EXHIBIT 10.86
Rider containing 22 numbered articles attached to and made
part of Lease of Demised Premises in Property located at 00
0xx Xxxxxx, Xxx Xxxxx, Xxx Xxxx, dated May 1, 2002 between
Living in Style, LLC, as Landlord, and National Medical Health
Card Systems, Inc., as Tenant.
In the event of any conflict between any of the terms of the
provisions of this Rider and any of the terms of the printed
portion of this Lease, the provisions of this Rider shall be
controlling.
1. Basic Rent. Tenant shall pay the annual rent as described in Exhibit A
attached hereto and made part hereof ("Basic Rent") in equal monthly
installments in advance on the first day of each calendar month included in the
Initial Term and any Extended Term, if applicable.
2. Additional Rent. In addition to the Basic Rent provided for above, all
other payments to be made by Tenant to Landlord shall be deemed to be and shall
become Additional Rent hereunder whether or not the same be designated as such,
and, unless otherwise provided, shall be due and payable ten (10) days after
demand. Landlord shall have the same remedies under the printed portion of this
Lease for failure to pay said Additional Rent, as for the nonpayment of Basic
Rent. Tenant's obligation to pay Additional Rent shall survive the expiration of
the Initial Term or any Extended Term of this Lease. Installments of Basic Rent
and any Additional Rent payable on a monthly basis shall be equitably adjusted
if any term of this Lease commences or terminates on a day other than the first
day of a calendar month. Landlord agrees to provide photocopies of all bills
substantiating Additional Rent upon request of Tenant.
In no event shall any Basic Rent or Additional Rent adjustments hereunder
result in a decrease in the fixed annual rent.
3. Additional Remedies of Landlord.
A. If the Tenant shall, at any time during the Initial Term or any Extended
Term of this Lease, be in default hereunder, and if the Landlord shall institute
an action or summary or other proceeding against the Tenant based on such
default, then the Tenant shall reimburse the Landlord for the expenses of
attorneys' fees and disbursements thereby incurred by the Landlord, so far as
the same are reasonable in amount. The amount of such expenses shall be deemed
to be Additional Rent hereunder.
A. B. Tenant shall have no right to occupy the Demised Premises or any
portion thereof after the expiration of the Lease. In the event Tenant or any
party claiming by, through or under Tenant, holds over, Landlord may exercise
any and all remedies available to it at law or in equity to recover possession
of the Demised Premises. If the Tenant shall hold over after expiration of the
Term, including but not limited to an early termination, the parties hereby
agree that the Tenant's occupancy of the Demised Premises after the expiration
of the Term shall be upon all of the terms set forth in this Lease except Tenant
shall pay use and occupany for the holdover period in the amount equal to the
higher of an amount to one and half times the sum of (1) the base rent payable
by Tenant for the last year of the Term; plus (2) all monthly installments of
additional rent payable by Tenant pursuant to the terms of this Lease that would
have been billable monthly by Landlord had the Term of this Lease not expired,
prorated for the period of any such holdover. Tenant agrees to indemnify and
save Landlord harmless against all cost, claims, loss or liability resulting
from delay by Tenant in surrendering the premises at the expiration of the Lease
term or upon a sooner termination, including without limitation any claims made
by a succeeding tenants founded on such delay.
4. Utilities.
A. Tenant agrees to pay for all utilities consumed by it in the Demised
Premises, including, without limitation, electric, gas, heat, hot water and any
other utility.
B. Landlord reserves the right to stop furnishing heat by reason of
accident, emergency, repairs, alterations, replacements or improvements, which
are in the judgment of Landlord desirable or necessary to be made, until said
repairs, alterations, replacements or improvements shall have been completed.
Such interruption shall not constitute a constructive eviction or breach any
implied warranties of habitability. Except in the case of accident or emergency,
Landlord will give Tenant five (5) days notice. There shall be no abatement in
Basic Rent or Additional Rent because of any such interruption, if Landlord
shall pursue such work with reasonable diligence and dispatch.
C. Tenant shall make no alterations or additions to the electric equipment
and/or lighting without first obtaining written consent from Landlord in each
instance. This provision is to prevent Tenant from overloading the Property's
electrical distribution facilities. Tenant covenants and agrees that its use of
electricity shall not exceed the capacity of existing feeders to the Property,
risers or wire installation. Tenant agrees not to use portable heaters and/or
any other means of providing temporary heating without the express written
consent of the Landlord.
5. Cleaning and Rubbish Removal; Snow and Ice Removal; Landscaping.
A. Landlord shall provide, at its sole cost and expense, all janitorial
services required to keep the Demised Premises clean and in good order. However,
Tenant shall use its best efforts to maintain the Demised Premises in a clean
and safe manner. Refuse and rubbish shall be brought by Tenant or its agent to
an area designated by Landlord for collection.
B. Landlord agrees to provide snow and ice removal on sidewalks surrounding
Demised Premises.
C. Tenant agrees to maintain the landscaping around the Demised Premises.
6. The "Commencement Date" of this Lease shall be ________.
7. Real Estate Taxes.
A. For the purposes of this Lease, "Real Estate Taxes" shall include, but
not be limited to all taxes, special assessments, and other governmental charges
of any kind whatsoever levied against the Building and the real property upon
which it stands, including air rights (collectively, the "Property") during the
Initial Term or any Extended Term of this Lease. Tenant agrees to pay all Real
Estate Taxes on the Demised Premises, which payments Tenant and Landlord
acknowledge are included as part of the Basic Rent.
B. If due to a change in the method of taxation any franchise, income,
profit or other tax, however designated, shall be levied against Landlord's
interest in the Property in whole or in part for or in lieu of any tax which
would otherwise constitute Real Estate Taxes, such change in the methods of
taxation shall be included in the term Real Estate Taxes for purposes hereof.
C. Only Landlord shall be eligible to institute tax reduction or other
proceedings to reduce the assessed valuation. Should Landlord be successful in
any such reduction proceeds and obtain a rebate for periods during which Tenant
has paid such increases, Landlord shall, after deducting Landlord's expenses in
connection therewith, including without limitation attorney's fees and
disbursements, credit such rebate, against the next installment or successive
installments of Basic Rent and monthly payments of Additional Rent next coming
due; provided, however, that Tenant may not obtain any portion of the benefits
which may accrue to Landlord from any reduction in Real Estate Taxes for any
year prior to the commencement date of this Lease.
D. Landlord's failure during the Initial Term or any Extended Term of this
Lease to prepare and deliver any of the foregoing tax statements or Landlords'
failure to make a demand, shall not in any way waive or cause Landlord to
forfeit or surrender its rights to collect any Real Estate Taxes, which may have
become due during the Initial Term or any Extended Term of this Lease. Tenant's
liability for the amounts due under this article shall survive the expiration or
termination of this Lease.
8. Repairs and Restrictions.
A. The Landlord shall keep the Demised Premises in good repair and keep in
good working order all fixtures, equipment and attachments. Notwithstanding the
foregoing, Tenant shall be responsible for all repairs necessitated by Tenant's
negligence, misuse or breach of the terms and conditions of the Lease.
B. Anything in this Lease to the contrary notwithstanding, it is agreed
that there shall be no allowance to Tenant for a diminution in rental by reason
of inconvenience or annoyance, arising from Landlord's failure to make any
repairs, alterations, additions or improvements in or to any portion of the
Property or the Demised Premises, or in and to the fixtures, appurtenances or
equipment thereof unless such is caused by the willful conduct of Landlord.
There shall be an abatement to Tenant in the rent due if there is a fire or
catastrophe which prevents the use of the Property by the Tenant and which fire
or catastrophe has been caused by the negligence of a third party other than
Tenant, said allowance to be equal to a monthly rental allowance for each day
the Demised Premises are unusable. Should an accident or other casualty occur on
the Property or at the Demised Premises, Landlord reserves the right to
interrupt, temporarily, and on written notice to Tenant, the supply of utility
services or whatever else is necessary until repairs or improvements shall have
been completed. There shall be no abatement in Basic Rent or Additional Rent
because of any such interruption, if Landlord shall pursue such work with
reasonable diligence and dispatch.
9. Assignment. Supplementing the printed portion of this Lease, any
assignment, subletting or occupancy made in contravention of the provisions of
this article and the printed portion of this Lease shall not be binding upon
Landlord and, at Landlord's option, may be treated as a nullity and of no force
and effect whatsoever as against Landlord. In any event, no assignment,
subletting or occupancy (with or without Landlord's consent) shall operate or be
construed to release or diminish Tenant's liability under this Lease, and such
liability shall continue in full force and effect. If Landlord should consent to
any assignment, subletting or occupancy, neither such consent nor such
assignment, subletting or occupancy, nor anything done pursuant thereto, shall
relieve Tenant from the necessity of obtaining the express prior written consent
of Landlord to any further assignment, subletting or occupancy.
Notwithstanding the foregoing, Landlord agrees to permit Tenant to assign
this Lease to an entity which is 100% owned by Tenant; provided that Tenant
notifies Landlord in writing of such proposed assignment 30 days in advance of
the date of such assignment; and provided, further, that Tenant furnishes to
Landlord, at least ten (10) days in advance of such assignment, a duly executed
assignment of this Lease, in form and substance satisfactory to Landlord's
attorney.
10. Landlord's Liability. Tenant hereby agrees that any judgment, decree or
award obtained against Landlord or any succeeding owner of Landlord's interest
in the Property, which is in any manner related to this Lease, the Property or
Tenant's use or occupancy of the Property and/or the Demised Premises, shall be
satisfied out of and limited to Landlord's equity in the Property, to the extent
then owned by Landlord or such succeeding owner, and Tenant further agrees to
look only to such asset and to no other asset of Landlord or such succeeding
owner for satisfaction.
11. Liability Insurance
A. Tenant shall maintain, at Tenant's expense during the Initial Term or
any Extended Term of this Lease:
i. Broad Form General Public Liability insurance with a combined bodily
injury and property damage liability of at least $1,000,000/$3,000,000 and
naming the Landlord as additional named insured.
ii. All-Risk Property Insurance covering at least 80% of the replacement
value of all fixtures, furniture, equipment, improvements or betterments
installed or made by Tenant in or about the Demised Premises.
iii. Such additional insurance coverages as Landlord may reasonably
designate.
B. All of the insurance required to be maintained or caused to be
maintained by Tenant, as well as the form and issuer of such insurance, shall be
subject to Landlord's reasonable approval and shall be issued by responsible
companies licensed to do business in the State of New York.
C. Landlord shall keep the Property insured against loss by fire with
extended coverage, malicious mischief, storm damage, if available, and liability
insurance, and against such other risks and in such amounts as Landlord in its
reasonable discretion deems appropriate and necessary. Tenant shall be required
to pay such insurance costs to Landlord as Additional Rent throughout the
Initial Term or any Extended Term of this Lease.
12. Waiver of Subrogation. Tenant hereby releases Landlord from liability
for damage or destruction to Tenant's property, whether or not caused by acts or
omissions of Landlord. Tenant agrees that its insurance policies covering
Tenant's property will include a clause to the effect that such release shall
not affect such policies or the rights of Tenant to recover thereunder; and if
such a clause shall not be obtainable, then Tenant shall cause Landlord to be
named as a co-insured under Tenant's policies of insurance pertaining to the
Property and its contents.
13. Indemnity. Tenant covenants and agrees to indemnify and hold harmless
Landlord against and from any and all claims by or on behalf of any person
arising from or in connection with (a) the conduct or management of, and the
payment for, any work or things whatsoever done in or about the Property by or
on behalf of Tenant (or any person holding or claiming through or under Tenant),
(b) any condition of the Property during the Initial Term or any Extended Term
of this Lease and/or Tenant's occupancy thereof, or any use, non-use,
possession, management or maintenance of the Property, (c) any breach or default
on the part of Tenant in the performance of any covenants or obligations of
Tenant under this Lease, (d) any act, negligence or fault of Tenant, or any of
its agents, servants, employees, contractors, invitees or licensees, or of any
person holding or claiming through or under Tenant, (e) any accident, injury or
damage whatsoever caused to any person occurring in the Demised Premises or
outside if caused by Tenant's negligence, during the Initial Term or any
Extended Term of this Lease and/or during Tenant's occupancy of all of any part
of the Property. In addition, Tenant shall indemnify and hold harmless Landlord
against and from any costs and expenses paid or incurred by Landlord in
obtaining possession of the Property after default by Tenant or upon the
expiration or sooner termination of this Lease, or in enforcing any of Tenant's
obligations hereunder. Tenant also agrees to indemnify and hold harmless
Landlord against and from all costs, counsel fees, expenses and liabilities
incurred in or about any claim and any action or proceeding brought thereon, and
in case any action or proceeding shall be brought against Landlord by reason of
any such claim, Tenant upon notice from Landlord agrees to resist or defend such
action or proceeding (by counsel reasonably satisfactory to Landlord, and for
such purpose, Landlord agrees that any counsel designated by an insurer of
Tenant shall be satisfactory to Landlord) unless Tenant causes the same to be
discharged and satisfied. Tenant's obligations under this paragraph shall
survive the expiration or sooner termination of this Lease.
14. Late Charge. From and after ten (10) days after the due date of any
payment of Basic Rent, a late charge of six percent (6%) shall be immediately
due as Additional Rent in addition to all of Landlord's other rights and
remedies hereunder in the event of Tenant's default and shall be payable by
Tenant as Additional Rent.
15. Condition of Property. Tenant has examined the Demised Premises and
agrees to accept same in the condition and state of repair existing as of the
date hereof, and understands and agrees that Landlord shall not be required to
perform any work, supply any materials or incur any expense to prepare or
maintain the Property and/or the Demised Premises for Tenant's occupancy.
16. To the fullest extent permitted by law, Tenant shall defend, indemnify,
and hold the Landlord and its agents harmless of and from any and all claims,
suits, losses or expenses, whether direct or consequential (including legal fees
and other expenses of litigation) arising out or in consequence of the
performance of work, including, without limitation, wrongful death, bodily
injury, property damage, and contractual and all other claims by any person,
firm, or corporation.
17. Tenant shall also furnish Landlord with a waiver of lien, certificate
of insurance, and workers' compensation policy, naming Landlord as additional
insured. Insurance coverages subject to review and approval by Landlord.
18. Security. There shall be no security deposit required under the terms
of this Lease.
19. Liens. Tenant shall not create or suffer to be created or to remain,
and shall within thirty (30) days after the filing or imposition thereof remove
or discharge, by bonding or payment, any lien, encumbrance or charge upon the
Demised Premises or the Property caused by, or in any manner related to, any act
or alleged act of commission or omission on the part of Tenant, or any of its
agents or contractors. Further, should any such lien be bonded and should
Landlord or its agents be thereafter named as a party to any action or
proceeding in respect of such bond or claim, Tenant agrees to indemnify and save
harmless Landlord and its agents in respect thereof and to pay all costs and
expenses (including legal fees) of Landlord and its agents related thereto.
Tenant agrees to surrender the Demised Premises free and clear of all liens,
charges or encumbrances of every nature and description, and free and clear of
all violations thereon placed by any governmental or quasi-governmental body
resulting from any act of omission or commission on the part of Tenant or any of
its agents or contractors, or otherwise related to Tenant's use or occupancy of
the Demised Premises. Nothing in this Lease contained shall be construed as
constituting the consent or request of Landlord to any contractor, laborer or
materialman for the performance of any labor or services or the furnishing of
any materials for the improvement or repair of the Demised Premises.
20. No Merger. There shall be no merger of Landlord's estate in the Demised
Premises with Tenant's estate therein by reason of the fact that the same
individual, partnership, firm or corporation or other entity may acquire or own
such estates directly or indirectly. No such merger shall occur until all
individuals, partnerships, firms, corporations and other entities having any
interest in such estates, including any mortgagee, join in a written instrument
effecting such merger and duly record it.
21. End of Term. Upon the expiration or sooner termination of this Lease,
Tenant shall, at its sole cost and expense, remove all Tenant-related debris and
other property of Tenant located in and around the Demised Premises. Tenant
shall repair any damage in connection with the removal of its property and
restore the Demised Premises to its original condition, ordinary wear and tear
excepted. The liability of Tenant under this provision shall survive the
expiration or termination of this Lease.
22. Miscellaneous.
(a) This Lease shall not constitute an offer or create any rights in favor
of Tenant and shall not obligate or be binding upon Landlord and shall have no
force and effect unless and until this Lease is duly executed by Landlord and
Tenant and a fully executed copy of this Lease is delivered by Landlord to
Tenant.
(b) Governing Law. This agreement shall be governed by and construed in
accordance with the laws of the State of New York.
(c) No Waiver. If any clause, provision or section of this Lease be ruled
invalid by any court of competent jurisdiction, the invalidity of such clause,
provision or section shall not affect any of the remaining provisions hereof.
(d) Severability. The invalidity or unenforceability of any portion of the
Lease shall in no way affect the validity or enforceability of any other
provisions hereof.
LIVING IN STYLE, LLC, Landlord
By:
NATIONAL MEDICAL HEALTH
CARD SYSTEMS, INC., Tenant
By:
EXHIBIT A
To Lease Agreement dated as of August 1, 2002 between
Living in Style, LLC as Landlord and
National Medical Health Card Systems, Inc. as Tenant
SCHEDULE OF RENT
May 1, 2002 through
April 30, 2003 $54,000.00 per annum
$ 4,500.00 per month
May 1, 2003 through
April 30, 2003 $56,700.00 per annum
$4,725.00 per month
May 1, 2004 through
April 30, 2004 $59,535.00 per annum
$4,961.00 per month
May 1, 2005 through
April 30, 2006 $62,512.00 per annum
$5,209.00 per month
May 1, 2006 through
April 30, 2007 $65,637.00 per annum
$5,470.00 per month
