Exhibit 10(l)
THIS LEASE made the __________ day of _________________ between Xxxxxxx and
Xxxxxxx Xxxx hereinafter referred to as LANDLORD, and AMERICAN MEDICAL ALERT
CORP., a domestic corporation with offices
at:________________________________________________ hereinafter jointly,
severally and collectively referred to as TENANT.
Witnesseth, that the Landlord hereby leases to the Tenant, and the
Tenant hereby hires and takes from the Landlord the premises on the first floor
only--- in the building known as 169- 00 Xxxxxxxxx Xxxxxx, Xxxxxxxx, Xxx Xxxx
00000 to be used and occupied by the Tenant for offices only and for no other
purposes, for a term to commence on September 1, 1998 and to end on August 31,
2001 unless sooner terminated as hereinafter provided, at the ANNUAL RENT of
1st year = $ 15,281.28
2nd year = $ 16,045.32
3rd year = $ 16,847.64
all payable in equal monthly installments in advance on the first day of each
and every calendar month during said term, except the first installment, which
shall be paid upon the execution hereof.
THE TENANT JOINTLY AND SEVERALLY COVENANTS:
FIRST. - That the Tenant will pay the rent as above provided.
SECOND. - That, throughout said term the Tenant will take good care of
the demised premises, fixtures and appurtenances, and all alternations,
additions and improvements to either; make all repairs in and about the same
necessary to preserve them in good order and condition, which repairs shall be,
in quality and class, equal to the original work; promptly pay the expense of
such repairs; suffer no waste or injury; give prompt notice to the Landlord of
any fire that may occur; execute and comply with all laws, rules, orders,
ordinances and regulations at any time issued or in force (except those
requiring structural alterations), applicable to the demised premises or to the
Tenant's occupation thereof, of the Federal, State and Local Governments, and of
each and every department, bureau and official thereof, and of the New York
Board of Fire Underwriters; permit at all times during usual business hours, the
Landlord and representatives of the Landlord to enter the demised premises for
the purpose of inspection, and to exhibit them for purposes of sale or rental;
suffer the Landlord to make repairs and improvements to all parts of the
building, and to comply with all orders and requirements of governmental
authority applicable to said building or to any occupation thereof; suffer the
Landlord to erect, use, maintain, repair and replace pipes and conduits in the
demised premises and to the floors above and below; forever indemnify and save
harmless the Landlord for and against any and all liability, penalties, damages,
expenses and judgments arising from injury during said term to person or
property of any nature, occasioned wholly or in part by any act or acts,
omission or omissions of the Tenant, or of the employees, guests, agents,
assigns or undertenants of the Tenant and also for any matter or thing growing
out of the occupation of the demised premises or of the streets, sidewalks or
vaults adjacent thereto; permit, during the six months next prior to the
expiation of the term the usual notice "To Let" to be placed and to remain
unmolested in a conspicuous place upon the exterior of the demised premises;
repair, at or before the end of the term, all injury done by the installation
or removal of furniture and property; and at the end of the term, to quit and
surrender the demised premises with all alterations, additions and improvements
in good order and condition.
THIRD. - That the Tenant will not disfigure or deface any part of the
building, or suffer the same to be done, except so far as may be necessary to
affix such trade fixtures as are herein consented to by the Landlord; the Tenant
will not obstruct, or permit the obstruction of the street or the sidewalk
adjacent thereto; will not do anything, or suffer anything to be done upon the
demised premises which will increase the rate of fire insurance upon the
building or any of its contents, or be liable to cause structural injury to said
building; will not permit the accumulation of waste or refuse matter, and will
not, without the written consent of the Landlord first obtained in each case,
either sell, assign, mortgage or transfer this lease, underlet the demised
premises or any part thereof, permit the same or any part thereof to be occupied
by anybody other than the Tenant and the Tenant's employees make any alterations
in the demised premises, use the demised premises or any part thereof for any
purpose other than the one first above stipulated, or for any purpose deemed
extra hazardous on account of fire risk, nor in violation of any law or
ordinance. That the Tenant will not obstruct or permit the obstruction of the
light, halls, stairway or entrances to the building, and will not erect or
inscribe any sign, signals or advertisements unless and until the style and
location thereof have been approved by the Landlord; and if any be erected or
inscribed without such approval, the Landlord may remove the same. No water
cooler, air conditioning unit or system or other apparatus shall be installed or
used without prior written consent of Landlord.
IT IS MUTUALLY COVENANTED AND AGREED, THAT
FOURTH. - If the demised premises shall be partially damaged by fire or
other cause without the fault or neglect of Tenant, Tenant's servants,
employees, agents, visitors or licensees, the damage shall be repaired by and at
the expense of Landlord and the rent until such repairs shall be made shall be
apportioned according to the part of the demised premises which is usable by
Tenant. But if such partial damage is due to the fault or neglect of Tenant,
Tenant's servants, employees, agents, visitors or licensees, without prejudice
to any other rights and remedies of Landlord and without prejudice to the rights
of subrogation of Landlord's insurer, the damages shall be repaired by Landlord
but there shall be no apportionment or abatement of rent. No penalty shall
accrue for reasonable delay which may arise by reason of adjustment of insurance
on the part of the Landlord and/or Tenant, and for reasonable delay on account
of "labor troubles", or any other cause beyond Landlord's control. If the
demised premises are totally damaged or are rendered wholly untenantable by fire
or other cause, and if Landlord shall decide not to restore or not to rebuild
the same, or if the building shall be so damaged that Landlord shall decide to
demolish it or to rebuild it, then or in any of such events Landlord may, within
ninety (90) days after such fire or other cause, give Tenant a notice in writing
of such decision, which notice shall be given as in Paragraph Twelve hereof
provided, and thereupon the term of this lease shall expire by lapse of time
upon the third day after such notice is given, and Tenant shall vacate the
demised premises and surrender the same to Landlord. If Tenant shall not be
default under this lease then, upon the termination of this lease under the
conditions provided for in the sentence immediately preceding, Tenant's
liability for rent shall cease as of the day following the casualty. Tenant
hereby expressly waives the provisions of Section 227 of the Real Property Law
and agrees that the foregoing provisions of this Article shall govern and
control in lieu thereof. If the damage or destruction be due to the fault or
neglect of Tenant the debris shall be removed by, and at the expense of, Tenant.
FIFTH. - If the whole or any part of the premises hereby demised shall
be taken or condemned by any competent authority for any public use or purpose
then the term hereby granted shall cease from the time when possession of the
part so taken shall be required for such public purpose and without
apportionment of award. The Tenant hereby assigning to the Landlord all right
and claim to any such award, the current rent, however, in such case to be
apportioned.
SIXTH. - If, before the commencement of the term, the Tenant be
adjudicated a bankrupt or make a "general assignment, " or take the benefit of
any insolvent act, or if a Receiver or Trustee be appointed for the Tenant's
property, or if this lease or the estate of the Tenant hereunder be transferred
or pass to or devolve upon any other person or corporation, or if the Tenant
shall default in the performance of any agreement by the Tenant contained in any
other lease to the Tenant by the Landlord or by any corporation of which an
officer of the Landlord is a
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Director, this lease shall thereby, at the option of the Landlord, be terminated
and in that case, neither the Tenant nor anybody claiming under the Tenant shall
be entitled to go into possession of the demised premises. If after the
commencement of the term, any of the events mentioned above in this subdivision
shall occur, or if Tenant shall make default in fulfilling any of the covenants
of this lease, other than the covenants for the payment of rent or "additional
rent" or if the demised premises become vacant or deserted, the Landlord may
give to the Tenant ten days notice of intention to end the term of this lease,
and thereupon at the expiration of said ten days (if said condition which was
the basis of said notice shall continue to exist) the term under this lease
shall expire as fully and completely as if that day were the date herein
definitely fixed for the expiration of the term and the Tenant will then quit
and surrender the demised premises to the Landlord, but the Tenant shall remain
liable as hereinafter provided.
If the Tenant shall make default in the payment of the rent reserved
hereunder, or any item of "additional rent" herein mentioned, or any part of
either or in making any other payment herein provided for, or if the notice last
above provided for shall have been given and if the condition which was the
basis of said notice shall exist at the expiration of said ten days' period, the
Landlord may immediately, or at any time thereafter, re-enter the demised
premises and remove all persons and all or any property therefrom, either by
summary dispossess proceedings, or by any suitable action or proceeding at law,
or by force or otherwise, without being liable to indictment, prosecution or
damages therefor, and re-possess and enjoy said premises together with all
additions, alterations and improvements. In any such case or in the event that
this lease be "terminated" before the commencement of the term, as above
provided, the Landlord may either re-let the demised premises or any part or
parts thereof for the Landlord's own account, or may, at the Landlord's option,
re-let the demised premises or any part or parts thereof as the agent of the
Tenant, and receive the rents therefor, applying the same first to the payment
of such expenses as the Landlord may have incurred, and then to the fulfillment
of the covenants of the Tenant herein, and the balance, if any, at the
expiration of the term first above provided for shall be paid to the Tenant.
Landlord may rent the premises for a term extending beyond the term hereby
granted without releasing Tenant from any liability. In the event that the term
of this lease shall expire as above in this subdivision "Sixth" provided, or
terminate by summary proceedings or otherwise, and if the Landlord shall not
re-let the demised premises for the Landlord's own account, then, whether or not
the premises be re-let, the Tenant shall remain liable for, and the Tenant
hereby agrees to pay to the Landlord, until the time when this lease would have
expired but for such termination or expiration, the equivalent of the amount of
all of the rent and "additional rent" reserved herein, less the avails of
reletting, if any, and the same shall be due and payable by the Tenant to the
Landlord on the several rent days above specified, that is, upon each of such
rent days the Tenant shall pay to the Landlord the amount of deficiency then
existing. The Tenant hereby expressly waives any and all right to redemption in
case the Tenant shall be dispossessed by judgment or warrant of any court or
judge, and the Tenant waives and will waive all right to trial by jury in any
summary proceedings hereafter instituted by the Landlord against the Tenant in
respect to the demised premises. The words "re-enter" and "re-entry" as used in
this lease are not restricted to their technical legal meaning.
In the event of a breach or threatened breach by the Tenant of any of
the covenants or provisions hereof, the Landlord shall have the right of
injunction and the right to invoke any remedy allowed at law or in equity, as if
re-entry, summary proceedings and other remedies were not herein provided for.
SEVENTH. - If the Tenant shall make default in the performance of any
covenant herein contained, the Landlord may immediately, or at any time
thereafter, without notice, perform the same for the account of the Tenant. If a
notice of mechanic's lien be filed against the demised premises or against
premises of which the demised premises are part, for, or purporting to be for
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labor or material alleged to have been furnished, or to be furnished to or for
the Tenant at the demised premises, and if the Tenant shall fail to take such
action as shall cause such lien to be discharged within fifteen days after the
filing of such notice, the Landlord may pay the amount of such lien or discharge
the same by deposit or by bonding proceedings, and in the event of such deposit
or bonding proceedings, Landlord may require the lienor to prosecute an
appropriate action to enforce the lienor's claim. In such case, the Landlord may
pay any judgment recovered on such claim. Any amount paid or expense incurred by
the Landlord as in this subdivision of this lease provided, and any amount as to
which the Tenant shall at any time be in default for or in respect to the use of
water, electric current or sprinkler supervisory service, and any expense
incurred or sum of money paid by the Landlord by reason of the failure of the
Tenant to comply with any provision hereof, or in defending any such action,
shall be deemed to be "additional rent" for the demised premises, and shall be
due and payable by the Tenant to the Landlord on the first day of the next
following month, or, at the option of the Landlord, on the first day of any
succeeding month. The receipt by the Landlord of any installment of the regular
stipulated rent hereunder or any of said "additional rent" shall be a waiver of
any other "additional rent" then due.
EIGHTH. - The failure of the Landlord to insist, in any one or more
instances upon a strict performance of any of the covenants of this lease, or to
exercise any option herein contained, shall not be construed as a waiver or a
relinquishment for the future of such covenant or option, but the same shall
continue and remain in full force and effect. The receipt by the Landlord of
rent, with knowledge of the breach of any covenant hereof, shall not be deemed a
waiver of such breach and no waiver by the Landlord of any provision hereof
shall be deemed to have been made unless expressed in writing and signed by the
Landlord. Even though the Landlord shall consent to an assignment hereof no
further assignment shall be made without express consent in writing by the
Landlord.
NINTH. - If the lease be assigned, or if the demised premises or any
part thereof by underlet or occupied by anybody other than the Tenant the
Landlord may collect rent from the assignee, under-tenant or occupant, and apply
the net amount collected to the rent herein reserved, and no such collection
shall be deemed a waiver of the covenant herein against assignment and
underletting, or the acceptance of the assignee, under-tenant or occupant as
tenant or a release of the Tenant from the further performance by the Tenant of
the covenants herein contained on the part of the Tenant.
TENTH. - This lease shall be subject and subordinate at all times, to
the lien of the mortgages now on the demised premises, and to all advances made
or hereafter to be made upon the security thereof, and subject and subordinate
to the lien of any mortgage or mortgages which at any time may be made a lien
upon the premises. The Tenant will execute and deliver such further instrument
or instruments subordinating this lease to the lien of any such mortgage or
mortgages as shall be desired by any mortgagee or proposed mortgagee. The Tenant
hereby appoints the Landlord the attorney-in-fact of the Tenant, irrevocable, to
execute and deliver any such instrument or instruments for the Tenant.
ELEVENTH. - All improvements made by the Tenant to or upon the demised
premises, except said trade fixtures, shall when made, at once be deemed to be
attached to the freehold, and become the property of the Landlord, and at the
end or other expiration of the term, shall be surrendered to the Landlord in as
good order and condition as they were when installed, reasonable wear and
damages by the elements excepted.
TWELFTH. - Any notice or demand which under the terms of this lease or
under any statute must or may be given or made by the parties hereto shall be in
writing and shall be given or made by mailing the same by certified or
registered mail addressed to the respective parties at the address set forth in
this lease.
THIRTEENTH. - The Landlord shall not be liable for any failure of water
supply or electrical current, sprinkler damage, or failure of sprinkler service,
nor for injury or damage to person or property caused by the elements or by
other tenants or persons in said building, or resulting from steam, gas,
electricity, water, rain or snow, which may leak or flow from any part of said
buildings, or from the pipes, appliances or plumbing works of the same, or from
the street or sub-surface, or from any other place, nor from a governmental
authority in construction of any public or quasi-public work, neither shall the
Landlord be liable for any latent defect in the building.
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FOURTEENTH. - No diminution or abatement of rent, or other compensation
shall be claimed or allowed for inconvenience or discomfort arising from the
making of repairs or improvements to the building or to its appliances, nor for
any space taken to comply with any law, ordinance or order of a governmental
authority. In respect to the various "services," if any, herein expressly or
impliedly agreed to be furnished by the Landlord to the Tenant, it is agreed
that there shall be no diminution or abatement of the rent, or any other
compensation, for interruption or curtailment of such "service" when such
interruption or curtailment shall be due to accident, alterations or repairs
desirable or necessary to be made or to inability or difficulty in securing
supplies or labor for the maintenance of such "service" or to some other cause,
not gross negligence on the part of the Landlord. No such interruption or
curtailment of any such "service" shall be deemed a constructive eviction. The
Landlord shall not be in default in respect to the payment of rent. Neither
shall there be any abatement or diminution of rent because of making of repairs,
improvements or decorations to the demised premises after the date above fixed
for the commencement of the term, it being understood that rent shall, in any
event, commence to run at such date so above fixed.
FIFTEENTH. - The Landlord may prescribe and regulate the placing of
safes, machinery, quantities of merchandise and other things. The Landlord may
also prescribe and regulate which elevator and entrances shall be used by the
Tenant's employees, and for the Tenants' shipping. The Landlord may make such
other and further rules and regulations as, in the Landlord's judgment, may from
time to time be needful for the safety, care or cleanliness of the building, and
for the preservation of good order therein. The Tenant and the employees and
agents of the Tenant will observe and conform to all such rules and regulations.
SIXTEENTH. - In the event that an excavation shall be made for building
or other purposes upon land adjacent to the demised premises or shall be
contemplated to be made, the Tenant shall afford to the person or persons
causing or to cause such excavation, license to enter upon the demised premises
for the purpose of doing such work as said person or persons shall deem to be
necessary to preserve the wall or walls, structure or structures upon the
demised premises from the injury and to support the same by proper foundations.
SEVENTEENTH. - No vaults or space not within the property line of the
building are leased hereunder. Landlord makes no representation as to the
location of the property line of the building. Such vaults or space as Tenant
may be permitted to use or occupy are to be used or occupied under a revocable
license and if such license be revoked by the Landlord as to the use of part or
all of the vaults or space Landlord shall not be subject to any liability;
Tenant shall not be entitled to any compensation or reduction in rent nor shall
this be deemed constructive or actual eviction. Any tax, fee or charge of
municipal or other authorities for such vaults or space shall be paid by the
Tenant for the period of the Tenant's use or occupancy thereof.
EIGHTEENTH. - That during seven months prior to the expiration of the
term hereby granted, applicants shall be admitted to all reasonable hours of the
day to view the premises until rented; and the Landlord and the Landlord's
agents shall be permitted at any time during the term to visit and examine them
at any reasonable hour of the day, and workmen may enter at any time, when
authorized by the Landlord or the Landlord's agents, to make or facilitate
repairs in any part of the building; and if the said Tenant shall not be
personally present to open and permit an entry into said premises, at any time,
when for any reason an entry therein shall be necessary or permissible
hereunder, the Landlord or the Landlords' agents may forcibly enter the same
without rendering the Landlord or such agents liable to any claim or cause of
action for damages by reason thereof (if during such entry the Landlord shall
accord reasonable care to the Tenant's property) and without in any manner
affecting the obligations and covenants of this lease; it is, however, expressly
understood that the right and authority hereby reserved, does not impose, nor
does the Landlord assume, by reason thereof, any responsibility or liability
whatsoever for the care or supervision of said premises, or any of the pipes,
fixtures, appliances or appurtenances therein contained or therewith in any
manner connected.
NINETEENTH. - The Landlord has made no representations or promises in
respect to said building or to the demised premises except those contained
herein, and those, if any,
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contained in some written communication to the Tenant, signed by the Landlord.
This instrument may not be changed, modified, discharged or terminated orally.
TWENTIETH. - If the Tenant shall at any time be in default hereunder,
and if the Landlord shall institute an action or summary proceeding against the
Tenant based upon such default, then the Tenant will reimburse the Landlord for
the expense of attorneys' fees and disbursements thereby incurred by the
Landlord, so far as the same are reasonable in amount. Also so long as the
Tenant shall be a tenant hereunder the amount of such expenses shall be deemed
to be "additional rent" hereunder and shall be due from the Tenant to the
Landlord on the first day of the month following the incurring of such
respective expenses.
TWENTY-FIRST. - Landlord shall not be liable for failure to give
possession of the premises upon commencement date by reason of the fact that
premises are not ready for occupancy, or due to a prior Tenant wrongfully
holding over or any other person wrongfully in possession or for any other
reason: in such event the rent shall not commence until possession is given or
is available, but the term herein shall not be extended.
THE TENANT FURTHER COVENANTS:
TWENTY-SECOND. - If the demised premises or any part thereof consist of
a store, or of a first floor, or of any part thereof, the Tenant will keep the
sidewalk and curb in front thereof clean at all times and free from snow and
ice, and will keep insured in favor of the Landlord, all plate glass therein and
furnish the Landlord with policies of insurance covering the same.
TWENTY-THIRD. - If by reason of the conduct upon the demised premises
of a business not herein permitted, or if by reason of the improper or careless
conduct of any business upon or use of the demised premises, the fire insurance
rate shall at any time be higher than it otherwise would be, then the Tenant
will reimburse the Landlord additional rent hereunder, for that part of all fire
insurance premiums hereafter paid out by the Landlord which shall have been
charged because of the conduct of such business not so permitted, or because of
the improper or careless conduct of any business upon or use of the demised
premises, and will make such reimbursement upon the first day of the month
following such outlay by the Landlord; but this covenant shall not apply to a
premium for any period beyond the expiration date of this lease, first above
specified. In any action or proceeding wherein the Landlord and Tenant are
parties, a schedule or "make up" of rate for the building on the demised
premises, purporting to have been issued by New York fire Insurance Exchange, or
other body making fire insurance rages for the demised premises, shall be prima
facie evidence of the facts therein stated and of the several items and charges
included in the fire insurance rate then applicable to the demised premises.
TWENTY-FOURTH. - If a separate water meter be installed for the demised
premises, or any part thereof, the Tenant will keep the same in repair and pay
the charges made by the municipality or water supply company for or in respect
to the consumption of water, as and when bills therefor are rendered. If the
demised premises, or any part thereof, be supplied with water through a meter
which supplies other premises, the Tenant will pay to the Landlord, as and when
bills are rendered therefor, the Tenant's proportionate part of all charges
which the municipality or water supply company shall make for all water consumed
through said meter, as indicated by said meter. Such proportionate part shall be
fixed by apportioning the respective charge according to floor area against all
of the rentable floor area in the building (exclusive of the basement) which
shall have been occupied during the period of the respective charges, taking
into account the period that each part of such area was occupied. Tenant agrees
to pay as additional rent the Tenant's proportionate part, determined as
aforesaid, of the sewer rent or charge imposed or assessed upon the building of
which the premises are a part.
TWENTY-FIFTH. - That the Tenant will purchase from the Landlord, if the
Landlord shall so desire, all electric current that the Tenant requires at the
demised premises, and will pay the Landlord for same, as the amount of
consumption shall be indicated by the meter furnished therefor. The price for
said current shall be the same as that charged for consumption similar to that
of the Tenant by the company supplying electricity in the same community.
Payments shall be due as and when bills shall be rendered. The Tenant shall
comply with like rules, regulations
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and contract provisions as those prescribed by said company for consumption
similar to that of the Tenant.
TWENTY-SIXTH. - If there now is or shall be installed in said building
a "sprinkler system" the Tenant agrees to keep the appliances thereto in the
demised premises in repair and good working condition, and if the New York Board
of Fire Underwriters or the New York Fire Insurance Exchange or any bureau,
department or official of the State or local government requires or recommends
that any changes, modifications, alterations or additional sprinkler heads or
other equipment be made or supplied by reason of the Tenants's business, or the
location or partitions, trade fixtures, or other contents of the demised
premises or if such changes, modifications, alterations, additional sprinkler
heads or other equipment in the demised premises are necessary to prevent the
imposition of a penalty or charge against the full allowance for a sprinkler
system in the fire insurance rate as fixed by said Exchange, or by any Fire
Insurance Company, the Tenant will at the Tenant's own expense, promptly make
and supply such changes, modifications, alterations, additional sprinkler heads
or other equipment. As additional rent hereunder the Tenant will pay to the
Landlord, annually in advance, throughout the term $________________ toward the
contract price for sprinkler supervisory service.
TWENTY-SEVENTH. - The sum of ________________________________________
Dollars is deposited by the Tenant herein with the Landlord herein as security
for the faithful performance of all covenants and conditions of the lease by the
said Tenant. If the Tenant faithfully performs all the covenants and conditions
on his part to be performed, then the sum deposited shall be returned to said
Tenant.
TWENTY-EIGHTH. - This lease is granted and accepted on the especially
understood and agreed condition that the Tenant will conduct his business in
such a manner, both as regards noise and kindred nuisances, as will in no wise
interfere with, annoy, or disturb any other tenants, in the conduct of their
several businesses, or the landlord in the management of the building; under
penalty of forfeiture of this lease and consequential damages.
TWENTY-NINTH. - The Landlord hereby recognizes
____________________________ ________________ as broker who negotiated and
consummated this lease with the Tenant herein, and agrees that if, as, and when
the Tenant exercises the option, if any, contained herein to renew this lease,
or fails to exercise option, if any, contained therein to cancel this lease, the
Landlord will pay to said broker a further commission in accordance with the
rules and commission rates of the Real Estate Board in the community. A sale,
transfer, or other disposition of the Landlord's interest in said lease shall
not operate to defeat the Landlord's obligation to pay the said commission to
the said broker. The Tenant herein hereby represents to the Landlord that the
said broker is the sole and only broker who negotiated and consummated this
lease with the Tenant.
THIRTIETH. - The Tenant agrees that it will not require, permit,
suffer, nor allow the cleaning of any window, or windows, in the demised
premises from the outside (within the meaning of Section 202 of the Labor Law)
unless the equipment and safety devices required by law, ordinance, regulation
or rule, including, without limitation, Section 202 of the New York Labor Law,
are provided and used, and unless the rules, or any supplemental rules of the
Industrial Board of the State of New York are fully complied with; and the
Tenant hereby agrees to indemnify the Landlord, Owner, Agent, Manager and/or
Superintendent, as a result of the Tenant's requiring, permitting, suffering, or
allowing any window, or windows in the demised premises to be cleaned from the
outside in violation of the requirements of the aforesaid laws, ordinances,
regulations and/or rules.
THIRTY-FIRST. - The invalidity or unenforceability of any provision of
this lease shall in no way affect the validity or enforceability of any other
provision hereof.
THIRTY-SECOND. - In order to avoid delay, this lease has been prepared
and submitted to the Tenant for signature with the understanding that it should
not bind the Landlord unless and until it is executed and delivered by the
Landlord.
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THIRTY-THIRD. - The Tenant will keep clean and polished all metal,
trim, marble and stonework which are a part of the exterior of the premises,
using such materials and methods as the Landlord may direct, and if the Tenant
shall fail to comply with the provisions of this paragraph, the Landlord may
cause such work to be done at the expense of the Tenant.
THIRTY-FOURTH. - The Landlord shall replace at the expense of the
Tenant any and all broken glass in the skylights, doors and walls in and about
the demised premises. The Landlord may insure and keep insured all plate glass
in the skylights, doors and walls in the demised premises, for and in the name
of the Landlord and bills for the premiums therefor shall be rendered by the
Landlord to the Tenant at such times as the Landlord may elect, and shall be due
from and payable by the Tenant when rendered, and the amount thereof shall be
deemed to be, and shall be paid as, additional rent.
THIRTY-FIFTH. - This lease and the obligation of Tenant to pay rent
hereunder and perform all of the other covenants and agreements hereunder on
part of Tenant to be performed shall in nowise be affected, impaired or excused
because Landlord is unable to supply or is delayed in supplying any service
expressly or impliedly to be supplied or is unable to make, or is delayed in
making any repairs, additions, alterations or decorations or is unable to supply
or is delayed in supplying any equipment or fixtures if Landlord is prevented or
delayed from so doing by reason of governmental preemption in connection with a
National Emergency declared by the President of the United States or in
connection with any rule, order or regulation of any department or subdivision
thereof of any government agency or by reason of the conditions of supply and
demand which have been or are affected by war or other emergency.
THE LANDLORD COVENANTS
FIRST. - That if and so long as the Tenant pays the rent and
"additional rent" reserved hereby, and performs and observes the covenants and
provisions hereof, the Tenants shall quietly enjoy the demised premises,
subject, however, to the terms of this lease, and to the mortgages above
mentioned, provided however, that this covenant shall be conditioned upon the
retention of title to the premises by Landlord.
SECOND. - Subject to the provisions of Paragraph "Fourteenth" above the
Landlord will furnish the following respective services: (a) Elevator service,
if the building shall contain an elevator or elevators, on all days except
Sundays and holidays, from A.M. to P.M. and on Saturdays from A.M. to P.M.; (b)
Heat, during the same hours on the same days in the cold season in each year.
See Rider Attached 10 page.
And it is mutually understood and agreed that the covenants and
agreements contained in the within lease shall be binding upon the parties
hereto and upon their respective successors, heirs, executors and
administrators.
IN WITNESS WHEREOF, the Landlord and Tenant have respectively signed
and sealed these presents the day and year first above written.
------------------------------------
Xxxxxxx & Xxxxxxx Xxxx, Landlord
IN PRESENCE OF:
------------------------------------
American Medical Alert Corp., Tenant
-8-
State of New York County of ss.:
On before me, the undersigned, a Notary Public in and for said State, personally
appeared personally known to me or proved to me on the basis of satisfactory
evidence to be the individual(s) whose name(s) is (are) subscribed to the within
instrument and acknowledged to me that he/she/they executed the same in
his/her/their capacity(ies), and that by his/her/their signature(s) on the
instrument, the individual(s), or the person upon behalf of which the
individual(s) acted, executed the instrument.
----------------------------------------
(signature and office of person taking
acknowledgments)
State of New York County of ss.:
On before me, the undersigned, a Notary Public in and for said State, personally
appeared the subscribing witness(es) to the foregoing instrument, with whom I am
personally acquainted, who, being by me duly sworn, did depose and say that
he/she/they reside(s) in (if the place of residence is in a city, include the
street and street number, if any, thereof);
that he/she/they know(s)
to be the individual(s) described in and who executed the foregoing instrument;
that said subscribing witness(es) was (were) present and saw said
execute the same; and that said witness(es) at the same time subscribed
his/her/their name(s) as a witness(es) thereto.
--------------------------------------
(signature and office of person taking
acknowledgments)
GUARANTY
In consideration of the letting of the premises within mentioned to the
Tenant within named, and of the sum of One Dollar, to the undersigned in hand
paid by the Landlord within named, the undersigned hereby guarantees to the
Landlord and to the heirs, successors and/or assigns of the Landlord, the
payment by the Tenant of the rent, within provided for, and the performance by
the Tenant of all of the provisions of the within lease. Notice of all defaults
is waived, and consent is hereby given to all extensions of time that any
Landlord may grant.
Dated,
State of New York County of ss.:
On before me, the undersigned, a Notary Public in and for said
State, personally appeared
-9-
personally known to me or proved tome on the basis of satisfactory evidence to
be the individual(s) whose name(s) is (are) subscribed to the within instrument
and acknowledged tome that he/she/they executed the same in his/her/their
capacity(ies), and that by his/her/their signature(s) on the instrument, the
individual(s), or the person upon behalf of which the individual(s) acted,
executed the instrument.
-------------------------------------
(signature and office of person taking
acknowledgments)
-10-
RIDER TO LEASE DATED, 0000
XXXXXXX XXXXXXX & XXXXXXX XXXX, as, LANDLORD
and AMERICAN MEDICAL ALERT CORP., as TENANT
PREMISES: FIRST FLOOR
000-00 XXXXXXXXX XXXXXX
XXXXXXXX, XXX XXXX 00000
TO THE EXTENT THAT THERE MAY BE ANY CONFLICT OR INCONSISTENCY BETWEEN ANY
PROVISION OF THIS RIDER AND ANY PROVISION CONTAINED IN THE MAIN BODY OF THIS
LEASE, THE PROVISION IN THIS RIDER SHALL GOVERN.
--------------------------------------------------------------------------------
36. TERM AND RENT
-------------
The three (3) year term of this Lease shall commence as of September 1,
1998 and end on August 31, 2001, (unless sooner terminated in accordance with
the terms hereof) and Tenant shall pay rent for the demised premises during said
term as follows:
TERM MONTHLY RENT ANNUAL RENT
---- ------------ -----------
Sept. 1, 1998-Aug. 31, 1999 $1,273.44 $15,281.28
Sept. 1, 1999-Aug. 31, 2000 1,337.11 $16,045.32
Sept. 1, 2000-Aug. 31, 2001 1,403.97 $16,847.64
37. ADDITIONAL RENT
All costs and expenses which Tenant assumes or agrees to pay pursuant
to this Lease shall at Landlord's option be treated as additional rent and, in
the event of non-payment, Landlord shall have all the right and remedies herein
provided for the case of non-payment of rent or of a breach of condition. If
Tenant shall default in making any payment required to be made by Tenant (other
than the payment of rent required by ARTICLES First and 36 of this Lease), or
shall default in performing any term, covenant or condition of this Lease on the
part of tenant to be performed which shall involve the expenditure of money by
tenant, Landlord at Landlord's option may, but shall not be obligated to, make
such payment or, on behalf of Tenant, expend such sum as may be necessary to
perform and fulfill such term, covenant or condition, at the maximum legal rate
of interest per annum from the date of such expenditure, shall be and be deemed
to additional rent, in addition to fixed rent, and shall be repaid by Tenant to
Landlord, on demand, but no such payment of expenditure by Landlord shall be
deemed a waiver of Tenant's default nor shall it affect any other remedy of
Landlord by reason of such default.
38. FUEL & UTILITIES:
The Landlord agrees to pay on hundred (100%) percent of all charges for
fuel used in or upon the demised premises; however, Tenant shall be responsible
for the payment of all charges for electricity, gas and water used in or upon
the demised premises. Tenant acknowledge that the heating system shall be
Landlord's responsibility to maintain (and replace if necessary) said systems at
Landlord's own cost and expense, unless such maintenance or replacement is
caused or necessitated by the act or negligence of Tenant, its agents,
contractors servants, employees licensees or invitee. Furthermore, within 45
days after Landlord request, Tenant shall furnish Landlord with copies receipted
utility bills for the prior month (or applicable billing period) or cancelled
checks evidencing payment of said bills.
In no event shall Landlord be responsible for providing services and/or
for the payment of charges for water at the demised premises. Landlord shall not
in any way be liable or responsible
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to Tenant for any loss, damage or expense which Tenant may sustain or incur if
either the quantity or character of electric services or other utility services
is changed or is no longer available suitable for Tenant's requirements.
Interruption or curtailment of such service shall not constitute a
constructive or partial eviction nor entitle Tenant to any compensation or
abatement of rent. Tenant covenants and agrees that at all times its use of
electric current shall never exceed the capacity of the existing feeders to the
building or the risers or wiring installation. Tenant shall make no alteration
or addition to the electrical, heating, air conditioning, gas or water equipment
without the prior written consent of Landlord.
39. INSURANCE:
(a) The Tenant agrees, at its own cost and expense, to maintain in full
force and effect during the term hereof and any extension or renewal thereof
(and any period to the commencement of the term following the Tenant's entry)
with respect to the demised premised, and the tenant's and any and all other
occupant's business therein or therefrom, a policy of comprehensive general
public liability insurance with minimum single combined limits of liability in
the amount of ONE MILLION ($1,000,000.00) DOLLARS for the injury or death to one
or more than one person. THREE HUNDRED THOUSAND DOLLARS for damage to property
inclusive of sidewalk and parking facilities; and policy insuring against
business interruption to the extent of six (6) months rent to be determined in
accordance with the applicable Annual Rent set forth in ARTICLE 36 above. In
addition, Tenant will, at Tenant's expense maintain Xxxxxxx'x Compensation
insurance with respect to the demised premises if required in accordance with
applicable law. In addition, Tenant agrees to produce and maintain a policy of
standard plate glass insurance for the demised premises.
Simultaneously with the execution hereof, a duplicate original or
certificate of each policy of such insurance shall be furnished to Landlord.
Such policy or policies shall be written by an insurance company or companies
authorized to do business in the State of New York. Landlord shall be named as
an insured in each such policy as its interest may appear. In or on each such
policy, company, clauses or endorsements to the effect that except upon thirty
(30) days' prior written notice to Landlord, such policies shall be
non-cancelable and the amount of insurance subrogation against Landlord on any
claim that Tenant or any other party having an interest in such policy of the
proceeds thereof may have against Landlord.
40. REPAIRS:
(a) Notwithstanding anything contained herein to the contrary, during
the term hereof, Tenant shall make all non-structural repairs required to
maintain the interior of the demised premises in good order and condition.
Landlord shall not be liable to Tenant, or any other occupant of the demised
premises, for the damages resulting from any failure by Tenant to repair or
maintain the demised premises as required to Tenant by this paragraph. Landlord
shall not be obligated to perform any repairs or maintenance upon the demised
premises, other than structural repairs which are not caused or necessitated by
the act or negligence of Tenant, its agents, contractors, servants, employees,
licensees or invitee.
(b) Tenant covenants that no waster shall be committed or suffered upon
or to the demised premises, and agrees, at its own cost and expense, to repair
and maintain the demised premises, and all fixtures, appurtenances, alteration,
additions and improvements in and to the demised premises in good order and
condition, including without limitation all doors, windows, window glass, floor
covering and interior wall, as well as the plumbing, heating, electrical
facilities and appliances in or on the demised premises.
(c) Tenant shall be responsible for keeping the demised premises and
its adjacent sidewalks and parking lot, if any, clean and free of debris, snow
and ice, etc. _______________________________________________________ charge for
its services for having performed the work on behalf of the tenant. Such costs
and charges shall be deemed additional rent and shall be due with the next
installment of rent due thereafter. Any such performance by
-12-
Landlord on behalf of Tenant shall not be deemed a waiver by Landlord of such
default by Tenant.
41. MORTGAGE SUBORDINATION:
This lease shall be subject and subordinate at all times to the lien of
the mortgages now on the demised premises and to all advances made or hereafter
to be made upon the security thereof, and subject and subordinate to the lien of
any mortgage or mortgages hereafter placed on the demised premises. Tenant will
execute and deliver such further instrument or instruments subordinating this
Lease to the lien of any such mortgage or mortgages as shall be desired by any
mortgagee or proposed mortgagee. Tenant hereby appoints Landlord as
attorney-in-fact of Tenant, irrevocably, to execute and deliver any such
instrument or instruments for Tenant.
Tenant shall furnish, upon demand from any such mortgagee or proposed
mortgagee, its financial statement suitable for presentation to a duly
accredited lending institution in order to assist Landlord in obtaining a
mortgage against the premises if which the demised premises form a part. In the
event said mortgagee shall require further information, Tenant shall promptly
furnish such information, if same is available.
42. ESTOPPEL CERTIFICATE:
Within ten (10) days after request therefor by the Landlord, Tenant
shall deliver in recordable form a certificate to Landlord or to any proposed
mortgagee or purchaser certifying that this lease is in full force and effect
and that there are no defenses or offsets to any rent payments hereunder, or
stating those defaults or claims asserted by Tenant against Landlord.
Such certificate shall be furnished without charge.
43. ATTORNMENT:
Tenant agrees that if by reason of default on the part of Landlord
herein under any ground or underlying lease or mortgage or leasehold mortgage
affecting Landlord's interest, a ground or underlying lessor or mortgagee or
leasehold mortgagee shall enter into and become possessed of the real property
of which the demised premises form a part, or any part or parts of such real
property, either through possession or foreclosure action or proceedings, or
either through the issuance and delivery of a new ground or underlying lease for
said premises, then, if this Lease is in full force and effect at such time,
Tenant shall attorn to such lessor, mortgagee or leasehold mortgagee, as its
Landlord, In such event, such lessor, mortgagee or leasehold mortgagee shall not
be liable to Tenant for any defaults theretofore committed by Landlord and not
such default shall give rise to any of offset or deduction against the rents
payable under this Lease to such lessor, mortgagee or leasehold mortgagee.
44. LANDLORD'S WORK:
Landlord shall have no obligation to decorate the demised premises or
to make any installations, alterations, improvements or additions of any kind to
adapt or equip the demised premises for the use provided for and contemplated by
this Lease which shall be the sole responsibility of Tenant.
45. ALTERATIONS:
Tenant shall not make any alterations, additions or improvements to the
demised premises without Landlord's prior written consent.
All alterations, decorations, installations, additions or improvements
upon the demised premises made by either party, including without limitation all
paneling, decorations, partitions, railings, floors, galleries and the like,
shall, unless Landlord elects otherwise (which election shall be made by written
notice to Tenant not less than thirty (30) days prior to the expiration or other
termination of this Lease) become the property of Landlord, and shall remain
upon, and be surrendered with, said premises as a part thereof at the end of the
term. At the expiration of the
-13-
term hereof, Tenant shall be entitled to remove all removable trade fixtures at
its own cost and expense, provided said fixtures have not become affixed to the
demised premises and further provided Tenant restores the demised premises to
its original condition. In the event Landlord shall elect to have all or any
such alterations, decorations, installations, additions or improvements removed
by Tenant as set forth above, then such alterations, decorations, installations,
additions or improvements removed by Tenant as set forth above, then such
alterations, decorations, installations removed by Tenant as set forth above,
then such alterations, decorations, installations, additions or improvements as
landlord shall select, shall be removed by Tenant at Tenant's expense and Tenant
shall restore the demised premises to its original condition, at its own cost
and expense, at or prior to the expiration of the term.
46. INDEMNITY:
Tenant agrees to indemnify and hold Landlord harmless from and against
any and all claims by or on behalf of any person or persons, firm or firms,
corporation or corporations arising from any work or thing whatsoever done by or
on behalf of Tenant in or about the demised premises and will further indemnify
and hold Landlord harmless from and against any and all claims arising from any
breach or default on the part of Tenant to be performed pursuant to the terms of
this Lease, or arising rom any act or negligence of Tenant, or any of its
agents, contractors, servants employees, licensees or invitee, and from and
against all cost, reasonable attorney's fees, expenses and liabilities incurred
in or about any such claim or action or proceeding be brought against Landlord
by reason of any such claim, Tenant, upon notice from Landlord, covenants to
resist or defend, at Tenant's expense, such action or proceeding by counsel
reasonably satisfactory to landlord.
47. EXCULPATORY CLAUSE:
Not withstanding anything contained herein to the contrary, Tenant
shall look solely to the estate and property of Landlord in the land and
building of which the demised premises form a part for the satisfaction of
Tenant's remedies for the collection of a judgment of other judicial process
requiring the payment of money by Landlord as result of any negligence, default
or breach by Landlord with respect of any of the terms, covenants and conditions
or this Lease to be observed and/or performed by Landlord, and not other
property or assets of Landlord or any or its individual partners shall be
subject to levy, execution or other enforcement procedure for the satisfaction
of Tenant's remedies.
48. INVOLUNTARY ASSIGNMENT:
Notwithstanding any provision herein contained to the contrary,
Landlord shall not be required to consent to any involuntary assignment of this
Lease or of the interest of Tenant in this Lease by operation of law. Each of
the following acts shall be considered an involuntary assignment:
(a) If Tenant is or becomes bankrupt or insolvent or is a
debtor-in-possession under any insolvency statute, such as "Chapter XI"
proceedings under the Bankruptcy Act, or where Tenant makes an assignment for
the benefit of creditors or institutes a proceeding under the Bankruptcy Act in
which Tenant is a bankruptcy or a debtor or a debtor-in-possession, or if any
proceeding is instituted against Tenant under the Bankruptcy Act which is not
dismissed within sixty (60) days' or if Tenant a partnership or consists of more
than one person or entity is or becomes bankrupt or insolvent or makes an
assignment for the benefit of creditor, or in the event any court, court
officer, referee, judge, trustee or judicial officer attempts to assign or offer
the subject Lease for sale at auction or otherwise; or
(b) If a writ of attachment or execution is levied on this Lease; or
(c) If, in any proceeding or action to which Tenant is a party, a
receiver is appointed with authority to take possession of the demised premises.
-14-
Any such involuntary assignment shall constitute a default by Tenant
hereunder, and Landlord shall have the right to terminate this Lease, in which
case this Lease shall not be treated as an asset of Tenant. Any such termination
shall be made by Landlord in writing sent to Tenant by certified mail, return
receipt requested.
Ten (10) days after notifying Tenant of such termination, Landlord
shall be entitled to immediate possession of the demised premises and may
institute summary proceedings against Tenant or may take other suitable
proceeding or action to obtain possession thereof.
49. DEFAULT:
(a) Non-payment of rent or any other breach of this Lease by Tenant
shall be the basis for summary proceedings and Tenant by signing this Lease or
assuming the obligations thereunder through assignment of otherwise hereby
consents to the jurisdiction of any court to immediately dispossess Tenant in
such summary proceedings.
If Landlord shall be compelled to institute an action or summary
proceedings against Tenant based upon a default hereunder by Tenant, then Tenant
shall be liable to Landlord for any expenses incurred by Landlord as a result
thereof, including but not limited to costs, disbursements and reasonable
attorney's fees. The amount of any such expenses shall be deemed to be
"additional rent" hereunder and shall be due from Tenant to Landlord on the
first day of the next month following the expenditure of such sums by Landlord.
(b) If the demised premises shall be vacated or abandoned, or in the
event of a cancellation or termination hereof either by operation of law or by
the issuance of a dispossess warrant or by the service of a notice of
termination based on a default of Tenant as herein provided, Tenant shall,
nevertheless, remain and continue liable to Landlord in a sum equal to all fixed
rent and all additional rent herein reserved for the balance of the term herein
originally granted; and Landlord may re-enter the demised premises, using such
force for that purpose as may be necessary without being liable to any
prosecution for said re-entry or the use of such force, and Landlord may repair
or alter the demised premises in such manner as a Landlord may deem necessary or
advisable, and/or let or relet the demised premises or any or all parts thereof
for the whole or any part of the remainder of the original term hereof or whole
or any of the remainder of the original term hereof or for a longer period in
Landlord's name or as the agent of tenant, and, out of any rent so collected or
received, Landlord shall first pay to itself the expense or cost or retaking,
repossessing, repairing and/or altering the demised premises and the expense of
removing all persons and property therefrom, including attorney's fees, and then
shall pay itself any cost or expense sustained in securing any new tenant or
tenants, including advertising, attorney's fees and brokerage fees, and then
shall pay to itself any balance remaining on account of the liability of Tenant
to Landlord for the sum equal to the rents and additional rents reserved herein
and then unpaid by Tenant for the remainder of the term original herein demised.
Any entry or re-entry by Landlord, whether had or taken under summary
proceedings or otherwise, shall not absolve or discharge tenant from liability
hereunder.
(c) Should any rent so collected by Landlord after deduction of the
aforementioned payments therefrom be insufficient to fully pay to Landlord a sum
equal to all fixed rent and additional rent herein reserved, the balance of such
deficiency shall be paid by Tenant on the rent days above specified, that is,
upon each of such rent days Tenant shall pay to Landlord the amount of the
deficiency then existing; and Tenant shall be and remain liable for any such
amount thereof, or a sum equal to the amount of all rent and additional rent
herein reserved, if there shall be no reletting, shall survive the issuance of
any dispossess warrant of other termination hereof bases upon a default by
Tenant and Tenant hereby expressly waives any defense that might be predicated
upon the issuance of such dispossess warrant of such termination or cancellation
of the term hereof.
(d) Suits or suits for the recovery of any such deficiency or damages,
or for sum equal to any installment of installment or rent or additional rent
payable hereunder, may be brought by Landlord from time to time at Landlord's
election, and nothing herein contained shall be deemed
-15-
to require landlord to await the date whereon this Lease of the term hereof
would have expired by limitation had there been no such default by Tenant or no
such termination to cancellation.
(e) Tenant hereby waives any and all rights to recover or regain
possession of the demised premises or to reinstate or to redeem this Lease as
permitted of provided by or under any statute, law or decision now or hereafter
in force and effect.
50. WAIVER OF COUNTERCLAIM:
Tenant waives any and all rights to interpose any counterclaim in any
summary proceedings for the non-payment of rent; and any and all claims that may
be asserted by Tenant shall only be made the subject of separate action and in
such separate action, it is agreed that trial by jury is waived.
51. PERMITS:
Tenant covenants that Tenant will not use of suffer or permit any
persons to use the demised premises for any unlawful purpose and to obtain and
maintain at Tenant's sole cost and expense all licenses and permit from any and
all governmental authorities having jurisdiction of the demised premises which
may be necessary for the conduct of Tenant's business therein. Tenant further
covenants to comply with all applicable laws, resolutions, codes, rules and
regulation of any department, bureau, agency or any governmental authority
having jurisdiction over the operations, occupancy, maintenance and use of the
demised premises for the purposes set forth herein. Tenant will indemnify and
hold Landlord harmless from and against any and all claims, penalties, loss,
applicable law, rule or regulation of any governmental authority having
jurisdiction over Tenant's use and occupancy of the subject premises. Tenant
shall keep in full force and effect all necessary certificates of occupancy for
the purposes for which the demised premises are rented.
52. LIENS:
Tenant agrees not to suffer or permit, during the demised term, any
mechanic's or other lien for work, labor or services and/or materials furnished
or otherwise to attach to and become a lien upon the premises as a result of any
work done by or on behalf of Tenant. If such lien shall so attach, Tenant shall,
within thirty (30) days after notice thereof, either pay or satisfy such lien or
procure the discharge of such lien or record in such manner as may be permitted
by law. Should Tenant fail or refuse to discharge any such lien within said
thirty (30) day period, then Landlord is hereby authorized to add the amount of
such lien to any regular installment of rent thereafter becoming due as
additional rent and satisfy such lien out of such additional rent so paid or in
the event of non-payment thereof, to declare a default hereunder.
53. CONDEMNATION:
(a) If the whole of the demised premises shall be acquired or condemned
or any public or quasi-public use or purpose, this Lease and the term hereof
shall end as of the date of the vesting of title with the same effect as if said
date were the expiration date of the term. In such event the fixed rent and any
additional rent shall be apportioned as of the date of expiration or sooner
termination of this Lease.
(b) If only a part of the demised premises shall be so acquired or
condemned, then, except as otherwise provided in this paragraph, this Lease and
the demised term shall continue in force and effect but, from and after the date
of the vesting of title, the fixed rent shall be reduced in the proportion which
the area of the part of the demised premises (other than the parking lot and
sidewalk, if any) so acquired or condemned bears to the total area of the
demised premises) immediately prior to such acquisition or condemnation. If a
part of the demised premises shall be so acquired or condemned and, if by reason
of such acquisition or condemnation, Tenant no longer has reasonable means of
access to the demised premises, or cannot reasonably operate its business
thereon, Tenant, at Tenant's option, may give Landlord, within forty-five (45)
days next following the date upon which Tenant shall have received notice of
vesting or title, five (5) days
-16-
written notice of termination is given by Tenant, this Lease and the term hereof
shall come to an end and expire upon the expiration of said five (5) days with
the same effect as if such date was the date of expiration of this Lease. If a
part of the demised premises shall be so acquired or condemned and this Lease
and the demised term shall not be terminated pursuant to the foregoing
provisions of this paragraph, Landlord shall restore that part of the demised
premises not so acquired or condemned to the condition which it was in prior to
such acquisition or condemnation. Landlord shall only be liable for such
restoration expenses to the extent of any condemnation award it may receive on
account thereof. In the event of the termination of this Lease and the term
hereof pursuant to the provisions of this paragraph, the fixed rent and any
additional rent shall be apportioned as of the date of expiration or sooner
termination.
(c) In the event of any such acquisition or condemnation of all or any
part of the demised premises, Landlord shall be entitled to receive the entire
award for any such acquisition or condemnation. Tenant shall have no claim
against Landlord for the value of any unexpired portion of the term. Nothing
contained in this paragraph shall be deemed to prevent Tenant from making a
claim against the condemning authority for the value of Tenant's personal
property which is compensable in law, such as trade fixtures.
54. ASSIGNMENT AND SUBLETTING:
Neither this Lease nor any portion of Tenant's interest therein shall
be assigned or sublet, without the prior written consent of Landlord which
consent shall not be unreasonably withheld or unduly delayed.
(a) Any proposed assignment or sublet must be approved by the Landlord,
and shall require Landlord's prior consent in written which consent shall not be
unreasonably withheld. A request for Landlord's consent shall be in writing
setting forth the following: (i) the names of the principals of the proposed
assignee and their home addresses; (ii) the background experience of the
proposed assignee with respect to the use set forth in this Lease, and (iii)
evidence of financial responsibility, including such financial statements as
Landlord may require; all of the foregoing so that Landlord may be in position
to determine whether or not the requested consent should be given, it being the
intention of Landlord that the proposed assignee shall conduct business
operations on a quality standard similar to the standards of Tenant.
(b) That at the time of any such permitted assignment or sublet, Tenant
shall have complied with and performed all of the terms, covenants and
conditions of this Lease imposed upon and required to be complied with and
performed by Tenant to the date of such assignment or sublet.
(c) In the event Tenant assigns this Lease, or sublets any portion of
the premises, such assignment of sublet shall be evidenced by and instrument in
writing duly executed and acknowledged in duplicate by the Tenant and the
assignee or subtenant as the case may be. Such assignee or subtenant shall
expressly accept and assume and agree to perform all of the terms and provisions
in this Lease contained to be kept, observed and performed by the Tenant, and an
executed duplicate original of such instrument, together with the address of the
assignee of subtenant shall be delivered to the Landlord, all before any such
assignment or sublease shall become effective. All instruments of assignment or
sublease and assumption shall be prepared by the attorney for the Landlord at
the cost and expense of the Tenant.
(d) Tenant and subsequent assignees or subtenants, notwithstanding any
such assignment or sublease and notwithstanding the acceptance of rent by
Landlord from such assignee or subtenant, shall always remain liable for the
payment of rent and additional rent hereunder and for the performance of all the
agreements, conditions, covenants and terms herein contained on the part of the
Tenant herein to be kept, observed and performed.
(e) The use of the premises shall be restricted to the same use set
forth herein.
(f) If the tenant is a corporation, any dissolution, merger,
consolidation or reorganization of Tenant or the sale or other transfer of more
than forty-nine (49%) percent of the
-17-
capital stock of the Tenant or the sale of any portion of the assets of the
Tenant outside "the ordinary course of business" shall be deemed an assignment
under the terms of this paragraph and subject to the requirement of Landlord's
prior consent hereunder.
55. SIGNS:
Tenant is herewith permitted to erect a sign on the outside of the
demised premises advertising the conduct of Tenant's business therein, provided
however, that it be installed erected in a non-hazardous manner and further
provided that in the installation or erection thereof, Tenant does not in any
respect deface, damage or mar any portion of the demised premises. Furthermore,
Tenant shall obtain all necessary permits for such sign from any and all
municipal departments having jurisdiction thereof and shall maintain said sign
in compliance with all municipal laws and ordinances governing same.
56. GARBAGE:
Tenant agrees that it will be responsible for handling and disposing of
all rubbish, garbage and waste from the demised premises at the sole cost and
expense of Tenant in accordance with the regulations established by Landlord, if
any. Tenant further agrees not to permit the accumulation of any garbage in, on
or about any part of the demised premises.
57. NOTICES:
All notices, requests, demands or other communications desired or
required to be given under any of the provisions hereof shall be in writing and
shall be deemed to have been duly given on the date mailed if sent by
certificated mail, return receipt requested, addressed to Tenant at the demised
and to Landlord at 000 Xxxxxx Xxxxxx, Xxxxx Xxxxxx, Xxx Xxxx 00000, with copies
to Landlord's attorneys, Xxxxxxx Xxxxxx, Esq., 000-00 00xx Xxxx, Xxxxxxxxxx, Xxx
Xxxx 00000 or at such other or additional addresses and the parties may
designate by such notice to the other.
58. "AS IS"
Tenant does herewith acknowledge and declare that it is full familiar
with the premises and environs, and the buildings and improvements thereon, and
accepts said premises and environs, the buildings and improvements thereon, in
an "as is" condition. Landlord makes no representation or warranty as to the
fitness, feasibility or use of the demised premises, and any violations against
the demised premises shall be removed promptly by Tenant at its sole cost and
expense.
59. NO OFFER TO LEASE:
The submission of this Lease by Landlord for execution by Tenant does
not constitute and offer by Landlord to lease the demised premises to Tenant.
This Lease shall not be effective until it has been fully executed by Landlord
and Tenant and copies and counterparts have been delivered to the perspective
parties.
60. ATTORNEY'S FEES:
In the event Landlord shall be required to commence any legal
proceeding against Tenant on account of a default of breach by Tenant under this
Lease, Tenant shall be obligated to pay to Landlord the reasonable attorney's
fees and costs incurred in such legal proceedings by Landlord and for which
Landlord shall receive final judgment.
61. CAPTIONS:
The captions are inserted only as a matter of convenience for reference
and in no way define, limit or describe the scope or intent of this Lease nor in
any way affect this Lease.
62. ENTIRE AGREEMENT BETWEEN PARTIES:
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This Lease contains the entire agreement and understanding between the
parties with respect to the subject matter hereof, supersedes all prior
agreements between said parties with respect to the subject matter hereof and
cannot be amended or modified except by a written agreement signed by all of the
parties hereto.
63. SEVERABILITY:
The unenforceability, invalidity or illegality of any provision of this
Lease shall not render the other provisions unenforceable, invalid or illegal.
64. SUCCESSORS:
This Lease shall be binding on and insure to the benefit of the parties
hereof and their legal representatives, successors, heirs and assigns.
65. LATE CHARGES:
In the event that any rent or additional rent payment hereunder is not
received by Landlord on or before the tenth (10) day after such payment is due
under the Lease, Tenant agrees to pay Landlord a late payment fee of five (5%)
percent of the payment so overdue. Such late payment fee shall be paid together
with said overdue payment of rent or additional rent. Such late payment fee is
not a penalty but is a mutually agreed upon administrative charge of defray the
expenses incurred by Landlord on account of such late payment. Acceptance of
such late payment fee shall not be deemed a waiver of Landlord's right to
declare a default under the Lease for non-payment.
In addition, Tenant shall pay Landlord a fee of FIFTY ($50.00) DOLLARS
for each check of Tenant given to Landlord which is returned unpaid by
Landlord's bank to defray the expenses incurred by Landlord as a result of such
returned check.
66. SECURITY DEPOSIT:
At all times during the term of this Lease, Tenant shall maintain on
deposit with Landlord a sum equal to two (2) months' rent (as per the rent
schedule set forth in Article 36 above) as security for the due and faithful
payment, as herein provided, of the rent, additional rent, charges and damages
payable by Tenant under this Lease or pursuant to law and for the due and
faithful payment herein provided, of the rent, additional rent, charges and
damages payable by Tenant under this Lease or pursuant to law and for the due
and faithful keeping, observance and performance of all other covenants,
agreements, terms, provisions and conditions of this Lease on the part of Tenant
to be kept, observed and performed if at any time shall be in default in the
payment of any such rent or in the keeping, observance or performance of any
such other covenant, agreement, term provision or condition, Landlord may at its
option apply the security so on deposit with Landlord in curing such default. If
as a result of any such application of all or any part of such security, the
amount of security so on deposit with Landlord shall be less than two (2)
months' current rent tenant shall forthwith deposit with Landlord cash in an
amount equal to the deficiency. If at the expiration of the term of this Lease,
Tenant shall not be in default in the payment of any such rent, additional rent,
charge of damage or in the keeping observance or performance of any such other
covenant, agreement, observance or performance of any other such covenant,
agreement, term, provision or condition of this Lease, then Landlord shall,
within a reasonable time after the expiration of said term, return said
security, if any, then on deposit with Landlord to Tenant pursuant to this
Article 66. In the event of transfer of Landlord's interest in the premises,
Landlord shall have the right to transfer the security to the transferee and
Landlord shall, without any further agreement between the parties, thereupon
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; and it is agreed that the provisions hereof shall apply to every
transfer of assignment make of the security to a new Landlord. Tenant further
covenants that it will not assign or encumber or attempt to assign to encumber
said security or any part thereof and that neither Landlord nor its successors
or assigns shall be bound by any such assignment, encumbrance, attempted
assignment or attempted encumbrance.
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Any failure or refusal on the part of Tenant, its successors or assigns
to timely make said security deposits required hereunder shall be deemed to be a
material default of the terms of this Lease.
IN WITNESS WHEREOF, the Landlord and Tenant have respectively executed
this Agreement as of the date and year first written above.
/s/ XXXXXXX & XXXXXXX XXXX
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XXXXXXX & XXXXXXX XXXX, Landlord
/s/ AMERICAN MEDICAL ALERT CORP.
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AMERICAN MEDICAL ALERT CORP.
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