its
losses. Notification to Tenant should occur promptly after Landlord is notified
of a condemnation, that will affect the Premises.
(b) If any part of the Building shall be so condemned or taken and if the
Landlord determines in its sole discretion that the Building should be restored
in such a way as to materially alter the Premises, or that the Building should
be demolished, the Landlord may terminate this Lease and the Term in its sole
discretion, without compensation to the Tenant, by notifying the Tenant of such
termination within sixty (60) days following the date of the taking of
possession by the condemning authority. This Lease and the Term shall expire on
the date specified in the notice of termination, which shall not be less than
sixty (60) days after the giving of such notice, as fully and completely as if
such date were the date herein before set for the expiration of the Term, and
the rent shall be apportioned as of such date. Notification to Tenant should
occur promptly after Landlord is notified of a condemnation, that will affect
the Premises.
PARAGRAPH 22. CASUALTY.
(a) If there is damage or destruction to the Premises during the Term by
fire, the elements or other casualty, the Landlord shall forthwith repair the
same, provided such repairs can be made within one hundred twenty (120) days
from the date of the damage or destruction as determined by the Landlord in its
sole discretion. The damage or destruction shall in no way annul or void this
Lease, but the Tenant shall be entitled to a proportionate reduction of rent
while such repairs are being made. Such proportionate reduction shall be based
upon the extent to which the Premises, or part thereof, is untenantable.
(b) If the Landlord determines that such repairs to the Premises cannot be
made within such one hundred twenty (120) day period, the Landlord may, at its
option to be exercised within thirty (30) days from the date of such damage or
destruction, make such repairs as soon as possible thereafter and this Lease
shall continue in full force and effect and the rent shall be proportionately
reduced as provided in subparagraph (a) above. If the Landlord does not elect to
make such repairs which cannot be made within the one hundred twenty (120) day
period, the Landlord shall notify the Tenant within such thirty (30) day period
of its intentions and, if the Landlord elects in its notice not to terminate
this Lease, this Lease may be terminated at the option of the Tenant by notice
thereof to the Landlord within thirty (30) days after receipt of the Landlord's
notice.
(c) If the Building is damaged, this Lease shall continue in full force and
effect and the Landlord shall forthwith repair such damage; except that if the
Building is damaged or destroyed and repair or replacement, as determined by the
Landlord in its sole discretion, cannot be made within one hundred twenty (120)
days from the date of such damage or destruction, the Landlord, at its option to
be exercised within sixty (60) days from the date of such damage or destruction,
may terminate this Lease. If and until this Lease is so terminated, the Tenant
shall be entitled to a proportionate reduction of rent only if the Premises are
untenantable as aforesaid and no such rent reduction shall be allowed by reason
of inconvenience, annoyance or injury to the Tenant's business because of such
damage or destruction to the Building, or the necessity of repairing any portion
of the Building, or the making of such repairs, and the Landlord shall not be
liable to the Tenant because of such inconvenience, annoyance, or injury.
PARAGRAPH 23. INTENTIONALLY LEFT BLANK
PARAGRAPH 24. INSURANCE.
(a) The Tenant shall purchase and during the Term maintain for the benefit
of the Tenant, the Landlord and the Landlord's property manager (as their
respective interests may appear) insurance coverage on terms and with companies
reasonably satisfactory to the Landlord. Initially, the Tenant shall maintain
the following coverage in the following amounts with such increases in limits as
the Landlord may from time to time reasonably request based on customary limits
required by other sophisticated landlords of commercial and industrial space in
the region.
(1) Comprehensive Public Liability Insurance, naming the Tenant, the
Landlord, the Landlord's lender (if any) and the property manager as
additional insureds, covering any liability for bodily injury, personal
injury (including death) and property damage arising out of the Tenant's
operations, its assumed liability under this Lease (including contractual
indemnities) and its use, manner of use and occupancy of the Premises, for
limits of not less than:
Personal/Bodily $1,000,000 each occurrence
Injury Liability $5,000,000 annual aggregate
Property $1,000,000 each occurrence
Damage $5,000,000 annual aggregate
(2) Property Damage Insurance covering all trade fixtures, office
equipment, merchandise and other items, including the Tenant's Personal
Property, located within the Premises. Such insurance shall be written on
an "all risk" of physical loss or damage basis, for the full replacement
cost of the covered items and in amounts that meet any coinsurance clause
of the policies of insurance.
(3) Business Interruption Insurance in such amounts as will reimburse
the Tenant for direct or indirect loss of earnings attributable to perils
insured against in this PARAGRAPH.
(b) Prior to the Commencement Date, the Tenant shall furnish the Landlord
with certificates evidencing the coverage required above. The certificates shall
state that the coverage is primary and noncontributory and may not be changed or
canceled without at least ten (10) days' prior written notice to the Landlord
and the Tenant.
(c) The Tenant shall comply with all Laws, all orders and decrees of a
court and all requirements of other governmental authorities and agencies and
political subdivision thereof applicable to the use, manner of use and occupancy
of the Premises and Common Areas, and shall not, directly or indirectly, make
any use of the Premises or Common Areas which may thereby be prohibited or be
dangerous to any Person or property, or which may jeopardize any insurance
coverage purchased by the Landlord, or may increase the cost of such insurance,
or which may require the Landlord to purchase additional insurance coverage. If
by reason of the Tenant's failure to comply with the provisions of this
PARAGRAPH, any of the Landlord's or Tenant's insurance coverage is jeopardized
or the Landlord's insurance premiums are increased specifically due to Tenant's
actions, the Landlord may (1) in its sole discretion terminate this Lease if the
Tenant fails to stop the conduct which is jeopardizing such coverage or, (2)
require the Tenant to make immediate payment as additional rent of such
increased insurance premium incurred by the Landlord, or (3) assure continued
coverage of the Landlord by all commercially reasonable means available,
including payment of premiums, in which event the Tenant shall reimburse the
Landlord for all costs incurred therefor as additional rent.
PARAGRAPH 25. CONDITION OF PREMISES.
The Tenant's taking possession of and operation in the Premises shall be
conclusive evidence against the Tenant that the Premises were in the condition
required by the provisions of this Lease when the Tenant took possession,
subject only to completion of punch list items if, and to the extent required by
this Lease. No promise of the Landlord to alter, remodel or improve the
Premises, the Building or the Site, and no representations respecting the
condition of the Premises, the Building or the Site have been made by the
Landlord to the Tenant except as specifically expressed in this Lease. At the
end of the Term by lapse of time or otherwise, the Tenant shall return the
Premises to the condition required by PARAGRAPH 8 and, in addition, in as good a
condition as when the Tenant took possession, ordinary wear and loss by fire or
other casualty required to be insured by the Landlord hereunder excepted. If the
Tenant fails to comply with such obligation, the Landlord may restore the
Premises as required by the provisions of this Lease and the Tenant shall pay
the cost thereof as additional rent and this obligation shall survive the end of
the Term.
PARAGRAPH 26. INDEMNITY.
(a) The Tenant agrees to indemnify, defend, and save harmless the Landlord
and Landlord's officers, directors, employees, agents, invitees, licenses,
subsidiaries, contractors, successors, and assigns from, any and all claims,
actions, demands and liabilities (collectively, the "Claims") and reimburse the
Landlord for all costs, expenses, fines, penalties, remedial actions, reasonable
attorneys' fees and court costs incurred by reason of a Claim, when a Claim is
made by or on behalf of any third party and arises from or is alleged to arise
from (1) the use, manner of use, or occupancy of the Premises, the Building or
the Site by the Tenant or Tenant's Agents, or from any activity, work, or thing
done, permitted or suffered by the Tenant or Tenant's Agents in or about the
Premises or the Building or on or about the Site, or from (2) any breach or
default in the performance or observance of any provision in this Lease on the
Tenant's part to be performed or observed, or from (3) any willful misconduct or
negligent act or omission of the Tenant or Tenant's Agents in or about the
Premises or the Building or on or about the Site.
(b) The Landlord hereby agrees to indemnify and save harmless the Tenant
and its officers, employees and agents from all claims, costs, damages, demands,
expenses, fines, judgments, liabilities and losses (including reasonable
attorneys' fees, expert witness fees, consultant fees, and other costs of
defense) which arise during or after the term of this Lease from or in
connection with the presence or suspected presence of Hazardous Materials in the
soil, groundwater, air or soil vapor on or under the site, provided however,
that this indemnity, defense and reimbursement obligation shall be enforceable
against the Landlord only if (i) the Tenant is in full compliance with the
Environmental Laws and the Site rules, and (ii) the Hazardous Materials are
present solely as a result of the negligence or willful misconduct of the
Landlord.
(c) Any obligation by one party to indemnify the other in this Lease is
conditioned upon prompt written notice of such claim and demand to indemnify and
the furnishing of information and reasonable assistance by the party demanding
the indemnity.
(d) The provisions of this Paragraph 26 shall survive the expiration or
termination of the Term.
PARAGRAPH 27. QUIET ENJOYMENT.
The Landlord covenants and agrees that on paying the rent and performing
and observing the covenants on the Tenant's part to be performed and observed
hereunder, the Tenant shall and may peaceably and quietly hold and enjoy the
Premises for the Term, subject to the provisions of this Lease.
PARAGRAPH 28. PARKING.
(a) Commencing as of the Commencement Date and continuing thereafter
throughout the Term the Landlord shall provide the Tenant unreserved parking
spaces (the "Tenant's Parking Spaces") in the general parking area of the
Building, as outlined on EXHIBIT B.
(b) The Tenant, on behalf of itself and Tenant's Agents, waives any claims
for damage, theft and, without limitation, any other loss however caused, to
vehicles (including contents therein) located in the Tenant's Parking Spaces, it
being agreed that any user of the Tenant's Parking Spaces shall look exclusively
to its own funds or insurance coverage if there is such a loss. The Landlord may
require each user to sign a waiver of claims as a condition to using the
Tenant's Parking Spaces.
(c) The Tenant may permit use of the Tenant's Parking Spaces only by
the Tenant and its directors, employees, agents, invitees and contractors.
(d) From time to time, the Landlord may establish reasonable rules for the
safe and efficient operation of the parking areas which are located on the Site
or off-site and controlled by the Landlord. Within ten (10) days after notice of
these rules is received by the Tenant, the Tenant shall cause all users of the
Tenant's Parking Spaces to comply with them.
PARAGRAPH 29. ENVIRONMENTAL MATTERS.
(a) The words "Environmental Law(s)" mean and include all applicable
existing and future statutes, ordinances, codes, regulations, rules, rulings,
orders, decrees, directives, and other laws and requirements by any federal,
state or local governmental authority regulating the Site (including the
Premises), relating to or imposing liability or standards of conduct related to
environmental control or protection of the environment, including but not
limited to (1) the Consent Order attached in Exhibit C; (2) the New York State
Department of Environmental Conservation Part 373 Hazardous Waste Management
Permit, effective September 29, 1995 which is incorporated in this Lease by
reference; (3) the United States Environmental Protection Agency Hazardous and
Solid Waste Amendments of 1984 Permit, effective November 3, 1995 which is
incorporated in this Lease by reference; and (4) the New York State Department
of Environmental Conservation SPDES Permit, effective May 1, 1993 and modified
on April 13, 1995 which is incorporated in this Lease by reference.
(b) The words "Hazardous Materials" mean (1) any material or substance: (i)
which is defined or becomes defined as "hazardous substance" "hazardous waste,"
"toxic substance," "infectious waste," "chemical mixture or substance," or "air
pollutant" under the Environmental Laws; or (ii) containing polychlorinated
biphenyl; or (iii) containing asbestos, radon, gas or urea formaldehyde foam
insulation; or (iv) which is radioactive; or (2) any other material or
substance, which is or becomes identified, defined, or regulated by the
Environmental Laws.
(c) The words "Handle," "Handled," or "Handling," each shall mean and
include any installation, handling, generation, storage, treatment, use,
disposal, discharge, release, manufacture, refinement, presence, migration,
emission, abatement, removal, transportation, or other activity of any type in
connection with or involving Hazardous Materials.
(d) No Hazardous Materials shall be introduced by the Tenant to the Site
without notice to the Landlord and the Landlord's prior consent. All Hazardous
Materials shall be delivered to the IBM designated location on the Site before
it is delivered to the Premises. The Tenant shall pay as additional rent, the
fees for such deliveries to the Premises, as specified in Schedule C. At no time
shall the Tenant introduce onto the Site the Prohibited Substances listed in
Rider A.
(e) Prior to the Handling by the Tenant of any Hazardous Material not in
use on the Commencement Date, the Tenant and the Landlord shall review full
compliance relating to the specific Hazardous Material with the Environmental
Laws and IBM Rules, provided that at all times the Tenant shall comply with
Environmental Laws and IBM Rules. If the Tenant's use in the Building or the
Premises requires prior permitting by the federal, state or local government or
any regulatory agency, the Landlord shall apply for said permitting provided the
Tenant provides the Landlord with reasonable notice of its Hazardous Material
requirements, except as stated in subparagraph (f). The Tenant shall reimburse
the Landlord as additional rent for all reasonable related fees and costs
associated therewith which are authorized by the Tenant in advance or are
required by any Laws. Under no circumstances shall the Tenant use any new
Hazardous Material on the Premises without full compliance.
(f) If the Landlord is not lawfully permitted to apply for environmental
permits on behalf of the Tenant pursuant to the Environmental Laws, the Tenant
shall, in compliance with the Environmental Laws, apply for said permits. Prior
to said application, the Tenant shall notify the Landlord.
(g) The Tenant shall give the Landlord prompt notice of any potential
violation of an Environmental Law, any pending or threatened claim regarding any
Environmental Law, or any spill or release of contaminants to the environment at
the Site of which it is aware. Any party indemnified pursuant to Paragraph 29
that intends to seek indemnification for any claim pursuant to Paragraph 29
shall provide the indemnifying party prompt notice of such a claim and offer the
indemnifying party the opportunity to control the defense of the claim, and to
make final or partial settlement of any such claim, and to arrange for any
actions, including clean- up activities, which are necessary for the Site to
comply in whole or in part with Environmental Law or to settle such a claim.
Neither party shall take any action which prejudices the other party's rights
under this Lease and shall fully cooperate in the defense and settlement of any
such matter. The indemnified party may hire its own counsel to consult with the
indemnifying party at its own expense. The indemnified party shall also have the
right at its own expense to participate in and be separately represented in the
defense of any claim that would subject indemnified party to liability to the
indemnifying party to this paragraph if any portion of such claim (or the
allegations that provide the basis for such claim) were adjudicated or
determined by any governmental agency, court or other tribunal in favor of the
claimant; and any settlement of any such claim that causes the indemnified party
to be liable for the payment of any damages, costs, penalties, or other monetary
consideration or requires the indemnified party to admit wrongdoing shall
require the prior written consent of the indemnified party.
(h) After the Commencement Date, the Landlord or a firm of its choosing
shall have the right from time to time to make environmental investigations of
the Premises upon no less than 24 hours advance notice to Tenant (except in
cases of emergency where no notice will be required). The Tenant shall cooperate
in all respects by providing access to the Premises and to all necessary and
non-confidential documents and data in the Tenant's possession (including
records of Tenant's chemical inventories, environmental reporting documents made
to federal, state and local authorities and any documents related to spill or
release covered by such investigations). Without limiting the generality of the
above, the Landlord shall have the right to make such an investigation at least
every six months while the Tenant operates the Premises and at any time the
Tenant ceases to occupy a substantial portion of the Premises, and at any time
receives notice of a violation of an Environmental Law, a spill or threatened
spill or release of contaminants to the Premises or any pending or threatened
claim. The Landlord shall provide the Tenant with the results (including a
complete copy) of any such investigation. The Landlord shall not disclose any
information obtained in, or any results of, such environmental investigation to
any Person other than Tenant without Tenant's prior written permission, unless
(1) disclosure is required by Law, necessary to prevent harm in an emergency or
limited to information already disclosed, and (2) Landlord provides Tenant
written notice ten (10) days prior to disclosure or, if such notice is
prohibited by Law or would prevent appropriate emergency response, as soon as
allowable by Law or practicable in any emergency.
(i) If at any time after the Commencement Date, the Landlord is required by
an Environmental Law or, on its own initiative, desires to perform environmental
remediation at the Premises ("Landlord Remediation Activities"), the Tenant
agrees to provide access to the Landlord for any such purpose, (including
granting the Landlord any appropriate property easements to facilitate such
cleanup efforts), and will cooperate with the Landlord to remediate the Premises
as the Landlord, in its sole but reasonable discretion, deems necessary and
appropriate. Landlord shall provide Tenant with written notice no less than
fifteen (15) days prior to obtaining access to the Premises for Landlord
Remediation Activities (except in the case of emergency where no such notice
will be required or where a shorter time period is required by Law) and Landlord
shall use reasonable efforts to consult with Tenant with respect to the timing
and scope of such Landlord Remediation Activities. Landlord shall use reasonable
efforts to minimize interference with Tenant's use and occupancy of the Premises
during the performance of any Landlord Remediation Activities.
(j) The Landlord shall conduct its operations, including, without
limitation, services provided under contract with Tenant, (including, without
limitation, this Lease) in compliance with applicable Environmental Laws and
shall provide other occupants and tenants with appropriate guidance to enable
them to conduct their operations at the Site in compliance with all applicable
Environmental Laws. The Landlord shall maintain in full force and effect all
material permits, licenses and other authorizations that are required under the
Environmental Laws with respect to the Landlord's operations at the Site,
including services provided under contract to the Tenant. Tenant and its agent
shall have the right, on an annual basis, to have a compliance audit performed
on the treatment, storage, disposal, recordkeeping and other activities
performed by Land lord for the benefit of Tenant with respect to Landlord's
management of Tenants Hazardous Materials in accordance with its obligations
pursuant to this Lease. Tenant shall give Landlord seven (7) days advance
written notice of such audit, and Landlord shall provide Tenant reasonable
access to those areas where the Hazardous Materials Activities are performed in
order to enable Tenant to complete such audit. Landlord shall also provide
Tenant access to all non-confidential records necessary to the performance of
such audit. Tenant shall not disclose such records except upon the same basis
that Landlord is permitted to disclose Tenant's records under subsection (h) of
this Paragraph 29.
(k) Hazardous Materials discharged by the Tenant in compliance with this
Lease to Building drain systems for treatment and discharge pursuant to an
approved State of New York SPDES permit shall become the responsibility of the
Landlord after the Hazardous Materials have left the Premises and entered the
Site drainage systems. The Tenant shall remain liable for its proportionate
share of any residual sludge generated as a result of treatment of its aqueous
wastes at the Site's waste treatment plant, which are then containerized and
disposed of at a governmentally permitted and approved off-Site disposal
facility. Notwithstanding the foregoing, to the extent permitted by the
Environmental Laws, the Landlord will manage the Tenant's Hazardous Materials on
the Site in accordance with its obligations pursuant to this Lease, and the
Landlord will exercise the same diligence and care with respect to the
transportation and disposition of the Tenant's Hazardous Materials as it
exercises with respect to its own Hazardous Materials and the Landlord will
require that all Persons and/or entities transporting or disposing the Tenant's
Hazardous Materials obtain and maintain all permits and authorizations required
by Environmental Laws in connection with such transportation or disposal.
(l) The Tenant shall comply with the Landlord's instructions regarding
compliance with the Environmental Laws.
(m) The Tenant agrees to indemnify, defend and hold harmless the Landlord
and the Landlord's Agents from and against any loss, liability, claim, damages
or expenses (including reasonable fees for legal and other advisors), suffered
or incurred by any such indemnified party to the extent arising from a release
on or from the Premises of any Hazardous Materials (including any condition
stemming therefrom), or which arises from any other adverse environmental
condition which release or condition violates the Environmental Laws or is
required to be investigated or remediated pursuant to an Environmental Law and
which is caused by Tenant or is attributable to the Tenant because of the acts
of third parties related in contractual privity to the Tenant during the course
of such third parties' activities on the Premises or activities performed at the
request or for the benefit of Tenant or its contractors, subcontractors, agents
or employees, other than the Landlord, the Landlord's Agents, other Site
occupants or tenants, and which occurred or which was caused by the Tenant or
any such third party after the Commencement Date or because of any due diligence
testing done by the Tenant prior to the Commencement Date. The Tenant
understands that, subject to the conditions provided in Paragraph 29 (k) above,
(1) Hazardous Materials generated by the Tenant, which are containerized or
bulked for transportation and disposal off-Site at governmentally permitted and
approved disposal facilities, shall be the responsibility of the Tenant, and (2)
all title, risk and liability for the release or discharge of said Hazardous
Materials during transportation or disposal of such materials under applicable
Environmental Laws shall remain with the Tenant. Except as otherwise provided
for herein, the Tenant shall indemnify the Landlord, pursuant to the terms and
conditions of this subparagraph (m), for any and all liability resulting from a
release or discharge of such Hazardous Materials. The provisions of Paragraph
29(m) shall survive the expiration or termination of the Term.
(n) (1) If at any time after the Commencement Date, a release of any
Hazardous Materials (including any condition stemming therefrom) occurs on or
from the Site and violates and Environmental Law, or is required to be
investigated or remediated under Environmental Laws, and the cause of said
release cannot be reasonably determined, then: for any such release occurring
within the interior walls of the Premises, the Tenant shall indemnify the
Landlord pursuant to this Paragraph.
(2) Landlord shall provide Tenant reasonable access to any and all publicly
available information in Landlord's possession or control relating to the
presence, on or about the Premises or the Site (including the soil, groundwater
or improvements thereon), of any Hazardous Materials. Landlord shall also
provide to Tenant reasonable access to results from any and all environmental
testing performed by Landlord on the Premises at any time before or during the
Tenant's occupancy of the Premises.
(o) The Tenant shall provide to the Landlord, on an annual basis and as
requested, regardless of the volume of waste generated or chemical used,
information regarding the Tenant's waste minimization activities and chemical
usage. Emphasis in the waste minimization activities shall be placed on the
source reduction of hazardous wastes as required by the Environmental Laws. The
information provided by the Tenant, and information generated by the Landlord
regarding the Tenant's waste generation and chemical usage, shall be provided by
the Landlord to regulatory agencies to fulfill environmental reporting
obligations of the Landlord under the Environmental Laws. The waste minimization
information provided by the Tenant to the Landlord shall be sufficient to enable
the Tenant to comply with hazardous waste manifest and annual reports.
(p) Consistent with its responsibilities under this Paragraph, the Tenant
agrees to prepare and execute documentation related to environmental duties or
obligations which may be required by the Landlord or governmental authorities to
comply with the Environmental Laws.
PARAGRAPH 30. LIMITATION ON LIABILITY.
(a) Anything herein to the contrary notwithstanding, it is expressly
understood and agreed by and between the parties hereto that each and every
representation, covenant, undertaking and agreement herein made by the Landlord,
while in form purporting to be a representation, covenant, undertaking and
agreement of the Landlord, are nevertheless, made and intended not as personal
representations covenants, undertakings and agreements by the Landlord or for
the purpose or with the intention of binding the Landlord personally, but are
made and intended for the purpose of binding only the Landlord's interest in the
Site and for no other purpose whatsoever. In the event of a default by the
Landlord, the Tenant shall look solely to the interest of the Landlord in the
Site. No duty shall rest upon the Landlord to sequester the Site g or the rents,
issues and profits arising therefrom, or the proceeds arising from any sale or
other disposition thereof. The Tenant shall have no recourse to the assets,
tangible or intangible, of the Landlord excepting only the Landlord's interest
in the Site. Without limitation, no personal liability or personal
responsibility is assumed by nor shall at any time be asserted or enforceable
against the Landlord on account of this Lease or on account of any
representation, covenant, undertaking or agreement of the Landlord in this Lease
contained, either expressed or implied, all such personal liability, if any,
being expressly waived and released by the Tenant. The foregoing limitation on
the Landlord's liability shall inure to and for the benefit of the Landlord and
its successors and assigns and their respective shareholders, officers,
directors, partners, agents and employees.
(b) THE TOTAL CUMULATIVE LIABILITY OF THE LANDLORD AND THE EXCLUSIVE REMEDY
FOR ANY AND ALL LOSSES AND DAMAGES, OR THE RIGHT TO ANY OTHER FORM OF RELIEF BY
THE TENANT, ARISING OUT OF ANY CAUSE WHATSOEVER UNDER ANY THEORY OF CONTRACT,
TORT, STRICT LIABILITY, OR OTHER LEGAL OR EQUITABLE THEORY SHALL BE LIMITED TO
ACTUAL DIRECT DAMAGES NOT TO EXCEED SIX HUNDRED AND FIFTY THOUSAND DOLLARS
($650,000), PROVIDED THAT IN NO EVENT SHALL THE LANDLORD BE LIABLE FOR LOST
PROFITS, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES UNDER THIS
LEASE.
(c) The provisions of this Paragraph 30 shall survive the termination or
expiration of the Term.
PARAGRAPH 31. ESTOPPEL CERTIFICATE.
The Tenant agrees that, from time to time upon not less than ten (10) days
after the Landlord's request, the Tenant, or the Tenant's duly authorized
representative having knowledge of the following facts, will deliver to the
Landlord a statement in writing certifying (a) that this Lease is unmodified and
in full force and effect (or if there have been modifications, a description of
such modifications and that this Lease as modified is in full force and effect);
(b) the dates to which rent and other charges have been paid; (c) that the
Landlord is not in default under any provision of this Lease, or, if in default,
the nature thereof in detail; and (d) such further matters as may be requested
by the Landlord, it being intended that any such statement may be relied upon by
any mortgagees or assignees of the Landlord, or prospective mortgagees or
assignees of the Landlord, or prospective transferees or purchasers of all or
part of the Landlord's interest in the Site and/or any buildings thereon. The
Tenant shall execute and deliver whatever instruments may be required for such
purposes, and if the Tenant fails so to do within ten (10) consecutive days
after demand in writing, the Tenant shall be considered in default under this
Lease and the Landlord is hereby granted the power as attorney- in-fact for the
Tenant to unilaterally execute and deliver such estoppel and other instruments
on behalf of the Tenant.
PARAGRAPH 32. ACCESS TO THE PREMISES.
(a) Identification Badges. The Landlord shall provide the Tenant with
identification badges to be worn by the Tenant's employees (the "Employees")
working in the Premises. These badges shall give the Employees access to the
Premises during normal working hours (hereinafter defined). Identification
badges for the Employees shall state the Tenant's name and name of the Employee
but shall not include the name of the Landlord. The Landlord shall, at the
Tenant's request, provide to the Tenant's vendors (the "Vendors") identification
badges which shall give the Vendors access to the Premises during normal working
hours. The Tenant shall be responsible for returning to the Landlord's security
department the identification badge of: (i) any Employee who is no longer
employed by the Tenant; (ii) any Vendor when such Vendor no longer requires
access to the Premises; and (iii) all Employees and Vendors upon expiration or
earlier termination of this Lease. All lost badges shall be immediately reported
to the Landlord's security department.
(b) Access Outside Normal Working Hours. The Landlord shall, upon
reasonable advance notice from the Tenant to the Landlord's security department,
provide identification badges to agents, licensees and invitees of the Tenant
who require access to the Premises outside normal working hours. As used in this
PARAGRAPH 32., the words "normal working hours" shall mean 8:00 A.M. to 6:00
P.M., Monday through Friday, excluding the Saturdays, Sundays and Holidays.
(c) Access by Emergency Response Personnel. Notwithstanding anything to the
contrary contained herein, the Landlord's personnel shall have access to the
Building and the Premises for the purpose of responding to an emergency
involving the Premises.
PARAGRAPH 33. MISCELLANEOUS.
(a) After the termination of this Lease, no receipt of money by the
Landlord from the Tenant, service of any notice, commencement of any suit, or
final judgment for possession of the Premises shall renew, reinstate, continue
or extend the Term or affect any such termination notice, demand, suit or
judgment.
(b) No waiver of any default hereunder of either party shall be implied
from any omission by the other to take any action on account of such default if
such default persists or is repeated, and no express waiver shall affect any
default other than the default specified in a written waiver and then only for
the time and to the extent therein stated. The invalidity or unenforceability of
any provision of this Lease shall not affect or impair any other provision and
the invalid or unenforceable provision shall be deemed modified and restated to
comply with Law.
(c) The word "Tenant" wherever used in this Lease shall be construed to
mean "Tenants" in all cases where there is more than one tenant, and the
necessary grammatical changes required to make the provisions hereof apply
either to corporations, firms or individuals, men or women, shall in all cases
be assumed as though in each case fully expressed.
(d) Provisions inserted herein or affixed hereto shall not be valid unless
appearing in the duplicate original hereof held by the other party hereto.
(e) Each provision hereof shall extend to and shall, as the case may
require, bind and inure to the benefit of the Landlord and the Tenant and their
respective legal representatives, successors and permitted assigns.
(f) The headings of Paragraphs, Sections and subparagraphs are for
convenience only and do not limit or construe the contents of the Paragraphs,
Sections or subparagraphs.
(g) Submission of this instrument for examination does not constitute a
reservation of or option for the Premises. This instrument becomes effective as
a lease upon execution thereof by both the Landlord and the Tenant and delivery
of an executed counterpart to each other.
(h) At the Landlord's discretion, all sums due and owing to the Landlord
hereunder shall bear interest from their due date until paid at the rate of 1.5%
per month. All such amounts other than Base Rent shall be deemed additional rent
and shall be paid within thirty (30) days from the date shown on the applicable
statement of account.
(i) No rights to any view or to light or air over any property, whether be
longing to the Landlord or any other Person, are granted to the Tenant by this
Lease.
(j) All rights and remedies of the Landlord and the Tenant under this Lease
shall be cumulative and none shall exclude any other rights and remedies allowed
by Law or in equity.
(k) The Landlord and the Tenant shall have the right to apply payments
received from the other pursuant to this Lease (regardless of the designation of
such payments by the payor) to satisfy any obligations of the other hereunder,
in such order and amounts as the payee in its sole discretion may elect.
(l) Time is of the essence of this Lease and each of its provisions.
(m) This Lease shall be strictly construed neither against the Landlord or
the Tenant; each provision hereof shall be deemed both a covenant and a
condition running with the land; except as otherwise expressly provided in this
Lease and its Riders, Schedules, Exhibits and other attachments, the singular
includes the plural and the plural includes the singular; "or" is not exclusive;
a reference to an agreement or other contract includes supplements and
amendments thereto to the extent permitted by this Lease; a reference to any
Laws includes any amendment or supplement to such Laws; a reference to a Person
includes its permitted successors and assigns; accounting provisions have the
meanings assigned to them by generally accepted accounting principles applied on
a consistent basis; the words "such as," "include," "includes" and "including"
are not limiting; when used in this Lease, the word "Person" means an
individual, partnership, trust, corporation, firm or other entity; except as
specifically agreed upon in this Lease, any right may be exercised at any time
and from time to time and all obligations are continuing obligations throughout
the Term of this Lease (and beyond if expressly agreed upon herein to survive
the end of the Term); and in calculating any time period, the first day shall be
excluded and the last day shall be included and all days are calendar days
unless otherwise specified.
(n) This Lease shall be construed according to the laws of the State of New
York.
(o) Each party agrees to pay the other party's attorneys' fees and costs of
litigation if the party, for any reason whatsoever, brings suit against the
other party and the other party is finally adjudicated not to have liability.
(p) As used in this Lease, the words "Excusable Delay" shall mean any delay
or interruption due to strikes, lockouts or other labor or industrial
disturbance; civil disturbance; accidents; the Landlord's ordinary negligence;
future order of any government, court or regulatory body claiming jurisdiction;
act of the public enemy; building component or utility system failure, unless
attributable solely to the Landlord's willful misconduct or gross negligence;
war, riot, sabotage, blockage or embargo; failure or inability to secure
materials or supplies through ordinary sources by reason of shortages or
priority or similar regulation or order of any government or regulatory body;
lightning, earthquake, fire, storm, hurricane, tornado, flood, washout or
explosion, or act or omission of one party hereto which prevents the other party
from complying, or which materially and adversely interferes with the claiming
party's ability to comply with an obligation under this Lease on its part to be
performed.
(q) The square footage of a floor shall be computed by measuring from the
inside finished surface of the dominant portion of the permanent outer Building
walls, excluding any major vertical penetrations of the floor. No deductions
shall be made for columns and projections necessary to the Building.
(r) During the Term of this Lease, and for a period of one year thereafter,
neither the Tenant or the Landlord will solicit for employment purposes the
present employees of the other party without prior written approval from the
employing party. This Lease does not in any manner restrict general
solicitations for employment, or the right of any employee of one party on his
or her own initiative or in response to general solicitations to seek employment
from the other party.
PARAGRAPH 34. IBM-ESDC Sale-Lease back
FED Corporation acknowledges and agrees to the following:
(a) On December 31, 1998, International Business Machines Corporation, a
corporation with an office at 1580 Route 52, Hopewell Junction, New York 12533
(referred to in this PARAGRAPH as "IBM" and referred to elsewhere in the Lease
as "Landlord") and The New York State Urban Development Corporation d/b/a Empire
State Development Corporation, a corporation with an office at 633 Third Avenue,
New York, New York 10017 (hereinafter referred to as "ESDC"), entered into a
Sale-leaseback transaction (hereinafter referred to as the "Sale-Lease back") of
the Site, including the Premises;
(b) As of December 31, 1998, (i) ESDC is the title owner of the Site,
including the Premises, (ii) IBM is in possession of the Site as ESDC's tenant,
and (iii) IBM is the operator of the Site;
(c) The Sale-Lease back contains provisions granting IBM the option to
repurchase the Site during the fifteen (15) year term of the Sale-Lease back and
provides for the reconveyance of the Site to IBM at the end of the term of the
Sale-Lease back;
(d) FED Corporation shall have no third-party beneficiary rights under the
Sale-Lease back;
(e) ESDC may enforce certain of IBM's rights under the Lease, including but
not limited to inspection rights. Notwithstanding the foregoing, (i) nothing
herein is intended to grant third- party beneficiary rights to ESDC different
from or in addition to those rights contained in the Sale-Lease back, and (ii)
FED Corporation shall not tender performance hereunder to ESDC or send notices
hereunder to ESDC without the specific prior written consent from an authorized
representative of IBM in each instance;
(f) A breach by FED Corporation under the Lease may be a breach by IBM
under the Sale-Lease back;
(g) In the event that FED Corporation receives a written notice from ESDC,
FED Corporation shall promptly provide a copy of such notice to IBM's person
designated for the receipt of notices in PARAGRAPH 11. In the event that FED
Corporation receives an oral notice from ESDC, FED Corporation shall promptly
inform IBM's person designated for the receipt of notices in PARAGRAPH 11 of the
substance of such oral notice; and
(h) As a subtenant possessing Premises owned by an agency of the State of
New York, FED Corporation shall be bound by and shall include the following
subparagraphs (1) through (5) of this section or substantially similar
subparagraphs, in such a manner that said subparagraphs shall be binding upon
the parties with whom prospective construction contracts with respect to the
Premises are entered into:
(1) Contractor shall not discriminate against employees or applicants
for employment because of race, creed, color, religion, national origin,
ancestry, sex, age, disability or marital status and shall insure that
employees and applicants are afforded equal employment opportunities
without discrimination.
(2) At the request of IBM, Contractor shall request each employment
agency, labor union and authorized representative of workers with which it
has a collective bargaining or other agreement or understanding, to furnish
it with a written statement that such employment agency, labor union or
representative will not discriminate because of race, creed, color,
religion, national origin, ancestry, sex, age, disability or marital status
and that such union or representative shall affirmatively cooperate in the
implementation of Contractor's obligations hereunder.
(3) Contractor shall state in all solicitations or advertisements for
employees placed by or on behalf of Contractor that all qualified
applicants shall be afforded equal employment opportunities without
discrimination because of race, creed, color, religion, national origin,
ancestry, sex, age, disability or marital status.
(4) Contractor shall comply with the provisions of Sections 291-299 of
the Executive Law of the State of New York.
(5) Contractor shall include the foregoing provisions of subparagraphs
(1) through (4), above, or substantially similar provisions in every
subcontract, in such a manner that said provisions shall be binding upon
the subcontractor as to its work force on the Premises.
(6) With respect to the Premises, FED Corporation covenants and agrees
that it shall (i) neither commit nor permit discrimination or segregation
by reason of race, creed, color, religion, national origin, ancestry, sex,
age, disability or marital status ("Discrimination") in any permitted sale,
transfer or assignment of its interest under this Lease or in any permitted
subleasing, use or occupancy of the Premises or any part thereof or in
connection with any permitted erection, maintenance, repair, restoration,
alteration or replacement of, or addition to, and Building; (ii) not
willfully engage in any personnel practices which may have a discriminatory
effect; and (iii) comply with all federal, state and local laws,
ordinances, rules, and regulations from time to time in effect prohibiting
Discrimination or segregation or pertaining to equal employment
opportunities.
FED Corporation shall assist and cooperate actively with IBM in obtaining
compliance by FED Corporation's agents, contractors and subcontractors with the
applicable provisions of this PARAGRAPH.
Riders A, B, C and D; EXHIBITS A1, A2, A3, A4, B, C, and D; and Schedules
A, B, C, D, and E are attached hereto and made a part of this Lease.
This Lease, consisting of the foregoing terms and conditions; Riders A, B,
C and D; Exhibits A1, A2, A3, A4, B, C, and D, hereto; and Schedules A, B, C, D,
and E hereto, constitutes the complete and exclusive agreement between
International Business Machines Corporation and FED Corporation superseding any
prior or contemporaneous agreements, written or oral, relating to the subject
matter herein.
IN WITNESS WHEREOF, this instrument has been executed by the duly
authorized representatives of the parties hereto as of the day and year first
above written.
INTERNATIONAL BUSINESS MACHINES CORPORATION
By: /s/ Raymond V. Wagner Title: Sr. Program Manager
-------------------------------- ----------------------------
Print Name: Raymond V. Wagner Date: 5/28/99
------------------------ ----------------------------
Witness: Thomas P. Short
FED CORPORATION
By: Gary W. Jones Title: President & CEO
-------------------------------- ----------------------------
Print Name: Gary W. Jones Date: May 28, 1999
------------------------ ----------------------------
Witness: Diane Stafford
RIDER A
IBM RULES
(As of February 17, 1997)
Attached to and made part of
Lease
between
International Business Machines Corporation
and
FED CORPORATION, Tenant
Pursuant to the provisions of Paragraph (17) of the Lease, the Landlord
reserves the right to delete, modify, and add additional IBM Rules.
For the purposes of these IBM Rules, the word "Tenant" shall include the
Tenant and the Tenant's Agents (defined in Paragraph 3(a) of the Lease).
1. The sidewalks, halls, passages, elevators and stairways, exits,
entrances, and other common areas shall not be obstructed by the Tenant or used
for any purpose other than for ingress to and egress from the Premises. The
halls, passages, exits, entrances, elevators and stairways, balconies and roof
are not for the use of the general public, and the Landlord shall in all cases
retain the right to control and prevent access thereto of all persons whose
presence in the sole judgment of the Landlord shall be prejudicial to the
safety, character, reputation and interests of the Building and its tenants.
However, nothing stated above shall be construed to prevent such access to
persons with whom the Tenant normally deals in the ordinary course of its
business unless such persons are engaged in illegal activities. The Tenant and
its employees and invitees shall not go upon the roof of the Building without
the written consent of the Landlord which the Landlord may withhold in its sole
discretion.
2. The bathroom facilities shall not be used for any purpose other than
that for which they were constructed, and no foreign substance of any kind
whatsoever shall be thrown therein. The expense of any breakage, stoppage, or
damage, resulting from a violation of this rule, shall be borne by the Tenant
who, or whose employees, agents, contractors, or visitors, shall have caused it.
3. If the Landlord, by notice in writing to the Tenant, shall object to any
curtain, blind, shade or screen attached to, or hung in, or used in connection
with, any window or door of the Premises, such use of such curtain, blind, shade
or screen shall be forthwith discontinued by the Tenant.
4. None of the Tenant's Personal Property or other items heavier than the
lift capacity of the freight elevators of the Building shall be brought into or
installed in the Premises. The Tenant shall not place a load upon any floor of
the Premises which exceeds the load per square foot which such floor was
designed to carry and which is allowed by law. The moving of heavy items shall
occur only between such hours as may be designated by, and only upon previous
notice, to the property manager, and the persons employed to move these heavier
items in or out of the Building must be acceptable to the Landlord. No freight,
furniture or bulky matter of any description shall be received into the Building
or carried into the elevators except during hours and in a manner approved by
the Landlord.
5. Supplementing Paragraph 8., if the Tenant desires telephone or other
telecommunication connections from a provider other than the Landlord, the
Landlord will direct electricians as to where and how the wires are to be
introduced. No boring or cutting for wires or otherwise shall be made without
specific directions from the Landlord. When installing wire or cabling within
the Building, the Tenant shall follow all applicable codes and the Landlord's
telecommunication rules.
6. The Tenant, upon the termination of its tenancy, shall deliver to the
Landlord all the keys of offices, rooms and toilet rooms which shall have been
furnished to the Tenant or which the Tenant shall have had made.
7. On Saturdays, Sundays and Holidays, and on other days between the hours
of 6:00 P.M. and 8:00 A.M., access to the Building, or to the halls, corridors,
elevators or stairways in the Building, or to the Premises may be refused unless
the Person seeking access has a pass approved by the Landlord or is otherwise
properly identified. The Landlord shall in no case be liable to anyone for
damages for the admission to or exclusion from the Building of any person whom
the Landlord has the right to exclude under this Rule 7., or otherwise. In case
of invasion, mob, riot, public excitement, or other commotion, the Landlord
reserves the right to prevent access to the Site and the Building during the
continuance of the same by closing the gates or doors or otherwise, for the
safety of the tenants or the Landlord's employees and protection of property in
the Building and on the Site.
8. Where badges are not in use, the Tenant shall not alter any lock or
install a new or additional lock or any bolt on any door of the Premises without
prior written consent of the Landlord. If the Landlord shall give its consent,
the Tenant shall in each case furnish the Landlord with a key for any such lock.
Call extension 4-5625 (4-LOCK) for service. Tenant shall not duplicate any keys
provided by the Landlord.
9. Without the Landlord's prior written consent, the Tenant shall not use
the name of the Building (whether or not the Building is named or commonly known
as "The IBM Building" or the like) in its advertising or other publicity or on
its stationery or other correspondence or otherwise, and shall not use pictures
of the Building in advertising or publicity or otherwise.
10. The Tenant shall not make any room-to-room or building-to- building
canvass to solicit business from other tenants or occupants in the Building or
on the Site, and shall not exhibit, sell or offer to sell, use, rent or exchange
in or from the Premises unless ordinarily embraced within the Tenant's expressed
use of the Premises specified in the Lease.
11. The Tenant shall not waste electricity, gases, water, or air
conditioning and agrees to cooperate fully with the Landlord to assure the most
effective operation of the Building's heating, ventilation and air conditioning,
and shall not allow the adjustment (except by the Landlord's authorized Building
personnel) of any controls other than room thermostats installed for the
Tenant's use.
12. The Tenant shall be solely responsible for having a Person present at
the loading dock to receive all deliveries made to the Tenant at the loading
dock and to deliver the same from the loading dock to the Premises.
13. Additional services requested by the Tenant shall be performed only
pursuant to a separate service agreement between the Tenant and the Landlord.
14. The Tenant shall not conduct any auction, fire, bankruptcy, going out
of business, liquidation or similar sales anywhere on the Site.
15. Without limiting any other obligation required by this Lease, the
Tenant must obtain a permit or approval from the Landlord before:
a. Using products or tools using x-rays, (or other ionizing radiation
sources), or laser products which operate at Class IIIa, IIIb or IV, or
incorporate Class IIIb or IV lasers with the exception of properly used
Class IIIa laser pointers.
b. Disturbing Asbestos containing material (ACM) or Presumed Asbestos
containing material (PACM).
c. Working in an area where there is a reasonable potential to disturb
ACM or PACM.
d. Internal combustion engine use indoors
e. Blasting or explosives use
f. Explosive (powder) actuated fastening tool use
g. Airlifting, crane, mobile crane, or hoist use
h. Use of powered industrial vehicles
i. Cutting, welding, burning, or open flame work
j. Entering a confined space
k. Moving or relocating any emergency equipment
l. Fire alarm system work or sprinkler system impairment
m. Hot work in hazardous areas
n. Using salamanders or heaters
Approvals/permits for 15 a, b, c, and d can be obtained through Industrial
Hygiene. Approvals/permits for 15 e, f, g, and h are provided through Safety.
Approvals/permits for 15 i, j, k, l, m, and n above, are provided through
Emergency Control. The Landlord shall respond to a request for its approval
within one (1) working day.
16. The Tenant, its employees, agents, contractors, invitees and guests
shall not obstruct any sidewalk, road, driveway, Site or Building entrance, or
any part of the common areas in and about the Building or the Site. The Tenant,
its employees, agents, contractors, invitees and guests shall not park in areas
where prohibited. The Tenant shall cause its employees, agents, contractors,
invitees and guests to park only in the Tenant's Parking Spaces.
17. The Tenant shall not place objects against windows or post signs
visible from outside a window which would be unsightly from the exterior of the
Building, and will promptly remove any such objects or signs upon notice from
the Landlord.
18. The Tenant shall not go into building systems areas of the Building,
except to the extent permitted or required by the terms of the Lease and only
when accompanied by the Landlord.
19. The Tenant shall not make noises, cause disturbances or vibrations, or
use or operate any electrical or electronic devices that emit sound or other
waves or disturbances or create odors, any of which may be unreasonably
offensive to any people in the Building or (supplementing PARAGRAPH 2(b))
interferes with the operation of any device, equipment or radio or television
broadcasting or reception from or within the Building or elsewhere, and shall
not bring animals into, or allow animals to be brought onto the Site or into the
Building except for the assistance of the disabled, without consent of the
Landlord which it may withhold in its sole discretion.
20. No portion of the Premises shall be used for cooking, lodging or
sleeping except customary and reasonable office microwave ovens and
refrigerators for employee use.
21. Smoking is prohibited in all areas of the Building which includes
hallways, rest rooms, lobbies, stairwells, elevators and all occupied and
unoccupied space within the Building. The Tenant shall prohibit any employee,
and other people entering upon the Tenant's premises from smoking or carrying a
lighted cigar, cigarette or pipe, or form using a match or other flame-
producing device for lighting any such item at any time during their presence in
or upon the Building and the Premises. "Smoking" means inhaling, exhaling,
burning or carrying any lighted cigar, pipe, cigarette, weed, plant or other
combustible substance in any manner in any form.
22. The Landlord reserves the right to exclude or expel from the Site any
Person who, in the sole judgment of the Landlord, is intoxicated or under the
influence of liquor or drugs, or who poses a security risk to the Site or any
occupant of the Site, or who shall in any manner threaten to do or does any act
in violation of these Rules and Regulations.
23. The Tenant shall keep all portions of Premises, including vestibule,
fixtures, windows and plate glass free from pests and vermin.
24. The Tenant shall store all its trash, refuse and waste materials within
the Premises or in such locations as the Landlord may designate and shall cause
the same to be regularly removed at the Tenant's expense unless the Landlord has
agreed in writing to remove it. All trash, refuse and waste materials shall be
stored in adequate containers so as not to constitute a health or fire hazard or
a nuisance to any other tenant. No burning of trash, refuse and waste materials
shall be allowed.
25. Supplementing PARAGRAPH 8., the Tenant shall coordinate all its
construction activities in the Premises so that such construction work does not
interfere with the operations of other tenants or the Landlord. The Tenant shall
place all construction trailers in staging areas designated by the Landlord. The
Tenant shall store all construction materials entirely within the Premises.
26. The Tenant shall cause all trucks making deliveries to or pickups from
the Premises to utilize truck drives and loading dock facilities designated by
the Landlord.
27. Controlling access to Site facilities is a primary security measure. It
is essential that all persons who enter any Site facility are authorized and
that an audit trail/record of this access and authorization exist. All tenants
are required to display prominently their identification badge while on the
Site.
28. Each of the Tenant's Employees and Vendors must badge-in individually
and must not allow Persons behind them to enter unless they "light the light"
with their own badge. If they do not have a badge or their badge does not work,
direct them to the main lobby receptionist for visitor sign-in or a temporary
badge, or to security badge operations to see why their badge does not work. If
a badge is lost of stolen, IBM must be notified immediately. IBM reserves the
right to challenge persons leaving or entering the Building or Site.
29. Non-Site people are provided dated, temporary badges. These individuals
must sign in and out and require a Tenant escort at all times.
30. Visits by anyone employed by an IBM competitor must be pre- approved by
the Landlord. This is necessary whether or not the visitor is representing the
competing company at the time of the visit. An "IBM Competitor" is anyone who is
in a business that competes with the business carried on by IBM at the Site, and
any other business specified in writing to a tenant.
31. Any visit to the Site by a Person who is a representative of any
organization of, or located within, a Restricted Trade Country, as defined, from
time to time by the U.S. Export Regulations, requires the prior approval of the
Landlord and the IBM Office of Area Counsel.
32. Do not park in restricted zones, which are reserved for the disabled,
for medical personnel, or visitors, or which are marked with yellow lines.
Unauthorized parking will result in a security violation. Violators may be
subject to loss of Site driving and parking privileges. If the owner of an
illegally parked vehicle cannot be located, the vehicle may be towed at the
owner's expense.
33. All vehicles must yield "Right Of Way" to all pedestrians and at all
pedestrian crossings and to all emergency vehicles. Site speed limit is 30 MPH
unless otherwise posted. Parking lot speed limit is 10 MPH. Violators may be
subject to loss of Site driving and parking privileges.
34. All tenants must supply vehicle registration of its employees to IBM
Security. Such information may be used to contact the vehicle owner for matters
involving the vehicle.
35. All fire and medical emergencies as well as threats and acts of
violence must be reported immediately to IBM's security office, ext. 4-3333. All
vehicles that may affect the health, welfare or safety of any occupant of the
Hudson Valley Research Park/IBM East Fishkill must also be reported to IBM
Security.
36. In the event of an emergency evacuation of a building, occupants of the
Building will be notified via the Site public address system. (A distinctive set
of tones followed by an announcement). All occupants must become familiar with
their primary and secondary evacuation routes and group assembly location.
37. All non-emergency security related incidents, i.e., theft, vandalism,
illegal drugs, violence, or any suspicious activity, should be reported
immediately to the IBM Security office, extension 4-2000.
38. Weapons of any sort (e.g., guns, knives, archery equipment, explosives,
and ammunition) are not permitted on Hudson Valley Research Park property. The
manufacture, use, distribution, sale, or possession of illegal drugs or
alcoholic beverages or other controlled substances, except for approved
purposes, is prohibited on Hudson Valley Research Park property.
39. Cameras and recording devices may be used solely within the Tenant's
Premises at any time without the consent of the Landlord, but may not be used in
any other portion of the Site without the Landlord's written consent. Tenant
must obtain a camera pass for any camera brought into any building on the Site
even for use only in the Premises.
40. If any serious personal injury or illness or significant damage to the
Premises occurs in connection with the Tenant's operations, the Tenant shall
immediately notify the Landlord of the event and provide a written statement of
the facts of the incident by the close of the next business day.
41. The Tenant shall notify the Landlord if a charge of non- compliance
with OSHA or any other regulatory agency is filed against the Tenant in
connection with the Tenant's operations performed on the Premises.
42. The Tenant shall inform the Landlord if it has reason to believe that
an event other than normal operating procedures may adversely affect the
Landlord or other Tenants on the Site.
43. The Tenant shall notify the Landlord prior to using any Ionizing
Radiation Source.
44. The following substances are prohibited from use at the Site:
Certain glycol ethers
(see Chemical Management and Environmental Manual 03-01-01 for list)
PCBs (new uses prohibited)
Polybrominated Biphenyls/Polybrominated Biphenyls Oxides (PCB(O)s)
The following substances are prohibited from use in production processes at the
Site, and may be restricted or prohibited in other uses in the Landlord's sole
discretion (e.g., development):
Carbon tetrachloride
Methylene chloride (only production use, is as chlorine feedback in vertical
furnaces; no new uses in production or development)
CFCs (see Chemical Management and Environmental Manual 03-01-01 for list)
Halons (see Chemical Management and Environmental Manual 03-01-01 for list)
Perchlorethylene (no new uses in production or development) HCFCs (use as
solvent is prohibited in production or development)
1,1,1 Trichloroethane (only production use is transformation use where it is
consumed)
Trichloroethylene (new uses in production and development prohibited) Low level
radioactive chemicals
Additional substances may be added to the above lists upon notice by the
Landlord to the Tenant, in the Landlords sole discretion.
Additional information regarding chemical restrictions at the Site is contained
in Chemical Management and Environmental Manual index 03-01-01.
45. The Tenant will become familiar with and ensure its contractors comply
with the most current version of the IBM Contractor Guide. Copies of this
document will be provided separately.
46. Tenant will observe the IBM East Fishkill/Hudson Valley Research Park
Chemical Management and Environmental Manual, which is incorporated herein by
reference. Copies of this document will be provided separately.
47. Toxic gasses with IBM classification #3 and #4 in the IBM East
Fishkill/Hudson Valley Research Park Chemical Management and Environmental
Manual (Health Hazard Gasses), if required for the operation of the Tenant
premises, must be provided only by authorized IBM Personnel. Toxic gas cabinets
shall be operated only by authorized IBM Personnel and not Tenant Personnel. IBM
requires reasonable notice before performing this service. All costs associated
with this requirement will be the sole responsibility of the Tenant in an amount
to be agreed to by Tenant and Landlord.
RIDER B
The word "Holidays" shall mean:
New Year's Day
Memorial Day
Independence Day
Labor Day
Thanksgiving Day
Christmas Day
The Landlord reserves the right to add additional holidays to the above list.
During these Holidays, service levels and support may be reduced, and Site
access may be restricted.
In addition, unless otherwise notified, the Landlord may shut down the entire
Site for the week of Independence Day or another one week period, as may be
required.
RIDER C
Services Provided by the Landlord
1. BUILDING MAINTENANCE
IBM will provide labor and incidental materials to support
facilities-related systems and equipment. This service is included in Base Rent.
All requests for IBM Facilities Maintenance services shall be placed by
calling 894-8000. Minimal support will be provided during off-shift hours.
All emergency situations (e.g., chemical spills, leaks, and medical
emergencies) must immediately be reported to IBM Emergency Control via telephone
number 894-3333.
a. Service Boundaries
The Tenant will maintain Tenant's tools and equipment, including peripheral
equipment that is controlled by the tool or operator control panel and which
therefore can be considered part of the tool. IBM's Facilities Maintenance will
generally be responsible from the source of the service, up to the first
valve/main disconnecting device, on the service branch line extending from the
main service line to the Tenant's equipment/tool. Maintenance of such valve or
disconnecting device shall be the responsibility of IBM Facilities Maintenance.
IBM's Facilities Maintenance will maintain all services upstream of the
last mechanical or electrical service disconnecting device, prior to entering
the Tenant's equipment or tool. IBM's Facilities Maintenance will be responsible
for actuating the main disconnecting device to induce power, air, vacuum, water,
or any other Facilities service to the Tenant equipment or tools after
performing the Tenant tool/service connection acceptance process. Only IBM's
Facilities Maintenance will be permitted to perform this task.
The specific boundaries for Facilities Maintenance services are identified
below:
(1) Tenant Equipment/Tools
IBM's Facilities Maintenance will not maintain fume hoods, sinks, gas
storage cabinets (nontoxic), and clean work stations. This list is not
intended to be all-inclusive.
(2) Drain Systems
IBM's Facilities Maintenance will maintain all drain systems
downstream of and including the inlet fitting on the main or secondary
trunk line. The Tenant will maintain the drain system upstream of such
fitting. Drain line flame arresters, if any, will be maintained by IBM's
Facilities Maintenance, except where such devices are located within the
Tenant's equipment or tools.
b. Miscellaneous
Installation or modification of Tenant's equipment that will enter the
building ceiling plenum or extends into a building service area requires prior
approval of IBM's Facilities Engineering/Maintenance and other IBM departments.
Tenant shall pay Landlord as additional rent, at the rate outlined in
Schedule C, for (1) the time required by the Landlord to inspect any new or
changed service or utility connections; and (2) the time required for the
Landlord to respond to a service interruption that was caused by the Tenant, its
employees, agents, or contractors.
2. SECURITY SUPPORT SERVICES
The Landlord will provide the following security support services:
- - 24-hour staffed security control center that monitors all fire, safety, and
security protection alarms.
- - 24-hour emergency operator
- - Issuance of photo identification access badges
- - Site receptionist services
- - Access control systems
- Badge reader
- Door keys/locks
- - Building perimeter and site security patrols
- - Traffic/parking control
- - Camera/recording device pass control
- - Security incident investigation
- - After hours-telephone operator
- - Site public address announcements and paging for emergencies only
IT IS AGREED THAT THE LANDLORD IS NOT AN INSURER AND THAT IT IS NOT THE
INTENTION OF THE PARTIES THAT THE LANDLORD ASSUME RESPONSIBILITY FOR ANY LOSS
OCCASIONED BY MALFEASANCE OR MISFEASANCE IN THE PERFORMANCE OF THE SECURITY
SUPPORT SERVICES LISTED ABOVE OR FOR ANY LOSS OR DAMAGES SUSTAINED THROUGH
BURGLARY, THEFT, ROBBERY, FIRE, OR OTHER CAUSES RELATED TO THE PROVISION OF
THESE SERVICES.
3. SITE GROUNDS KEEPING SERVICES
SITE GROUNDS KEEPING services include lawn mowing, snow removal, and
general upkeep of the outside grounds as necessary to maintain Site safety,
hygiene, and aesthetics.
4. EMERGENCY CONTROL SERVICES
The Emergency Control (EC) department provides emergency response and
emergency prevention services as follows:
1. Emergency Response
The department will respond to emergencies involving fire, chemical spills,
medical situations, and confined space. An EC ambulance provides Basic Life
Support; should Advanced Life Support be required, a vendor ambulance company is
used. (Tenant is responsible for the cost of ALS ambulance support). During
off-shift hours, EC provides first-aid services.
2. Reporting an Emergency
The Tenant will pre-plan an emergency action sequence for the Premises and
communicate this sequence to its employees. The plan shall address:
a. Who should report an emergency.
b. Who should initiate an evacuation in the absence of the Tenant
employee manager.
c. How to report emergencies. (The employee should call 4-3333, give
name, building, floor, location, and number calling from.)
d. What to do after calling. (Inform others in the area. Meet
emergency personnel. Remain available for information.)
3. Emergency Phone Number Decals
Emergency Control requires that every phone have a decal on it that
displays the emergency number 4-3333. The decals are available from the
Emergency Control department. Call 4-2222 to obtain them.
4. Evacuation Procedure
The Tenant will post an evacuation route, which includes a primary and
secondary route, and keep it current. In an evacuation, the Tenant's employees
will go to a pre-selected area in the parking lot, at least 250 feet from the
building. All personnel will be accounted for by the Tenant. Whenever Tenant
calls for an evacuation, the emergency must be reported on 4-3333 so that
appropriate emergency personnel can respond.
5. Preventive Services
The Premises will be inspected by EC technicians each month to assure
compliance with New York State fire laws and insurance company requirements. The
technicians will test the sprinkler system, smoke detection system, and
extinguishing systems. The technicians will check the portable fire
extinguishers, storage of chemicals, operation of fire doors, and for any
potential fire hazards. When deficiencies are found, corrective action by the
Tenant will be required. Before entering Tenant's area to do a monthly
inspection, the EC technician contacts the Tenant to make arrangements.
6. Insurance Company Inspections
Annually, the property insurer tours each building with EC to review
operations and buildings for compliance with their requirements. EC will seek
prior approval from the Tenant before conducting these inspections.
7. Water Supply System
The EC department will inspect and maintain the fire valves and hydrants.
8. Portable Fire Extinguishers and Fire Hoses
The EC department will inspect all portable fire extinguishers and fire
hoses for proper operation. Extinguishers and hoses not operating properly will
be replaced. The EC technician will prearrange these inspections with the
Tenant.
All portable extinguishers must be provided by the Landlord, unless needed
in the support of Tenant construction activity.
9. Open Flame Permits
EC controls all open flame producing work through a permit system. This may
include, but is not limited to, welding, soldering, and spark producing
equipment. Tenant will obtain permit by calling the EC department. EC will
dispatch a technician to inspect the area before and after the issuance of a
permit.
10. Evacuation Drills
Emergency Control will conduct annual evacuation drills of the Premises. EC
will contact the Tenant before the evacuation drill occurs. The Tenant will use
the procedure outlined earlier under Emergency Response.
11. Confined Spaces
Confined Spaces are clearly marked with yellow and black signs. Under no
circumstances will a Tenant employee enter one of these spaces unless issued a
permit by the Emergency Control department.
5. ENVIRONMENTAL AND CHEMICAL MANAGEMENT SERVICES
The Landlord shall provide limited environmental engineering support and
chemical management support to the Tenant. This includes interactions with and
submissions to federal, state and local environmental regulatory agencies
regarding Tenant activities (e.g., permitting, reporting) upon receipt of
appropriate and timely information from the Tenant. The Tenant shall maintain
ultimate accountability for compliance with all laws, regulations, and rules
with respect to the Tenant's activities.
Disposal and treatment of hazardous and nonhazardous chemical wastes
generated by the Tenant shall be through the Landlord and in accordance with
requirements established by the Landlord. The off-site disposal of Tenant
chemical wastes shall be consistent with the disposal methods used by the
Landlord for its wastes. The Tenant may discharge wastes into site drain systems
(dilute industrial acid, fluoride heavy metal and solvent) only upon prior
written authorization from the Landlord and only if the wastes are compatible
with the drain system and/or treatment facility. All chemical usage by the
Tenant requires prior authorization by the Landlord. This includes use of new
chemicals or increased use of existing chemicals. All chemical deliveries to the
Tenant must be routed through the Landlord's chemical warehouse facility for
processing by the Landlord.
For all chemicals other than class 4 toxic gases, the Tenant has the option
of direct delivery from Tenant's supplier/carrier with processing at Landlord's
chemical warehouse, or receipt from Tenant's supplier at Landlord's chemical
warehouse with distribution by Landlord to the Tenant Building. Direct delivery
from Tenant's supplier/carrier requires shipping instructions to specify "check
in at B/304 with delivery to B/XXX." In case of handling class 4 toxic gases,
all cylinders must be received at Landlord's chemical warehouse with
distribution attended and supervised by Landlord. Refer to Schedule C for
pricing.
6. SHIPPING/RECEIVING/INTERNAL DISTRIBUTION SERVICES
The IBM Materials Distribution Center (MDC) located within the Hudson
Valley Research Park shall provide limited SHIPPING RECEIVING and INTERNAL
DISTRIBUTION services to Tenant during normal IBM first shift business hours,
(excluding holidays); Monday through Friday, 07:00 AM to 3:00 PM.
All shipping, receipts and internal distributions will occur within normal
MDC turnaround times.
Tooling/rigging/special handling services are not covered under this
agreement.
Tenant agrees they will not use this service to ship, receive distribute
any HAZARDOUS, RESTRICTED or PERISHABLE MATTER such as, but not limited to,
chemical, explosives, flammable materials, corrosives, compressed gasses, radio
active materials, and poisons.
In no event shall IBM be liable for any damage or losses of packages or the
contents thereof. Tenant shall be solely responsible for filing damage claims
with external carrier and suppliers for all dangerous goods, including concealed
damage.
Shipping, Receiving, and Internal Distribution services are provided on an
"AS IS" basis, without warranty of any kind, express or implied.
A. Shipping
Customer carriers are to make all pickups at building 308 dock. MDC will
meet carrier to load packages on carrier's truck and provide carrier with
customer's shipping documentation.
B. Receiving
MDC will receive packages from carrier at building 308.
C. Internal Distribution
MDC will provide delivery of packages to designated Tenant drop areas along
with pickup of outgoing packages from same area. Drop areas and schedules shall
be predetermined by MDC.
RIDER D
Loading Dock Access/Use by Tenants
Rules and Responsibilities
A. General
IBM will identify a loading dock to be used by the Tenant.
A limited number of Tenant personnel will be granted badge access to the
designated loading dock door. All Tenant usage of the designated loading dock
will be subordinate to IBM's need to utilize the loading docks.
Failure to comply with any of the conditions in this Rider D will require
prompt corrective action to be taken by the Tenant. Repeated incidents may lead
to termination of this privilege. In the event that loading dock privileges are
terminated, shipping/receiving services will be required to be purchased.
It is the Tenant's responsibility to notify the suppliers of their assigned
dock. Once the dock access is granted and agreed upon, IBM will not accept
Tenant freight at Building 308. All Tenant freight will be redirected to their
assigned dock.
B. Safety
Tenant agrees to provide training to designated Tenant personnel in the
safe operation of dock equipment, overhead doors, and dock levelers.
Truck entry, exit, and maneuvering areas are to be kept clear of all
obstructions, parked vehicles, pedestrians, and debris.
Pedestrian exits, such as stairs, are to be kept clear and clean.
Wheel chocks are available and are to be used during loading and unloading.
The truck and trailer wheels must be properly chocked.
When loading or unloading trucks, the pitch of the truck bed, dock boards,
or dock levelers must be limited to safe inclines.
Tenant will be responsible for and report immediately any damage or unsafe
condition in the dock area. Call extension 4-8000.
IBM is not responsible for any injuries or damage caused by misuse of dock
equipment.
C. Security
Tenant personnel will be responsible for the following security
requirements related to the dock area:
* Dock is not to be left unattended while the loading dock door is in the
"open" position.
* Tenant will challenge any personnel attempting to enter the building
through the opened overhead loading dock door. Only those who are able to
identify themselves as working for IBM Security or IBM Emergency Control
are to be allowed entry through the opened overhead door. All other
personnel are to be directed to the nearest badge controlled personnel
entry door or to the main lobby in Building 320.
* Notify IBM Security (by calling 4-2000) immediately of any unauthorized or
uncooperative personnel. The Tenant is not to use any force in detaining or
confronting any uncooperative individual(s).
Drivers and/or suppliers of the Tenant are not allowed to leave the dock
area or enter the building for any purpose without following the established
Access Control Procedures (obtain visitors badge).
EXHIBIT A1
FED Occupied Space Bldg. 310 First Floor
EXHIBIT A2
FED Occupied Space Bldg. 334 Second Floor
EXHIBIT A3
FED Occupied Space Bldg. 330C First Floor
EXHIBIT A4
FED Occupied Space Bldg. 320B First Floor
EXHIBIT B
PARKING PLAN
EXHIBIT C
ENVIRONMENTAL CONSENT ORDER
EXHIBIT D
Chemical Storage, Handling, and Waste Disposal practices
in
FED Corporation's Organic thin films Laboratory
SCHEDULE A
BASE RENT COMPUTATION SCHEDULE
SCHEDULE B
BASE RENT PAYMENT SCHEDULE
SCHEDULE C
UTILITIES/SERVICES PRICING SCHEDULE
SCHEDULE D
COMPUTED UTILITIES SCHEDULE
SCHEDULE E
LOAN AMORTIZATION SCHEDULE