EXHIBIT 10.82
AMENDMENT
TO LEASE AGREEMENT
This Amendment dated as of October 23, 2003, and effective the later of
January 1, 2004 or the date when the entire amount of square footage set forth
on Schedule A is ready for occupancy (the "Effective Time") is by and among BFS
Realty, LLC ("Owner") and National Medical Health Card Systems, Inc. ("NMHC").
All defined terms used, but not otherwise defined herein, shall have their
meanings set forth in the Lease Agreement between NMHC and Owner, dated as of
August 1, 2001, as amended to date, together with any and all attachments
thereto (the "Lease Agreement").
WHEREAS, NMHC and Owner have entered into the Lease Agreement pursuant to
which NMHC leases approximately 26,500 square feet in the building known as 00
Xxxxxx Xxxx Xxxxx, Xxxx Xxxxxxxxxx, XX 00000 (the "Building") from Owner;
WHEREAS, Owner has increased the usable square footage of the Building;
WHEREAS, NMHC desires to increase the amount of square footage it leases in
the Building, and to make such changes and modifications as hereinafter set
forth.
WHEREAS, the parties desire to amend the terms of the Lease Agreement to
make such changes and modifications as hereinafter set forth.
NOW, THEREFORE, in consideration of the premises and covenants and
agreements contained herein, the parties agree as follows:
1. The Lease Agreement, effective as of the Effective Time, is hereby
amended as follows:
a. The first sentence of the second paragraph of the Lease Agreement shall
be deleted in its entirety and replaced with the following:
"Witnesseth: Owner hereby leases to Tenant and Tenant
hires from Owner approximately 34,270 square feet (as
described in Schedule A) in the building known as 00 Xxxxxx
Xxxx Xxxxx, Xxxx Xxxxxxxxxx, Xxx Xxxx 00000 (the "Building")
in the County of Nassau for the term as defined herein or
until such term shall sooner cease and expire as hereinafter
provided, at an annual rate set forth as provided in Rider B
attached hereto and made a part hereof."
b. The attached Schedule A shall be added to and made a part of the Lease
Agreement.
c. The attached Exhibit B shall be added to and made a part of the Lease
Agreement.
x. Xxxxx B of the Lease Agreement shall be deleted in its entirety and
replaced with the Rider B attached hereto and made a part of the Lease
Agreement.
e. Section 2 of the Lease Agreement shall be deleted in its entirety and
replaced with the following:
"Occupancy:
2. Tenant shall use and occupy the demised premises for general office and
warehouse space provided such use is in accordance with the certificate of
occupancy for the building, if any, and for no other purpose."
f. The definition of "Fixed Rent", "Minimum Rent", or "Fixed Minimum Rent"
in Section A-1.04 of Rider A shall be deleted in its entirety and replaced with
the following:
"'Fixed Rent", "Minimum Rent", or "Fixed Minimum
Rent" shall mean the annual rent calculated in accordance with
Rider B."
g. The definition of "Lease Commencement Date" in Section A-1.14 of Rider A
shall be deleted in its entirety and replaced with the following:
"'Lease Commencement Date" shall be the Effective Time."
h. The definition of "Term" in Section A-1.16 of Rider A shall be deleted
in its entirety and replaced with the following:
"'Term" is the period from the Lease Commencement
Date to the close of business on December 31, 2013 (such date
being hereinafter referred to as the "Expiration Date") or
such earlier date upon which the Term of this Lease shall
expire or be cancelled or terminated pursuant to any of the
conditions or covenants of this Lease or pursuant to law."
i. The definition of "Rentable Square Footage" in Section
A-1-17 of Rider A shall be deleted in its entirety and replaced with the
following:
"'Rentable Square Footage" shall mean approximately 34,270 square feet;
provided, however, that Tenant shall have the right, upon sixty (60) days prior
written notice to Landlord, to reduce the Rentable Square Footage by (i) 500
square feet covering the portion of the Premises designated in Exhibit A as "New
Human Resources" and (ii) the amount of square footage utilized by NMHC for
Human Resources purposes prior to the execution of this Amended Lease Agreement
(such amount being included as a portion of the square footage set forth in
Exhibit A as "Common Area.")
j. Section A-14.02 of Rider A is hereby amended to add the
following:
"Notwithstanding anything to the contrary in this Lease, a change in the
ownership of and/or power to vote a majority of the outstanding capital stock of
NMHC resulting from a sale of the capital stock of NMHC by Xxxx X. Xxxxxxx shall
be excluded from the provisions of this Article A-14."
k. Section A-16.04(a) of Rider A is hereby deleted in its entirety and
replaced with the following:
"(a) Notwithstanding any provision(s) in this Lease to the contrary, the
parties acknowledge and agree that (i) the Premises are demised under this Lease
for a minimum aggregate Rent (subject to such increases and other costs as
provided throughout this Lease and Tenant's Early Termination right) of
$5,311,850 for the Term, payable upon the execution of this Lease, (ii) the
terms of this Lease which provide for the payment of Rent in installments are
solely for the convenience of Tenant, and (iii) upon the default in the payment
of Rent in installments as aforesaid, then the full aggregate Rent hereby
reserved for the entire Term then remaining unpaid shall, at Landlord's option,
become due and payable upon demand."
l. Article A-18 of Rider A is hereby amended to add the following:
"A-18.24 Notwithstanding anything to the contrary contained in this Lease,
Tenant shall have the right to terminate this Lease on, and only on, December
31, 2008 ("Early Termination"). If Tenant wishes to exercise its right of Early
Termination it shall provide Landlord with sixty (60) days prior written notice
prior to the end of the January 1, 2008 - December 31, 2008 lease year (the
"Early Termination Notice") of its intent to do so. The failure by Tenant to
exercise its right of Early Termination shall waive Tenant's right of Early
Termination. In consideration for its right of Early Termination, Tenant hereby
agrees to pay to Landlord an amount equal to the Fixed Rent that would otherwise
be payable by Tenant to Landlord for the next succeeding thirty (30) months (the
"Early Termination Fee"). The Early Termination Fee shall be payable by Tenant,
in whole, at any time following the Early Termination Notice; provided, however,
that in no event shall such Early Termination Fee be paid by Tenant following
the end of the thirty (30) day period after such Early Termination Notice.
Failure by Tenant to pay the Early Termination Fee during such thirty (30) day
period shall cancel Tenant's right of Early Termination granted hereunder.
Notwithstanding the foregoing, if Landlord shall lease all of the Premises at
any time during the immediate thirty (30) months following Tenant's Early
Termination, Landlord shall pay to Tenant (the "Termination Fee Reimbursement")
within 30 days an amount equal to the difference between (a) the Early
Termination Fee and (b) the product of (i) the monthly Fixed Rent used to
calculate the Early Termination Fee and (ii) the difference between thirty (30)
months and the number of months that have passed since Tenant's Early
Termination which number shall be calculated as of the date in which such new
tenant takes possession of the Premises; provided, however, that if the base
rent payable by such new tenant during such period is less than the Termination
Fee Reimbursement, Landlord shall only be obligated to reimburse Tenant the
difference between the Termination Fee Reimbursement and the base rent payable
by such new tenant during such period.
m. Article A-19 is hereby deleted in its entirety and replaced with the
following:
"Article A-19. Representations and Warranties of the Parties
A-19.01 As material inducements for Landlord entering into this Lease,
Tenant hereby represents and warrants to Landlord that Tenant is a corporation
duly organized and validly existing under the laws of the State of Delaware; is
legally qualified to do business in the State of New York and all other
jurisdictions in which it does business; the persons executing and delivering
this Lease on behalf of Tenant have been lawfully and duly authorized to do so;
and when so executed and delivered this Lease represents the valid, binding and
legally enforceable obligations of Tenant.
A-19.02 Landlord hereby represents and warrants to Tenant that upon
termination of the Lease Agreement (the "XXX Lease") made and entered into as of
June 1, 1994 by and between Nassau County Industrial Development Agency and
Xxxxxxx Sibling Realty, Inc., as amended and subsequently assigned to Landlord,
Landlord with either (a) exercise the option to purchase the Building pursuant
to Section 8.1 of the XXX Lease; or (b) make all reasonable efforts to extend
the term of the XXX Lease such that Tenant's interest in the Premises shall not
be disturbed during the term of this Lease."
n. Section A-22.01 of Rider A is hereby amended to add the
following:
"(c) Notwithstanding anything to the contrary in this Lease, a transfer of
a controlling interest in the shares of Tenant resulting from a sale of the
capital stock of Tenant by Xxxx X. Xxxxxxx shall not be deemed to be an
assignment by Tenant requiring the prior written consent of Landlord."
o. Article C-1 of Rider C is hereby amended to add the
following section:
"Section C-1.09 Notwithstanding anything to the contrary in this Lease,
during the Term, Landlord shall provide Tenant with employee(s) to provide
mailroom services (as more fully described on Exhibit B) and the services of an
employee of Landlord, or its designee, to provide routine maintenance services
for Tenant at no additional charge to Tenant. It is understood and agreed by
Landlord and Tenant that routine maintenance services shall not include those
services provided by Landlord under Section C-1.03 for which Tenant shall be
liable for its Pro Rata Share of the cost thereof. Notwithstanding the
foregoing, Tenant shall be liable, as Rent, for actual out-of-pocket costs and
expenses incurred by Landlord, other than salary expense, in the course of
providing the foregoing mailroom and routine maintenance services."
p. Section C-3.02 of Rider C is hereby amended to add the following
language immediately after the last sentence of Section C-3.02:
"Notwithstanding the foregoing to the contrary, Landlord shall provide
Tenant with ten (10) visitor parking spaces in a designated area of the parking
facility in front of the Building and an additional five (5) executive parking
spaces in a designated area of the parking facility in the rear of the Building
near the entrance to the Premises. In addition to the foregoing, Landlord agrees
to provide Tenant with 50% of the total parking spaces available in the parking
facility.
q. Rider C is hereby amended to add the following Article:
"Article C-7. Exercise Room and Equipment
C-7.01 Landlord agrees to provide and maintain an exercise room and
exercise equipment for use by Tenant and its employees. Tenant agrees that any
use of the exercise room and exercise equipment by its employees shall be
subject to the rules and regulations governing the use thereof provided to
Tenant by Landlord. Tenant further agrees that any such use shall be at Tenant's
and its employees' own risk. Landlord agrees that the exercise equipment shall
include a mix of aerobic, freeweight and weight machines as Landlord reasonably
determines.
(b) Tenant agrees to pay its pro-rata share in connection with any and all
insurance policies reasonably required to be maintained by Landlord governing
the use of the exercise room and exercise equipment. In addition to the
indemnification provided for under the Lease, Tenant agrees to indemnify and
hold harmless Landlord, to the fullest extent permitted by law, to defend
Landlord from and against any and all claims, liabilities, actions, judgments
and expenses, including reasonable attorneys' and other professional fees and
expenses, in connection with bodily or personal injury, death and/or damage to
property arising out of the use by Tenant and its employees, officers, agents or
invitees of the exercise room and exercise equipment. At the request of
Landlord, Tenant shall cause each of its employees to execute any form prior to
entering the exercise room and utilizing exercise equipment."
2. Except as expressly provided herein, all terms and conditions of the
Lease Agreement shall be unmodified and in full force and effect.
3. From and after the execution and delivery of this Amendment, all
references to the Lease Agreement contained in other agreements and instruments
executed and delivered pursuant to or in connection with the Lease Agreement
shall hereinafter mean and refer to the Lease Agreement as amended hereby.
4. This Amendment may be executed in counterparts by the parties hereto,
all of which shall constitute one and the same instrument. A facsimile
transmission of this signed
Amendment bearing a signature on behalf of a party hereto shall be binding
on such party.
5. This Amendment shall be governed by the laws of the State of New York.
IN WITNESS WHEREOF, the parties have caused this Amendment to be
executed as of the day and year first above written.
BFS REALTY, LLC
By:_________________________
Name:____________________
Ttle:____________________
NATIONAL MEDICAL HEALTH
CARD SYSTEMS, INC.
By:__________________________
Name:_______________________
Title:______________________
SCHEDULE A*
Square Footage
Dedicated to NMHC
Work Area/Executive Area 18,791
Data Center 2,132
Board Room 512
Shared Areas
New Cafeteria 1,020
Gym 500
New Human Resources 500
Loading Area 344
Mail Room 272
Training Room 964
Warehouse 3,522
Common Area**: 5,713
Total: 34,270
*A Floor Plan is attached hereto as Exhibit A
** Includes Bath Rooms, Hallways and Reception
EXHIBIT A
FLOOR PLAN
EXHIBIT B
MAILROOM SERVICES
The mailroom services listed below shall be provided by Landlord to Tenant
pursuant to Section C-1.09 and be provided on a timely basis.
Any mail delivery, receipt, collection, distribution, sending, affixing
postage or other similar service pertaining to mail;
Interoffice mail collection and distribution;
Federal Express, UPS, United States Post Office, or other courier service,
runs.
RIDER B
Rent
Beginning at the Effective Time, Fixed Rent shall be $531,185, payable in
advance in equal monthly installments of $44,265.42, for the 12 month period
beginning at the Effective Time. Fixed Rent during the remainder of the Term
shall be increased as follows:
Commencing as of January 1, 2005, and continuing on each annual anniversary
of such day throughout the remainder of the Term (each such day being referred
to as a "Rent Adjustment Date"), the Fixed Rent shall be increased by the
Consumer Price Index plus 2.5%; provided however, that in no event shall the
Fixed Rent on a Rent Adjustment Date be more than 3.5% percent greater than the
Fixed Rent due for the immediately preceding lease year.
The term "Consumer Price Index" shall mean the Consumer Price Index for the
New York-Northeastern New Jersey area, which is currently published by the
United States Department of Labor, Bureau of Labor Statistics. If however, this
Consumer Price Index is changed so that the base year is altered from that used
as of the commencement of the Effective Time, then the Consumer Price Index
shall be converted in accordance with the conversion factor published by the
United States Department of Labor, Bureau of Labor Statistics, to obtain the
same results that would have been obtained had the base year not been changed.
If no conversion factor is available, or if the Consumer Price Index is
otherwise changed, revised or discounted for any reason, there shall be
substituted in lieu thereof, and the term "Consumer Price Index" shall
thereafter refer to, the most nearly comparable official price index of the
United States Government to obtain substantially the same result as would have
been obtained had the original Consumer Price Index not been changed, revised or
discontinued, which alternative index shall be selected by Landlord and shall be
subject to Tenant's reasonable, prior, written approval.
If Tenant exercises its right to reduce the Rentable Square Footage by 500
square feet as provided herein, the Fixed Rent shall be reduced pro rata.
