EXHIBIT 10.11
LEASE AGREEMENT
THIS LEASE ("LEASE") is made and entered into as of the 21st day of
January, 2003, by and between YONKERS RADIATION ENTERPRISES, LLC, a New York
limited liability company ("LANDLORD"), and NEW YORK RADIATION THERAPY
MANAGEMENT, SERVICES, INCORPORATED, a New York corporation ("TENANT").
WITNESSETH:
1. Premises.
Landlord hereby demises and leases to Tenant and Tenant hereby
hires and rents from Landlord Unit 111A (the "UNIT") in the Riverhill
Professional Pavilion (the "CONDOMINIUM") located at 000 Xxxxx Xxxxxxxx,
Xxxxxxx, Xxx Xxxx (the "PROPERTY"), together with an undivided 1.669 (1.669%)
percent interest in the common elements of the Condominium (the Unit together
with its undivided interest in the common elements is hereinafter referred to as
the "PREMISES"), as more particularly described on Exhibit A attached hereto and
made a part hereof, upon the terms, covenants and conditions set forth herein
2. Use.
(a) Tenant shall occupy and use the Premises for medical
and general offices and uses related thereto and for such other uses as may be
permitted under applicable law and the Declaration (as defined in Exhibit A) and
the By-Laws of the Condominium, but in all cases, subject to the terms and
conditions of the Declaration and the By-Laws of the Condominium (the "PERMITTED
USES").
(b) Tenant shall not do or permit anything to be done
upon the Premises or any part thereof which would: (i) make void or voidable any
insurance in force upon the Premises; (ii) make it difficult or impossible to
obtain fire or other insurance upon the Premises at commercially reasonable
rates; (iii) cause or be likely to cause damage to the Premises or any part
thereof; (iv) constitute a public or private nuisance; or (v) violate the
Declaration and/or the By-Laws of the Condominium.
3. The Term.
(a) The term (the "TERM") of this Lease shall commence on
the date hereof (the "COMMENCEMENT DATE") and shall terminate and expire at
11:59 p.m., Eastern Standard Time on January 20, 2013 (the "EXPIRATION DATE"),
unless extended or sooner terminated as provided herein.
(b) Provided that Tenant is not in default hereunder
during the Term, Tenant shall have the right to extend the Term of this Lease
for one (1) additional five (5) year period from January 21, 2013 to January 20,
2018 (the "EXTENDED TERM"), upon the following terms and conditions:
(i) The Term of this Lease shall automatically
be extended for the Extended Term, unless
either Landlord or Tenant notifies the other
party in writing at least one (1) month
prior to the Expiration Date that it does
not wish to extend the Term of this Lease,
in which case, this Lease shall terminate on
the Expiration Date; and
(ii) Tenant's occupancy of the Premises shall be
upon the terms and conditions as set forth
in this Lease, except that the phrases "the
Term hereof" or "the term of this Lease"
shall be deemed to include the Extended Term
and the term "EXPIRATION DATE" shall be
deemed to mean January 20, 2018; and
(iii) Any termination, cancellation or surrender
of this Lease shall terminate the automatic
extension.
(c) Notwithstanding anything to the contrary contained in
this Lease, Landlord may terminate this Lease by giving Tenant thirty (30) days
prior written notice thereof, in which case, this Lease shall terminate on the
day so designated in Landlord's notice, which date shall not be less than thirty
(30) days from the date such notice is deemed delivered hereunder.
4. Rent.
(a) Commencing as of the Commencement Date and for the
balance of the Term of this Lease, Tenant covenants and agrees to pay to
Landlord: (i) minimum rent in the amount determined in accordance with Paragraph
4(b) below (the "MINIMUM RENT"); and (ii) additional rent ("ADDITIONAL RENT")
equal to any and all other sums, costs, expenses, charges or other payments
which Tenant assumes, agrees or is obligated to pay pursuant to any provision of
this Lease. (Minimum Rent and Additional Rent are collectively referred to as
the "RENT").
(b) Minimum Rent for each Lease Year (as hereinafter
defined) shall be as follows:
(i) for the first Lease Year, the Minimum Rent
shall be $38,640.00, payable in equal
monthly installments of $3,220.00; and
(ii) Commencing January 21, 2004 and on each
January 21st thereafter during the Term
hereof, the Minimum Rent shall be an amount
equal to the then current Minimum Rent
multiplied by a fraction, the numerator of
which is the Consumer Price Index published
for the month of December immediately
preceding such January 21st and the
denominator of which is the Consumer Price
Index published for the month of December in
the immediately preceding Lease Year
provided, however, that the Minimum Rent
shall never be decreased as a result of the
application of this Section 4(b)(ii). For
purposes hereof, the "CONSUMER PRICE INDEX"
shall mean the Consumer Price Index (all
items) for New York, New York, Northeastern
New Jersey, published by the United States
Department of Labor, Bureau of Labor
Statistics (1982=100). As
soon as the Minimum Rent for each Lease Year
is established, Landlord shall give Tenant
notice thereof in writing. If the Consumer
Price Index is discontinued or revised during
the Term hereof, then such other governmental
index or computation which replaces the
Consumer Price Index shall be used in order
to obtain substantially the same result as
would be obtained if the Consumer Price Index
had not been discontinued or revised.
(c) Tenant shall pay to Landlord without previous demand
thereof and without any abatement, reduction, setoff or deduction whatsoever,
the Minimum Rent (together with any applicable sales tax and local taxes if the
same are ever required by law), payable in equal monthly installments, in
advance, on the first day of each and every calendar month throughout the Term
of this Lease. Tenant shall pay the Rent to Landlord in lawful money of the
United States of America which shall be legal tender for all debts, public and
private, at the time of payment, at the office of Landlord set forth above, or
to such other person or persons and/or at such other place or places as Landlord
may designate from time to time by written notice to Tenant. Landlord's failure
to render a xxxx or invoice for Rent with respect to any period shall not
prejudice Landlord's right to render a xxxx or invoice with respect to that or
any subsequent period. Any obligation of Tenant for payment of Rent which shall
have accrued with respect to any period during or prior to the Term shall
survive the expiration or termination of this Lease.
(d) The term "LEASE YEAR" shall mean for the first Lease
Year, the period between the Commencement Date and the day immediately preceding
the first anniversary of the Commencement Date, and for any subsequent Lease
Year, the twelve (12) month period commencing on the first day subsequent to the
expiration of the preceding Lease Year and ending on the anniversary date of the
last day of the preceding Lease Year.
(e) If Tenant shall fail to pay any installment of
Minimum Rent or Additional Rent within five (5) days after the due date thereof,
Tenant shall pay to Landlord a late charge equal to five (5%) percent of the
amount of such installment.
(f) If Tenant shall fail to pay and installment of
Minimum Rent or Additional Rent within fifteen (15) days after the due date
thereof, such installment shall bear interest from the due date to the date of
payment at the prime interest rate of Chase Manhattan Bank, N.A., or its
successors), as of such date plus three (3%) percent, which interest shall be
due with such installment.
(g) Any Minimum Rent due for a period that is less than a
full calendar month shall be appropriately prorated.
5. Real Estate Taxes and Common Charges.
(a) During the Term hereof, Tenant shall pay to Landlord
as Additional Rent all real estate taxes, assessments, water and sewer rents and
water and sewer charges and all other governmental levies and charges, general
and special, ordinary and extraordinary, unforeseen as well as foreseen, of any
kind, including any fine, penalty or interest imposed thereon, which are
assessed or imposed upon the Premises or any part thereof, or become payable in
respect of the use or occupancy of the Premises as herein provided
(collectively, "TAXES"). On the Commencement Date, Tenant shall pay to Landlord
as Additional Rent a sum equal to one-twelfth (1/12th) of the Taxes next coming
due multiplied by the number of months (and any fraction thereof) which would
have had to been paid to Landlord for Landlord to have sufficient funds to pay
such Taxes to the taxing authority on their respective due dates, without
penalty or interest. Thereafter, commencing on the first day of February 2003
and the first day of each month thereafter, together with each monthly
installment of Minimum Rent, until the first Adjustment Date (as hereinafter
defined), Tenant shall pay to Landlord a sum equal to one-twelfth (1/12th) of
the Taxes next coming due. From and after the first Adjustment Date and
thereafter throughout the Term, Tenant shall pay to Landlord, one-twelfth
(1/12th) of the amount required to pay the Taxes to the governmental authorities
on time, without interest or penalty, as such amount may be increased on notice
from the Landlord to Tenant (each such date of increase being referred to herein
as an "ADJUSTMENT DATE"). Landlord may estimate the monthly amount required to
pay the Taxes next coming due.
(b) In the event Landlord receives a refund of any Taxes
previously paid by Tenant, Tenant shall receive such refund, less Landlord's
cost of such refund. Tenant shall have the right and option to contest or review
by legal, administrative or other proceedings the amount or validity of any
Taxes, upon condition that Landlord's estate in the Premises shall not, under
any circumstances, be forfeited by reason of such contest or review. Landlord
shall join in any such contest or review if necessary in order to properly
prosecute such proceedings. The proceedings referred to herein shall include,
but shall not be limited to, appropriate appeals from any judgment, decrees or
orders made in any such proceedings.
(c) In addition to Minimum Rent and Additional Rent,
Tenant shall and hereby agrees to pay to Landlord each month a sum equal to any
sales tax, tax on rentals and any other similar charges now existing or
hereafter imposed, based upon the privilege of leasing the space leased
hereunder or based upon the amount of rent collected therefor.
(d) Tenant will also pay directly to the Condominium any
and all common charges, expenses for common areas, utilities, and association
fees required or assessed by the Condominium, the Declaration or the By-Laws of
the Condominium against the Unit or the Landlord on account of the Unit prior to
the date same are due and payable to the Condominium.
6. Net-Net-Net Lease.
This Lease shall be deemed and construed to be a net-net-net
Lease and, except as herein otherwise expressly provided, the Landlord shall
receive the Minimum Rent and Additional Rent and all other payments hereunder to
be made by the Tenant absolutely free from any charges, assessments, imposition,
expenses or deductions of any kind and every kind or nature whatsoever. Tenant
is to pay for all insurance and any and all costs for repairs, replacements,
maintenance and improvements.
7. Insurance and Indemnity.
(a) Tenant shall, at Tenant's sole cost and expense,
subject to the terms and conditions of the Condominium, keep the Premises and
all of Tenant's equipment and property insured for the benefit of Landlord and
Tenant: (i) in an amount which shall be sufficient to prevent Landlord or Tenant
from becoming a co-insurer of any loss (but in no event in an amount less than
one hundred percent (100%) of the full replacement value thereof), against loss
or damage by fire, and such other risks and hazards as are insurable under then
available standard forms of insurance policies with extended coverage.
(b) Tenant, at Tenant's sole cost and expense, shall
maintain for the mutual benefit of Landlord and Tenant and any other person or
entity designated by Landlord, comprehensive general liability insurance against
claims for personal injury, death or property damage occurring upon, in, about,
adjacent to or connected to the Premises, or any part thereof, with such limits
as may be reasonably required by Landlord from time to time, but not less than
$3,000,000 in respect of bodily injury or death of any number of persons in a
single occurrence and $500,000 for property damage.
(c) During such time as Tenant shall be performing any
Alteration, Tenant shall carry or caused to be carried worker's compensation
insurance covering all persons employed in connection with the Alteration in
statutory limits.
5.a.(a) All policies of insurance shall, provide that same
shall not be cancelable, terminable, modifiable or non-renewable on less than
twenty (20) days' actual prior notice to all insureds and any Superior
Mortgagee, as defined below.
5.a.(b) All insurance provided under this Lease shall be
issued by insurers reasonably satisfactory to Landlord and licensed to do
business in the State of New York. Tenant shall deposit with Landlord and, if
requested by Landlord, any Superior Mortgagee, the original certificates of
insurance for all insurance required under this Article 7 prior to Tenant's
possession of the Premises and, at least thirty (30) days prior to the
expiration date of any policy, the original renewal certificates for such
insurance shall be delivered by Tenant to Landlord, together with reasonably
satisfactory evidence of its payment. Landlord may require such insurance
coverage to be increased after the first five (5) years of the Term of the Lease
and at the commencement of the Extended Term.
5.a.(c) All policies procured by Tenant or Landlord with
respect to the Premises, whether or not required hereby to be carried, which
insure the interest of one
party only, shall (if it can be so written and either does not result in
additional premium or the other party agrees to pay upon demand any additional
resulting premium) include provisions denying to the insurer acquisition by
subrogation of rights of recovery against the other. Both Landlord and Tenant,
to the extent permitted by the applicable policy, hereby waive any rights of
recovery against the other for any direct damage or consequential loss normally
covered by such policies, against which such party is protected by insurance, to
the extent of the proceeds paid under such policies, whether or not such damage
or loss shall have been caused by any acts or omissions of the other party.
5.a.(d) In no event shall the limits of said insurance
policies be considered as limiting the liability of Tenant under this Lease. In
the event that Tenant shall fail to obtain or maintain in full force and effect
any insurance coverage required to be obtained by Tenant under this Lease,
Landlord may (but Landlord shall have no obligation to do so) procure same from
insurance carriers as Landlord may deem proper, irrespective that a lesser
premium for such insurance coverage may have been obtained from another
insurance carrier, and Tenant shall pay as Additional Rent, upon demand of
Landlord, any and all premiums, costs, charges and expenses incurred or expended
by Landlord in obtaining such insurance. Notwithstanding that Landlord may
procure insurance coverage required of Tenant hereunder, Landlord shall in no
manner be liable to Tenant for any insufficiency or failure of coverage with
regard to such insurance or any loss to Tenant occasioned thereby, and
additionally, the procurement of such insurance by Landlord shall not relieve
Tenant of its obligations under this Lease to maintain insurance coverage in the
types and amounts herein specified, and Tenant shall nevertheless hold Landlord
harmless from any loss or damage incurred or suffered by Landlord from Tenant's
failure to maintain such insurance.
5.a.(e) The replacement of any plate glass damaged or broken
from any cause whatsoever in and about the Premises shall be Tenant's
responsibility. Tenant shall, during the entire Term hereof, keep in full force
and effect a policy of plate glass insurance covering all the plate glass of the
Premises, in amounts satisfactory to Landlord. The policy shall name Landlord as
additional insured and shall contain a clause that the insurer will not cancel
or change the insurance without first giving the Landlord twenty (20) days prior
notice. A copy of the policy together with the declarations page therefore shall
be delivered to Landlord prior to the commencement of the Term of this Lease.
8. Utilities.
(a) During the Term, Tenant shall obtain and pay directly
to the utility company or vendor providing such utilities and/or services, all
costs and expenses for all utilities, including, without limitation, electric
current, water, heating oil, gas or other fuel, except to the extent same are
the responsibility of the Condominium, including all utilities in connection
with all mechanical systems in or serving the Premises, including, without
limitation, the heating, air conditioning, ventilation and lighting equipment.
Tenant shall, at Tenant's sole cost and expense, perform its own cleaning in the
Premises or contract directly for any such cleaning services. Tenant shall, at
Tenant's sole cost and expense, be responsible for removal from the Premises and
the Property, of all refuse and rubbish.
(b) Tenant shall not use or install any fixtures,
equipment or machines, the use of which in conjunction with other fixtures,
equipment or machines would result in an overload of the electrical equipment
supplying electric current to the building. Tenant shall not permit its use of
electric current to exceed the capacity of the then existing risers, feeders,
the electrical service panel or bus ducts to the building.
(c) Landlord shall not be required to furnish to Tenant
any services of any kind whatsoever such as, but not limited to, water, steam,
heat, gas, hot water, electricity, light and power. Landlord shall not be held
liable for: (i) any failure of water supply, electric current or any services by
any utility; and (ii) injury to person (including death) or damage to property
resulting from steam, gas, electricity, water, rain or snow which may flow or
leak from any part of the Premises or from any pipes, appliances or plumbing
works or from any other place or by dampness or by any other cause whatsoever.
9. Subordination and Attornment.
(a) This Lease, and all rights of Tenant hereunder, are
and shall be subject and subordinate to all ground leases, overriding leases and
underlying leases of the land and the building of which the Premises form apart,
now or hereafter existing and to all mortgages (including modifications,
consolidations, spreaders and renewals thereof) which may now or hereafter
affect the land and/or the building of which the Premises form a part or any
such lease and to the Declaration and the By-Laws of the Condominium, This
subordination shall be self-operative and no further instrument of subordination
shall be required. In confirmation of such subordination, Tenant shall promptly
execute, acknowledge and deliver any instrument that Landlord may reasonably
request to evidence such subordination. Any lease to which this Lease is subject
and subordinate is herein referred to as a "SUPERIOR LEASE" and the lessor of a
Superior Lease is herein referred to as a "SUPERIOR LESSOR," and any mortgage to
which this Lease is subject and subordinate is herein referred to as a "SUPERIOR
MORTGAGE," and the holder of a Superior Mortgage is herein referred to as a
"SUPERIOR MORTGAGEE."
(b) If any Superior Lessor or Superior Mortgagee shall
succeed to the rights of Landlord hereunder, whether through possession or
foreclosure action or delivery of a new lease or deed, then, at the request of
such party (A "SUCCESSOR LANDLORD"), Tenant shall attorn to and recognize each
Successor Landlord as Tenant's landlord under this Lease and shall within ten
(10) days after request by such Successor Landlord execute and deliver any
instrument such Successor Landlord may reasonably request to confirm such
attornment. Upon such attornment, this Lease shall continue in full force and
effect as a direct lease between Successor Landlord and Tenant on all the terms,
conditions, and covenants as set forth in this Lease.
10. Assignment and Subletting.
(a) Tenant shall not, by operation of law or otherwise,
assign, mortgage, pledge or encumber this Lease and shall not sublet all or any
portion of the Premises or permit the Premises or any part thereof to be used or
occupied by others without Landlord's prior written consent in each instance. If
this Lease is assigned, or if the Premises or any part thereof are sublet or
occupied by anybody other than Tenant in violation of the terms hereof, Landlord
may collect rent from the assignee, undertenant or occupant 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, undertenant or occupant as Tenant, or a
release of Tenant from the further performance by Tenant of covenants on the
part of Tenant herein contained. The consent by Landlord to an assignment or
subletting shall not in any way be construed to relieve Tenant from obtaining
the express consent in writing of Landlord to any further assignment or
subletting. 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.
(b) Any transfer or assignment, whether made in one (1)
transaction or in a series of transactions, which results in a transfer or
assignment of fifty percent (50%) or more of the voting interests or control of
Tenant, or any permitted subtenant or assignee of this Lease, shall constitute
an assignment of this Lease or sublease requiring Landlord's consent.
11. Tenant's Fixtures and Improvements.
(a) Tenant may execute non-structural alterations,
additions or improvements (an "ALTERATION") to the Premises at any time and from
time to time during the Term of this Lease.
(b) Title to each Alteration which is real property,
fixtures (but not Tenant's Property, as defined below), improvements or
replacement equipment installed in the Premises or any part thereof at any time,
either by Tenant or by Landlord on Tenant's behalf, shall, upon installation be
free and clear of all liens and shall vest and become the property of Landlord
and shall remain upon and be surrendered with the Premises,
(c) Any Alteration shall be performed in accordance with
all of the following conditions:
(i) No Alteration shall at any time be made
which shall impair the structural soundness or diminish the value of the
Premises, or decrease the size of the Premises; and
(ii) All Alterations, repairs and replacements
shall be performed in accordance with detailed architectural plans and
specifications prepared by a licensed architect or engineer and approved by
Landlord; and
(iii) All Alterations shall be done in a good and
workmanlike manner and shall comply with all requirements set forth in the
Declaration and By-Laws of the Condominium, with all building and zoning laws
and with all other applicable laws, ordinances, orders, rules, regulations and
requirements of all federal, state and municipal governments, and the
appropriate departments, commissions, boards and officers thereof and in
accordance with the orders, rules and regulations of the Board of Fire
Underwriters or any body now or hereafter, constituted exercising similar
functions, and Tenant shall procure all permits, approvals and certificates of
occupancy and other certificates as may be required by law, the Declaration and
the By-Laws of the Condominium; and
(iv) Upon completion of all Alterations, Tenant
shall deliver to Landlord a Certificate of Occupancy (or equivalent certificate)
which may be required by any governmental authority to evidence completion of
the Alteration and to authorize the occupancy of all or any part of the
Premises.
12. Tenant's Property & Equipment
Notwithstanding any contrary provision contained herein,
Tenant shall have the right, at its own cost and expense, to install machinery,
equipment and fixtures as Tenant may require from time to time ("TENANT'S
PROPERTY"). Tenant's Property shall remain personalty notwithstanding the fact
that it may be affixed or attached to the Premises, and shall, during the term
of this Lease or any extension thereof, belong to and be removable by Tenant,
provided that Tenant shall repair any damage to the Premises caused by the
removal of Tenant's Property and shall restore the Premises to substantially the
same condition as existed prior to the installation of Tenant's Property.
13. Maintenance and Repair of Premises.
Tenant shall at all times keep in good order, condition and
repair (which shall include the providing of replacements where necessary) the
entire Premises, including, without limitation, all partitions, doors, interior
walls, fixtures, equipment and appurtenances thereto, including lighting,
heating and plumbing fixtures and any air conditioning system and sprinkler
system situated within and/or servicing the Premises, except to the extent any
such obligations are the responsibility of the Condominium pursuant to the
Declaration and the By-Laws of the Condominium. Said maintenance by Tenant shall
include, without limitation, periodic painting as is reasonably necessary. All
repairs, replacements, or maintenance of any item or any type of the Premises is
the responsibility of the Tenant and to be paid for by Tenant.
14. Signs.
Subject to the provisions of the Declaration and the By-Laws
of the Condominium, Tenant may place or install such signs and/or awnings in, on
or about the Premises (including, without limitation, both the interior and
exterior surfaces of windows and doors), without obtaining Landlord's prior
written approval, provided such signs and/or awnings (i) do not violate any
laws, ordinances, rules or regulations promulgated by any governmental body
having jurisdiction, or do not violate the Declaration and the By-Laws of the
Condominium; (ii) are installed in accordance with all applicable laws,
ordinances rules and regulations and any applicable conditions in the
Declaration and/or the By-Laws of the
Condominium; and (iii) are maintained at all times during the Term in good
condition by Tenant at its own cost and expense in accordance with the aforesaid
laws, ordinances, rules and regulations and, if applicable, the Declaration and
the By-Laws of the Condominium
15. Waste and Governmental Regulations.
(a) Tenant shall not commit or suffer to be committed any
waste upon the, Premises or any nuisance or other act or thing which may
disturb the quiet enjoyment of any other tenant in the Condominium.
(b) Tenant, at its sole cost, will promptly comply with
all applicable laws, guidelines, rules, regulations and requirements, whether of
federal, state, or local origin, applicable to the Premises, and the
Condominium, including, but not limited to, the Americans with Disabilities Act,
42 U.S.C, Section 12101 et seq, and those for the correction, prevention and
abatement of nuisance, unsafe conditions, or other grievances arising from or
pertaining to the use or occupancy of the Premises or the Condominium. Tenant at
its sole cost and expense shall be solely responsible for taking any and all
measures which are required to comply with the requirements of the ADA within
the Premises. Any Alterations to the Premises made by or on behalf of Tenant for
the purpose of complying with the ADA or which otherwise require compliance with
the ADA shall be done in accordance with this Lease; provided, that Landlord's
consent to such Alterations shall not constitute either Landlord's assumption,
in whole or in part, of Tenant's responsibility for compliance with the ADA, or
representation or confirmation by Landlord that such Alterations comply with the
provisions of the ADA.
(c) In the event any "Medical Waste" or "Hazardous
Material," as such term is hereinafter defined, is brought into or onto the
Premises by Tenant, Tenant shall handle any such material in compliance with all
applicable federal, state and/or local regulations. For the purposes of this
Paragraph, "HAZARDOUS MATERIAL" means and includes any hazardous, toxic or
dangerous waste, substance or material defined as such in the Comprehensive
Environmental Response, Compensation and Liability Act, any so called
"Superfund" or "Superlien" law, or any federal, state or local statute, law,
ordinance, code, rule, regulation, order or decree regulating, and/or relating
to any Hazardous Material.
(d) During the Term, Tenant shall, at its sole cost and
expense, comply with any law, ordinance and regulation, Federal, state, county
or municipal, including without limitation, all Legal Requirements, now or
hereafter enforced or applicable to the Premises, Tenant's use or manner of use
of the Premises and any improvements thereon. Tenant shall comply with any and
all rules and regulations issued by the Board of Fire Underwriters or by any
other body hereinafter constituted, exercising similar functions, and by
insurance companies writing policies which insure the improvements located on
the Premises. Tenant shall pay all costs, expenses, claims, fines, penalties and
damages that may be imposed because of the failure of the Tenant to comply with
this Paragraph and shall indemnify and hold harmless Landlord from and against
any and all liability arising from each non-compliance by Tenant. Tenant shall
promptly notify Landlord of any known violation. Tenant shall not contest the
application or validity of any such requirements without the prior written
consent of Landlord in each such instance such consent to be unreasonably
withheld or delayed. Any repair or change required to
be performed by Tenant under this Section shall be deemed a repair for the
purposes of Article 11, below.
(e) Tenant shall have the right and option to contest or
review by legal, administrative or other appropriate proceedings any legal
requirements or violations thereof asserted against the Premises on the
condition that Landlord's estate in the Premises shall not be forfeited by
reason of such contest and Tenant shall provide Landlord which such security
reasonably required by Landlord to protect Landlord's interest in the Premises.
Landlord shall join in any such proceedings if necessary in order to properly
prosecute such proceedings. The proceedings referred to herein shall include,
but shall not be limited to, appropriate appeals from any judgment, decrees or
orders made in any such proceedings.
(f) Tenant will indemnify and hold harmless Landlord from
any losses, liabilities, damages, costs or expenses (including reasonable
attorneys' fees) which Landlord may suffer or incur as a result of Tenant's
breach of this Article 15. This Article 15 shall survive the expiration or
sooner termination of this Lease.
16. Destruction of Premises.
Except as otherwise expressly provided herein, damage to or
destruction of the Premises by fire or other casualty shall not release or
diminish Tenant's obligations hereunder, entitle Tenant to surrender possession
of the Premises, terminate this Lease or violate any provisions hereof. Subject
to the terms and conditions of the Declaration and the By-Laws, Tenant covenants
and agrees that in case of damage to or destruction of the Premises by fire or
other casualty, Tenant, at Tenant's sole cost and expense, will promptly repair,
restore, replace and rebuild the same to the condition existing immediately
prior to such damage or destruction, in accordance with Article 11, above. All
insurance proceeds received on account of such damage or destruction whether
received by Landlord or Tenant, less the reasonable costs, if any, of such
recovery (which costs shall be payable to the party incurring such costs) shall
be deposited into a segregated interest-bearing account maintained by Landlord
(with the interest to follow the proceeds thereof) and shall be applied to the
payment of the cost of such restoration, repair, replacement or rebuilding,
including expenditures made for temporary repairs or for the protection of
property pending the completion of permanent restoration, repair, replacement,
or rebuilding, and shall be paid out to Tenant, upon Tenant's request therefor
made from time to time, as such work progresses.
17. Surrender.
At the expiration or earlier termination of this Lease, the
Tenant shall surrender and vacate the Premises in broom clean condition, with
all of its property removed therefrom.
18. Eminent Domain.
Subject to the terms of the Declaration, the By-Laws of the
Condominium and the Superior Mortgage, if less then ten (10%) percent of the
Premises is taken or condemned for a public or quasi-public use (a sale in lieu
of condemnation to be deemed a taking or condemnation) (each an
"APPROPRIATION"), this Lease shall, as to the part taken, terminate as of the
date title shall vest in the condemnor and continue in full force as to the
remainder and in the
event of such a partial taking, the Rent shall be equitably adjusted by
Landlord, and Tenant shall restore, subject to unavoidable delays, the remaining
portion of the Premises to a complete architectural unit. Such restoration,
repairs, and/or reconstruction shall be performed in accordance with the terms
of Article 11 above. Any condemnation proceeds received on account of such
Appropriation by Landlord or Tenant, less the reasonable costs of collecting the
same, if any, shall be deposited into a segregated interest-bearing account
maintained by Landlord (with interest to follow the proceeds thereof) and used
for such restoration to restore the Alterations located in the Premises and
paid out to Tenant, upon Tenant's request therefor made from time to time, as
such work progresses. In the event of a condemnation of ten (10%) percent or
more of the Premises (a sale in lieu of condemnation to be deemed a taking or
condemnation), this Lease shall terminate as of the date title shall vest in the
condemnor and, upon such termination, Landlord and Tenant shall have no further
obligations hereunder, except to the extent such obligations are to survive the
termination of this Lease as otherwise provided in this Lease. Landlord and
Tenant each covenant and agree that promptly after receipt by either party of
notice from the condemning authority of the pendency of any such condemnation,
such party shall deliver to the other party a copy of such notice. Any
termination hereunder shall be without prejudice to the rights of either
Landlord or Tenant to recover compensation from the condemning authority for any
loss or damage caused by such Appropriation, the parties hereto agreeing that
both Landlord and Tenant shall have the right to make claims for any loss or
damage it suffers.
19. Defaults.
(a) Any of the following events shall be deemed an "EVENT
OF DEFAULT" under this Lease:
(i) if Tenant fails to make any payment of Rent
on the due date thereof; or
(ii) if Tenant breaches any other covenant of
this Lease; or
(iii) if Tenant becomes involved in a legal
proceeding which results in the levy of
execution on or the acquisition of Tenant's
leasehold interest created hereunder by a
trustee in bankruptcy, receiver, assignee or
other legal officer appointed in any
insolvency or creditors' proceedings; or
(iv) if Tenant vacates, surrenders or abandons
all or any part of the Premises; or
(v) if any lien, judgment, writ, assessment,
charge, attachment or execution is filed
against Landlord's or Tenant's interest in
the Lease or the Premises and/or the
fixtures, improvements and furnishings
located therein.
(b) Upon the occurrence of any one or more Events of
Default, Landlord may serve a written ten (10) day notice upon Tenant specifying
the nature of said default and upon the expiration of said ten (10) day period,
if Tenant has failed to remedy such Event of Default, then Landlord may serve a
written three (3) day notice of cancellation of this Lease upon Tenant, and upon
the expiration of said three (3) day period, this Lease and the term hereunder
shall end and expire as fully and completely as if the expiration of said three
(3) day period were the day herein definitely fixed for the end and expiration
of this Lease and the Term hereof and Tenant shall then quit and surrender the
Premises to Landlord in the condition required hereunder, but Tenant shall
remain liable as hereinafter provided.
(c) If the notice provided for under Paragraph 19(b) above,
shall be given, and the Term hereof shall expire as aforesaid, then and in any
such event, Landlord may, without notice, re-enter the Premises either by force
or otherwise and dispossess Tenant by summary proceeding or otherwise, and may
remove all persons, fixtures and chattels therefrom and Landlord shall not be
liable for any damages resulting therefrom and Tenant hereby waives the service
of notice of intention to re-enter, retake or commence legal proceeding to that
end. Such re-entry and repossession shall not work a forfeiture of the Rent to
be paid and the covenants to be performed by Tenant during the full Term of this
Lease. Upon such repossession of the Premises, Landlord shall be entitled to
recover, as liquidated damages and not as a penalty, a sum of money equal to the
present value of the Rent provided herein to be paid by Tenant to Landlord for
the remainder of the Term, less the present value of the fair rental value of
the Premises for said period, such present value to be computed in each case on
the basis of a four (4%) percent per annum discount. Upon the happening of any
one or more of the Events of Default, Landlord may repossess the Premises by
forcible entry or detainer suit, or otherwise, without demand or notice of any
kind to Tenant (except as hereinabove expressly provided for) and without
terminating this Lease, in which event Landlord may relet all or any part of the
Premises for such rent and upon such terms as shall be satisfactory to Landlord
(including the right to relet the Premises for a term greater or lesser than
that remaining under the Term of this Lease or otherwise). For the purpose of
such reletting, Landlord may decorate or make any repairs, changes, alterations
or additions in or to the Premises that may be necessary or convenient. If
Landlord does not relet the Premises, Tenant shall pay to Landlord on demand, as
liquidated damages and not as a penalty, a sum equal to the amount of Rent
herein to be paid by Tenant for the remainder of the Lease Term. If the Premises
are relet and a sufficient sum shall not be realized from such reletting after
paying all of the expenses of such decorations, repairs, changes, alterations,
or additions, the expenses therefrom (including but not by way of limitation,
reasonable attorneys' fees and brokers' commissions), to pay the remainder of
the Rent to be paid by Tenant over the Lease term, Tenant shall pay to Landlord
on demand any deficiency.
(d) Suit or suits for the recovery of such damages, or
any installments thereof, may be brought by Landlord from time to time at its
election, and nothing contained herein shall be deemed to require Landlord to
postpone suit until the date when the Term of this Lease would have expired or
limit or preclude recovery by Landlord against Tenant of any sums or damages
which, in addition to the damages particularly provided above, Landlord may
lawfully be entitled by reason of any default hereunder on the part of Tenant.
All the remedies hereinbefore given to
Landlord and all rights and remedies given to it at law and in equity shall be
cumulative and concurrent.
20. Access by Landlord.
Landlord or Landlord's agents shall have the right to enter
the Premises at all times to examine the same and to show them to prospective
purchasers of the Unit, and to make, such repairs, alterations, improvements or
additions as Landlord may deem necessary or desirable, and Landlord shall be
allowed to take all material into and upon said Premises that may be required
therefor, without the same constituting an eviction of Tenant in whole or in
part and the Rent reserved shall in no way xxxxx while said repairs,
alterations, improvements, or additions are being made, by reason of loss or
interruption of business of Tenant, or otherwise. Nothing herein contained,
however, shall be deemed or construed to impose upon Landlord any obligation,
responsibility or liability whatsoever, for the care, maintenance, or repair of
the Premises or any part thereof, except as otherwise herein specifically
provided. Landlord shall give Tenant reasonable notice during business hours
prior to any entry. In the exercise of its rights under this Article 11,
Landlord shall make reasonable efforts not to interfere with Tenant's use of the
Premises.
21. Quiet Enjoyment.
Upon payment by the Tenant of the Rent and other charges
herein provided, and upon the observance and performance of all the covenants,
terms and conditions on Tenant's part to be observed and performed, Tenant shall
peaceably and quietly hold and enjoy the Leased Premises for the term hereby
demised without hindrance or interruption by Landlord or any other person or
persons lawfully or equitably claiming by, through or under the Landlord,
subject, nevertheless, to the terms and conditions of this Lease.
22. Miscellaneous.
(a) No payment by Tenant or receipt by Landlord of a
lesser amount than the rent herein stipulated to be paid shall be deemed to be
other than on account of the earliest stipulated rent, nor shall any endorsement
or statement on any check or any letter accompanying any check or payment as
rent be deemed an accord and satisfaction, and Landlord may accept such check or
payment without prejudice to Landlord's right to recover the balance of such
rent or pursue any other remedy provided herein or by law.
(b) The captions or titles to the various sections of
this Lease are for convenience and ease of reference only and do not define,
limit, augment or describe the scope, content or intent of this Lease or of any
parts thereof.
(c) Each and every covenant and condition of this Lease
shall be binding upon and shall inure to the benefit of the heirs, successors,
personal representatives and permitted assigns of Landlord and Tenant, but this
section shall in no way validate an assignment of all or any part of this Lease
which is invalid under other provisions hereof.
(d) The invalidity or illegality of any provisions of
this Lease shall not affect the remaining provisions thereof.
(e) When used in this Lease, the singular number includes
the plural, and the plural the singular, unless the context otherwise requires;
the neuter gender includes the feminine and masculine, the masculine includes
the feminine and neuter, and the feminine includes the masculine and neuter, and
each includes a corporation, partnership, or other legal entity when the context
so requires; and the word "person" means an individual or individuals, a
partnership or, partnerships, a corporation or corporations, or any combination
thereof, when the context so requires.
(f) If Tenant consists of more than one person, the
obligation of all such persons is joint and several.
(g) Any notice or demand provided for in this Lease shall
be in writing and shall be deemed delivered either: (i) when delivered in person
to the recipient thereof; or (ii) on the date shown on the return receipt after
deposit, or should the recipient thereof fail to sign the return receipt, then
three (3) days after deposit in the United States mail in a sealed envelope or
container, when delivered by registered or certified mail, return receipt
requested, postage prepaid; and addressed to the party to whom notice is hereby
given at the address listed above, or to such other address as may be supplied
by such party in writing.
(h) The Lease shall be construed and interpreted
according to the laws of the State of New York.
(i) This Lease shall not be recorded.
(j) If circumstances beyond the control of Landlord (such
as acts of God, fires, strikes, power shortages, etc., - financial inability
excepted) shall temporarily make it impossible for Landlord to perform under
this Lease, then the principles of force majeure will apply and the rights and
obligations of the parties will be temporarily suspended during the force
majeure period.
(k) Notwithstanding anything to the contrary in this
Lease, Landlord and Tenant shall look solely to the interest of the other in the
Premises, as the case may be, for satisfaction of any remedy it may have
hereunder or in connection herewith and shall not look to any other assets of
the other or of any other person, firm or corporation. There shall be absolutely
no personal liability on the part of any present or future stockholder, member,
principal, or any officer, director, trustee, member or affiliate of Landlord or
Tenant or any partners of such partnership or any of its successors or assigns
with respect to any obligation hereunder or in connection herewith.
(l) If any term, covenant or condition 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, the application of such
term, covenant or condition to persons or circumstances other than those as to
which it is held invalid or unenforceable, shall not be affected thereby and
each
term, covenant or condition of this Lease shall be valid and enforceable to the
fullest extent permitted by law.
(m) Tenant represents that no broker was involved or
instrumental in consummating this Lease and that no conversations or prior
negotiations were had with any broker concerning the leasing of the Premises.
Tenant agrees to hold Landlord harmless against any claims for brokerage
commissions arising out of any conversations or negotiations had by Tenant with
any broker with respect to this Lease or the Premises.
(n) Tenant has no authority to incur any debt or make any
charge against Landlord or create any lien upon this Lease, the Premises, the
common areas or the building for work or materials furnished for same. In the
event that any labor, materials or equipment are furnished to Tenant with
respect to which any mechanics' or materialmen's lien might be filed against the
land, the Premises, or the land and building of which the Premises is a part
Tenant agrees to take appropriate action to assure that no such lien will be
filed, and Tenant agrees to pay, when due, all sums of money that may become due
for any such labor, materials or equipment and to cause any such lien to be
fully discharged and released or bonded in accordance with the Lien Law of the
State of New York promptly upon receiving notice thereof. If Tenant has not
obtained the discharge of any such lien within thirty (30) days after notice
given by Landlord in writing to Tenant, Landlord may pay the amount of such lien
and the amount so paid shall be deemed Additional Rent reserved under this Lease
and shall be payable on demand.
(o) At the request of the Landlord, Tenant shall, at any
time and from time to time, within ten (10) days after receipt of notice from
Landlord, execute, acknowledge and deliver to Landlord a statement in writing
certifying that this Lease is unmodified and in full force and effect (or, if
there have been modifications, that the Lease is in full force and effect as
modified, and setting forth the modifications), the dates to which the Rent has
been paid, and stating whether or not, to the best knowledge of the Tenant, any
party is in default in keeping, observing or performing any term, covenant,
agreement, provision, condition or limitation contained in this Lease, and if in
default, specifying each such default, it being intended that any such statement
delivered pursuant to this section may be relied upon by Landlord, or any
prospective purchaser, assignee or mortgagee.
(p) Tenant hereby indemnifies and agrees to hold Landlord
harmless from and against any loss, cost, liability, claim, damage and expense
(including reasonable attorneys' fees and disbursements) resulting from delay by
Tenant in surrendering the Premises upon the expiration or termination of this
Lease, including any claims made by any succeeding tenant or prospective tenant
founded upon such delay. In the event Tenant remains in possession of the
Premises after the expiration or termination of this Lease without the execution
of a new lease, the Landlord shall be entitled to immediately reenter the
Premises and dispossess Tenant. In the event of any holding over by Tenant,
Tenant shall pay as holdover rental for each month of the holdover an amount
equal to two (2) times the Rent payable during the last month of this Lease,
subject to all of the other terms of this Lease insofar as the same are
applicable to such holdover tenancy. The acceptance of any such use and
occupancy paid by Tenant pursuant to this Section shall in no event preclude the
Landlord from commencing and prosecuting a holdover or
summary eviction proceeding and the provisions of this Section shall be deemed
to be an "agreement expressly providing otherwise" within the meaning of Section
232-c of the Real Property Law of the State of New York and any successor or
similar law of like import. Nothing contained in this Section shall: (i) imply
any right of Tenant to remain in the Premises after the termination of this
Lease without the execution of a new lease: (ii) imply any obligation of the
Landlord to grant a new lease; or (iii) be construed to limit any right or
remedy the Landlord has against Tenant as a holdover tenant or trespasser.
(q) Tenant covenants to accept the Premises in its "as
is" condition on the Commencement Date without representation or warranty,
express or implied, by Landlord and without recourse to Landlord. Landlord shall
not be responsible for any defect in or to the Premises or any changes therein
and the Rent hereunder shall in no event be withheld, abated or diminished on
account of any defect, change or damage to the Premises.
23. Indemnification.
(a) Tenant shall indemnify and hold Landlord harmless
against and from any and all claims by or on behalf of any persons, firms or
corporations, arising from the use and/or occupancy of, or from any work or
thing whatsoever done in or about the Premises or of any passageways or spaces
therein or appurtenant thereto, or arising from any breach or default on the
part of Tenant in the performance of any covenant or agreement on the part of
Tenant to be performed pursuant to the terms of this Lease, or arising from any
act or negligence of Tenant, or any of its agents, contractors, servants,
employees or licensees during the Term hereof, or arising from any accident,
injury or damage whatsoever caused to any person, firm or corporation occurring
during the Term of this Lease, in or about the Premises, or upon the sidewalks,
and from and against all reasonable costs, counsel fees, expenses and
liabilities incurred by Landlord with respect to any such claim or action or
proceeding brought thereon; and in the event any action or proceeding is brought
against Landlord by reason of any such claim, Tenant upon notice from Landlord
covenants to resist or defend such action or proceeding by counsel reasonably
satisfactory to Landlord.
(b) Tenant covenants and agrees to pay, and to indemnify
Landlord against, all legal costs and charges, including counsel fees, lawfully
and reasonably incurred in obtaining possession of the Premises after default by
Tenant hereunder, or in enforcing any covenant or agreement of Tenant herein
contained, or curing any default by Tenant under this Lease or otherwise
participating in any action or proceeding arising from the filing, imposition,
contesting, discharging or satisfaction of any lien or claim of lien, in
defending or otherwise participating in any legal proceedings initiated by or on
behalf of Tenant, or in connection with any investigation or review of any
conditions or documents in the event Tenant requests Landlord's approval or
consent to any action of Tenant which may be desired by Tenant or required of
Tenant hereunder. All such expenses shall be deemed to be Additional Rent.
IN WITNESS WHEREOF, the parties have executed this Lease as of the date
first above written.
Landlord: YONKERS RADIATION ENTERPRISES, LLC
By: /s/ Xxxxxx X. Xxxxxxxx
------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Managing Partner
Tenant: NEW YORK RADIATION THERAPY
MANAGEMENT SERVICES, INCORPORATED
By: /s/ Xxxxxx X. Xxxxxxxx
------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: CEO
