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MATTERHORN USA, INC.,
LANDLORD
ATC HEALTHCARE SERVICES, INC.,
TENANT
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LEASE
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PREMISES: Gateway North
Lake Success, New York
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TABLE OF CONTENTS
PAGE
AGREEMENT OF LEASE, made as of this _____ day of November, 1999, between
MATTERHORN USA, INC., a Delaware corporation, having an office at c/o BDG
Management, Inc., 0000 Xxxxxxx Xxxxxxxx, Xxxxxxx, Xxx Xxxx, 00000 (hereinafter,
"Landlord") and ATC HEALTHCARE SERVICES, INC., having an office at
_______________________________ (hereinafter, "Tenant").
W I T N E S S E T H :
The parties hereto, for themselves, their heirs, distributees, executors,
administrators, legal representatives, successors and assigns, hereby covenant
and agree as follows:
1.01. Landlord hereby leases to Tenant and Tenant hereby hires from
Landlord the space substantially as shown hatched on the diagram attached hereto
and made a part hereof as Exhibit "A" on the Entry Level of the building known
as Xxxxxxx Xxxxx, Xxxx Xxxxxxx, Xxx Xxxx, 00000 (hereinafter, the "Building"),
situated upon a plot of land (hereinafter, the "Land") in the Town of North
Hempstead, County of Nassau and State of New York, as more particularly
described on Schedule A attached hereto and made a part hereof, together with
all fixtures, equipment, improvements, installations and appurtenances which at
the commencement of or during the Term of this Lease are attached thereto
(except items not deemed to be included therein and removable by Tenant as
provided in Article V hereof), which space, fixtures, equipment, improvements,
installations and appurtenances are hereinafter sometimes called the "Demised
Premises," for a "Term" of eight (8) years(or until such Term shall sooner cease
and expire as hereinafter provided), to commence on the date upon which the
Demised Premises shall have been rendered substantially ready for occupancy by
Landlord (hereinafter, the "Commencement Date"), and to end at midnight on the
last day of the ninety-sixth (96th) month after the Commencement Date
(hereinafter, the "Expiration Date"), said Commencement Date and Expiration Date
being subject to the further provisions of this Lease, at an initial annual base
rate of $282,840.00 which Tenant agrees to pay in twelve (12) equal monthly
installments per annum, in advance, on the first day of each calendar month
during said Term, at the office of Landlord or such other place as Landlord may
designate, except that Tenant shall pay the first monthly installment on the
execution hereof. Promptly following the Commencement Date, the parties hereto
shall enter into a supplemental certificate fixing the actual Commencement Date
and the stated Expiration Date and certifying that any improvements required to
be made by Landlord have been completed. The parties agree that the rentable
square foot area of the Demised Premises for the purposes of this Lease is
11,785 square feet ("Rentable Square Feet").
1.02. The terms defined in this Article shall, for all purposes of this
Lease, and all agreements supplemental hereto, have the meanings specified
herein, unless the context required otherwise.
1.02.1 "Term" shall mean that period between the Commencement Date and the
Expiration Date, or such earlier date(s) on which such term may expire or be
cancelled or terminated pursuant to any of the conditions or covenants of this
Lease or pursuant to law.
1.02.2 "Tenant's Pro Rata Share" shall be 3.74 percent.
1.02.3. "Lease Year" shall mean any consecutive twelve (12) month period
commencing on the Commencement Date, or the first day of the month following the
Commencement Date, if the Commencement Date is any day other than the first day
of a month, or any anniversary thereof.
1.02.4. "Common Areas" shall mean the lobbies, entrances, hallways,
bathrooms, stairs, elevators, off-street loading berths, atrium and other public
portions and common areas or building service areas of the Building and the
non-exclusive indoor and outdoor parking areas associated with the Building.
1.02.5. "Commencement Date" shall have the meaning set forth on Page 1
hereof.
1.02.6. "Expiration Date" shall have the meaning set forth on Page 1
hereof.
1.02.7. "Rent Commencement Date" shall mean the Commencement Date.
1.02.8. "Base Rent" shall have the meaning set forth in Article XIV.
1.02.9. "Additional Rent" shall have the meaning set forth in Article XIV.
1.2.10. "Land" shall have the meaning set forth on Page 1 hereof.
1.2.11 "Lease Month" shall mean any calendar month following the
Commencement Date, or the first full calendar month following the Commencement
Date, if the Commencement Date is any day other than the first day of a month.
2.01. Tenant shall pay to Landlord, at Landlord's offices first listed
above or at such other place as Landlord may designate from time to time, in
cash, or by check of Tenant in advance on the first day of each month during the
Term, without counterclaim, set-off or deduction whatsoever, the "Base Rent" (as
defined herein), commencing on the Rent Commencement Date, except that the first
monthly installment of Base Rent shall be paid on the execution hereof.
Notwithstanding the foregoing, if the Rent Commencement Date shall fall other
than on the first day of a month, then the Base Rent, pro-rated for the stub
period beginning on the Rent Commencement Date and ending on the last day of the
month in which the Rent Commencement Date falls, shall be paid by Tenant to
Landlord on the Rent Commencement Date (and the next regular monthly installment
of Base Rent shall be due and payable on the first day of the second month
following the month in which the Rent Commencement Date falls). In addition,
Tenant shall pay to Landlord during the Term, at the place and in the manner set
forth above, "Additional Rent" (as defined herein) as and when billed by
Landlord therefor.
3.01. Tenant shall use and occupy the Demised Premises as general and
administrative offices for the transaction of Tenant's business (hereinafter the
"Permitted Use"), and for no other purpose.
3.02. Tenant shall not at any time use or occupy, or suffer or permit
anyone to use or occupy, the Demised Premises, or do or permit anything to be
done in the Demised Premises, in violation of the Certificate of Compliance for
the Demised Premises or for the Building. Tenant shall not permit the Demised
Premises to be used or operated in violation of any governmental requirements or
requirements of the New York Board of Fire Underwriters, or any other law, rule
or regulation.
4.01. Tenant has inspected the Demised Premises and the Building and is
thoroughly acquainted with their respective conditions and agrees to take same
"as is" and acknowledges that the taking of possession of the Demised Premises
by Tenant shall be conclusive evidence that the Demised Premises and the
Building were in good and satisfactory condition at the time such possession was
so taken.
4.02. Landlord shall have no obligation to alter, improve, decorate or
otherwise prepare the Demised Premises for Tenant's occupancy except that
Landlord shall perform such items of work so as to modify the existing
conditions at the Demised Premises pursuant to the attached plans, valued at up
to $35,355.00 (hereinafter, "Landlord's Initial Work"). Any and all costs for
Landlord's Initial Work that exceed $35,355.00 shall be borne by Tenant and paid
to Landlord as Additional Rent. In the event that Landlord's Initial Work costs
less than $35,355.00, Tenant shall not be entitled to any abatement or
reimbursement whatsoever for the unused amount allocated for Landlord's Initial
Work. Landlord shall proceed with such Landlord's Initial Work with due
dispatch, subject to delays by causes beyond its reasonable control and to the
vacating and surrendering of all or part of the Demised Premises by any present
occupant thereof. If Landlord is required by the terms hereof to do any such
work without expense to Tenant and the cost of such work is increased due to any
delay resulting from any act or omission of Tenant, its agents or employees,
Tenant shall forthwith pay to Landlord as Additional Rent an amount equal to
such increase in cost.
4.03. So long as Tenant is not in default under the terms of this Lease,
and subject to Landlord's review of Tenant's then current financial statement(s)
which must provide for a net worth which exceeds$3,535,500.00, upon the first
anniversary of the Commencement Date, Landlord shall perform such items of work
so as to perform new building standard installation valued at up to $282,840.00
(hereinafter, "Landlord's Subsequent Work"). In the event that Tenant's then
current financial statement(s) does not provide for a net worth which exceeds
$3,535,500.00, on the aforementioned anniversary date, then the value of
Landlord's Subsequent Work shall be provided in annual installments of
$35,355.00 per year or Tenant shall be entitled to an abatement toward the Base
Rent for the unused amount allocated for Landlord's Subsequent Work for each
annual installment until such time that the then current financial statement(s)
of Tenant provides for a net worth which exceeds twelve and one-half times the
cost of the Subsequent Work, and then the balance of the aforementioned
$282,840.00 shall be made available to Tenant for Landlord's Subsequent Work.
Notwithstanding anything to the contrary herein, Landlord's total expense for
Landlord's Subsequent Work shall not exceed $282,840.00, which expense includes
any rent abatements as provided hereinabove. If Landlord is required by the
terms hereof to do any such work without expense to Tenant and the cost of such
work is increased due to any delay resulting from the act or omission of Tenant,
its agents or employees, Tenant shall have forthwith paid to Landlord as
Additional Rent an amount equal to such increase in cost.
4.04. Landlord shall use reasonable efforts to give to Tenant no less than
ten (10) business days prior notice of the Commencement Date. Notwithstanding
the foregoing, Landlord shall have no liability to Tenant in the event that the
Demised Premises are not substantially ready for occupancy upon the date
specified by Landlord.
4.05. Tenant may be permitted entry and access in and to the Demised
Premises prior to the Commencement Date in order to adapt and decorate the
Demised Premises for Tenant's use. In addition, if the cost of Landlord's
Initial Work is increased due to any delay resulting from Tenant's decorating
the Demised Premises as contemplated by this Section 4.05, Tenant shall
forthwith pay Landlord an amount equal to such increase in cost.
4.06. Any sums payable by Tenant prior to the Commencement Date pursuant
to the provisions of this Lease may be collected by Landlord as Additional Rent,
from time to time, upon demand, whether or not the same shall have accrued prior
to the Commencement Date and in default of payment thereof, Landlord shall (in
addition to all other remedies) have the same rights as in the event of Tenant's
default of payment of Additional Rent.
4.07. For the purposes of this Lease, the Demised Premises shall be deemed
"substantially ready for occupancy" when the major construction aspects of
Landlord's Initial Work are substantially completed, although minor items are
not completed. Such minor uncompleted items may include touch-up plastering or
painting, so-called "punch list" items, or any other uncompleted construction or
improvement which does not unreasonably interfere with Tenant's ability to carry
on its business in the Demised Premises. Tenant shall periodically inspect
Landlord's Initial Work, as hereinafter provided, and make any objections
thereto without delay so as to mitigate changes, delays and costs.
5.01. Tenant shall make no changes and/or alterations in or to the Demised
Premises, without Landlord's prior written consent, which consent shall not be
unreasonably withheld. All changes and/or alterations which shall be permitted
by Landlord (hereinafter, collectively "Tenant's Changes") shall be accomplished
at Tenant's expense by contractors approved by Landlord at a reasonable market
price. All Tenant's Changes requiring alterations to HVAC and/or electrical
equipment shall be performed by Landlord's contractors in connection with
Landlord's building management systems. All installations installed in the
Demised Premises at any time shall, upon installation, become the property of
Landlord and shall remain upon and be surrendered with the Demised Premises
unless Landlord, by written notice to Tenant no later than twenty (20) days
prior to the Expiration Date, elects to have them removed by Tenant, in which
event the same shall be removed by Tenant at Tenant's expense prior to the
Expiration Date.
5.02. Nothing in this Article shall be construed to give Landlord title to
or prevent Tenant's removal of trade fixtures, moveable office furniture and
equipment, but upon removal of any such equipment from the Demised Premises or
upon removal of other installations as may be required by Landlord, Tenant shall
immediately and at its expense, repair and restore the Demised Premises to the
condition existing prior to such installation and shall repair any damage to the
Demised Premises or the Building due to such removal. 5.03. All property
permitted or required to be removed by Tenant at the end of the Term, but which
nonetheless remains in the Demised Premises after the end of the Term shall be
deemed abandoned and may, at the election of Landlord, be either retained as
Landlord's property or removed from the Demised Premises by Landlord at Tenant's
expense.
5.04. Prior to commencing any Tenant's Changes, Tenant shall, at Tenant's
sole cost and expense and in consultation with Landlord's managing agent,
architects and engineers, obtain all permits, approvals and certificates
required by any governmental or quasi-governmental bodies and upon completion,
certificates of final approval thereof, and shall promptly deliver duplicates of
all such permits, approvals and certificates to Landlord. All Tenant's Changes
shall be performed in compliance with all applicable requirements of insurance
bodies having jurisdiction over the Demised Premises, and in such manner as not
to interfere with, other Tenants or Landlord, or delay or impose any additional
expense upon Landlord in the construction, maintenance or operation of the
Building. Tenant, at its expense, and with due diligence and dispatch, shall
procure the cancellation or discharge of all notices of violation or mechanic's
liens arising from or otherwise connected with Tenant's Changes. Additionally,
Tenant agrees to carry and will cause all contractors and sub-contractors to
carry such workers' compensation, general liability, personal and property
damage insurance as Landlord may require, including such completion and
performance bonds as Landlord may require.
5.05. Landlord may require submission to it of plans and specifications in
connection with granting or withholding its consent to any Tenant's Changes.
Prior to granting its consent to any such Tenant's Changes, Landlord may impose
such conditions as Landlord, in its reasonable discretion, may consider
desirable.
5.06. In the event Landlord or its agents shall construct any Tenant's
Changes, Tenant shall pay to Landlord as Additional Rent (as said term is
defined in Article XIV of this Lease) a fee equal to the cost to Landlord for
such work plus seven and one half (7 1/2%) percent of said cost for Landlord's
overhead plus seven and one half (7 1/2%) percent of said cost for Landlord's
profit.
5.07. In the event Tenant shall construct any Tenant's Changes, Tenant
shall pay to Landlord as Additional Rent (as said term is defined in Article XIV
of this Lease) a fee equal to ten (10%) percent of the cost of such work.
6.01. Landlord shall, at Landlord's sole cost and expense, make all
structural repairs to the Building in which the Demised Premises are located and
shall also maintain and keep in good repair the Building's roof, exterior,
common areas (interior and exterior), parking areas, items in disrepair caused
by Landlord's negligence and sanitary, electrical, heating and other systems
servicing or located in or passing through the Demised Premises. Landlord shall
operate and maintain the Building in such manner as Landlord determines from
time to time and in a reputable manner as would a prudent Landlord of a building
that is reasonably similar in tenant mix, size, age and location. Tenant shall
take good care of the Demised Premises and the fixtures and appurtenances
therein and, at Tenant's sole cost and expense, make all nonstructural repairs
thereto as and when needed to preserve said Demised Premises and fixtures in
good working order and condition, reasonable wear and tear, obsolescence and
damage from the elements, fire or other casualty excepted. Notwithstanding the
foregoing, all damage or injury to the Demised Premises or to any other part of
the Building, or to its fixtures, equipment and appurtenances whether requiring
structural or non-structural repairs, caused by or resulting from carelessness,
omission, neglect or improper conduct of Tenant, Tenant's servants, employees,
invitees or licensees, shall be promptly repaired by Tenant in a first class and
workmanlike manner, failing which such repairs may be made by Landlord at
Tenant's sole cost and expense. Tenant shall repair all damage to the Building
and the Demised Premises caused by the moving of Tenant's fixtures, furniture or
equipment. All the aforesaid repairs shall be of the quality and class equal to
the original work or construction.
6.02. Except as specifically provided in this Lease, there shall be no
allowance to Tenant for a diminution of rental value and no liability on the
part of Landlord by reason of inconvenience, annoyance or injury to business
arising from Landlord, Tenant or others making or failing to make any repairs,
alterations, additions or improvements in or to any portion of the Building or
the Demised Premises or in and to the fixtures, appurtenances or equipment
thereof. The provisions of this Article with respect to the making of repairs
shall not apply in the case of fire or other casualty which are dealt with in
Article XVII hereof.
8.01. Tenant shall give prompt notice to Landlord of any notice it
receives of the violation of any law or requirements of any public authority
with respect to the Demised Premises or the use or occupation thereof. Prior to
the Commencement Date, if Tenant is then in possession of the Demised Premises,
and at all times thereafter, Tenant shall promptly comply with all present and
future laws, orders and regulations of all state, federal, town, municipal and
local governments, departments, commissions and boards or any direction of any
public officer pursuant to law, and all orders, rules and regulations of the New
York Board of Fire Underwriters or any similar body which shall impose any
violation, order or duty upon Landlord or Tenant with respect to the Demised
Premises (in which event Tenant shall effect such compliance at its sole cost
and expense) or the Building, if arising out of Tenant's particular use (in
which event, Tenant shall pay such cost to Landlord of complying therewith).
Tenant shall pay all costs, expenses, fines, penalties or damages, which may be
imposed upon-Landlord by reason of Tenant's failure to comply with the
provisions of this Article, and if by reason of such failure the fire insurance
rate shall, at the beginning of this Lease or at any time thereafter, be higher
than it otherwise would be, then Tenant shall reimburse Landlord, as Additional
Rent hereunder, for that portion of all fire insurance premiums thereafter paid
by Landlord which shall have been charged because of such failure by Tenant, and
shall make such reimbursement upon the first day of the month following such
outlay by Landlord.
8.02. Tenant shall not place a load upon any floor of the Demised Premises
exceeding the floor load per square foot area which said floor was designed to
carry and which is allowed by law.
9.01. This Lease, and all rights of Tenant hereunder, are and shall be
subject and subordinate in all respects to all present and future ground leases,
overriding leases and underlying leases and/or grants of term of the Land or the
Building or the portion thereof in which the Demised Premises are located in
whole or in part now or hereafter existing and to all mortgages and building
loan agreements, which may now or hereafter affect the Land, and/or the Building
and/or any of such leases, whether or not such mortgages shall also cover other
lands and/or buildings, to each and every advance made or hereafter to be made
under such mortgages, and to all renewals, modifications, replacements and
extensions of such leases and such mortgages and spreaders, consolidations and
correlations of such mortgages. The provisions of this Article shall be
self-operative and no further instrument of subordination shall be required.
9.02. In confirmation of such subordination, Tenant shall promptly execute
and deliver, at its own cost and expense, any instrument, in recordable form if
requested by Landlord, that Landlord, the lessor of any such lease or the holder
of any such mortgage or any of their respective successors in interest may
request to evidence such subordination, and Tenant hereby constitutes and
appoints Landlord its attorney-in-fact to execute any such instrument for and on
behalf of Tenant. The leases to which this Lease is, at the time referred to,
subject and subordinate pursuant to this Article, are sometimes hereinafter
called "superior leases" and the mortgages to which this Lease is, at the time
referred to, subject and subordinate are sometimes hereinafter called "superior
mortgages" and the lessor of a superior lease or its successor in interest at
the time referred to is sometimes hereinafter called a "lessor."
9.03. This Lease shall not terminate or be terminable by Tenant by reason
of any termination of any superior lease, by summary proceedings, or otherwise,
unless the lessor under the terminated superior lease shall elect in connection
therewith to terminate this Lease and the right of Tenant to possession of the
Demised Premises. Tenant agrees without further instruments of attornment in
such case, to attorn to such lessor, to waive the provisions of any statute or
rule of law now or hereafter in effect which may give or purport to give Tenant
any right of election to terminate this Lease or to surrender possession of the
Demised Premises in the event such superior lease is terminated, and that unless
and until said lessor shall elect to terminate this Lease and extinguish the
leasehold estate demised hereunder, this Lease shall not be affected in any way
whatsoever by any such proceeding or termination. Tenant shall take no steps to
terminate this Lease, whether or not such superior lease be terminated, without
giving written notice to such lessor, and a reasonable opportunity to cure
(without such lessor being obligated to cure), any default on the part of
Landlord under this Lease. Notwithstanding anything to the contrary herein,
Tenant shall attorn to the holder of any superior mortgage and Tenant shall have
no right of offset or counterclaim to payment of any rent against the holder of
any superior mortgage and any cancellation, surrender, or amendment of this
Lease without the prior written consent of the holder of any superior mortgage
shall be voidable by such holder of a superior mortgage. Tenant acknowledges and
agrees that if any holder of a superior mortgage shall succeed to the interest
of Landlord under this Lease, the holder of such mortgage shall assume (only
while owner of and in possession or control of the Building of which the Demised
Premises are a part) and perform all of Landlord's obligations under this Lease,
but shall not be (i) liable for any act or omission of any prior landlord
(including Landlord), (ii) liable for the return of any security deposit, (iii)
subject to any offset or defense which Tenant may have paid for more than the
current month to any such prior landlord, or (iv) bound by any assignment or
modification of this Lease, made without its express written consent. Tenant
shall not look to the holder of a superior mortgage or successor in title to the
Demised Premises, in connection with the return of or accountability with
respect to any security deposit required by Landlord, unless said sums have
actually been received by such holder of a superior mortgage or successor in
interest. Any reference to the holder of a superior mortgage hereinabove shall
also include any of their respective successors in interest.
9.04. If, in connection with the procurement, continuation or renewal of
any financing for which the Land, and/or the Building or the interest of the
lessee therein under a superior lease represents collateral in whole or in part,
an institutional lender shall request reasonable modifications of this Lease as
a condition of such financing, Tenant will not withhold its consent thereto,
provided that such modifications do not materially increase the obligations of
Tenant under this Lease or materially and adversely affect any rights of Tenant
under this Lease.
10.01. If the whole of the Demised Premises shall be taken for any public
or quasi-public use by any lawful power or authority by exercise of the right of
condemnation or of eminent domain, or by agreement between Landlord or the fee
owner and those having the authority to exercise such right (hereinafter called
"Taking"), the term of this Lease and all rights of Tenant hereunder, except as
hereinafter provided, shall cease and expire as of the date of vesting of title
as a result of the Taking, and the Base Rent and Additional, Rent payable under
this Lease shall xxxxx from and following the date on which the Taking occurs.
10.02. In the event of a Taking of less than the whole of the Demised
Premises, or a portion of the parking area, this Lease shall cease and expire in
respect of the portion of the Demised Premises and/or parking area taken upon
vesting of title as a result of the Taking and, if the Taking results in the
portion of the Demised Premises remaining after the Taking being inadequate, in
the reasonable judgment of Landlord for the efficient, economical operation of
Tenant's business conducted at such time in the Demised Premises, Landlord may
elect to terminate this Lease by giving notice to Tenant of such election not
more than thirty (30) days after the actual Taking by the condemning authority
stating the date of termination, which date shall be not more than thirty (30)
days after the date of such notice to Tenant, and upon said date, this Lease and
the term hereof shall cease and expire. If Landlord does not elect to terminate
this lease as aforesaid: (i) the new Base Rent payable under this Lease shall be
the product of the total Base Rent payable under this Lease multiplied by a
fraction, the numerator of which is the rentable square foot area of the Demised
Premises remaining after the taking, and the denominator of which is the
rentable square foot area of the Demised Premises immediately preceding the
Taking, and (ii) the net award for the Taking shall be paid to and first used by
Landlord (subject to the rights of any mortgagee and/or fee owner) to restore
the portion of the Demised Premises and the Building remaining after the Taking
to substantially the same condition and tenant ability (hereinafter called
"pre-taking condition") as existed immediately preceding the date of the Taking.
10.03. In the event of a Taking of less than the whole of the Demised
Premises which occurs during the period of one year next preceding the
termination date of this Lease, Landlord may elect to terminate this Lease by
giving notice to Tenant of such election, not more than thirty (30) days after
the actual Taking by the condemning authority, stating the date of termination,
which date of termination shall be no more than thirty (30) days after the date
on which such notice of termination is given and upon the date specified in such
notice, this Lease and the term hereof shall cease. On or before such
termination date, Tenant shall vacate the Demised Premises, and any of Tenant's
property remaining in the Demised Premises subsequent to such termination date
shall be deemed abandoned by Tenant and shall become the property of Landlord.
10.04. In the event of a Taking of the Demised Premises or any part
thereof, and whether or not this Lease is terminated, Tenant shall have no claim
against Landlord or the condemning authority for the value of the unexpired term
of this Lease. Tenant agrees that in any condemnation proceeding, Tenant may
make a claim only for the value of Tenant's fixtures, equipment and moving
expenses.
11.01. Tenant shall not assign, mortgage or encumber this Lease, its
interest hereunder or the estate granted hereby, nor sublet or suffer or permit
the Demised Premises or any part thereof to be used by others, without the prior
written consent of Landlord in each instance.
11.02. If Tenant should assign its interest in this Lease, or if all or
any part of the Demised Premises be underlet or occupied by anybody other than
Tenant, Landlord may, after default by Tenant, collect rent from the assignee,
under-tenant or occupant, as the case may be, and apply the net amount collected
to the rent herein reserved, but no such assignment, underletting, occupancy or
collection shall be deemed a waiver of this covenant, or the acceptance of the
assignee, under-tenant or occupant as Tenant, or a release of Tenant from the
further performance by Tenant of covenants on the part of Tenant contained
herein. The consent by Landlord to any assignment or underletting shall not in
any way be construed (i) to relieve Tenant from obtaining the express consent in
writing of Landlord to any further assignment or underletting or (ii) release
Tenant from any of its obligations under this Lease, including the payment of
rent. In no event shall any permitted sublessee assign or encumber its sublease
or further sublet all or any portion of its sublet space, or otherwise suffer or
permit the sublet space or any part thereof to be used or occupied by others,
without Landlord's prior written consent in each instance.
11.03. If Tenant shall desire to assign this Lease, or to sublet the
Demised Premises or any part thereof, it shall no later than thirty (30) days
prior to the proposed effective date of the assignment or sublet, submit to
Landlord a written request for Landlord's consent to such assignment or
subletting, which request shall contain the following information: (i) the name
and address of the proposed assignee or subtenant; (ii) the terms and conditions
of the proposed assignment or subletting; (iii) the nature and character of the
business of the proposed assignee or subtenant and its proposed use of the
Demised Premises; and (iv) current financial information regarding the proposed
assignee or sublessee and any other information Landlord may reasonably request
("Tenant's Notice"). Landlord may, by notice to such effect given to Tenant
within fifteen (15) days after either the receipt of Tenant's request for
consent or the receipt of such further information as Landlord may request
pursuant to this Section 11.03 above, whichever is later, terminate this Lease
on a date to be specified in said notice (hereinafter, the "Termination Date"),
which date shall be not earlier than one (1) day before the effective date of
the proposed assignment or subletting nor later than sixty-one (61) days after
said effective date. Tenant shall then vacate and surrender the Demised Premises
on or before the Termination Date and the Term of this Lease shall end on the
Termination Date as if that were the Expiration Date. Landlord shall be free to,
and shall have no liability to Tenant if Landlord should, lease all or any part
of the Demised Premises to Tenant's prospective assignee or subtenant.
11.04. If Landlord shall not exercise its option to terminate this Lease
pursuant to Section 11.03 above, then Landlord shall not unreasonably withhold
its consent to the proposed assignment or subletting referred to in Tenant's
Notice. In no event, will Landlord give its consent thereto unless the following
further conditions shall be fulfilled:
(1) Tenant shall not then be in default hereunder beyond the time
herein provided, if any, to cure such default;
(2) The proposed assignee or subtenant shall have a financial
standing, be of a character, be engaged in a business, and propose to use the
Demised Premises in a manner, consistent with the standards and in such respect
of the other tenancies in the Building;
(3) Landlord does not or in Landlord's reasonable judgment will not
have, within six (6) months after the date of said Tenant's notice, suitable
space available for the proposed subtenant or assignee in the Building or in any
other building owned by Landlord in the office complex of which the Building is
a part, the proposed assignee or subtenant shall not then be a tenant, subtenant
or assignee of any space in the Building or in any other building owned by
Landlord in the office complex of which the Building is a part other than of
space included in the Demised Premises, nor shall the proposed assignee or
sublessee be a person or entity with whom Landlord is then negotiating to lease
space in the Building or in any other building owned by Landlord in the office
complex of which the Building is a part;
(4) Tenant shall reimburse Landlord on demand for any costs that may
be incurred by Landlord in connection with said assignment or sublease,
including, without limitation, the costs of making investigations as to the
acceptability of the proposed assignee or subtenant, and legal costs incurred in
connection with the granting of any requested consent (said costs not to exceed
$2,000.00);
(5) The proposed assignee or sublessee is not a person or entity
with whom Landlord has or is then negotiating to lease space to in the Building;
(6) The form of the proposed sublease shall be in a form reasonably
satisfactory to Landlord and shall comply with the applicable provisions of this
Article;
(7) In Landlord's reasonable judgment the proposed assignee or
subtenant is engaged in a business and the Demised Premises, or the relevant
part thereof, will be used in a manner which (i) is consistent with the then
standards of the Building; (ii) is limited to the use expressly permitted under
this lease; and (iii) will not violate any negative covenant as to use contained
in any other lease of space in the Building;
(8) Tenant shall have complied with the provisions of Section 11.03
and Landlord shall not have exercised its option to terminate under said Section
11.03 within the time permitted therefor.
11.05. Every subletting hereunder is subject to the express condition, and
by accepting a sublease hereunder each subtenant shall be conclusively deemed to
have agreed, that if this Lease should be terminated prior to the Expiration
Date or if Landlord should succeed to Tenant's estate in the Demised Premises,
then at Landlord's election the subtenant shall either surrender the Demised
Premises to Landlord within sixty (60) days of Landlord's request therefor, or
attorn to and recognize Landlord as the subtenant's landlord under the sublease
and the subtenant shall promptly execute and deliver any instrument Landlord may
request to evidence such attornment. Nothing contained herein to the contrary
shall be deemed a waiver by Landlord to collect any Rent or Additional Rent due
hereunder from the Subtenant.
11.06. Notwithstanding any assignment and assumption by the assignee of
all or any part of the obligations of Tenant hereunder, Tenant herein named, and
each immediate or remote successor in interest of Tenant named herein, shall
remain liable jointly and severally (as a primary obligor) with its assignee and
all subsequent assignees for the performance of Tenant's obligations hereunder,
and, without limiting the generality of the foregoing, shall remain liable to
Landlord for all acts and omissions on the part of any assignee subsequent to it
in violation of any of the obligations of this Lease.
11.07. Notwithstanding anything to the contrary contained in this Lease,
no assignment of Tenant's interest in this Lease shall be binding upon Landlord
unless the assignee, and if the assignee is a partnership, the individual
partners, shall execute and deliver to Landlord an agreement, whereby such
assignee agrees unconditionally to be personally bound by and to perform all of
the obligations of Tenant hereunder and further expressly agrees that
notwithstanding such assignment the provisions of this Article shall continue to
be binding upon such assignee with respect to all future assignments and
transfers. A failure or refusal of such assignee to execute or deliver such an
agreement shall not release the assignee from its liability for the obligations
of Tenant hereunder assumed by acceptance of the assignment of this Lease.
11.08. If Tenant shall sublet the Demised Premises to anyone for rents
which for any period shall exceed the Base Rent and Additional Rent payable
under this Lease for the same period (computed on a pro-rata per rentable square
foot basis), Tenant shall pay Landlord, as Additional Rent hereunder, the amount
of any rents, additional charges or other consideration payable under the
sublease to Tenant by the sublessee which is in excess of the Base Rent and
Additional Rent accruing during the term of the sublease in respect of the
Demised Premises pursuant to the terms hereof (computed on a pro-rata per
rentable square foot basis). The sums payable under this Section 11.08 shall be
paid to Landlord as Additional Rent as and when payable by the subtenant to
Tenant.
11.09. Any transfer, by operation of law or otherwise, of Tenant's
interest in this Lease (in whole or in part) or of a thirty (30%) percent or
greater interest in Tenant (whether stock, partnership interest, membership
interest, or otherwise) shall be deemed an assignment of this Lease within the
meaning of this Article, and, as such, shall be subject to Landlord's rights
under this Article. If there has been a previous transfer of less than a thirty
(30%) percent interest in Tenant, then any simultaneous or subsequent transfer
of an interest in Tenant which, when added to the total percentage interest
previously transferred, totals a transfer of greater than a thirty (30%) percent
interest in Tenant, shall be deemed an assignment of Tenant's interest in this
Lease within the meaning of this Article. Notwithstanding anything contained to
the contrary herein, if Tenant merges with or is purchased by a company that is
otherwise acceptable to Landlord, Landlord will not unreasonably withhold or
delay its consent under the provisions of this Article XI.
11.10. In the event that (i) Landlord fails to exercise any of its options
under this Article and approves a proposed assignment or sublease, and (ii)
Tenant fails to execute and deliver the assignment or sublease to which Landlord
consented within forty-five (45) days after the giving of such consent, then,
Tenant shall again comply with all of the provisions and conditions of this
Article before assigning its interest in this Lease or subletting the Demised
Premises, or any part thereof.
12.01. (a) For purposes of this Article, the following terms shall have
the following meanings:
(i) The term "Landlord's Cost" shall mean the average cost per
kilowatt hour and average cost per kilowatt demand, by time of day, if
applicable, to Landlord of purchasing electricity for the Building, including,
without limitation, fuel adjustment charges (as determined for each month of the
relevant period and not averaged), rate adjustment charges, sales tax, and/or
any other factors used by the public utility company (the "Utility") servicing
the Building in computing its charges to Landlord applied to the kilowatt hours
of energy and kilowatts of demand purchased by Landlord during a given period;
and
(ii) the term "Landlord's Statement" shall mean an instrument
containing a computation (or estimate thereof) of Landlord's Cost (hereinabove
defined), or any other computation to be made by Landlord pursuant to the
provisions of this Article.
(b) Subject to the provisions herein, the parties agree that Landlord
shall furnish electricity to Tenant on a "submetering" basis. Landlord shall, as
part of LANDLORD'S WORK, install a meter or meters (collectively, the
"Submeter") at a location designated by Landlord, connections from the risers
and/or circuits servicing the Demised Premises to the Submeter, and perform all
other work necessary for the furnishing of electric current by Landlord to the
Demised Premises in the manner provided for in this subdivision. If, and so long
as, electric current is supplied by Landlord to the Demised Premises to service
Tenant's lighting and equipment, Tenant will pay Landlord, or Landlord's
designated agent, as additional rent for such service, the amounts, as
determined by the Submeter, for the purpose of measuring Tenant's consumption.
The additional rent payable by Tenant pursuant to this subdivision shall be
computed in the same manner as that for computation of Landlord's Cost, as
applied to the Demised Premises. The amounts computed from the Submeter are
herein called the "Electricity Additional Rent," and such amounts computed from
the Submeter shall be binding and conclusive on Tenant. If the Submeter should
fail to properly register or operate at any time during the term of this Lease
for any reason whatsoever, Landlord may estimate the Electricity Additional
Rent, and when the Submeter is again properly operative, an appropriate
reconciliation shall be made by Tenant paying any deficiency to Landlord within
twenty (20) days after demand therefor, or by Landlord paying any overpayment to
Tenant within twenty (20) days, based upon, among other things, any increase or
decrease in Landlord's Cost. The periods to be used in the aforesaid computation
shall be as Landlord, in its reasonable discretion, may from time to time elect.
When more than one meter measures the electric service rendered, each meter may
be computed and billed at Landlord's option, separately, as above set forth, or
cumulatively. Bills for the Electricity Additional Rent (the "Bills") shall be
rendered to Tenant at such time as Landlord may reasonable elect.
Landlord and Tenant agree that the Submeter might be installed subsequent
to the date (the "Initial Occupancy Date") that Tenant, or anyone (including,
without limitation, any contractors or other workmen) claiming under or through
Tenant, first enters the Demised Premises. In such event, Landlord, at
Landlord's sole option, may either (x) estimate the Electricity Additional Rent
payable by Tenant for the period commencing on the Initial Occupancy Date and
ending on the Occupancy Reading Date (hereinafter defined), and Tenant shall pay
to Landlord, within ten (10) days after demand therefor, the amount set forth on
Landlord's estimate, and, after rendition of a subsequent Landlord's Statement,
an appropriate reconciliation shall be made for any deficiency owed by Tenant or
any overage paid by Tenant, or (y) render a Landlord's Statement to Tenant,
after a reading of the installed Submeter is made (said date upon which the
Submeter is read being herein called the "Occupancy Reading Date"), on or about
the date upon which Tenant shall have commenced normal business operations in
the Demised Premises, and the amount calculated from the Submeter on the
Occupancy Reading Date shall be determined on a per diem basis and then
multiplied by the number of days from the Initial Occupancy Date through the
Occupancy Reading Date to arrive at the amount due for said period, and Tenant
shall pay the Electricity Additional Rent on the basis of such Submeter reading
within ten (10) days after rendition of Landlord's Statement detailing such
computation.
If any tax is imposed upon Landlord's receipts from the sale or resale of
electric current to Tenant by Federal, State or municipal authority, Tenant
agrees that, unless prohibited by law, Tenant's Share of such taxes shall be
passed on to and included in the xxxx of and paid by Tenant to Landlord as
additional rent.
(c) Landlord shall have full and unrestricted access to all
air-conditioning and heating equipment, and to all other utility installations
servicing the Building and the Demised Premises, and Landlord shall endeavor to
give Tenant reasonable notice (except in the case of an emergency) prior to
working with any of the aforementioned items within the Demised Premises.
Landlord reserves the right temporarily to interrupt, stop or suspend
air-conditioning and heating service, and all other utility or other services,
because of Landlord's inability to obtain, or difficulty or delay in obtaining,
labor or materials necessary therefor, or in order to comply with governmental
restrictions in connection therewith, or for any other cause beyond Landlord's
reasonable control. No diminution or abatement of Base Rent, Additional Rent or
other compensation shall be or will be claimed by Tenant, nor shall this Lease
or any of the obligations of Tenant hereunder be affected or reduced by reason
of such interruptions, stoppages or curtailments the causes of which are
hereinabove enumerated, nor shall the same give rise to a claim in Tenant's
favor that such failure constitutes actual or reconstructive, total or partial
eviction from the Demised Premises, unless such interruptions, stoppages or
curtailments have been due to the arbitrary, willful or negligent act, or
failure to act, of Landlord.
(d) Telephone installation and service shall be the sole
responsibility of Tenant, at Tenant's sole cost and expense. Tenant shall make
all arrangements for telephone services with the company supplying said service,
including the deposit requirement for the furnishing of service. Landlord shall
not be responsible for any delays occasioned by failure of the telephone company
to furnish service. Landlord shall provide all telephone company employees and
all telephone and computer subcontractors with access to the Building equipment
and the main telephone distribution system.
(e) Power demands, including only Tenant's electrical usage for
Tenant's equipment (including P.C.'s and copy machines and like items) shall not
exceed four (4) xxxxx per rentable square foot of the Demised Premises, or part
thereof per hour. Landlord hereby reserves to itself the right, from time to
time, to cause a reputable electric engineering company to make a survey of
Tenant's energy usage to determine whether the four (4) xxxxx per square foot
limitation, as set forth in this Article, have been exceeded, and if so, to what
extent. If these surveys indicate at any time that Tenant's energy use exceeds
the four (4) xxxxx per square foot limitation provided hereinabove, Tenant
shall, upon notice from Landlord, immediately reduce its usage to comply with
same. The cost of hiring Landlord's electric engineering company shall be borne
by Landlord. Tenant, not later than thirty (30) days following the date upon
which Tenant receives the aforementioned notice from Landlord, shall advise
Landlord in writing if Tenant is of the opinion that such determination is
erroneous. In such event, Tenant shall, at its own expense, obtain from a
reputable electric engineering company its own survey of the Demised Premises.
Landlord's electric engineering company and Tenant's electric engineering
company shall then agree on a final determination. If they cannot agree, they
shall choose a third reputable electric engineering company, the cost of which
shall be shared equally by Landlord and Tenant, to make a similar survey. The
determination by the third company shall be binding upon Landlord and Tenant. If
the companies cannot agree on the choice of a third company, said choice shall
be referred to arbitration pursuant to the provisions of this Lease. Pending
resolution of any dispute, Tenant shall immediately reduce its usage
requirements in accordance with the survey provided by Landlord's electric
engineering company.
12.02. Tenant shall make no alterations or additions to the electrical
distribution system, electrical equipment or appliances without the prior
written consent of Landlord in each instance. Tenant covenants and agrees that
at all times its use of electric current shall not exceed the capacity of
existing feeders to the Building or the risers or wiring installation therein,
and Tenant may not use any electrical equipment which, in Landlord's reasonable
judgment, will overload such installations or interfere with the use thereof by
other tenants of the Building.
12.03. At Tenant's option, Tenant shall purchase from Landlord, at a
reasonable, competitive price, and Landlord shall install, at Tenant's expense,
all lamps and ballasts used in the Demised Premises.
12.04 Tenant shall advise Landlord with respect to any material change in
the periods of use of lighting fixtures, business machines and other electrical
equipment within the Demised Premises.
12.05. Landlord shall not be liable to Tenant for any loss or damage or
expense which Tenant may sustain or incur by reason of any failure, inadequacy
or defect in the character, quantity or supply of electric current furnished to
the Demised Premises, except for actual damage suffered by Tenant by reason of
any such failure, inadequacy or defect caused by the wrongful act, wrongful
failure to act, or negligence of Landlord, or Landlord's failure to pay the
appropriate utility company.
12.06. If, and only if, Landlord is required by any governing authority
having jurisdiction, Landlord shall, at its sole cost and expense, have the
option, from time to time, to take such steps as are necessary (1) to have that
portion of Tenant's electrical consumption as may be directly metered instead to
be either calculated and paid on a rent inclusion basis, and, where necessary,
to be submetered or check-metered, or (2) to have that portion of Tenant's
electrical consumption as may be calculated and paid on a rent-inclusion basis
instead to be directly metered or to be submetered or check-metered, or (3) to
have the portion of Tenant's electrical consumption as may be submetered or
check-metered instead to be either directly metered or calculated and paid on a
rent-inclusion basis.
12.07. Effective on the date Tenant shall first have actually occupied the
Demised Premises, for the daily conduct of its business, but in no event later
than the Commencement Date, Tenant shall pay to Landlord, as Additional Rent,
for electrical power serving the Building Common Areas, at the rate of One and
10/100 Dollars ($1.10) per annum per rentable square foot of said premises (the
"Common Area Electricity Factor"), subject to escalation as hereinafter
provided.
12.08. The Common Area Electricity Factor shall be subject to increase or
decrease by a percentage equal to the percentage increase or decrease in cost to
Landlord of supplying such electricity, as a result of the occurrence of any of
the following events:
(a) An increase in the public utility rate for the supply of
electrical energy to the Building. As used in this Article 12, the term "public
utility rate" shall include any fees, tariffs, demand charges, rates or
surcharges foreseen or unforeseen, now or at any time in the future imposed,
which Landlord is required to pay in connection with obtaining electrical energy
for the Building, including, without limitation, fuel adjustment increases;
(b) An increase in any sales, excise or similar taxes, or the
addition of increase in any other similar charges levied for the purchase of
electrical energy.
Upon any adjustment of the Common Area Electricity Factor pursuant to the
provisions of Section 12.08, Landlord shall furnish to Tenant a statement
setting forth the Additional Rent payable hereunder. In no event shall such
amount be less than the Common Area Electricity Factor.
12.09. Each adjustment in Additional Rent payable pursuant to this Article
shall be effective retroactively as of the effective date of any of the
increases set forth in subsections (a) and (b) of Section 12.08 hereof.
Tenant shall pay to Landlord the first installment of Additional Rent due
as a result of any adjustments pursuant to Section 12.08 within twenty (20) days
after Landlord shall have submitted to Tenant the statement set forth therein.
13.01. Landlord or Landlord's agents shall have the right to enter the
Demised Premises in any emergency at any time, and, at other reasonable times,
to examine the same and to make such repairs, replacements and improvements as
Landlord may deem necessary and desirable to the Demised Premises or to any
other portion of the Building or which Landlord may elect to perform following
Tenant's failure to make repairs or perform any work which Tenant is obligated
to perform under this Lease, or for the purpose of complying with laws,
regulations and other directions of governmental authorities. Landlord will
perform such work in such manner as to cause reasonably minimal interference
with Tenant's use and enjoyment of the Demised Premises. Tenant shall not be
entitled to any abatement of rent while such work is in progress nor to any
damages by reason of loss or interruption of business or otherwise. Throughout
the term hereof Landlord shall have the right to enter the Demised Premises at
reasonable hours for the purpose of showing the same to prospective purchasers
or mortgagees of the Building or others and during the last twelve (12) months
of the term for the purpose of showing the same to prospective tenants. If
Tenant is not present to open and permit an entry into the Demised Premises,
Landlord or Landlord's agents may enter the same whenever such entry may be
necessary or permissible by master key or forcibly, and provided reasonable care
is exercised to safeguard Tenant's property and such entry shall not render
Landlord or its agents liable therefor, nor in any event shall the obligations
of Tenant hereunder be affected.
14.01. As set forth on the first page of this Lease, during the Term
hereof the rent reserved under this Lease shall be and consist of:
(i) an annual rent (hereafter, the "Base Rent") in the amount of TWO
HUNDRED EIGHTY TWO THOUSAND EIGHT HUNDRED FORTY ($282,840.00) Dollars per annum
($23,570.00 per month), which Base Rent shall increase annually by an amount
equal to the then current Base Rent multiplied by THREE AND 50/100 (3.50%)
percent; and
Notwithstanding the foregoing, as per Article II hereof, no Base Rent
shall be due for the fifteenth, twenty-fourth and twenty-fifth months following
the Commencement Date (except in connection with a default, in which case
Article XX shall govern).
(ii) all other sums of money as shall become due and payable by Tenant
under this Lease (hereinafter, "Additional Rent"), including, without
limitation, those items specified in Article XV of this Lease, all of
which sums shall be payable as hereinafter provided, all to be paid to
Landlord, as specified on the first page of this Lease. In the event any
installment of Base Rent or Additional Rent required pursuant to the
provisions of this Lease to be paid by Tenant is not paid when due, such
installment shall bear interest at the rate of twelve (12%) percent per
annum from the date said installment was due and payable, said interest to
be deemed Additional Rent. In addition, Tenant shall pay upon demand by
Landlord any attorney's fees incurred by Landlord in connection with the
imposition, collection or payment of any Base Rent, Additional Rent and/or
said interest, said attorney's fees to be deemed Additional Rent.
15.01. Tenant shall pay to Landlord as Additional Rent real estate tax
escalations pursuant to the further provisions of this Article XV.
15.02. For the purposes of this Article, the term "Taxes" shall include
the sum of all real estate taxes and assessments, special assessments, water and
sewer rents and each and every installment thereof which shall or may during the
Term of this Lease be levied, assessed, imposed, become due and payable, or
liens upon or arising in connection with the use, occupancy or possession of or
grow out of, or for the Building and/or the Land, or any part thereof as if the
Building and Land were the sole asset of Landlord. If at any time during the
Term of this Lease the methods of taxation prevailing at the execution of this
Lease shall be altered so that in lieu of or as a substitute for the whole or
any part of the taxes, assessments, levies, impositions or charges now levied,
assessed or imposed on real estate or the improvements thereon there shall be
levied, assessed or imposed (i) a tax, assessment, levy, imposition or charge
wholly or partially payable as a capital levy or otherwise on the rents received
therefrom, or (ii) a tax, assessment, levy, imposition or charge measured by or
based in whole or in part upon the Demised Premises and imposed upon Landlord,
or (iii) a license fee or charge measured by the rents payable by Tenant to
Landlord, or (iv) a license fee or charge measured by the rent receivable by
Landlord for the Building or any portion thereof and/or the Land or any other
building or other improvements constructed on the Land, or (v) a tax, license
fee or charge imposed on Landlord which is otherwise measured by or based in
whole or in part, upon the Building or any portion thereof and/or the Land or
any other building or other improvements constructed on the Land, or (vi) any
other tax or levy imposed in lieu of or as a substitute for Taxes which are
levied, assessed or imposed as of the date of this Lease, then in any such
event, the same shall be included in the computation of Taxes hereunder. A tax
xxxx or copy thereof shall be conclusive evidence of the amount of Taxes or
installments thereof.
15.03. If, at any time subsequent to the Commencement Date, the Taxes for
any General Tax Year and/or School Tax Year shall be more than the Base General
Tax Year and/or Base School Tax Year, then, in such event, Tenant shall pay to
Landlord, as Additional Rent, Tenant's Pro Rata share of such excess (the
"Excess Taxes"), in the manner provided in this Article.
15.03.1. Base General Tax Year shall mean the taxes, as finally
determined, for the General Tax Year fiscal period commencing January 1, 2000,
and ending on December 31, 2000.
15.03.2. Base School Tax Year shall mean the taxes, as finally determined,
for the School Tax Year fiscal period commencing July 1, 2000, and ending on
June 30, 2001.
15.03.3. General Tax Year shall mean each period of 12 months, commencing
on January 1 of each such period, in which occurs any part of the term of this
Lease, or such other period as hereafter may be duly adopted by the County of
Nassau as its fiscal year for real estate tax purposes.
15.03.4. School Tax Year shall mean each period of 12 months, commencing
on July 1 of each such period, in which occurs any part of the term of this
Lease, or such other period of 12 months occurring during the term of this Lease
as hereafter may be duly adopted as the fiscal year for real estate tax purposes
of the school taxing authority.
15.04. Landlord shall render to Tenant a statement of the Excess Taxes,
including a statement of the Base General and/or School Tax Year amount, as
applicable, and the Additional Rent increase computed as set forth in 15.03
hereof, and such increase shall be paid within twenty (20) days after rendition
thereof. A tax xxxx or copy thereof submitted by Landlord to Tenant shall be
conclusive evidence of the amount of Taxes. Landlord shall have the right to
establish an escrow to cover the escalations for Taxes contemplated by this
Article 15 and Tenant shall pay one-twelfth of such estimate each month on the
date in which payments of Base Rent are due, subject to adjustment at the end of
each calendar year. Such escrow payments shall commence on the first day of the
month after receipt of notice from Landlord of the calculation of the estimate.
15.05. Only Landlord shall be eligible to institute proceedings to reduce
the assessed valuation of the Land or the Building. In the event Landlord shall
obtain a tax refund as a result of any such reduction proceedings, then,
provided Tenant is not then in default under the terms of this Lease, and after
all applicable grace periods have expired, and after the final conclusion of all
appeals or other remedies, Tenant shall be entitled to Tenant's Pro Rata Share
of the net refund obtained. As used herein, the term "net refund" means the
refund plus interest, if any, thereon, paid by the governmental authority less
appraisal, engineering, expert testimony, attorney, printing and filing fees and
all other Landlord costs and expenses of the proceeding. Tenant shall pay to
Landlord Tenant's Pro Rata Share of all appraisal, engineering, expert
testimony, attorney, printing and filing fees and all other reasonable costs and
expenses of the proceeding incurred by Landlord in the event said proceeding
does not result in any net refund. Notwithstanding anything contained to the
contrary herein, Tenant shall not be entitled to any refund in excess of monies
paid by Tenant hereunder.
15.06. Landlord's failure during the Term of this Lease to submit tax
bills or copies thereof to Tenant, or Landlord's failure to make demand under
this Article or under any other provision of this Lease shall not in any way be
deemed a waiver of, or cause Landlord to forfeit or surrender its rights to
collect any items of Additional Rent which may have become due pursuant to this
Article during the term of this Lease. Tenant's liability for the Additional
Rent due under this Article shall survive the expiration or sooner termination
of this Lease.
15.07. In no event shall any adjustment of Tenant's Pro Rata Share of the
Taxes payable hereunder result in a decrease in Base Rent or Additional Rent
payable pursuant to any other provision of this Lease, it being agreed that the
payment of Additional Rent under this Article is an obligation supplemental and
in addition to Tenant's obligation to pay Base Rent.
15.08. If any Tenant's Changes result in an increased real estate tax
assessment, Tenant shall pay to Landlord, as Additional Rent, the amount of such
increased assessment.
16.01. If at any time prior to the Commencement Date there shall be filed
by or against Tenant in any court pursuant to any statute either of the United
States or of any State a petition in bankruptcy or insolvency or for
reorganization or for the appointment of a receiver or trustee of all or a
portion of Tenant's property, or if Tenant makes an assignment for the benefit
of creditors, or petitions for or enters into an arrangement with creditors,
this Lease shall ipso facto be cancelled and terminated and in which event
neither Tenant nor any person claiming through or under Tenant or by virtue of
any statute or of any order of any court shall be entitled to possession or to
remain in possession of the Demised Premises but shall forthwith quit and
surrender the Demised Premises and Landlord, in addition to the other rights and
remedies it has by virtue of any other provisions herein or elsewhere in this
Lease contained or by virtue of any statute or rule or law, may retain as
liquidated damages any rent or any deposit or monies received by it from Tenant
or others on behalf of Tenant.
16.02. If at the Commencement Date or if at any time during the Term of
this Lease there shall be filed by or against Tenant in any court pursuant to
any statute either of the United States or of any State a petition in bankruptcy
or insolvency or for reorganization or for the appointment of a receiver or
trustee of all or a portion of Tenant's property or if Tenant makes an
assignment for the benefit of creditors or petitions for or enters into an
arrangement with creditors, this Lease, at the option of Landlord exercised
within a reasonable time after notice of the happening of any one or more of
such events, may be cancelled and terminated by written notice by Landlord to
Tenant and in which event neither Tenant nor any person claiming through or
under Tenant by virtue of any statute or of any order of any court shall be
entitled to possession or to remain in possession of the Demised Premises but
shall forthwith quit and surrender the Demised Premises and Landlord, in
addition to the other rights and remedies it has by virtue of any other
provisions herein or elsewhere in this Lease contained or by virtue of any
statute or rule of law, may retain as liquidated damages any rent, security,
deposit or monies received by Landlord from Tenant or others on behalf of
Tenant.
16.03. At any of the times mentioned in either Sections 16.01 or 16.02
hereof, if an involuntary insolvency, bankruptcy or reorganization proceeding
shall be instituted against Tenant as provided in said Sections, Tenant shall
have sixty (60) days in which to vacate the same before Landlord shall have any
right to terminate this Lease.
16.04. It is stipulated and agreed that in the event of the termination of
this Lease pursuant to Sections 16.01 or 16.02 hereof, Landlord shall forthwith,
notwithstanding any other provisions of this Lease to the contrary, be entitled
to recover from Tenant as and for liquidated damages an amount equal to the
difference between the rent reserved hereunder for the unexpired portion of the
Term of this Lease and the fair market rental value of the Demised Premises, if
lower than the rent reserved, at the time of termination, for the unexpired
portion of the Term of this Lease, both discounted at the rate of four (4%)
percent per annum to present worth thereof. Nothing contained herein shall limit
or prejudice the right of Landlord to prove for and obtain as liquidated damages
by reason of such termination an amount equal to the maximum allowed by any
statute or rule of law in effect at the time when, and governing the proceedings
in which, such damages are to be proved, whether or not such amount be greater,
equal to, or less than the amount of the difference referred to above. In
determining the fair market rental value of the Demised Premises the rent
realized by any arms-length re-letting, if such reletting be accomplished by
Landlord within a reasonable time after termination of this Lease, shall be
deemed prima facie evidence of the fair market rental value. Any disputes with
respect to the fair market rental value shall be resolved pursuant to the
arbitration provisions of this Lease.
17.01. Tenant shall give prompt notice to Landlord in case of fire or
other damage to the Demised Premises or the Building.
17.02. If the Demised Premises or the Building shall be damaged by fire or
other casualty, Landlord, at Landlord's expense, shall repair such damage.
However, Landlord shall have no obligation to repair any damage to, or to
replace, Tenant's personal property or any other property or effects of Tenant.
If the Demised Premises shall be rendered untenantable by reason of any such
damage, the Base Rent and Additional Rent shall xxxxx for the period from the
date of such damage to the date when such damage shall have been substantially
repaired, and if only a part of the Demised Premises shall be so rendered
untenantable, the Base Rent and Additional Rent shall xxxxx for such period in
the proportion which the Rentable Area of the Demised Premises so rendered
untenantable bears to the total Rentable Area of the Demised Premises. However,
if, prior to the date when all of such damage shall have been repaired, any part
of the Demised Premises so damaged shall be rendered tenantable and shall be
used or occupied by Tenant or other persons claiming through or under Tenant,
then the amount by which the Base Rent and Additional Rent shall xxxxx shall be
equitably apportioned for the period from the date of any such use or occupancy
to the date when all such damage shall have been repaired. Tenant hereby
expressly waives the provisions of Section 227 of the New York Real Property
Law, and of any successor law of like import then in force, and Tenant agrees
that the provisions of this Article shall govern and control in lieu thereof.
17.03. Notwithstanding the foregoing provisions of this Article, if prior
to or during the term of this Lease, (i) the Demised Premises shall be totally
damaged or rendered wholly untenantable by fire or other casualty, and if
Landlord shall decide not to restore the Premises, or (ii) the Building shall be
so damaged by fire or other casualty that, in Landlord's opinion, substantial
alteration, demolition, or reconstruction of the Building shall be required
(whether or not the Demised Premises shall have been damaged or rendered
untenantable), then, in any of such events, Landlord at Landlord's option, may
give to Tenant, within ninety (90) days after such fire or other casualty, a
five (5) days' written notice of termination of this Lease and, in the event
such notice is given, this Lease and the Term shall come to an end and expire
(whether or not said Term shall have commenced) upon the expiration of said five
(5) days with the same effect as if the date of expiration of said five (5) days
were the expiration date, and the Base Rent and Additional Rent shall be
apportioned as of such date and any prepaid portion for any period after such
date shall be refunded by Landlord to Tenant.
17.04. If this Lease shall not be terminated as provided in Section 17.03
hereof, Landlord shall, at its expense, repair or restore the Demised Premises
with reasonable diligence and dispatch, substantially to the condition
immediately prior to the casualty except that Landlord shall not be required to
repair or restore any of Tenant's leasehold improvements or betterments,
furniture, furnishings, decorations or any other installations made at Tenant's
expense. All insurance proceeds payable to Tenant for such items shall be held
in trust by Tenant and upon the completion by Landlord of repair or restoration,
Tenant shall prepare the Premises for occupancy by Tenant in the manner
obtaining immediately prior to the damage or destruction in accordance with
plans and specifications approved by Landlord.
17.05. In no event shall Landlord be liable to Tenant for any
consequential damages to or loss of business suffered by Tenant by reason of any
damages or casualty, regardless of fault, and apart from the apportionment of
rent required under Section 17.02 in the event a portion of the Demised Premises
is rendered untenantable, Tenant's sole recourse for any damages shall be
against Tenant's insurance company, regardless of fault, and Tenant waives on
its own behalf and on behalf of any insurer, any claim therefor against
Landlord.
18.01. Tenant shall maintain with responsible companies which are A rated
or better in Best's Insurance Guide and approved by Landlord (i) Comprehensive
General Liability Insurance, against all claims, demands or actions for personal
injury to or death of any one person in an amount of not less than $1,000,000
and for injury to or death of more than one person in any one accident or
occurrence to the limit of not less than $3,000,000 and for damage to property
in an amount of not less than $500,000 made by or on behalf of any person,
arising from, related to, or in any way connected with the conduct and operation
of Tenant's use of or occupancy of the Premises, or caused by actions or
omissions to act, where there is a duty to act, of Tenant, its agents, servants
and contractors, which insurance shall name Landlord, its managing agent,
mortgagee, if any and any other designees as additional insureds; (ii) property
insurance against hazards covered by an all risk coverage insurance policy
(including fire, extended coverage, vandalism, malicious mischief and sprinkler
leakage) as Landlord may reasonably, from time to time, require, covering all
fixtures and equipment, stock in trade, furniture, furnishings, improvements or
betterments installed or made by Tenant in, on or about the Premises to the
extent of at least 100% of their replacement value, without deduction for
depreciation, but in any event in an amount sufficient to prevent Tenant from
becoming a co-insurer under provisions of applicable policies; and (iii)
worker's compensation insurance covering all persons employed by Tenant or in
connection with any work performed by Tenant. Said Comprehensive General
Liability Insurance shall also contain provisions for contractual liability
insurance under the comprehensive general liability section of the insurance
certificate in an amount not less than $1,000,000, and business interruption
insurance covering Tenant's business. All of Tenant's insurance shall be in form
satisfactory to Landlord and shall provide that it shall not be subject to
cancellation, termination or change except after at least thirty (30) days prior
written notice to Landlord. All policies required pursuant to this Section 18.01
or duly executed certificates for the same shall be deposited with Landlord not
less than 10 days prior to the day Tenant is expected to take occupancy and upon
renewals of said policies not less than 15 days prior to the expiration of the
term of such coverage. All such policies or certificates shall be delivered with
satisfactory evidence of the payment of the premium therefor. Landlord and
Tenant mutually agree that with respect to any loss which is covered by
insurance then being carried by them respectively, or required to be carried, or
as to any coverage which Landlord agrees need not be carried, the party
suffering a loss, releases the other from any and all claims with respect to
such loss; and Tenant further agrees that its insurance companies shall have no
right of subrogation against Landlord or its agents on account thereof.
18.02. Tenant shall pay on demand any increase in premiums that may be
charged on insurance carried by Landlord resulting from Tenant's use or
occupancy of the Premises, whether or not Landlord has consented to the same. In
determining whether increased premiums are the result of Tenant's use or
occupancy or vacancy of the Premises, a schedule or "makeup" rate of the
organization issuing the fire insurance, extended coverage, vandalism, and
malicious mischief, special extended coverage or any or all risk insurance rates
for the Demised Premises or any rule books issued by the rating organization or
similar bodies or by rating procedures or rules of Landlord's insurance
companies shall be conclusive evidence of the several items and charges which
make up the insurance rates and premiums on the Premises and the Building. If,
due to the (i) occupancy, or (ii) abandonment, or (iii) Tenant's failure to
occupy the Demised Premises as herein provided, any such insurance shall be
cancelled by the insurance carrier, then, in any of such events Tenant shall
indemnify and hold Landlord harmless against any loss which would have been
covered by such insurance. Tenant also shall pay any increase in premiums on
such rent insurance as may be carried by Landlord for its protection against
rent loss through fire or other casualty, if such increase shall result from any
of the foregoing events.
19.01. Landlord, at its cost and expense, shall provide to Tenant such
passenger and freight elevator service during normal business hours and normal
business days (as said terms are defined in Section 19.07 hereof) as shall be
reasonably necessary for the accomplishment of the Permitted Use. Tenant shall
pay as Additional Rent hereunder the costs and expenses incurred by Landlord in
providing additional elevator service beyond normal business hours and normal
business days. However, Landlord shall be under no obligation to provide any
such additional elevator service.
19.02. Landlord, at its cost and expense, shall maintain, operate and keep
in good working order and repair the base building air-conditioning, heating and
ventilating systems. Subject to any applicable policies or regulations adopted
by any utility or governmental authority, the aforesaid systems shall be
operated by Landlord during normal business hours on normal business days (as
said terms are hereinafter defined) when seasonably required as determined by
Landlord. In the event Tenant shall require air-conditioning, heating and
ventilation services for any part of the Demised Premises beyond normal business
hours or beyond normal business days, Landlord shall furnish such services upon
not less than twenty -four (24) hours prior written notice from Tenant received
by Landlord during normal business hours.
19.03. Tenant covenants that it will at all times comply with all
regulations and requirements which Landlord may reasonably prescribe for the
proper functioning and protection of said air-conditioning system. Any use or
occupancy of the Demised Premises during the hours or days Landlord is not so
required pursuant to this Article to furnish heat, ventilation or air
-conditioning to the Demised Premises shall be at the sole risk, responsibility
and hazard of Tenant. If Tenant's use of the Demised Premises, or any part
thereof, exceeds the design condition limitations of the heating, ventilating
and air-conditioning systems (including occupancy of one person per 100 useable
square feet and total electrical load from Tenant's light and power of 4 xxxxx
per rentable square foot), or if Tenant rearranges partitions in such a manner
as to interfere with the normal operations of these systems, Landlord at its
option and at Tenant's expense, may make the changes to said systems made
necessary by said use or said rearrangement.
19.03.1 In the event Tenant requires supplemental heating, ventilation and
air conditioning, such additional equipment will be installed by Landlord, at
Tenant's sole cost and expense, provided that, in Landlord's reasonable
judgment, same will not cause damage or injury to the Building or create a
dangerous or hazardous condition or entail excessive or unreasonable
alterations, repairs, or expense or interfere with or disturb other tenants; and
Tenant shall reimburse Landlord in such an amount as will compensate for the
cost incurred in operating such additional equipment. Tenant shall hire, at its
own cost and expense, a reputable service contractor to maintain and repair any
supplemental heating, ventilation and air conditioning equipment that
exclusively services the Demised Premises, and Tenant shall supply Landlord with
copies of service or maintenance contracts entered into with such contractor.
Landlord shall have no responsibility for the maintenance, repair or operation
of such supplemental equipment.
19.04. Landlord, at its cost and expense but subject to reimbursement as
provided in this Section 19.04 hereof, shall furnish janitorial and cleaning
services in the Demised Premises in accordance with the "Cleaning and Janitorial
Service" requirements attached as Exhibit "B" hereto. Tenant shall pay Landlord
a reasonable charge for any extra cleaning work in the Demised Premises required
because of (i) misuse or neglect on the part of Tenant or its employees or
visitors; (ii) private lavatories or toilets or other special facilities
requiring greater or more difficult cleaning work than normal office areas;
(iii) the cleaning of unusual quantities of interior glass surfaces or other
non-building standard materials or finishes installed by Tenant; or (iv) the
removal of so much of any refuse and rubbish of Tenant as shall exceed that
ordinarily accumulated daily in the routine of business office occupancy.
Landlord, its cleaning contractor and their employees shall have access to the
Demised Premises subject to Tenant's reasonable security requirements after
normal business hours and such use of light, power and water in the Demised
Premises as is reasonably required for cleaning the Demised Premises in
accordance with said Exhibit "B".
19.05. Landlord shall furnish, at its cost and expense, tepid and cold
water for ordinary lavatory, drinking and office cleaning purposes only. The
cost of heating water for use or consumption in connection with the operation of
any dining or kitchen areas located in the Demised Premises, if so permitted by
Landlord as hereinafter provided, shall be at a reasonable additional charge to
Tenant. If Tenant requires, uses or consumes water for any other purpose or in
unusual quantities (of which fact Landlord shall be the sole judge) Landlord may
install a water meter at Tenant's expense which Tenant shall thereafter maintain
at Tenant's expense in good working order and repair to measure Tenant's water
consumption and Tenant shall pay for all water consumed as shown on said meter
(or as determined by survey) as Additional Rent as and when the bills are
rendered and in default in making such payment, Landlord may pay such charges
and collect same from Tenant. If a water meter is so installed, Tenant covenants
and agrees to pay its Pro Rata Share of the sewer rents and all other charges
which are now or hereafter assessed, imposed or may become a lien on the Demised
Premises, or the Building. Such a meter shall also be installed and maintained
at Tenant's sole expense if required by applicable law or governmental
regulation or order.
19.06. No sign or signs, except in uniform style and uniform location as
fixed by Landlord in its signage specification, will be permitted in the public
corridors, or on corridor doors or entrances, or on exterior windows or other
glass to the Demised Premises. No sign shall be affixed or installed by Tenant
in or outside of the Demised Premises without the prior written consent of
Landlord. Tenant agrees to promptly remove such signage if Landlord undertakes
any renovations or design improvements and Landlord determines that such signage
interferes with or is inconsistent with such subsequent renovations or
improvements. If Landlord elects to remove such signage or any signage not
approved by Landlord, Tenant shall, upon five (5) days' notice from Landlord,
pay Landlord all costs and expenses, together with interest, for the removal and
restoration of same. Landlord, at Landlord's expense, will furnish and install,
adjacent to the suite entrance, a building standard plaque for Tenant. Plaques
will exhibit the suite number and the Tenant's name. Additional names will be
deemed to be in excess of building standard. Tenant must submit a sample of the
proposed signage which must match Landlord's quality, style, color and all other
particulars of Landlord's building standard signage. Tenant shall be entitled to
the building standard quality and size of building directory listing as
requested.
19.07. For the purpose of this Article, "normal business hours" for the
Demised Premises shall be from 8:00 A.M. to 6:00 P.M. on weekdays and from 9:00
A.M. to 1:00 P.M. on Saturdays. Normal business hours shall be observed on
"normal business days," which shall be all days except Sundays and those
holidays listed on Exhibit "C" annexed hereto.
19.08. Landlord reserves the right to interrupt, curtail or suspend
services of the water, heating, air-conditioning, ventilating, elevator,
plumbing and electric systems, when necessary for repairs or alterations which,
in the sole judgment of Landlord are desirable or necessary to be made, or when
required by any governmental law, order or regulation, or for any other cause
beyond the reasonable control of Landlord, until such time as said repairs or
alterations shall have been completed. Landlord shall have no responsibility or
liability for failure to supply heat, water, air-conditioning, elevator,
plumbing, electric, cleaning and janitor services during said period, or when
prevented from so doing by strikes, accidents, or by any cause beyond Landlord's
control or by governmental laws, orders, or regulations or failure of a suitable
fuel supply, or inability by exercise or reasonable diligence to obtain suitable
fuel. Landlord will use reasonable efforts to remove or eliminate the cause of
any such failure as promptly as possible. No diminution or abatement of Base
Rent, Additional Rent or other compensation shall or will be claimed by Tenant
as a result therefrom, nor shall this cause any of Tenant's obligations
hereunder to be affected or reduced by reason of such interruption, curtailment
or suspension.
19.09. Landlord shall render bills concerning all services provided to
Tenant by Landlord which costs are the responsibility of Tenant to pay pursuant
to the terms of this Article, with all such sums so billed due and payable by
Tenant as Additional Rent within thirty (30) days after the date said xxxx shall
have been rendered to Tenant. The costs of such services shall include
Landlord's actual costs for fuels, electricity and reasonable associated
personnel salaries and benefits.
19.10. Tenant shall have no right to maintain any facilities in the
Demised Premises for cooking or the preparation of food in any form without the
prior written consent of Landlord. Without limiting the generality of the
foregoing, Tenant shall not install or maintain in the Demised Premises a gas or
electric range, electric or microwave ovens, hot plates or so-called Xxxxx
kitchen units. Tenant shall have the right to maintain a machine for the making
of hot beverages, provided the electric consumption thereof does not exceed the
capacity of the electric service to the Demised Premises.
20.01. Tenant shall observe strictly with the rules and regulations set
forth in Exhibit "D" annexed hereto and such other and further reasonable rules
and regulations as Landlord or Landlord's agents may from time to time adopt
(such rules and regulations as have been or may hereafter be adopted or amended
are hereinafter the "Rules and Regulations").
21.01. Landlord or its employees, agents or managing agents shall not be
liable for any damages or injury to property of Tenant or of any other person,
including property entrusted to employees of Landlord, nor loss of or damage to
any property of Tenant by theft or otherwise, nor for any injury or damage to
persons or property resulting from any cause whatsoever arising from the acts or
neglect of any Tenant, occupant, invitee or licensee of the Building, nor for
any consequential damages or loss of business suffered by Tenant, or from any
other cause whatsoever, unless caused by the unlawful act or omission of
Landlord, or such damage or injury is caused by Landlord's negligence, nor shall
Landlord or its agents, employees, or managing agents be liable for any such
damage caused by other tenants or persons in, upon or about the Building, or
caused by operations in construction of any private, public or quasi-public
work; nor shall Landlord be liable for any latent defect in the Demised Premises
or in the Building. Notwithstanding the foregoing, in no event shall Landlord be
liable for any loss or damage for which Tenant has, or is required hereunder to
carry, insurance.
ARTICLE XXII
22.01. Tenant shall indemnify and save Landlord and its employees, agents
(including, but not limited to managing agents) harmless from and against (i)
any and all claims against Landlord of whatever nature arising from any act,
omission or negligence of Tenant, its contractors, licensees, subtenants,
agents, servants, employees, invitees or visitors, (ii) all claims against
Landlord arising from any accident, injury or damage whatsoever caused to any
person or to the property of any person and occurring during the term of this
Lease in or about the Demised Premises, except as due to Landlord 's negligence
or willful misconduct (iii) all claims against Landlord arising from any
accident, injury or damage occurring outside of the Demised Premises but
anywhere within or about the Building where such accident, injury or damage
results or is claimed to have resulted from an act or omission of Tenant or
Tenant's agents, employees, subtenants, invitees or visitors, and (iv) any
breach, violation or non-performance of any covenant, condition or agreement in
this Lease set forth and contained on the part of Tenant to be fulfilled, kept,
observed and performed. This indemnity and hold harmless agreement shall include
indemnity from and against any and all liability, consequential damages, fines,
suits, demands, costs and expenses of any kind or nature incurred in or in
connection with any such claim or proceeding brought thereon (including, without
limitation, attorneys' fees), and the defense thereof.
23.01. Subject to the Parking Area Rules and Regulations annexed hereto as
part of Exhibit "D", Tenant and its employees shall be permitted to park in the
underground parking lot serving the Building. Tenant understands that parking
spaces shall not be reserved but shall be available on a first-in basis.
Tenant's servants, employees, agents, visitors, and licensees shall park their
passenger vehicles, trucks or delivery vehicles only in areas designated by
Landlord as areas for such parking. All cars must vacate the underground parking
lot by 7:00 p.m. Monday through Friday and by 1:15 p.m. on Saturday. If a car is
not removed as stated above, Tenant shall have no access to the car until 8:00
a.m. on the next business day. All posted signs governing the use of underground
and on-grade parking must be honored and the speed limit within the parking
areas is limited to 20 miles per hour. Landlord retains the right to ban
specific licensed cars from all parking facilities in the event of multiple
violations by specific cars driven by Tenant, its employees, its invitees or
others who claim to be on Landlord's premises for purposes of visiting or
performing functions on behalf of Tenant. Notwithstanding anything to the
contrary herein, Tenant shall be allowed forty-seven (47) car spots in the
underground parking lot at the Building, on a general unassigned basis, at no
additional charge. Landlord shall have no responsibility for maintaining or
removing vehicles from any such parking spaces. In the event that any existing
tenancies are terminated and reserved parking spaces become available, Landlord
shall make available to Tenant up to seven (7) designated parking spaces.
24.01. If Tenant shall default in the observance or performance of any
obligation of Tenant under this Lease, then, unless otherwise provided elsewhere
hereunder, Landlord may immediately or at any time thereafter without notice
perform such obligation of Tenant without thereby waiving such default. If
Landlord, in connection therewith incurs any costs including, but not limited
to, attorneys fees in instituting, prosecuting or defending any action or
proceeding, such costs with interest at the rate of twelve (12%) percent per
annum, shall be deemed to be Additional Rent hereunder and shall be paid by
Tenant to Landlord within five (5) days of rendition of any xxxx or statement to
Tenant therefor.
25.01. Tenant shall be deemed in default of the obligations to be
performed by it pursuant to the provisions of this Lease if Tenant shall fail to
make payment of the Base Rent, or of any item of Additional Rent, or of any
other payment reserved herein within the time provided in this Lease for payment
of same to be made, and said failure (other than the failure to pay Base Rent)
continues for a period of five (5) days after written notice thereof is given by
Landlord, or if Tenant shall fail to fulfill any of the covenants of this Lease
(other than the covenants for the payments reserved herein) and said failure
shall continue for a period of ten (10) days after written notice thereof is
given by Landlord specifying such failure (or, in the case of a default or
omission the nature of which cannot be completely cured or remedied within ten
(10) days, and Tenant shall not have diligently commenced curing such default
within said ten (10) day period and not thereafter with reasonable dispatch and
diligence and in good faith proceeded to remedy or cure such default, all in
Landlord's sole judgment), or if Tenant shall fail to take possession of the
Demised Premises within fifteen (15) days after the Commencement Date, or if the
Demised Premises shall become vacant or deserted, or if the Demised Premises are
damaged by reason of negligence or carelessness of Tenant, or if any execution
or attachment shall be issued against Tenant. In the event of such a default by
Tenant, Landlord may give five (5) days notice of its intention to end the Term
of this Lease ("Notice of Termination") and thereupon at the expiration of said
five (5) days, the Term of this Lease shall expire. Tenant shall then quit and
surrender the Demised Premises, but shall remain liable as hereinafter provided.
25.02. If the Notice of Termination shall have been given and the Term
hereof shall expire as aforesaid, then and in such event Landlord may without
additional notice re-enter the Demised Premises, either by force or otherwise,
and dispossess Tenant and the legal representative of Tenant or other occupant
of the Demised Premises by summary proceedings or otherwise remove their effects
and hold the Demised Premises as if this Lease had not been made, and Tenant and
its legal representative or other occupant of the Demised Premises hereby waives
service of notice of intention to re-enter or to institute legal proceedings to
that end. If Tenant shall default hereunder prior to the date fixed as the
commencement of any renewal or extension of this Lease, then Landlord may cancel
and terminate such renewal or extension.
25.03. In case of any such default, re-entry, expiration and/or dispossess
by summary proceedings or otherwise, as aforesaid, (i) the Base Rent and
Additional Rent due at the time of said default shall become due thereupon and
be paid up to the time of such reentry, dispossess and/or expiration, together
with such expenses as Landlord may incur for legal expenses, attorneys fees,
brokerage fees and/or putting the Demised Premises in good order or for
preparing the same for re-rental; (ii) Landlord may re-let the Demised Premises
or any part or parts thereof, either in its own name or otherwise, for a term or
terms which may, at its option, be shorter or longer than the period which would
otherwise have constituted the remainder of the Term of this Lease and may grant
concessions or free rent, to such extent as Landlord in Landlord's sole judgment
considers advisable and necessary to re-let the same; and (iii) Tenant or its
successors shall also pay to Landlord as liquidated damages for the failure of
Tenant to observe and perform its covenants contained herein any deficiency
between the Base Rent and Additional Rent hereby reserved and the net amount, if
any, of the rents collected on account of the lease or leases of the Demised
Premises or parts thereof for each month of the period which would otherwise
have constituted the remainder of the Term of this Lease; and (iv) that Tenant
or its successors shall also pay to Landlord Base Rent and Additional Rent
payable by Tenant to Landlord for any period during which Landlord shall have
given to Tenant any abatement of Base Rent and/or Additional Rent pursuant to
the provisions of this Lease. The failure of Landlord to re-let the Demised
Premises or any part or parts thereof shall not release or affect Tenant's
liability for damages. In computing the aforesaid liquidated damages, there
shall be added to said deficiency such expenses as Landlord shall incur in
connection with such re-letting, such as legal expenses, attorneys' fees,
brokerage, advertising and for restoring the Demised Premises to or keeping same
in good working order. Any such liquidated damages shall be paid in monthly
installments on the rent day specified in this Lease and any suit brought to
collect the amount of the deficiency for any month shall not prejudice in any
way the rights of Landlord to collect the deficiency for any subsequent month by
a similar proceeding. Upon Landlord's permitted entry hereunder, Landlord, at
its option, may make such alterations, repairs, replacements and decorations in
the Demised Premises as Landlord, in its sole judgment, considers advisable or
necessary for the purpose of re-letting the Demised Premises, and the making of
such alterations and decorations shall not operate or be construed to release
Tenant from liability hereunder. Landlord shall in no event be liable in any way
whatsoever for failure to re-let the Demised Premises, or, in the event that the
Demised Premises are re-let, for reasonable failure to collect the rent thereof
under such re-letting, and, in no event shall Tenant be entitled to receive any
excess of such net rent collected above the sums payable by Tenant to Landlord
hereunder. Mention in this Lease of any particular remedy shall not preclude
Landlord from any other remedy in law or equity. Tenant hereby expressly waives
any and all rights of redemption granted by or under any present or future laws
in the event of Tenant being evicted or dispossessed, for any cause, or in the
event of Landlord obtaining possession of the Demised Premises by reason of the
violation of Tenant of any of the covenants and conditions of this Lease, or
otherwise. It is expressly stipulated and agreed that Tenant shall be and remain
liable for all of its obligations under this Lease following termination,
eviction or abandonment, it being understood and agreed that, anything contained
in this Lease to the contrary notwithstanding, that Landlord has no duty to
mitigate Tenant's damages and may simply leave the Demised Premises vacant until
the end of the originally stated Term and demand all rent from Tenant.
25.04. It is stipulated and agreed that in the event of the termination
of this Lease pursuant to the provisions of this Article, Landlord shall
forthwith, notwithstanding any other provisions of this Article or of this Lease
to the contrary, be entitled (in addition to all other rights and remedies at
law or in equity or elsewhere provided in this Lease) to recover from Tenant as
and for liquidated damages an amount equal to the excess of (a) the sum of (i)
Base Rent for the unexpired portion of the Term of this Lease plus (ii) that
Base Rent and Additional Rent payable by Tenant to Landlord for any period
during which Landlord shall have given to Tenant any abatement of Base Rent
and/or Additional Rent pursuant to the provisions of this Lease, over (b) the
fair market rental value of the Demised Premises, if lower than the rent
reserved, at the time of termination, for the unexpired portion of the Term of
this Lease, discounted at the rate of four (4%) percent per annum to present
worth. Nothing contained herein shall limit or prejudice the right of Landlord
to prove for and obtain as liquidated damages by reason of such termination an
amount equal to the maximum allowed by any statute or rule of law in effect at
the time when, and governing the proceedings in which, such damages are to be
proved, whether or not such amount be greater, equal to, or less than the amount
of the difference referred to above. In determining the fair market rental value
of the Demised Premises, the rent realized by any arms-length re-letting, if
re-letting be accomplished by Landlord within such a reasonable time after the
termination of this Lease, shall be deemed, prima facie evidence of the fair
market rental value.
25.05. For the purposes of this Article, any notice required to be given
by Landlord under the provisions of this Article may be given by either Landlord
or by Landlord's managing agent or attorneys.
26.01. Landlord covenants that upon Tenant's paying the Base Rent and
Additional Rent and other sums due under this Lease and observing and performing
all of the terms, conditions, rules and covenants herein on its part to be
observed and performed, Tenant may peaceably and quietly enjoy the Demised
Premises, subject, nevertheless, to the terms and conditions of this Lease and
any ground leases, or other leases, mortgages and instruments to which this
Lease is subordinate pursuant to the provisions hereof, including any and all
extensions and modifications of all of the foregoing.
27.01. Tenant represents that it has dealt with no broker other than
XXXXXX & XXXXXXX, INC. with this Lease and Tenant hereby agrees to indemnify and
hold Landlord harmless of and from any and all losses, costs, damages or expense
(including, without limitation, attorneys' fees and disbursements) incurred by
Landlord by reason of any claim of or liability to any other broker who claims
to have dealt with Tenant in connection with this Lease. Landlord shall pay
Xxxxxx & Xxxxxxx, Inc., such brokerage fee as may be due it pursuant to and in
accordance with Landlord's separate agreement with Xxxxxx & Xxxxxxx, Inc.
28.01. Each party shall, at any time and from time to time, without
cost or charge, at the request of the other party, upon not less than five (5)
days' notice, if given in person, or ten (10) days notice, if given by mail,
execute and deliver to the other a certificate evidencing whether or not
(a) this Lease is in full force and effect (or if there have been
any modifications or amendments hereof, that the same is in full force and
effect as modified or amended, as the case may be, and submitting copies
of such modifications or amendments, if any);
(b) there are any existing defaults hereunder to the knowledge of
the party executing the certificate, and specifying the nature of such
defaults, if any;
(c) the dates to which the Base Rent and any Additional Rent and all
other charges payable hereunder have been paid;
(d) whether or not, to the best knowledge of the signer, the other
party is in default in the performance of any of its obligations under the
Lease, and, if so, specifying each such default of which the signer may
have knowledge; and
(e) any improvements required to be made by Landlord have been
completed in accordance with the terms of this Lease.
28.02. Tenant shall, upon the Commencement Date of this Lease, execute and
deliver to Landlord a Tenant Estoppel Certificate in substantially the form
attached hereto as Exhibit E.
28.03. It is agreed by the parties hereto that the certificate referenced
in Sections 28.01 and 28.02 hereof may be relied upon by anyone with whom the
party requesting such certificate may be dealing.
28.04. In the event that Tenant shall fail to comply with the provisions
hereunder, Tenant appoints Landlord its attorney-in-fact to execute any such
certificate on Tenants' behalf.
29.01. Upon expiration or other termination of the Term of this Lease,
Tenant shall (i) quit and surrender to Landlord the Demised Premises vacant,
broom clean, in good order and condition, normal wear and tear excepted, and
(ii) remove all its property therefrom, except as otherwise expressly provided
in this Lease. Tenant's obligation to observe or perform this covenant shall
survive the expiration or other termination of the Term of this Lease. If the
last day of the Term of this Lease falls on a Sunday, this Lease shall expire at
noon on the preceding Saturday, unless it be a legal holiday, in which case it
shall expire at noon on the previous business day.
29.02. Tenant acknowledges that possession of the Demised Premises must
be surrendered to Landlord at the expiration or sooner termination of the Term
of this Lease. Tenant agrees to indemnify and save Landlord harmless against all
costs, claims, loss or liability resulting from delay by Tenant in so
surrendering the Demised Premises, including, without limitation, any claims
made by any succeeding tenant founded on such delay. The parties recognize and
agree that the damage to Landlord resulting from any failure by Tenant to timely
surrender possession of the Demised Premises as aforesaid will be extremely
substantial, will exceed the amount of the Base Rent and Additional Rent
theretofore payable hereunder, and will be impossible to accurately measure.
Tenant therefore agrees that if possession of the Demised Premises is not
surrendered to Landlord within 24 hours after the date of the expiration or
sooner termination of the Term of this Lease, then Tenant shall pay to Landlord
for each month and for each portion of any month during which Tenant holds over
in the Demised Premises after the expiration or sooner termination of the Term
of this Lease, a sum equal to two (2) times the aggregate of that portion of the
Base Rent and Additional Rent which was payable under this Lease during the last
month of the term hereof. Nothing contained herein shall be deemed to permit
Tenant to retain possession of the Demised Premises after expiration of the Term
of this Lease and the provisions of this Article shall survive the expiration or
sooner termination of the Term of this Lease.
30.01. If any term or provision of this Lease or the application thereof
to any person or circumstances shall, to any extent, be invalid or
unenforceable, the remainder of this Lease, or the application of such term or
provision to persons or circumstances other than those as to which it is held
invalid or unenforceable, shall not be affected thereby, and each term and
provision of this Lease shall be valid and be enforced to the fullest extent
permitted by law.
31.01. Except as otherwise provided in this Lease, no act or thing done by
Landlord or its agents during the term hereof shall constitute an eviction by
Landlord, nor shall same be deemed an acceptance of a surrender of the Demised
Premises, and no agreement to accept such surrender shall be valid unless in
writing signed by Landlord. The delivery of keys to an employee of Landlord or
of its agents shall not operate as a termination of this Lease or a surrender of
the Demised Premises.
31.02. The failure of Landlord to seek redress for violation of, or to
insist upon the strict performance of, any covenant or condition of this Lease,
or to insist upon the strict performance by Tenant or any other Tenant, of the
Rules and Regulations annexed hereto or hereafter adopted by Landlord shall not
prevent a subsequent act or omission which would have originally constituted a
violation, from having all the force and effect of an original violation.
31.03. The receipt by Landlord of rent with knowledge of breach of any
covenant of this Lease shall not be deemed a waiver of such breach.
31.04. No payment by Tenant or receipt by Landlord of a lesser amount than
the Base Rent and Additional Rent shall be deemed to be other than a payment on
account, nor shall any endorsement or statement on any check or payment be
deemed an accord and satisfaction, and Landlord may accept such check or payment
without any prejudice to Landlord's right to recover the balance or pursue any
other remedy provided in this Lease.
32.01. Tenant, for itself, and on behalf of any and all persons claiming
through or under it, including creditors of all kinds, does hereby waive and
surrender all rights and privileges which they or any of them might have under
or by reason of any present or future law, to redeem the Demised Premises or to
have a continuance of this Lease for the term hereby demised after having-been
dispossessed or ejected therefrom by process of law or after the termination of
this Lease as provided herein.
32.02. In the event Landlord commences any summary proceeding (whether for
non-payment of rent, or for Tenant's holding-over, or otherwise), or an
ejectment action to recover possession of the Demised Premises, or other action
for non-payment of rent, or for a breach of any of the covenants and conditions
hereunder, Tenant covenants and agrees that it will not interpose any
counterclaim or set-off in any such action or proceeding, or seek by
consolidation or otherwise to interpose any counterclaim or set-off unless the
failure to assert same would constitute a waiver of such counterclaim or set-off
by Tenant and Landlord fails to waive the right to assert such waiver in
writing. To the extent permitted by applicable law, Tenant hereby waives trial
by jury and agrees that Tenant will not interpose any counterclaim or set-off of
whatsoever nature or description in any matter whatsoever arising out of or in
any way connected with this Lease, the relationship of Landlord and Tenant, or
Tenant's use or occupancy of the Demised Premises, any claim of injury or
damage, any claim of failure to provide services, or any emergency or other
statutory remedy with respect thereto. Any claim that Tenant may have against
Landlord shall be separately prosecuted and Tenant waives a trial by jury
relative thereto. The provisions of this Article shall survive the breach or
termination of this Lease.
32.03. In the event Tenant claims or asserts that Landlord has violated or
failed to perform a covenant of Landlord not to unreasonably withhold or delay
Landlord's consent or approval, or in any case where Landlord's reasonableness
in exercising its judgment is in issue, Tenant's sole remedy shall be an action
for specific performance, declaratory judgment or injunction and in no event
shall Tenant be entitled to any money damages for a breach of such covenant and
in no event shall Tenant claim or assert any claims in any money damages in any
action or by way of set off, defense or counterclaim and Tenant hereby
specifically waives the right to any money damages or other remedies.
33.01. Notwithstanding anything to the contrary contained herein, Tenant
shall look solely to the interest of Landlord in the Building for the
satisfaction of any of Tenant's remedies with regard to the payment of money or
otherwise, and no other property or assets of Landlord shall be subject to levy,
execution or other enforcement procedures for the satisfaction of Tenant's
remedies or with respect to this Lease, the relationship of Landlord and Tenant
hereunder or Tenant's use or occupancy of the Demised Premises, such exculpation
of personal liability to be absolute.
34.01. Tenant agrees that from and following a transfer by Landlord of its
interest in the Building, by sale, lease or otherwise, Tenant shall look solely
to Landlord's successor (and such successor's interest in this Building) for
satisfaction of Landlord's liabilities hereunder.
35.01. Any notice permitted or required to be given by the terms of this
Lease, or by any law or governmental regulation, shall be in writing. Unless
otherwise required by such law or regulation, such notice shall be given, and
shall be deemed to have been served and given when (a) delivered by registered
or certified mail enclosed in a securely closed postpaid wrapper, in a United
States Government general or branch post office, or (b) delivered by hand or (c)
deposited with a reputable overnight carrier for next business day deliver. All
such notices shall be addressed to Landlord or Tenant at the Demised Premises.
All notices to Landlord shall also be addressed to BDG Management, Inc., at 0000
Xxxxxxx Xxxxxxxx, Xxxxxxx, Xxx Xxxx, 00000, as Managing Agent of the Building. A
copy of all notices sent to Landlord shall also be sent to Xxxxxxx Xxxxx, P.C.,
EAB Plaza, 00xx Xxxxx, Xxxx Xxxxx, Xxxxxxxxx, Xxx Xxxx, 00000-0000, Attention:
Xxxxxx X. Xxxxxxx, Esq. Either party may, by notice as aforesaid, designate a
different address or addresses for notices, requests or demands to it such
party. Any notices required or permitted to be given by Landlord hereunder may
be validly given by Landlord's attorneys.
36.01. Tenant has deposited with Landlord the sum of $47,140.00_ as
security for the faithful performance and observance by Tenant of the terms,
provisions and conditions of this Lease. It is agreed that in the event Tenant
defaults in respect of any of the terms, provisions and conditions of this
Lease, including, but not limited to, the payment of Base Rent and Additional
Rent, Landlord may use, apply or retain the whole or any part of the security so
deposited to the extent required for the payment of any Base Rent and Additional
Rent or any other sum as to which Tenant is in default or for any sum which
Landlord may expend or may be required to expend by reason of Tenant's default
in respect of any of the terms, covenants and conditions of this Lease. In the
event Landlord applies or retains any portion or all of the security deposited,
Tenant shall forthwith restore the amount so applied or retained so that at all
times the amount deposited shall be two (2) months Base Rent (or the greater sum
stipulated above). Tenant acknowledges that, pursuant to General Obligations Law
Section 7-103 (2), Landlord has no obligation to place Tenant's security deposit
in an interest bearing account and, by reason thereof, Tenant is not entitled to
any interest thereon.
36.02. In the event that Tenant shall fully and faithfully comply with all
of the terms, provisions, covenants and conditions of this Lease, the security
shall be returned to Tenant after the date fixed as the end of the Lease and
after delivery of the entire possession of the Demised Premises to Landlord. In
the event of a sale of the Building or a master leasing of the Building,
Landlord shall have the right to transfer the security to the vendee, or master
lessee. Landlord shall thereupon be released by Tenant from all liability for
the return of such security, and Tenant agrees to look to the new landlord
solely for the return of said security. It is agreed that the provisions hereof
shall apply to every transfer or assignment made of the security to a new
landlord. Tenant further covenants that it will not assign or encumber or
attempt to assign or encumber the monies deposited herein as security and that
neither Landlord nor its successors or assigns shall be bound by any such
assignment, encumbrance, attempted assignment or attempted encumbrance.
37.01. The covenants, conditions and agreements contained in this Lease
shall bind and inure to the benefit of the parties hereto and their respective
heirs, distributees, executors, administrators, successors and, except as
provided herein, their assigns.
38.01. This Agreement contains the entire agreement between the parties
hereto with respect to the transactions contemplated herein, and no
representation, promise, inducement or statement of intention relating to the
transactions contemplated by this Agreement has been made by any party which is
not set forth in this Agreement. This Agreement shall not be modified or amended
except by an instrument in writing signed by or on behalf of the parties hereto.
39.01 Either party to this Lease may elect, in the manner hereinafter
provided, to have any dispute determinable by arbitration pursuant to the
provisions of this Lease submitted to arbitration. Such election shall be
exercised by either party giving the other party a notice requesting such
arbitration, which notice shall specify the nature of the dispute and the
identity of the arbitrator chosen by said party.
39.02 Within fifteen (15) days after the service of the notice
specified in Section 39.01 hereof, the other party shall give written notice to
the first party specifying the identity of its arbitrator. If the second party
fails to notify the first party of the appointment of its arbitrator within said
period, the appointment of the second arbitrator shall be made in the same
manner as hereinafter provided for the appointment of a third arbitrator. The
arbitrators so chosen shall meet within ten (10) days after the second
arbitrator is appointed; and if, within thirty (30) days after the second
arbitrator is appointed, the said two arbitrators shall not agree upon the
question in dispute, they shall themselves appoint a third arbitrator, who shall
be a competent and impartial person; and in the event of their being unable to
agree upon such appointment within ten (10) days after the time aforesaid, the
third arbitrator shall be selected by the parties themselves, if they can agree
thereon within a further period of fifteen (15) days. If the parties do not so
agree, then either party, on behalf of both, may request such appointment by the
American Arbitration Association, in accordance with its rules then prevailing.
The decision of the arbitrators so chosen shall be given within a period of
sixty (60) days after the appointment of such third arbitrator. The decision in
which any two arbitrators so appointed and acting hereunder concur shall be
binding upon the parties. Each party shall pay the fees and expenses of the
arbitrator appointed by such party, or in whose stead, as above provided, such
arbitrator was appointed; and the fees and expenses of the third arbitrator, if
any, shall be borne equally by both parties. The arbitration shall be conducted
by, pursuant to, and under the auspices of the American Arbitration Association
and shall take place in Nassau County, New York.
40.01 Tenant acknowledges that Tenant shall be solely responsible for
the proper and legal disposal of all medical, toxic and so-called "red bag"
waste, as same may be defined from time to time, by all regulatory authorities
having jurisdiction. Landlord shall have no liability to any person or entity in
this regard. Tenant shall comply with all regulations issued by the federal
government, New York State, the County of Nassau, or any other agency,
municipality or regulatory authority having jurisdiction with respect to the
generation, storage and disposal of such waste. In addition, Tenant shall be
required, at its own cost and expense to contract with a licensed medical and
toxic waste disposal company for the disposal of all syringes, needles and other
medical, toxic and red bag waste. Tenant shall furnish Landlord with a copy of
the contract and renewals thereof. Failure (a) to maintain the aforesaid
contract continuously and to furnish Landlord with evidence that the contract is
in full force and effect, or (b) to properly dispose of all medical, toxic and
red bag waste, shall be a material default under this Lease. Any failure by
Landlord to take any action with respect to obtaining from Tenant all contracts
and renewals, shall in no way relieve Tenant of its responsibility to provide
same and to dispose of all such medical, toxic and red bag waste pursuant to all
applicable law. Tenant shall, and does hereby, indemnify Landlord and holds
Landlord harmless from any damage, loss, liability, claims, actions or
proceedings, including, but not limited to, attorneys fees and any fines or
penalties, arising out of or relating to Tenant's failure to perform any
obligation under this Article. This Article shall survive the termination or
expiration of this Lease.
41.01. Landlord will provide Tenant with 500 square feet of "Dead Storage
Space" as more particularly shown on Exhibit E attached hereto. Tenant may use
said space solely for the purposes of storage. There will be no personnel
located in said space, and Tenants' use shall be limited to the maintenance of
files plus such use of the premises by Tenant's employees as reasonably
necessary to file or retrieve files located in said space. Landlord will provide
Tenant in such space only with light fixtures and the building shell consisting
of concrete floor, painted walls and ceiling. Landlord, in its sole discretion,
may terminate the demise of "Dead Storage Space" provided in this article upon
sixty (60) days' notice. The basic annual rental rate for this space shall be
$12.00 per square foot, payable monthly on the first day of each month. Late
payments are subject to interest and other charges as provided in this Lease
with regard to the Base Rent and Additional Rent. Unless Landlord elects to
terminate Tenant's right to this space as provided hereinabove, the demise of
said space shall be co-terminus with the term of this Lease. Landlord shall have
no responsibility for the security of the contents of said storage space, and
all risks are expressly assumed by the Tenant. If other storage space becomes
available, Landlord shall provide for such space, if requested by Tenant upon
the same terms and conditions of this Article.
42.01. Tenant shall not at any time prior to or during the Term of this
Lease, either directly or indirectly, use any contractors, laborers or materials
the use of which would create any conflicts with other contractors and/or
laborers employed by Tenant or Landlord in the construction, maintenance or
operation of the Demised Premises or the Building. All work performed by or on
behalf of Tenant shall be done in a workmanlike manner using building standard
material.
42.02. This Lease supersedes all prior leases between Landlord and Tenant
with respect to any of the space included within the Demised Premises.
42.03. This Lease is offered to Tenant for signature with the
understanding that it shall not be binding upon Landlord unless and until the
Lease is approved by the holder of any superior leasehold mortgage and Landlord
shall have executed and delivered a fully executed copy of this Lease to Tenant.
43.01. The captions of Articles in this Lease are inserted only as a
matter of convenience and for reference and they in no way define, limit or
describe the scope of this Lease or the intent of any provisions hereof.
43.02. Tenant shall not record this Lease without the prior written
consent of Landlord. Tenant, upon request by Landlord, shall join in the
execution of a memorandum of this Lease which memorandum may be recorded by
Landlord.
IN WITNESS WHEREOF, the parties have executed this Lease as of the date
first above written.
LANDLORD:
MATTERHORN USA, INC.
By: GE CAPITAL REALTY GROUP, INC.,
its servicer
By:
-----------------------------------------
TENANT: ATC HEALTHCARE SERVICES, INC.
By:
-----------------------------------------
ACKNOWLEDGMENTS
STATE OF TEXAS )
) ss.:
COUNTY OF DALLAS )
On the _____ day of ____________, 1999, before me personally appeared
_______________________, to me known, who being by me duly sworn did depose and
say that he is the _________________ of GE CAPITAL REALTY GROUP, INC., the agent
for MATTERHORN U.S.A., INC., the corporation described in and which executed the
foregoing instrument as Landlord; that he knows the seal of said corporation;
that the seal affixed to said instrument is such corporate seal; that it was so
affixed by order of the Board of Directors of said corporation; and that he
signed his name by like order.
Notary Public
-----------------------------------------------------
STATE OF )
---------
) ss.:
COUNTY OF )
-----------
On the _____ day of ____________, 1999, before me personally appeared
_________________, to me known, who being by me duly sworn did depose and say
that he is an officer and director of ______________________, the professional
corporation described in and which executed the foregoing instrument as Tenant;
that he knows the seal of said corporation; that the seal affixed to said
instrument is such corporate seal; that it was so affixed by order of the Board
of Directors of said corporation; and that he signed his name by like order.
Notary Public
-----------------------------------------------------
[TO BE SUPPLIED]
1. Nightly - After Hours on Normal Business Days
(a) Empty and damp wipe all ashtrays.
(b) Empty and dust wipe all waste receptacles.
(c) Empty, clean and refill smoking urns as needed.
(d) Dust all office furniture, including chairs, desks, tables, file
cabinets, phones and all other office furniture.
(e) Vacuum all carpeted areas.
(f) Wash clean all water fountains and coolers, emptying waste water as
necessary.
2. Quarterly
(a) High dust all walls, ledges, pictures, anemostats and registers of
office areas not reached in normal nightly cleaning.
(b) Dust all Venetian blinds.
1. Nightly - After Hours on Normal Business Days
(a) Empty waste receptacles, as needed.
(b) Empty, clean and refill smoking urns as needed.
(c) Remove gum from all Atrium flooring, as necessary.
(d) Vacuum or wash rubber mats as necessary.
(e) Remove finger marks where possible from painted walls, partitions
and doors.
(f) Remove finger marks from public doors and wall surfaces.
(g) Clean interior surfaces of elevator cabs and wash and wax
composition tile flooring, or vacuum carpet, as necessary.
(h) Wash clean all water fountains and coolers, emptying waste water as
necessary.
(i) Lavatories:
Wash, disinfect and dry all bowls, seats, urinals, washbasins and
mirrors, as necessary.
Wash and dry all metal work, as necessary.
Empty paper towel and sanitary napkin disposal receptacles.
Damp wipe exterior of waste cans and dispensing units, as necessary.
Sweep and wash floors.
Dust all xxxxx, partitions and ledges, as necessary.
Insert toilet tissue, toweling and soap dispensers, as necessary.
2. Weekly
(a) Sweep and dust stairways, as necessary.
(b) Wash partitions in lavatories, as necessary.
3. Monthly
(a) Wash tile walls in lavatories.
(b) Wash interior of waste cans, and sanitary disposal container in
lavatories.
(c) Auto scrub all Atrium stone flooring, as necessary.
(d) Spray buff stone flooring in entrance lobby and elevator lobbies, as
necessary.
4. Quarterly
(a) Scrub and wax all composition tile flooring in public corridors.
(b) Scrub stone floor of entrance lobby.
(c) High dust all walls, ledges, pictures, and registers of public areas
not reached in normal nightly cleaning.
5. Annually
(a) Lighting fixtures will be washed.
(a) Clean entrance door glass and transoms - once weekly.
(b) Clean exterior atrium glass, as necessary.
(c) Clean Atrium skylight outside - once yearly.
(d) Clean perimeter windows on both sides - two times yearly.
Provide, during Normal Business Hours on Normal Business Days, one Xxxxxx
and one Matron.
Parking areas will be regularly swept, cleared of snow in excess of two
inches and generally maintained so as to be well drained, properly surfaced and
striped.
There will be no normal business hours at the Building on the following
holidays:
1. New Year's Day
2. President's Day
3. Memorial Day
4. Independence Day
5. Labor Day
6. Thanksgiving Day
7. Christmas Day
The date in any given Lease Year upon which any of the above holidays will be
observed shall be that date as shall be published annually by the New York State
Banking Department.
The following Rules and Regulations shall be applicable to the Building
and the Demised Premises as said terms are defined in the Lease of which these
Rules and Regulations are a part (hereinafter the "Lease"). Unless otherwise
provided in these Rules and Regulations, all references to "tenant" or "tenants"
shall be deemed to include "Tenant" as defined in the Lease. In the event of a
conflict between these Rules and Regulations and the provisions of the Lease,
the provisions of the Lease shall control:
1. The sidewalks, entrances, passages, courts, elevators, vestibules,
stairways, corridors and halls in the Building and Demised Premises shall not be
obstructed or used for any purpose other than ingress and egress.
2. No projection shall be attached to the outside walls of the Building.
All electric ceiling fixtures hung in offices or along the perimeter of the
Building must be fluorescent, and of a quality, type, design and bulb color
approved by Landlord. Neither the interior nor exterior of any window shall be
coated or otherwise sunscreened without the prior written consent of Landlord.
3. The sashes, sash doors, skylights, windows, and doors that reflect or
admit light and air into public places in the Building shall not be covered or
obstructed by any tenant, nor shall any articles be placed on any windowsills,
window heating units or in front of any air-conditioning vents.
4. The water and wash closets and other plumbing fixtures shall not be
used for any purpose other than those for which they were constructed, and no
sweepings, rubbish, rags, sanitary napkins or other substances shall be thrown
therein. All damage resulting from any misuse of such closets and fixtures shall
be the responsibility of the tenant which, or whose servants, employees, agents,
visitors or licensees shall have caused the same.
5. No tenant shall xxxx, paint, drill into, or in any way deface any part
of the Building except as expressly provided in the Lease.
6. No bicycles, vehicles, birds or animals of any kind shall be brought
into or kept in or about the Building, except those bicycles which shall be
parked in any areas which may be specifically designated by Landlord for such
purpose. Landlord assumes no responsibility for any bicycles so parked. Except
as may be specifically provided in the Lease, no cooking shall be done or
permitted by any tenant in the Building, except for the use of microwave ovens
and that the preparation of coffee, tea, hot chocolate and similar items for
tenants and their employees and invitees shall be permitted, provided the
electric power therefor shall not exceed that amount which can be provided by a
thirty (30) ampere circuit. Except as may be provided in the Lease, no tenant
shall cause or permit any unusual or objectionable odors to be produced or to
permeate the premises demised to it.
7. No tenant shall utilize the premises occupied by it for the sole or
major purpose of interviewing or hiring prospective employees and shall not
advertise the address of the Building as the location for such interviewing or
hiring. No premises shall be used for lodging or sleeping or for any immoral or
illegal purposes.
8. No tenant shall make, or permit to be made any unseemly or disturbing
noises or disturb or interfere with (a) occupants of the Building or neighboring
buildings or (b) those persons having business with said occupants, whether by
the use of any musical instrument, television, radio, phonograph, unusual noise,
or in any other way. No tenant shall throw anything out of the Building or into
the passageways therein.
9. No tenant or any of its servants, employees, agents, visitors or
licensees, shall at any time bring or keep within the Building any inflammable,
combustible or explosive fluid, chemical or substance.
10. Except as may be provided in the Lease, no additional locks or bolts
of any kind shall be placed upon any of the doors or windows by any tenant, nor
shall any changes be made in existing locks or the mechanism thereof. Landlord,
at its expense, shall, at or prior to initial occupancy by any tenant, supply
any and all necessary passkeys to any portion of the premises demised to any
tenant pursuant to any lease. All keys issued thereafter shall be issued by
Landlord at Tenant's expense. Notwithstanding the foregoing, Tenant shall have
the right to install security systems, provided that Tenant shall supply
Landlord with the necessary keys and security codes to permit entry in the event
of an emergency endangering life or property. Each tenant must, upon the
termination of its tenancy, restore to Landlord all keys of stores, offices, and
toilet rooms, either furnished to, or otherwise procured by, such tenant. In the
event of the loss of any keys so furnished, such tenant shall pay to Landlord
the cost of replacing the same or of changing the lock or locks opened by such
lost key if Landlord shall deem it necessary to make such changes.
11. All removals, or the carrying in or out of any safes, freight,
furniture or bulky matter of any description, except in the ordinary course of
business, must take place after normal business hours on weekdays, or on
Saturday or Sunday. The moving of safes or other fixtures or bulky matter of any
kind must be done upon forty-eight (48) hours' previous written notice to the
Managing Agent of the Building and be under its supervision, and the person
employed by any tenant for such work must be acceptable to Landlord. Except as
may be provided in the Lease, Landlord reserves the right to prescribe the
weight and position of all safes. Notwithstanding anything to the contrary
herein, Landlord may charge any tenant reasonable fees for supervisory and other
expenses in connection with tenant's utilization of the elevators when any
tenant moves in or vacates the Building or at such other times when any tenant
is utilizing the elevators for any of the activities set forth hereinabove. No
tenant shall move- in or vacate the Building before 5pm. on weekdays.
12. Except as may be provided in the Lease, no tenant shall purchase
janitorial, maintenance or other like services from any person not approved by
Landlord.
13. Landlord reserves the right to exclude from the Building between the
hours of 6:00 P.M. to 8:00 A.M. on weekdays, and at all hours on Saturday,
Sunday and legal holidays all persons who do not present a pass to the Building
signed by Landlord or, if said person is an employee of Tenant or any parent,
controlled corporation, affiliate or subsidiary thereof or of any successor
thereto by consolidation, merger, or other corporate action, a pass issued by
Tenant or such parent, controlled corporation, affiliate, subsidiary or
successor, bearing either a photograph of said person, or an authorized
signature of an official of Tenant, or of such parent, controlled corporation,
affiliate, subsidiary or successor. Landlord will furnish passes to persons for
whom any tenant requests the same in writing. Each tenant shall be responsible
for all persons for whom it requests passes and shall be liable to Landlord for
all acts of such persons. Landlord shall in no case be liable for damages for
any error with regard to the admission to or exclusion from the Building of any
person. In case of a riot, public excitement or other circumstances rendering
such action advisable in Landlord's opinion, Landlord reserves the right to
prevent access to the Building during the continuance of the same by closing the
doors or otherwise, all for the safety of the Tenants and the protection of the
Building.
14. Any persons employed by any tenant to do janitorial work, while in the
Building and outside of the premises demised pursuant to the provisions of any
lease, shall be subject to and under the control and direction of the Managing
Agent of the Building (but not as an agent or servant of said Managing Agent or
of Landlord), and Tenant shall be responsible for all acts of such persons.
15. All doors opening onto public corridors in the Building shall be kept
closed, except when in use for ingress and egress.
16. Any requests, notices or demands of any tenant to or upon Landlord
shall be in writing and addressed to the Managing Agent at the Building.
17. Canvassing, soliciting (except business calls on potential customers
in the Building) and peddling in the Building are prohibited and each tenant
shall cooperate to prevent the same.
18. Except as may be provided in the Lease, no supplementary
air-conditioning unit or other similar apparatuses shall be installed or used by
any tenant without the prior written consent of Landlord.
19. There shall not be used in any space, or in the public areas of the
Building, either by any tenant or others, any hand trucks except those equipped
with rubber tires and rubber side guards.
20. Except as may be provided in the Lease, Landlord shall have the right,
exercisable without notice and without liability to any Tenant, to change the
name and address of the Building.
21. No vending machine or machines of any description shall be installed,
maintained or operated in the Building (except those within the Demised Premises
which are intended only for use by Tenant's officers and employees).
22. All contractors and deliverymen engaged by Tenant shall maintain
adequate liability insurance, which insurance shall name Landlord as an
additional insured. Tenant shall provide Landlord with certificates of insurance
evidencing such coverage upon Landlord's request.
23. Tenant will not clean, nor require, permit, suffer or allow any window
in the Demised Premises to be cleaned, from the outside in violation of Section
202 of the Labor Law or any other applicable law or of the rules of any board or
body having or asserting jurisdiction over the Demised Premises.
24. All improvements to the exterior of the Demised Premises or otherwise
visible from the common areas or other parts of the Building or Land shall be of
building standard size, finish, color and material unless otherwise consented to
in writing by Landlord.
25. Tenant shall be entitled to directory listings as required in the
computerized lobby directory.
26. No sign or signs, except in uniform style and uniform location as
fixed by Landlord in its signage specification will be permitted in the public
corridors, or on corridor doors or entrances or on exterior windows or other
glass to the Demised Premises. No sign shall be affixed or installed by Tenant
in or outside of the Demised Premises without the prior written consent of
Landlord. Tenant agrees to promptly remove such signage if Landlord undertakes
any renovations or design improvements and Landlord determines that such signage
interferes with or is inconsistent with such subsequent renovations or
improvements. If Landlord elects to remove such signage or any signage not
approved by Landlord, Tenant shall upon five (5) days notice from Landlord pay
Landlord all costs and expenses, together with interest for the removal and
restoration of same.
The following Parking Area Rules and Regulations shall apply to all
parking areas and the parking structure serving the Building and the Demised
Premises.
1. All cars must be parked entirely within the stall lines.
2. All directional signs and arrows must be observed.
3. The speed limit shall be five (5) miles per hour.
4. Parking is prohibited:
(a) in areas not striped for parking;
(b) in aisles;
(c) where "no parking" signs are posted;
(d) on ramps;
(e) in cross-hatched areas; and
(f) in such other areas as may be designated by Landlord or
Landlord's designee.
5. Parking stickers of any other device or form of identification supplied
by Landlord shall remain the property of Landlord. Such parking identification
device must be displayed as requested by Landlord and may not be mutilated in
any manner. The serial number of any parking identification device may not be
obliterated. Parking identification devices shall not be transferable and any
device in the possession of an unauthorized holder will be void. There will be a
replacement charge to the tenant or person designated by tenant of $25.00 for
loss of any parking card.
6. Parking managers or attendants are not authorized to make or allow any
exceptions to these Parking Area Rules and Regulations.
[To Be Supplied]
ALL that certain plot, piece or parcel of land, with the buildings and
improvements thereon erected, situate, lying and being in the
TOWN OF NORTH HEMPSTEAD, COUNTY OF NASSAU AND STATE OF NEW YORK, BEING
MORE PARTICULARLY BOUNDED AND DESCRIBED AS FOLLOWS:
BEGINNING AT A POINT ON THE SOUTHERLY SIDE OF MARCUS AVENUE, SAID POINT.
BEING LOCATED 1842.07 FEET WESTERLY AS MEASURED ALONG THE SOUTHERLY SIDE
OF MARCUS AVENUE FROM THE INTERSECTION THEREOF WITH THE WESTERLY SIDE OF
NEW HYDE PARK ROAD;
RUNNING THENCE ALONG THE WESTERLY SIDE OF LAND NOW OR FORMERLY OF THE
CHASE MANHATTAN BANK, N.A. SOUTH 16 DEGREES 04 MINUTES 36 SECONDS WEST,
684.33 FEET;
THENCE RUNNING 73 DEGREES 55 MINUTES 24 SECONDS WEST, 460.38 FEET TO LAND
NOW OR FORMERLY OF SPERRY CORPORATION;
THENCE ALONG SAID LAND NORTH 16 DEGREES 04 MINUTES 36 SECONDS EAST, 739.84
FEET TO THE SOUTHERLY SIDE OF MARCUS AVENUE;
THENCE ALONG THE SOUTHWESTERLY SIDE OF MARCUS AVENUE THE FOLLOWING FIVE
COURSES AND DISTANCES:
1. SOUTHEASTERLY ALONG THE ARC OF A CURVE BEARING THE LEFT HAVING A RADIUS
OF 5769.58 FEET, A LENGTH OF 81.63 FEET AND A CHORD BEARING SOUTH 67
DEGREES 42 MINUTES 15 SECONDS EAST AND A CHORD LENGTH OF 81.63 FEET;
2. SOUTH 68 DEGREES 06 MINUTES 34 SECONDS EAST, 170.34 FEET;
3. SOUTHEASTERLY ALONG THE ARC OF A CURVE BEARING TO THE RIGHT HAVING A
RADIUS OF 132.00 FEET, A LENGTH OF 34.18 FEET AND A CHORD BEARING SOUTH 60
DEGREES 41 MINUTES 30 SECONDS EAST AND A CHORD LENGTH OF 34.08 FEET;
4. SOUTHEASTERLY ALONG THE ARC OF A CURVE BEARING THE LEFT HAVING A RADIUS
108.00 FEET, A LENGTH OF 27.96 FEET AND A CHORD BEARING SOUTH 60 DEGREES
41 MINUTES 30 SECONDS EAST AND A CHORD LENGTH OF 27.89 FEET;
5. SOUTH 68 DEGREES 06 MINUTES 00 XXXXXX XXXXXX EAST, 150.22 FEET TO THE
POINT OR PLACE OF BEGINNING.
