THIRD LEASE AMENDMENT
AGREEMENT, made this ____ day of _________, 2003 between FAIR OAK,
LLC, successor in interest to Matterhorn USA, Inc., having an address at Xxxxxx
& Xxxxxxx Management, LLC, 0000 Xxxxxx Xxxxxx, Xxxxx X000, Xxxx Xxxxxxx, Xxx
Xxxx 00000 (the "Landlord") and ATC HEALTHCARE SERVICES, INC., having an address
at 0000 Xxxxxx Xxxxxx, Xxxx Xxxxxxx, Xxx Xxxx 00000 (the "Tenant").
W I T N E S E T H
WHEREAS, Matterhorn USA, Inc., Landlord's predecessor in interest
and Tenant entered into a lease agreement, dated December 20, 1999, as amended
by First Lease Amendment dated July 6, 2000 and Second Lease Amendment dated
January 1, 2002 (the "Lease") for the rental of approximately 13,770 rentable
square feet at 0000 Xxxxxx Xxxxxx, Xxxx Xxxxxxx, Xxx Xxxx (the "Original Demised
Premises"); and
WHEREAS, the parties are desirous of amending the Lease so as to
increase the amount of space leased by Tenant from Landlord (the additional
space is sometimes hereinafter referred to as the "Expansion Space") upon the
terms and conditions provided herein.
NOW, THEREFORE, in consideration of the mutual promises and
covenants contained herein, it is hereby agreed as follows:
1. The total rentable square foot area as indicated in the Lease is hereby
amended and increased from 13,770 rentable square feet to 14,035 rentable square
feet, which premises consists of the areas shown on Schedule "A" annexed hereto
and made a part hereof.
2. The Expiration Date of the Lease shall be extended from December 31,
2007 to December 31, 2010.
3. The Base Rent is hereby amended by deleting Section 14.01 (i) of the
Lease in its entirety and replacing said section with the following:
An annual rent (hereafter the "Base Rent") in an amount of Three
Hundred Seventy-Three Thousand Four Hundred Sixty and 06/100
($373,460.06) Dollars per annum ($31,121.73 per month), which Base
Rent shall increase annually on December 15, 2004 and each year
thereafter by an amount equal to the then current Base Rent
multiplied by three and one half (3.50%) percent; and
4. Tenant's Pro Rata Share set forth in subparagraph 1.02.2 of the Lease
shall be increased from 4.37% to 4.456%.
5. The following paragraph shall be added to the Lease in connection with
Landlord's Work for the Expansion Space:
4.02.1Landlord shall have no obligation to alter, improve, decorate, or
otherwise prepare the Expansion Space for Tenant's occupancy except
that Landlord shall at Landlord's sole cost and expense, perform
such items of work, so as to modify the existing conditions at the
Expansion Space pursuant to the attached plans (hereinafter
"Landlord's Expansion Space Initial Work"). Landlord shall proceed
with such Landlord's Expansion Space Initial Work with due
diligence, subject to delays by causes beyond its reasonable
control. If Landlord is required by the terms hereof to do any such
work without expense to Tenant and the cost of such work is
increased due to any delay resulting from any act or omission of
Tenant, it agents or employees, Tenant shall forthwith pay the
Landlord as additional rent an amount equal to such increase in
cost. For the purposes of this Third Lease Amendment, the Expansion
Space shall be deemed "substantially ready for occupancy" when the
major construction aspects of Landlord's Expansion Space Initial
Work are substantially completed, although minor items are not
completed. Such minor uncompleted items may include touch-up
plastering or painting, so-called "punch list" items or any other
uncompleted construction or improvement which does not unreasonably
interfere with Tenant's ability to carry on its business in the
Expansion Space. Tenant shall periodically inspect Landlord's
Expansion Space Initial Work, as hereinafter provided, and make any
objections thereto without delay so as to mitigate changes, delays
and costs.
6. The effective date (the "Effective Date") of this Third Lease Amendment
shall be the date that Landlord gives notice to Tenant that the Expansion Space
is substantially ready for occupancy or upon the date that Tenant is actually
occupying the Expansion Space, whichever is earlier. Landlord shall use
reasonable efforts to give Tenant no less than two (2) weeks prior notice of the
Effective Date. Notwithstanding the foregoing, Landlord shall have no liability
to Tenant in the event that the Demised Premises are not substantially ready for
occupancy upon the date specified by Landlord. Notwithstanding anything to the
contrary herein, if Landlord shall be delayed in substantially completing
Landlord's Expansion Space Work due to any acts and/or omissions of Tenant,
including but not limited to (i) Tenant's request for materials, finishes or
installations other than Landlord's standard, (ii) Tenant's changes in any
plans, (iii) the performance of work by a person, firm or corporation employed
by Tenant and delays in the completion of said work by said person, firm or
corporation, (iv) Tenant's delays in submitting any plans or specifications, and
approving plans or specifications or estimates, or in supplying information, (v)
by reason of any additional non-standard work requested by Tenant, then the
effective date of this First Lease Amendment shall be accelerated by the number
of days of such delay. Notwithstanding anything to the contrary herein, Tenant
shall continue to pay all rent and comply with all other terms and conditions of
the Lease upon the execution of this Third Lease Amendment until the Effective
Date, at which time said terms and conditions shall be amended as expressly
provided herein. This Third Lease Amendment is subject to Landlord entering into
a lease agreement with another tenant for certain space being vacated by Tenant
under an existing sublease with Tenant's sublandlord and the rejection of a
certain existing lease by Staff Builders, Inc. for certain space which includes
such subleased space.
7. Tenant represents that it has dealt with no broker other than Xxxxxx &
Xxxxxxx, Inc. (hereinafter the "Broker") in connection with this Third Lease
Amendment and Tenant hereby agrees to indemnify and hold Landlord harmless of
and from any and all losses, costs, damages or expense (including, without
limitation attorneys' fees and disbursements) incurred by Landlord by reason of
any claim of or liability to any other broker who claims to have dealt with
Tenant in connection with this First Lease Amendment. Landlord shall pay the
Broker such brokerage fee as may be due it pursuant to and in accordance with
Landlord's separate agreement with the Broker.
8. The security set forth in Section 36.01 of the Lease shall be increased
to that amount which equals two (2) months Base Rent on the Effective Date.
9. It is expressly understood and agreed that submission by Landlord of
the within Third Lease Amendment is for review and execution by Tenant and shall
confer no rights nor impose any obligation on either party unless or until both
Landlord and Tenant shall have executed this Third Lease Amendment and
duplicates and originals thereof shall have been delivered to the respective
parties hereto.
10. Except as otherwise set forth herein, all other terms and conditions
of the Lease are ratified, confirmed and remain in full force and effect.
IN WITNESS WHEREOF, the parties have signed and delivered this Third
Lease Amendment as of the date first above written.
FAIR OAK, LLC
By: GE CAPITAL REALTY GROUP, INC.
its servicer
By:________________________________
Name:
Title:
ATC HEALTHCARE SERVICES, INC.
By:________________________________
Name:
Title:
Acknowledgment of Third
Lease Amendment by:
----------------------------
, Guarantor
Dated: ____________________
SCHEDULE A
[Plan of Original Demised Premises and Expansion
Space to be Attached]
4
EXHIBIT E
[Plan of Storage Space to be Attached]
5
