EXHIBIT
10.30
AGREEMENT OF LEASE, made as of this 1st day of
October, 1993, between
TRIAD III ASSOCIATES
0000 Xxxxxx Xxxxxx
Xxxx Xxxxxxx, XX 00000
party of the first part, hereinafter referred to as LANDLORD, and
STAFF BUILDERS, INC.
0000 Xxxxxx Xxxxxx
Xxxx Xxxxxxx, XX 00000
party of the second part, hereinafter referred to as TENANT.
WITNESSETH: LANDLORD hereby leases to TENANT and TENANT hereby hires
from LANDLORD
48,000 rentable square feet plus 5,000 square feet of storage
space plus parking, all as per Xxxxxxxx "X", "X", "X" and "D",
attached hereto,
in the building known as:
TRIAD III
0000 Xxxxxx Xxxxxx
Xxxx Xxxxxxx, XX 00000
For the term of ten )10) years (or until such term shall sooner
cease and expire as hereinafter provided) to commence on the 1st
day of October, nineteen hundred and ninety-three (the
"Commencement Date"), and to end on the 30th day of September, two
thousand three, both dates inclusive, at a basic annual rental
rate of:
SEE SCHEDULE 'A' attached hereto,
which TENANT agrees to pay in lawful money of the United States
which shall be legal tender in payment of all debts and dues,
public and private, at the time of payment, in equal monthly
installments in advance on the first day of each month during said
term at the office of LANDLORD or such other place as LANDLORD may
designate, without any set off or deduction, except as otherwise
expressly set forth herein.
In the event that, at the commencement of the term of this Lease,
or thereafter, TENANT shall be in default in the payment of rent
to LANDLORD pursuant to the terms of another lease with LANDLORD
or with LANDLORD's predecessor in interest, LANDLORD may at
LANDLORD's option, upon ten (10) days notice to TENANT add the
amount of such arrearages to any monthly installment of rent
payable hereunder and the same shall be payable to LANDLORD as
additional rent.
The parties hereto, for themselves, their heirs, distributees,
executors, administrators, legal representatives, successors and
assigns, hereby covenant as follows:
RENT: 1. TENANT shall pay the rent as above and as
hereinafter provided.
USE OF PREMISES: 2. TENANT shall use and occupy the Demised
Premises for office space, incidental usage
related thereto and for no other purpose.
DEMISE: 3. The LANDLORD, for and in consideration of
the rents, additional rents (and escalations thereof), covenants
and agreements hereinafter reserved and contained on the part
of the TENANT to be paid, kept and performed, has demised and
leased, and by these presents does demise and lease unto the
TENANT, and the TENANT does hereby take and hire, upon and
subject to the covenants and conditions hereinafter expressed
which the TENANT agrees to keep and perform, premises consisting
of 48,000 rentable square feet shown on the Floor Plans annexed
hereto as Exhibits "A" and "B", hereinafter called the "Demised
Premises" or "Premises" in the Building, together with the right
to use in common with other tenants of the LANDLORD in this and
other buildings in the Triad Office Park, Lake Success, New York
the parking area for the parking of automobiles of employees of
the TENANT and other tenants of the LANDLORD. In arriving at
therentable square feet, LANDLORD has taken into consideration in
whole or in part such areas as parking areas, garages, first floor
area used for commercial purposes, public areas in connection with
the same and other common facilities, and although this
computation is of necessity an arbitrary one, the parties hereto
accept and agree that for the purpose of this Lease, and the
consideration thereof, the said rentable square feet set forth
herein will be used. Nothing contained herein shall in any way
limit LANDLORD from at any time altering, increasing or decreasing
the atrium area, or any other public area or corridor in the
Budding, provided that (a) the actual floor space of the Demised
Premises are not thereby reduced, (b) TENANT's percentage in
Article 6 (B) of this Lease is not affected and (c) TENANT's
liability under Article 6(C) and Article 6(D) do not increase as a
result thereof.
PARKING: 4. The TENANT shall be allowed 235
car spaces on the site at no charge, designated for its exclusive
use and LANDLORD shall xxxx them accordingly and enforce
diligently TENANT's exclusive right to them. As of the execution
of this Lease, the entrance to the underground garage is open
Monday through Friday (excluding holidays) from 6:00 a.m. to 7:00
p.m. and the exit to the underground garage is open Monday through
Friday (excluding holidays) from 6:00 a.m. to 9:30 p.m. All car
spaces in the underground garage are intended for the use of
TENANT's personnel only. Those who utilize the garage must obey
all LANDLORD's rules and regulations and park at their own risk.
All car spaces in the underground garage shall be so designated
within thirty (30) days after this Lease is executed.
TERM: 5.A. The term of this Lease shall end ten
(10) years from the Commencement Date of this Lease.
B. The LANDLORD and the TENANT, at the
request of either party, shall execute an agreement in
recordableform together with such supplementary nd and without
abatement, deduction or set-off herein of any amount whatsoever
except as expressly forms as are required for recordation, setting
forth both the dates of the commencement of the term of this Lease
and the date of termination hereof, which agreement may be
recorded by either party.
BASIC RENT - 6.A. Following the Commencement Date, rent shall
ADDITIONAL be paid on the first day of each month, without
RENT notice and demand and without abatement, deduction
or set-off herein of any amount whatsoever except
as expressly set forth to the contrary
B. TENANT'S PERCENTAGE: TENANT's proportionate
share, wherever such term is used in this Lease, shall be
15.2400percent. LANDLORD represents that for the purpose of this
calculation the total rentable square feet in the Building is
315,000 rentable square feet.
C. TAXES: (1) For the portion of the term
commencing December 1, 1994, TENANT shall pay to LANDLORD its
proportionate share of all increases in total real estate taxes
levy on the land and the Building of which the Demised Premises
form a part over the total real estate tax levy that was in effect
during the Tax Base Year. The term "total real estate tax levy"
shall mean the total real estate taxes payable for the County
General Tax and the County School Tax. The term "Tax Base Year"
shall mean (a) the County General Tax for January 1, 1995 -
December 31, 1995 and (b) the County School Tax for the second
half of the 1994/95 tax year and the first half of the 1995/96 tax
year. The amount of additional rent to be paid by TENANT to
LANDLORD shall be termed "Tenant's Payable Tax". TENANT shall not
receive a real estate tax escalation invoice prior to January 1,
1996.
(2) LANDLORD shall render a xxxx to TENANT for
Tenant's Payable Tax, or portions thereof which xxxx shall be
accompanied by LANDLORD's calculations of how Tenant's Payable Tax
is determined, together with a copy of the receipted tax xxxx.
TENANT shall pay to the LANDLORD Tenant's Payable Tax (or the
portion thereof then billed) within thirty (30) days after receipt
of LANDLORD's invoice.
(3) In the event that there should be a change in the
method of assessment, the TENANT shall nevertheless thereafter pay
to the LANDLORD, annually, as additional rent, the last Tenant's
Payable Tax then computed under the present system of
assessment,which shall be deemed additional rent hereunder, and
upon the newmethod of assessment taking effect, there shall be an
adjustment in the Tenant's Tax Base so that the parties shall be
kept in the same position as if the method of assessment had not
been changed. If the parties cannot agree in the change in the
Tenant's Tax Base, then the question shall be submitted to
arbitration before the AMERICAN ARBITRATION ASSOCIATION in Nassau
County under its rules then obtaining and each of the parties
hereto shall pay one-half of the cost of such arbitration. If,
however, there shall be more than one tenant included in such
arbitration, then the cost of the arbitration shall be divided by
the total number of parties to such arbitration and each party
shall pay its share thereof
(4) In the event that LANDLORD or any major tenant of
the building should contest any taxes or assessments levied
against the building, the TENANT agrees to cooperate in any such
proceeding or action. In the event that there shall be any refunds
of taxes by reason of any such action or proceeding, the TENANT
shall be entitled to receive back its proportionate share of the
net refund (after deducting therefrom the cost of the actions or
proceeding including, without limitation, fees for experts,
courtcosts, attorneys' fees, etc.). In no event shall TENANT be
entitled to any refund in excess of taxes or additional taxes paid
by the TENANT for the year for which such refund was made.
LANDLORD shall file such a proceeding annually unless advised by
counsel that there is no basis for filing.
D. INFLATION: As a part of the basic consideration
hereof, in addition to the rents and other additional rents
reserved herein, in order to compensate the LANDLORD for any
increase if any (or portion thereof) in maintenance and
operatingcosts in the building in which the Demised Premises form
a part during the term of this Lease, and in order to protect the
LANDLORD to some extent from the effects of inflation, the
TENANTshall pay as additional rent, and TENANTS rent shall be
increased, in accordance with the following provisions:
For the portion of the term commencing December 1, 1994, subject
to recomputation on each anniversary date thereafter, TENANT shall
pay to LANDLORD, in equal monthly installments with the basic
annual rent, a sum that for each such year is equal to three
percent (3%) of (a) the basic annual rent for the year
commencingDecember 1, 1994, as increased by (b) the amount due
under this Inflation Clause during the previous lease year. For
the purpose of this calculation, the basic annual rent during the
lease year commencing December 1, 1994 shall be without regard to
any rent concession or abatement provided for herein during that
period of time. The amount of the yearly increase shall be
irrespective of any change in LANDLORD's operating costs.
E. LATE FEE AND INTEREST CHARGES: It is
understood and agreed that the Basic Annual Rent and the
Additional Rent due pursuant to Article 6(D) of this Lease, as
heretofore and hereinafter defined, shall be paid by the TENANT
on or before the fifth (5th) day of each month without notice or
demand by the LANDLORD. In the event that said Rent or any part
thereof shall not be paid by the tenth (1Oth) day of any month, or
any other item of Additional Rent shall not be paid within the
applicable grace period (if none is specified, within thirty
(30)days after notice) the TENANT shall pay to LANDLORD, as a
furtheritem of Additional Rent, a Late Fee which shall be equal to
three (3%) percent of such Rent as shall have been unpaid;
additionally the TENANT shall pay interest on any amounts advanced
by LANDLORD to cure TENANT defaults not cured within applicable
grace periods at the rate of one (1%) percent per month, or at the
highest rate allowed by law, whichever is the lesser, until the
same is paid. The Late Fee shall be charged by LANDLORD to TENANT
on the tenth (10th) day of each and every month on which any item
of Rent, as hereinabove defined, shall not have been paid by
TENANT to LANDLORD.
SERVICES PROVIDED BY,
LANDLORD - WATER,
ELEVATORS, HEAT,
AIR CONDITIONING:
7. (a) LANDLORD will provide ingress and egress
intothe building and the Demised Premises 24 hours per day, 7 days
per week. The term "Business "Days" as used in this Lease shall
exclude Saturdays, (except such portion covered in the specific
hours hereinabove), Sundays, and the following days: New Year's
Day, Presidents' Day, Memorial Day, Independence Day, Labor Day,
Thanksgiving Day, and Christmas Day. (b) The LANDLORD covenants to
provide and pay on Business Days for heat, air conditioning,
ventilation and elevator service as provided for herein. Elevator
service in at least one passenger elevator shall be provided
(except in the case of emergency) 24 hours per day, 7 days per
week. Heat, air conditioning and ventilation when appropriate
and/or required by law, will be provided from 8:00 a.m. to 9:00
p.m., Monday through Friday and on Saturday from 9:00 a.m. to 3:00
p.m. LANDLORD will not provide either heat or air conditioning
in the garage. (c) Except as otherwise set forth herein to the
contrary, LANDLORD shall have no responsibility or liability for
failure to supply the services agreed to herein provided that
LANDLORD has conducted itself in a commercially reasonable fashion
in seeking to restore said services. LANDLORD reserves the right
to stop services of the heating, elevators, plumbing, air-
conditioning, power systems or cleaning or other services, if any,
when necessary or commercially reasonable and to restore such
services by acting in a commercially reasonable manner that take
into account the business needs and requirements of TENANT.
LANDLORD shall not be responsible to TENANT for any injury caused
to TENANT unless caused by the improper acts or omissions of
LANDLORD, its servants, employees or agents. The cleaning
specifications are set forth in Schedule "A" attached hereto and
made a part hereof (d) LANDLORD shall operate and maintain the
Building as a first-class office building at least comparable to
other first-class office buildings in Nassau County.
REPAIRS AND
MAINTENANCE:
8. (a) TENANT may have its workmen commence work in
the Demised Premises prior to the substantial completion of
LANDLORD's work, if any, provided that such workmen do not in any
material manner interfere with or impede LANDLORD's workers. In
the event that TENANTs workers shall materially interfere with or
impede LANDLORD's workers, then, upon notice from LANDLORD, TENANT
will immediately take steps to stop such interference or remove
its workers from the Demised Premises. TENANT's entry into the
Demised Premises for the purpose of making TENANT's installations
shall not be deemed as a waiver of any of the TENANT's rights
under the Lease, nor shall the same be deemed an acceptance of the
work to be done by the LANDLORD hereunder. (b) The TENANT
covenants throughout the term of this Lease, at the TENANT's sole
cost and expense, to take good care of the interior of the Demised
Premises and to keep the same in good order and condition and to
make all repairs therein except as provided in subsection (c)
hereof (c) The LANDLORD covenants throughout the term of this
Lease, at the LANDLORD's sole cost and expense, to make all
structural repairs to the Building in which the Demised Premises
are located and shall also maintain and keep in good repair the
Building's roof, exterior, common areas (interior and exterior),
parking areas, items caused by LANDLORD's negligence and sanitary,
electrical, heating and other systems servicing or located in or
passing through Demised Premises, other than: (i) To any systems,
facilities and equipment installed by the TENANT; (ii) To any of
the improvements to the interior of the Demised Premises installed
by the TENANT; and (iii) Any repairs which are necessitated by any
improper act or emission of the TENANT, its agents, servants,
employees or invitees, which repairs TENANT shall make at its own
cost and expense. (d) Except as expressly provided otherwise in
this Lease, there shall be no allowance to the TENANT or
diminution of rent and no liability on the part of the LANDLORD by
reason of inconvenience, annoyance or injury to TENANT's business
arising from the making of any repairs, alterations, additions or
improvements in or to any portion of the building, or the Demised
Premises, or in the parking area, or in and to the fixtures,
appurtenances and equipment thereof, provided same are needed in
LANDLORD's reasonable judgment and are performed in a commercially
reasonable manner that takes into account the business needs and
requirements of TENANT. (e) LANDLORD and TENANT, to the extent of
its obligations under Articles 8, 9, and 10 hereof, shall be
excused for the period of any delay in the performance of any of
its obligations hereunder when prevented from so doing by cause or
causes beyond the control of the respective parties, which shall
include, without limitations all labor disputes, civil commotion,
war, war-like operations, invasion, rebellion, riots, hostilities,
military or usurped power, sabotage governmental regulations or
controls, fire or other casualty, inability to obtain any such
materials, or services or through acts of God. (f) If an
excavation shall be made upon land adjacent to the Demised
Premises or shall be authorized to be made, TENANT shall afford to
the person causing or authorized to cause such excavation license
to enter upon the Demised Premises for the purpose of doing such
work as said person shall deem necessary to preserve the wall or
the Building of which Demised Premises form a part from injury or
damage, and to support the same by proper foundations without
diminution or abatement of rent provided the work is performed in
a commercially reasonable manner that takes into account the
business needs and requirements of TENANT. (g) LANDLORD or its
agents shall not be liable for any damage to property of TENANT or
of others entrusted to employees of the Building, nor for loss of
or damage to any property of TENANT by theft or otherwise, nor for
any injury or damage to persons or property resulting from any
cause of whatsoever nature, unless caused by or due to acts of
negligence of LANDLORD, its agents, servants or employees; nor
shall LANDLORD or its agents be liable for any such damage caused
by other tenants or persons in, upon or about said Building or
caused by operations in construction of any private, public or
quasi public work unless LANDLORD has negligently failed to take
proper safeguards against same. If at any time any windows of the
Demised Premises are temporarily closed, darkened or bricked up
(or permanently closed, darkened or bricked up, if required by
law) for any reason whatsoever not within LANDLORD's control,
LANDLORD shall not be liable for any damage TENANT may sustain
thereby and TENANT shall not be entitled to any compensation
therefor nor abatement or diminution of rent nor shall the same
release TENANT from its obligations hereunder nor constitute an
eviction provided that LANDLORD has acted in a commercially
reasonable manner to minimize any damage to TENANT. TENANT shall
not move any safe, heavy machinery, heavy equipment, bulky matter,
or fixtures into or out of the Building without LANDLORD's prior
written consent, which LANDLORD agrees shall not be unreasonably
withheld or delayed. If such safe, machinery, equipment, bulky
matter or fixtures requires special handling, all work in
connection herewith shall comply with all laws and regulations
applicable thereto and shall be done during such hours as LANDLORD
may reasonably designate. TENANT shall indemnify and save
harmless LANDLORD against and from all liabilities, obligations,
damages, penalties, claims, costs and expenses for which LANDLORD
shall not be reimbursed by insurance, including reasonable
attorneys' fees paid, suffered or incurred as a result of any
material breach by TENANT, TENANT's agents, contractors,
employees, invitees or licensees, of any substantial covenant or
condition of this Lease, or the carelessness, negligence or
improper conduct of the TENANT, TENANT's agents, contractors, or
employees. TENANT's liability under this Lease extends to the
acts and omissions of any subtenant and any agents, contractor, or
employees of any subtenant. In case any action or proceedings is
brought against LANDLORD by reason of any such claim, TENANT, upon
written notice from LANDLORD, will at TENANTs expense resist or
defend such action or proceedings by counsel and approved by
LANDLORD in writing, such approval not to be unreasonably withheld
or delayed. The equivalent indemnity shall flow from LANDLORD to
TENANT.
ALTERATIONS: 9.(a) TENANT shall not make any alteration or
changes in and to the Demised Premises without the prior written
consent of the LANDLORD, which LANDLORD agrees shall not be
unreasonably withheld or delayed, and the governmental agencies
having jurisdiction over such work if required by applicable
law.However, LANDLORD hereby consents to such alterations provided
all such alterations (i) are done fully in accordance with all
applicable requirements of law, (ii) are done on written prior
notice to LANDLORD, (iii) do not affect or impact upon the
building systems, and (iv) are done in strict accordance with
thecomplete set of architectural drawings, if appropriate, of
space plan otherwise, that must accompany the written notice to
LANDLORD. (b) The TENANT agrees not to place any signs on the roof
or on or about the inside or outside of the Building in which
theDemised Premises are situate, except for signs inside the
DemisedPremises which may not be seen from the outside, without
first obtaining the consent of the LANDLORD in writing which
consent shall not be unreasonably withheld or delayed. (c) All
nonmovable improvements and alterations made or installed by or on
behalf of the TENANT shall become the property of the LANDLORD,
without payment therefore by the LANDLORD, immediately upon
expiration of the subject to TENANT's rights to remove same as
otherwise set for herein. (d) The TENANT shall, upon the
expiration or earlier termination of this Lease, surrender to the
LANDLORD the Demised Premises, together with all alterations and
replacement thereto, in good order and condition, except for
reasonable wear and tear, and except for office equipment,
partitions and furnishings which may be removed or surrendered by
TENANT at its option or damage by fire or other casualty. If the
TENANT shall make any alterations or changes or additions to the
Demised Premises after the commencement of the term of this Lease
that were not approved by LANDLORD (to the extent such approval is
required hereunder) and the LANDLORD shall desire the same to be
removed upon the expiration of the term hereof, then upon LANDLORD
giving notice to the TENANT of its desire to have the same
removed, the TENANT will remove the same prior to the expiration
of the term hereof at TENANT's sole cost and expense and TENANT
will, at its own cost and expense, restore the Demised Premises to
the condition which they were in without such change or addition,
normal wear and tear and damage by fire excepted, except that
where LANDLORD has consented to an alteration or when LANDLORD's
consent is not required hereunder, LANDLORD may not require its
removal. (e) The replacement of any equipment which will impose an
evenly distributed floor load in excess of fifty pounds per square
foot shall be done only after written permission received from the
LANDLORD. Such permissions may be granted only after adequate
proof is furnished by TENANT's professional engineer that such
floor loading will not endanger the structure, and such proof is
confirmed by LANDLORD's professional engineer. TENANT agrees to
pay the reasonable costs of LANDLORD's professional engineer for
his services in this connection whether or not he shall confirm
the opinion of TENANT's engineer.
COMPLIANCE WITH 10. The TENANT covenants throughout the
termORDINANCES, ETC.: of this Lease and any renewals hereof at
the TENANT's sole cost and expense, to comply with all laws and
ordinances and the orders and requirements of all federal, state
and municipal governments and appropriate departments,
commissions, boards and officers thereof, which may be applicable
to the TENANT's use and occupancy of the Demised Premises and
shall take the necessary steps to effectuate compliance to the
extent same relates solely to the manner of TENANT's use and not
to the permitted use under this Lease and to items of work and
repairs that are TENANT's obligation under Article 8 hereof
LANDLORD represents that TENANT's permitted use under this Lease
complies with the current zoning classification for the Building,
is a conforming use, and that TENANT shall have no obligation to
remove any hazardous toxic wastes or materials from the property,
or to remove any existing latent defects, not caused by TENANT.
MECHANIC'S LIENS: 11. The TENANT covenants not to suffer or
to permit any mechanics liens to be filed
against the fee interest of the LANDLORD, nor against TENANT's
leasehold interest in the Demised Premises, by reason of work,
labor, services or materials supplied or claimed to have been
supplied to the TENANT or any contractor, subcontractor or any
other party or person engaged by the TENANT, or anyone holding the
Demised Premises or any part thereof through or under the
TENANT.TENANT agrees that in the event any mechanic's lien shall
be filed against the fee interest of the LANDLORD or against the
TENANT's leasehold interest, the TENANT shall, within sixty (60)
days after receiving notice of the filing thereof, cause the same
to be discharged of record by payment, deposit, bond or order of a
court of competent jurisdiction, or otherwise. If TENANT shall
fail to cause such lien to be discharged or bonded within the
period aforesaid, then, IN addition to any other right or remedy,
LANDLORD may, but shall not be obligated to, discharge the same by
paying the amount claimed to be due by procuring the discharge
ofsuch lien by deposit of by bonding proceedings and, in any such
event, LANDLORD shall be entitled, if LANDLORD so elects, to
compel the prosecution of any action for the foreclosure of such
lien by the lienor and to pay the amount of the judgment in
favorof the lienor with interest, costs and allowances. Any
amount so paid by LANDLORD and all reasonable costs and expenses
incurred by LANDLORD in connection therewith, including but not
limited to premiums on any bonds filed and reasonable attorneys'
fees, shall constitute additional rental payable by TENANT under
this Lease and shall be paid by TENANT to LANDLORD on demand.
ACCESS TO 12. The TENANT agrees to permit the LANDLORD and
PREMISES: the authorized representatives of the LANDLORD to
enter the Demised Premises at all reasonable
timeson reasonable times on reasonable notice
(except in the case of emergency) during TENANT's
usual business hours, and at any time other than
during regular business hours, for the purpose of
making any necessary repairs to the Demised
Premises. The LANDLORD is hereby given the right
during TENANT's usual business hours, and on prior
notice, to enter the Demised Premises to exhibit
the same for the purpose of sale or mortgage and to
exhibit the same to prospective tenants for the
purposes of renting during the last twelve (12)
months of the term. LANDLORD shall act in a
commercially reasonable manner to minimize
inconvenience to TENANT.
RIGHT TO 13. The TENANT covenants and agrees that if the
PERFORM TENANT shall at any time fail to make any payment
COVENANTS: or perform any other act on its part to be made or
performed under this Lease the LANDLORD, after the
expiration of any time limitation set forth in this
Lease (except in cases of emergency) may, but shall
not be obligated to, make such payment or perform
such other act to the extent the LANDLORD may deem
desirable after notice and the opportunity to cure,
and in connection therewith to pay expenses and
employ counsel. All sums so paid by the LANDLORD,
and all expenses in connection therewith, including
but not limited to reasonable attorneys fees for
instituting, prosecuting or defending any action or
proceeding, shall be deemed additional rent
hereunder and be payable to the LANDLORD within
thirty (30) days after notice to TENANT and the
LANDLORD shall have the same rights and remedies
for the non-payment thereof as in the case of
default in the payment of the basic annual rent
reserved hereunder.
DAMAGE OR 14.(a) If the Demised Premises or any part thereof
DESTRUCTION: shall be damaged by fire or other casualty, TENANT
shall give immediate notice thereof to LANDLORD and
this Lease shall continue in full force and effect except as
hereinafter set forth. (b) If the Demised Premises are partially
damaged or tendered partially unusable by fire or other
casualty,the damages thereto shall be repaired by and at the
expense of the LANDLORD to the extent that said damages include
those installations belonging to the LANDLORD. (c) If the Demised
Premises are totally damaged or rendered wholly unusable by fire
or other casualty, then the LANDLORD shall have the right to elect
not to restore the same as hereinafter provided. (d) If the
Demised Premises are rendered wholly unusable or (Whether or not
the Demised Premises are damaged in whole or in part) if the
Building shall be so damaged that LANDLORD shall decide to
demolish it or not to restore it, then, in any such events,
LANDLORD may elect to terminate this Lease by written notice to
TENANT, given within sixty (60) days after such fire or
casualty,specifying a date for the expiration of the Lease, which
date shall not be more than sixty (60) days after the giving of
such notice, and upon the date specified in such notice the term
of this Lease shall expire as fully and completely as if such date
were the date set forth above for the termination of this Lease,
and TENANT shall forthwith quit, surrender and vacate the
DemisedPremises without prejudice, however, to LANDLORD's right
and remedies against TENANT under the lease provisions in effect
prior to such termination. Any rent owing shall be paid up to the
date of the casualty and any payments of rent made by TENANT which
were on account of any period subsequent to such date shall be
returned to TENANT. Unless LANDLORD shall serve a termination
notice as provided for herein, LANDLORD shall make the repairs and
restorations under the conditions of subsections "b" and "c"
hereof, and shall provide TENANT with access to the Demised
Premises, as soon as commercially reasonable, subject to delays
due to adjustment of insurance claims, labor troubles and causes
beyond LANDLORD's control. (e) Nothing contained hereinabove shall
relieve TENANT from any liability that may exist as a result of
damage from fire or other casualty. Notwithstanding the
foregoing, each party shall look first to any insurance in its
favor before making claim against the other party for recovery for
loss or damage resulting from fire or other casualty, and to the
extent that such insurance is in force and collectible, and to the
extent permitted by law, LANDLORD and TENANT each hereby
releasesand waives the right of recovery against the other or any
one claiming through or under each of them by way of subrogation
or otherwise. LANDLORD's and TENANT's insurance policies shall
contain a clause providing that such a release or waiver shall not
invalidate the insurance. Said clause shall be used only if it
can be obtained without incurring additional premium costs for
said insurance. In the event that there are additional premiums
for such waiver of subrogation, the party in whose favor such
waiver is intended shall have the option to either pay the
additional premium or waive the condition that the other's policy
contain the same. TENANT acknowledges that LANDLORD will not carry
insurance on TENANTs furniture and/or furnishings or any
fixturesor equipment, improvements or appurtenances removable by
TENANT and agrees that LANDLORD will not be obligated to repair
any damage thereto or replace the same. (f) TENANT hereby waives
the provisions of Section 227 of the Real Property Law and agrees
that the provisions of this Article shall govern and control in
lieu thereof (g) The TENANT shall not knowingly do or permit to be
done any act or thing upon the Demised Premises which will
invalidate or be in conflict with fire insurance policies covering
the Building of which the Demised Premises form a part. The
TENANT shall at its expense comply with all rules, orders,
regulations or requirements of the New York Board of Fire
Underwriters, or any other similar body, which may be applicable
to the TENANT's use and occupancy of the Demised Premises,
provided that the necessity for such compliance results from the
manner of use and occupancy of the Demised Premises by the TENANT.
TENANT shall not do, or permit anything to be done, in or upon the
Demised Premises, or bring or keep anything therein, or use the
Demised Premises in a manner, which shall increase the rate of
fire insurance on the Building of which the Demised Premises form
a part, or on property located therein, over that in effect when
the Building shall have been completed, unless the TENANT shall
reimburse the LANDLORD, as additional rent hereunder, for that
part of all insurance premiums thereafter paid by the LANDLORD
which shall have been charged because of such failure or use by
the TENANT, and shall make such reimbursement within thirty (30)
days Following receipt of notice of such outlay by the LANDLORD
and evidence of the payment thereof LANDLORD acknowledges that the
permitted use should not, in and of itself, cause an increase in
insurance premiums. (h) Notwithstanding anything to the contrary
contained in this Lease, during any period after a damage or
destruction, and until the Demised Premises have been restored,
the TENANT shall be entitled, provided in each instance that a
substantial portion of the Demised Premises are being restored and
TENANT is not in default beyond applicable notice and time to cure
as of the date the restoration is completed, to (i) a pro-rated
abatement of all rent and additional rent, and (ii) at TENANT's
option, an extension of the term of the Lease for the amount of
time required to complete the restoration.
CONDEMNATION: 15. (a) If the whole of the Demised Premises
shall be taken for any public or quasi-public use by
any lawful power or authority by exercise of the
right of condemnation or of eminent domain, or by agreement
entered into in good faith between LANDLORD and those having the
authority to exercise such right (hereinafter called "Taking"),
the term of this Lease and all rights of TENANT hereunder,
exceptas hereinafter provided, shall cease and expire as of the
date of vesting of title as a result of the Taking, and the rent
and additional rent payable under this Lease shall xxxxx from the
date on which the Taking occurs, and any such rent or additional
rent for a period after such date shall be promptly refunded to
TENANT. (b) In the event of a Taking of less than the whole of the
Demised Premises, or the whole or part of the parking area, this
Lease shall cease and expire in respect of the portion of the
Demised Premises and/or parking area taken upon vesting of title
as a result of Taking, and, if the Taking results in the portion
of the Demised Premises remaining after the Taking being
inadequate in the judgment of TENANT for the efficient, economical
operation of the TENANT's business conducted at such time in the
Demised Premises, TENANT may elect to terminate this Lease by
giving notice to LANDLORD of such election not more than forty-
five (45) days after the actual Taking by the condemning
authority, which notice shall state the date of termination, which
date of termination shall be not more than thirty (30) days after
the date on which such notice to LANDLORD is given, and upon the
date specified in such notice to LANDLORD, this Lease and the term
hereof shall cease and expire and rent shall xxxxx as of the
dateof the Taking. If TENANT does not elect to terminate this
Lease as aforesaid: (i) The new rent payable under this Lease
shall be abated and the new rent shall be computed as the product
of the total rent payable under this Lease multiplied by a
fractions the numerator of which is the net rentable area of the
Demised Premises remaining after the Taking, and the denominator
of which is the net rentable area of the Demised Premises
immediately preceding the Taking; and (ii) The net award for the
Taking shall be paid to and first used by LANDLORD, subject to the
rights of the mortgagee, to restore the portion of the Demised
Premises and the Building remaining after the Taking to
substantially the same condition and tenantability (hereinafter
called "Pre-Taking Condition") as existed immediately preceding
the date of the Taking. (c) In the event of a Taking of less than
the whole of the Demised Premises which occurs during the period
of one (1) year next preceding the date of expiration of the term
of this Lease, LANDLORD, (unless TENANT has exercised or is still
permitted to exercise its option to renew) or TENANT may elect to
terminate this Lease by giving notice to the other party to this
Lease of such election, not more than forty-five (45) days after
the actual Taking by the condemnation authority, which notice
shall state the date of termination, which date of termination
shall be not xxxx than thirty (30) days after the date on which
such notice of termination is given, and upon the date specified
in such notice, this Lease and the term hereof shall cease and
expire and all rent and additional rent paid under this Lease for
a period of such date of termination shall be promptly refunded to
TENANT. On or before such date of termination, TENANT shall
vacate the Demised Premises, and any of TENANT's property
remaining in the Demised Premises subsequent to such date of
termination shall be deemed abandoned by TENANT and shall become
the property of the LANDLORD. (d) In the event of a Taking of the
Demised Premises, or any part thereof, and whether or not this
Lease is terminated, TENANT shall have no claim against LANDLORD
or the condemning authority for the value of the unexpired term of
this Lease but TENANT may claim against the condemning authority
for the value, if any, of its moving expenses and fixtures
installed by TENANT at TENANT's expense. (e) In the event of a
Taking of all or any portion of the Demised Premises for a limited
period (hereinafter called "Limited Taking"), then unless TENANT
shall be thereby unable to utilize the remaining portion of the
Demised Premises for the intended purpose, this Lease shall not
terminate and TENANT shall continue to pay the rent and additional
rent except for an abatement of the pro rata portion of the rent
applicable to the Limited Taking, and continue to perform and
observe all of its obligations under this Lease as though such
Limited Taking has not occurred except to the extent that TENANT
may be prevented from so doing by reason of such Limited Taking.
In the event that the Limited Taking ends on of before the date of
expiration of the term of this Lease, as such term may be renewed,
the entire amount of the award made for such Limited Taking,
whether paid by way of damages, rent or otherwise, shall be
payable to TENANT. In the event that the Limited Taking ends
after the date of expiration of the term of this Lease as such
term may be renewed, the portion of the amount of the award made
for such Limited Taking, whether paid by way of damages, rent or
otherwise, payable for the period of time from the commencement of
the Limited Taking to the date of expiration of the term of this
Lease, as such term may be renewed, shall be payable to TENANT and
the balance of any such award shall be payable to LANDLORD. At
the end of the Limited Taking, LANDLORD shall restore the Demised
Premises as nearly as reasonably possible to the Pre-Taking
Condition, reasonable wear and tear and damage by fire or other
cause excepted, and LANDLORD shall be entitled to the full amount
of any award of payment made in respect of such Limited Taking to
the extent of such restoration.
DEFAULT: 16.(a) If during the term of this Lease the TENANT
shall: (i) Apply for, or consent in writing to, the appointment of
a receiver, trustee or liquidator of the TENANT or of all or
substantially all of its assets; (ii) File a voluntary petition in
bankruptcy, or admit bankruptcy, or admit in writing its inability
to pay its debts as they become due; (iii) Make a general
assignment for the benefit of creditors; (iv) File a petition or
an answer seeking reorganization (other than a reorganization
notinvolving the liabilities of the TENANT) or arrangement with
creditors, or take advantage of any insolvency law; or (v) File an
answer admitting the allegations of insolvency in a petition filed
against it in any bankruptcy, reorganization or insolvency
proceeding; or if any department of the State or Federal
Government or any officer thereof, duty authorized, shall take
possession of the business or property of the TENANT by reason
ofinsolvency of the TENANT, or if an order, judgment or decree
shall be entered by any court of competent jurisdiction on the
application of a creditor adjudicating the TENANT a bankrupt, or
insolvent, or approving a petition seeking re-organization of
theTENANT (other than re-organization not involving the
liabilities of the TENANT) or appointment of a receiver, trustee
or liquidator of the TENANT, or of all or substantially all its
assets, the LANDLORD may, at its option, give to the TENANT a
notice of intention to end the term of this Lease at the
expiration of ten (10) days from the date of service of such
notice, and at the expiration of said ten (10) days, the term of
this Lease, and all right, title and interest of the TENANT
hereunder, shall expire as fully and completely as if that day
were the date herein specifically 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, Notwithstanding the foregoing, LANDLORD may
not take such action unless TENANT is in default beyond the
applicable grace period in the payment of rent and additional rent
or unless TENANT is otherwise in default hereunder beyond
applicable grace periods. (b) If, during the term of this Lease,
the TENANT shall default in fulfilling any of the covenants of
this Lease other than the covenants for the payment of basic
annual rent, additional rent or other charges payable by the
TENANT hereunder, the LANDLORD may give to the TENANT notice of
any such default and, if at the expiration of thirty (30) days
after the service of such a notice the default upon which said
notice was based shall continue to exist, or in the case of a
default which cannot with due diligence be cured within a period
of thirty (30) days, if the TENANT fails to proceed promptly after
the service of such notice and with all due diligence to cure the
same and thereafter to prosecute the curing of such default with
all due diligence (it being intended that, in connection with a
default not susceptible of being cured with due diligence within
thirty (30) days, the time of the TENANT within which to cure the
same shall be extended for such period as may be necessary to
complete the same with all due diligence), the LANDLORD may give
to the TENANT a notice of intention to end the term of this Lease
at the expiration of ten (10) days from the date of the service of
such second notice, and at the expiration of said ten (10) days,
the term of this Lease and all right, title and interest of the
TENANT hereunder shall expire as fully and completely as if that
day were the date herein specifically 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. (c) If the TENANT shall default in the
payment of the basic annual rent, or any part of the same, and
such default shall continue for a period of ten (10) days after
notice, or shall default in the payment of any item of additional
rent or any other charge required to be paid by the TENANT
hereunder, or any part of the same, and such default shall
continue for a period of twenty (20) days after notice thereof by
the LANDLORD, or shall have its rent checks returned unpaid by its
bank on more than two occasions within any six month period and
shall not provide LANDLORD with a reasonable explanation within
ten (10) days after notice thereof, then at the expiration of such
ten (10) day period, if the default has not been cured by TENANT,
the LANDLORD may dispossess or remove the TENANT, or any other
occupant of the Demised Premises, by summary proceedings or
otherwise, or LANDLORD may serve an additional five (5) day notice
upon the TENANT declaring that the Lease will end at the
expiration of said five (5) day period unless the default shall be
cured prior to such date, and in the event such default is not
cured within said five (5) day period, this Lease shall terminate
as if such date were the original date fixed herein for the
termination of this Lease, and LANDLORD may remove TENANT's
effects and hold the Demised Premises as if this Lease had not
been made. (d) If this Lease shall be terminated as provided in
"(a)", "(b)", or "(c)" of this Article, the LANDLORD, or the
LANDLORD's agent and servants, 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 repossess and enjoy the
Demised Premises, as of their former estate, together with all
additions, alterations and improvements and movable trade
fixtures, Furniture and furnishings. (e) Upon the termination of
the term of this Lease by reason of the happening of any of the
events hereinabove described in "(a)", "(b)", or "(c)" of this
Article, or under any provision of law now or at any time
hereinafter in force, by reason of or based upon or arising out of
default under or breach of this Lease on the part of the TENANT,
or upon the LANDLORD recovering possession of the Demised Premises
in the manner or in any of the circumstances hereinabove
mentioned, or in any other manner or circumstances whatsoever,
whether with or without legal proceedings, by reason of or based
upon or arising out of a default under, or breach of this Lease on
the part of the TENANT, the LANDLORD may, at its option, at any
time and from time to time, relet the Demised Premises or any part
or parts thereof, for the account of the TENANT or otherwise, and
receive and collect the rents therefor, applying the same first to
the payment of such expenses as the LANDLORD may have incurred in
recovering possession of the Demised Premises, including legal
expenses and reasonable attorneys' fees, and for putting the same
in good order or condition, expenses, commissions and charges
paid, assumed or incurred by the LANDLORD in and about the
reletting of the Demised Premises, and then to the fulfillment of
the covenants of the TENANT hereunder. LANDLORD shall have a duty
to relet or otherwise mitigate any damages occasioned by such
termination of the Lease except that LANDLORD shall be entitled to
seek to lease its comparable vacant space before it seeks to lease
the Demised Premises. TENANT hereby waives any right it may
otherwise have to assert in any proceeding that the LANDLORD
failed to relet or attempt to relet so as to mitigate TENANT's
damages. Any such reletting herein provided for may be for the
remainder of tile term of this lease, or for a longer or shorter
period. In any such case and whether or not the Demised Premises
or any part thereof be relet, the TENANT shall pay to the LANDLORD
the basic annual rent and all other charges required to be paid by
the TENANT up to the time of such termination of this Lease, or of
such recovery of possession of the Demised Premises by the
LANDLORD, as the case may be, and thereafter, the TENANT covenants
and agrees, if required by tile LANDLORD, to pay to the LANDLORD
until the end of the term of this Lease the equivalent of the
amount of the total rent reserved herein, and all other charges
required to be paid by the TENANT, less the net 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 to say, upon each of such rent days the TENANT shall pay
to the LANDLORD the amount of the deficiency then existing. (f)
The TENANT waives any and all rights of redemption provided for in
any statute now or hereafter in force in case the TENANT shall be
dispossessed by a judgment or by warrant of any court or judge.
The term "enter", "re-enter", "entry", or "re-entry", as used in
this Lease, are not restricted to their respective technical
meanings. (g) It is mutually agreed to by LANDLORD and TENANT that
they do hereby waive trial by jury in any action or proceeding
brought by either of them against the other on any matter arising
out of or in any way connected with this Lease. It is further
agreed that in the event the LANDLORD shall commence any summary
proceeding for non-payment of rent, additional rent, or any other
charges to be paid by the TENANT hereunder, or to recover
possession of the Demised Premises, that the TENANT will not
interpose any counterclaim or set-off of any nature whatsoever in
such proceedings unless such counterclaim or set-off will be
waived in any action or proceeding because it had not been
asserted in this proceeding and involves a substantial covenant
hereunder. (h) In the event the LANDLORD shall commence any action
or other proceeding against the TENANT, based upon a default by
TENANT hereunder, in which the LANDLORD shall be successful, the
TENANT agrees to reimburse the LANDLORD for reasonable attorneys'
fees in connection with such action or proceeding. In the event
that TENANT shall commence any action or proceeding against the
LANDLORD, based upon a default by LANDLORD hereunder, in which the
XXXXXX shall be successful, the LANDLORD agrees to reimburse the
TENANT for reasonable attorneys' fees in connection with such
action or proceeding.
REMEDIES: 17. The specific remedies to which the LANDLORD
or the TENANT may resort under the terms of this
Lease are cumulative and are not intended to be
exclusive of any other remedies or means of redress to which
theymay be lawfully entitled in case of any breach or threatened
breach by either of them of any provisions of this Lease. The
failure of the LANDLORD to insist in any one or more instances
upon the 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 relinquishment for the future of such covenant or
option. Receipt by the LANDLORD of rent with knowledge of the
breach of any covenant, condition or obligation of TENANT under
this Lease shall not be deemed a waiver of such breach, and no
waiver, change, modification or discharge by either party hereto
of any provision in this Lease shall be deemed to have been made
or shall be effective unless expressed in writing and signed by
both the LANDLORD and the TENANT. In addition to the other
remedies in this Lease provided, the LANDLORD shall be entitled to
restraint by injunction of any violation, or attempted or
threatened violation, of any of the covenants, conditions or
provisions of this Lease or to a decree compelling performance
ofany of such covenants, conditions or provisions.
SUBORDINATION: 18. It is hereby expressly agreed that this Lease,
and all rights of the TENANT hereunder, shall be
subject and subordinate at all times to any mortgage or mortgages
and any existing renewals, replacements, extensions,
consolidations or modifications thereof, which may not be liens on
the Demised Premises, or the land and Building of which the same
form a part, provided that tile holder of any future mortgage(s)
enters into an agreement with TENANT substantially similar to
theSubordination Attornment, and Non-Disturbance Agreement entered
into by TENANT and GECC simultaneously with the execution of
thisLease.
QUIET 19. The LANDLORD convents and agrees that the
ENJOYMENT: TENANT, upon paying the basic annual rent and
all other charges herein provided and observing and keeping the
covenants, agreements and conditions of this Lease on its part
tobe kept, shall and may peaceably and quietly hold, occupy and
enjoy the Demised Premises during the term of this Lease.
NOTICES: 20. (a) All notices, demands and requests which
may or are required to be given by either party to the other shall
be in writing. They shall be deemed given upon receipt or first
refusal and may be given by counsel on behalf of his/its
client.All notices, demands and requests by the LANDLORD to the
TENANT shall be deemed to have been properly given if sent by
United States registered or certified mail, postage prepaid, or by
hand, or by Federal Express, addressed to the TENANT at the
Demised Premises, Attn: Xx. Xxxxx Xxxxxxxx, Executive Vice-
President, with a copy of legal notices to the General Counsel and
a copy of operational notices to the Operations Building Manager,
or at such other place as the TENANT may from time to time
designate in a written notice to the LANDLORD. All notices,
demands and requests by the TENANT to the LANDLORD shall be deemed
to have been properly given if sent by United States registered or
certified mail, postage prepaid, or by hand or by Federal Express,
addressed to the LANDLORD at the address first above written, or
at such other place as the LANDLORD may from time to time
designate in a written notice to the
TENANT. (b) It is understood and agreed that wherever in this
Lease a time period is stated for the performance of some act by
either party, or the sending of some notice by either party,
thatsaid time periods are of the essence and either party shall
not be excused for any delay in connection therewith.
DEFINITIONS: 21. (a) The captions of this Lease are for
convenience and reference only and in no way define, limit or
describe the scope or intention of this Lease or in any way affect
this Lease. (b) The term "TENANT" as referred to hereunder shall
refer to this TENANT and any successor or assignee of this TENANT.
(c) The term "LANDLORD" as used hereunder shall mean only the
owner for the time being of the land and building of which the
Demised Premises form a part, so that in the event of any sale
orsales, or in the event of a lease of said land and Building,
this LANDLORD shall be and hereby is entirely free and relieved of
an covenants and obligations of LANDLORD hereunder, and it shall
be deemed and construed without further agreement between the
parties, or their successors in interest, that the purchaser or
bona fide, arms length lessee of the Building has agreed to
carryout all of the terms and covenants and obligations of the
LANDLORD hereunder incurred from and after the date of sale.
INVALIDITY OF 22. If any term or provision of this Lease, or
PARTICULAR the application thereof to any person or
PROVISIONS: circumstance, shall, to any extent, be invalid or
unenforceable, the remainder of this Lease, or the application of
such term or provision to persons or circumstances other than
those as to which it is held invalid or unenforceable, shall not
be affected thereby, and each term and provision of this Lease
shall be valid and be enforced to the fullest extent permitted by
law.
COVENANTS TO 23. It is further covenanted and agreed by and
BIND AND between the parties hereto that the covenants and
BENEFIT agreements herein contained shall bind and inure
to RESPECTIVE the benefit of the LANDLORD, its successors and
PARTIES: assigns, subject to the provisions of this Lease.
INSURANCE: 24. (a) TENANT shall at all times during the term
hereof carry Public Liability Insurance naming
LANDLORD as a named insured with single limit of
$3,000,000.00 (by basic or by excess coverage) for injury to any
one person, for any one accident, and for property damage. (b)
Prior to taking possession, TENANT shall deliver to the LANDLORD a
certificate of the insurance company certifying that the aforesaid
liability policy is in full force and effect. A certificate
evidencing the renewal of such liability insurance policy shall be
delivered to the LANDLORD at least twenty (20) days before the
expiration thereof, and each such renewal certificate shall
include the LANDLORD as an insured. TENANT may carry the
aforesaid insurance as part of a blanket policy provided, however,
that a certificate thereof naming the LANDLORD as an insured is
delivered to the LANDLORD as aforesaid. Such policy of
insuranceor certificate shall also provide that said insurance may
not be cancelled or terminated unless ten (10) days! notice is
given to the LANDLORD prior to such cancellation and that the
insurance as to the interest of the LANDLORD shall not be
invalidated by any act or neglect of the TENANT. (c) TENANT shall,
prior to doing any work in the Demised Premises, obtain any and
all permits necessary therefor and will provide Workmen's
Compensation Insurance and Liability Insurance in the limits
provided for in Article "24 (a)" hereof (d) TENANT shall include
in its fire insurance policies, if any, covering damage or loss to
its furniture, furnishings, fixtures mid other property removable
by TENANT under the provisions of the Lease, appropriate clauses
pursuant to which the insurance carriers: (i) Waive all rights of
subrogation against LANDLORD with respect to losses payable under
such policies, or (ii) Agree that such policies shall not be
invalidated should the insured waive in writing prior to a loss
any or all right of recovery against any party for losses covered
by such policies. If TENANT, at any time, is unable to obtain
such inclusion of either of the clauses described in the preceding
sentence, TENANT shall, if possible, have LANDLORD named in such
policies as one of the insured, but should any additional premium
be exacted for any of such clauses or namings, then TENANT shall
be released from the obligation hereby imposed unless LANDLORD
shall agree to pay such additional premium within twenty (20) days
after receipt of written notice from TENANT that such additional
premium is required. (e) If at any time during the term of this
Lease TENANT shall bring anything in the Demised Premises or use
the Demised Premises in any manner which will increase the rate of
fire insurance premiums because of the extra hazardous nature of
that brought into the Demised Premises or the use thereof, (normal
office equipment shall not be deemed "extra Hazardous"), then
andin that event TENANT shall pay the entire amount of any
increase in fire and any other insurance premiums for insurance
carried by the LANDLORD on the Building of which the Demised
Premises forms a part. Notwithstanding anything to the contrary
contained in this Lease, if by reason of anything brought upon the
Demised Premises by any other tenant, or the use to which any
other tenant may put its premises the insurance premiums carried
by the LANDLORD on said Building shall be increased, this TENANT
shall not be responsible for any portion of such increase. (f)
TENANT does hereby indemnify and save LANDLORD harmless from and
against any and all claims arising during the term of this Lease
for (i) damages or injuries to goods, wares, merchandise and
property and/or for any personal injury or loss of life in, upon
or about the Demised Premises or (ii) claims due to TENANT's
negligence in the hallways, sidewalks, parking areas and other
common areas, except such claims as may be the result of the
negligence of LANDLORD, its agents, employees or contractors, or
the failure of LANDLORD to perform any of its obligations under
this Lease in which event LANDLORD shall indemnify TENANT.
USE, ASSIGNMENT 25. (a) Unless the LANDLORD shall have given its
SUBLETTING AND consent thereto, which consent LANDLORD agrees
ATTORNMENT: shall not be unreasonably withheld or delayed,
this Lease may not be assigned, nor may the Demised Premises
be sublet, in whole or in part. If LANDLORD approves an
assignment of all or part of the Demised Premises, or unreasonably
fails or refuses to so consent, TENANT shall be relieved of
liability as to that which is assigned as of the effective date of
the assignment. (b) Provided TENANT is not then in default,
afternotice and the opportunity to cure, beyond any grace period
provided for under the terms, covenants and conditions of this
Lease, TENANT may have the right in whole or in part to assign
orsublet the Demised Premises subject to and upon the Following
terms and conditions: (i) The TENANT shall submit to LANDLORD
allof the terms and conditions of the proposed sublease or
assignment, together with all of the pertinent information
regarding the proposed subtenant or assignee and the proposed
subtenant's or assignee's credit information, as reasonably
requested by the LANDLORD; (ii) The LANDLORD may, upon receipt
ofthe aforesaid information, either approve or disapprove of the
proposed subtenant or assignee, and approval, if any, shall not be
unreasonably withheld; however, in determining reasonableness,
there shall be taken into consideration the reputation,
financialresponsibility, and the general nature of said proposed
subtenant's or assignee's business and its general impact on the
Building and project as a whole. LANDLORD shall not be required
to consent to any sublet or assignment to any organization which
will use the space as an employment or payment office, school
(training programs are not deemed a "school") of any kind, or a
drug or welfare program of any kind, or any similar type of high-
traffic business and (iii) In the event the LANDLORD does
approveTENANT's subtenant or assignee, and subject to the
provisions of subparagraph (a) of this Article 25, TENANT shall
remain liable and responsible for all of the obligations and all
of the terms, conditions and covenants of this Lease and the
TENANT shall pay to the LANDLORD, as additional rent, any
difference between the rent and additional rent reserved in this
Lease and the rent and additional rent reserved in such sublease
or assignment. (c) TENANT covenants and agrees that if for any
reason the interest of the LANDLORD in the Demised Premises is
terminated, the TENANT will attorn to the then holder of the
reversionary interest or to anyone who shall succeed to the
interest of the LANDLORD and will recognize each such successor in
interest to the LANDLORD as the TENANT's landlord of this Lease,
subject to the Following requirements. The TENANT agrees, upon
receipt of an executed non-disturbance agreement the same as or
substantially similar to the Subordination, Attornment and Non-
Disturbance Agreement between TENANT and General Electric Capital
Corporation signed simultaneously with the execution of this
Lease, to execute and deliver, at any time and from time to time,
upon the request of the LANDLORD, any instrument which may be
necessary or appropriate to evidence such attainment. Subject to
the foregoing, the TENANT further waives the provisions of any
statute or rule of law now or hereafter in effect which may give
or purport to give the TENANT any right of election to terminate
this Lease or to surrender possession of the Demised Premises in
the event any proceeding is brought by the Lessor under any
underlying lease to terminate the same, and agrees that this Lease
shall not be affected in any way whatsoever by any such
proceeding. (d) In the event that the TENANT should at any time
desire to assign or sublet this Lease, the TENANT shall not
advertise in any media, without the LANDLORD's prior written
consent, the fact that the space is available unless the
advertisement does not mention a price or mentions a price not
lower than the current asking price in the Building. (e) In no
event shall the TENANT be permitted to assign any portion of the
Demised Premises to any existing TENANT of the Building, nor shall
the LANDLORD be required to approve any such assignment. In
addition, TENANT may assign or sublet the Demised Premises without
LANDLORD's prior written consent subject, however, to the
following conditions: (1) TENANT shall have the right to assign or
sublease to a publicly traded, quality company whose net worth is
at least equal to the net worth of TENANT as of the date of this
Lease; and (2) To the extent that the TENANT subleases or assigns
at a Rent and Additional Rent above that which TENANT is paying to
LANDLORD, TENANT agrees that fifty percent (50%) of such overage
as and when paid by assignee or subleases shall be paid by TENANT
to LANDLORD for the sole use and benefit of the LANDLORD as an
item of Additional Rent after recoupment by TENANT of its
reasonable expenses in assigning or subletting, which expenses may
include reasonable brokerage and reasonable costs to prepare the
space for the subtenant; to the extent it is less with respect to
a sublease, TENANT shall be relieved of liability only to the
extent of the Rent and Additional Rent LANDLORD receives from an
approved subtenant. Notwithstanding anything contained herein to
the contrary, LANDLORD consents to a sublet or assignment to an
affiliate or subsidiary of TENANT provided nothing shall relieve
TENANT thereafter from full responsibility under the Lease.
RULES AND 26. TENANT agrees that it will abide by all of the
REGULATIONS: rules and regulations imposed by the LANDLORD
for the Building which the Demised Premises form a part, as set
forth on Schedule "B" annexed hereto, provided that all future
ones are reasonable, nondiscriminatory, do not adversely affect
TENANT's obligations herein and are promulgated on twenty (20)
days' notice.
LANDLORD'S 27. In the event that the LANDLORD shall default
LIABILITY: under the terms of this Lease and the TENANT
shall recover a judgment against the LANDLORD by
reason of such default, or for any other reason arising out of the
tenancy or use of the Demised Premises by the TENANT, or this
Lease, the LANDLORD's liability hereunder shall be limited to the
LANDLORD's interest in the land and Building of which the Demised
Premises form a part, and no further, and the TENANT agrees that
in any proceeding to collect such judgment, the TENANT's rights to
recovery shall be limited to the LANDLORD's interest in the land
and Building of which the Demised Premises form a part.
LANDLORD's liability (exclusive of insurance proceeds) in the
event of a judgment against LANDLORD as a result of a default
under the terms of this Lease is limited to two years' rent (and
additional rents), as defined in this Lease, and actually paid by
TENANT to LANDLORD in the two year period preceding the day on
which final judgment in favor of the TENANT was granted.
ENTIRE 28. This instrument contains the entire agreement
AGREEMENT: between the parties hereto and the same may not be
changed, modified or altered except by a document in
writing, executed and acknowledged by the parties
hereto. Neither LANDLORD nor LANDLORD's agents have made any
representations or promises with respect to the physical condition
of the Building, the land upon which it is erected, or the Demised
Premises, the rents, leases, expenses of operation or any other
matter of thing affecting or related to said premises except as
herein expressly set forth and no rights, easements or licenses
are acquired by TENANT by implication or otherwise except as
expressly set forth in the provisions of this Lease. TENANT has
inspected the Building and the Demised Premises and is thoroughly
acquainted with their condition, and agrees to take the same "as
is" except as set forth elsewhere herein.
All understandings and agreements heretofore made between the
parties hereto are merged in this contract, which alone fully
andcompletely expresses the agreement between LANDLORD and TENANT,
and any executory agreement hereafter made shall be ineffective to
change, modify, discharge or effect an abandonment of it, in whole
or in part, miless such executory agreement is in writing and
signed by the party against whom enforcement of the change,
modification, discharge or abandonment is sought.
CERTIFICATES: 29. (A) Within fifteen (15) days of request by
either party, the other party agrees to execute
any certificate or certificates evidencing the
commencement date of the term of the Lease and the fact that the
Lease is in full force and effect, if such is the case, and that
there are no set-offs or other claims against the requesting
party, or stating those claims which the TENANT might have against
the requesting party. (B) Within five (5) days of request by the
requesting party, the other party agrees to execute a Memorandum
of this Lease, and any additional forms necessary for recording
purposes, in recordable form, which Memorandum shall set forth the
commencement date and termination date of the Lease and any
otherrequired information needed to effectuate the recording.
SECURITY: 30. INTENTIONALLY OMITTED.
BROKER: 31. TENANT and LANDLORD represent to each other
that each dealt with no broker other than Xxxxxx &
Xxxxxxx, Inc., in connection with the negotiations and execution
of this Lease and each party hereby indemnifies and holds the
other party harmless from any claims, suits, judgments, or any
expenses in connection with the foregoing by reason of any claim
made by any other broker with whom it may have dealt in connection
with this Lease other than the above named broker. LANDLORD shall
be responsible for the brokerage fees to said broker pursuant to
separate agreement and shall hold TENANT harmless for said fees.
The parties agree that this Lease is an entirely separate and
distinct transaction and in no way a renewal or continuation of
the lease between Tender Loving Care Home Care Services, Inc. and
Triad IV Associates dated as of September 30, 1987, as amended
(the "TLC Lease").
CONDITION
PRECEDENT: 32. INTENTIONALLY OMITTED.
SIGNAGE: 33. LANDLORD, at LANDLORD's expense, will furnish
and install, adjacent to suite entrance, a building
standard plaque which will exhibit the suite number
and the TENANT's name and/or the name of TENANTs affiliate or
subsidiary actually using said space. Additional names will be
deemed to be in excess of building standard. If TENANT wishes
toexceed building standard, TENANT must receive LANDLORD's prior
written consent, which consent LANDLORD shall not unreasonably
withhold. TENANT must submit a sample of the proposed signage which
must match LANDLORD's quality, style, color and all other
particulars of LANDLORD's building standard signage. The size
ofTENANT's signage may be as large as the signage of any other
tenant in the Building. TENANT shall be entitled to the building
standard quality and size of building directory listing.
WORKLETTER: 34. LANDLORD, at its sole cost and expense, shall
design (including electric, telephone, computer
wiring and work station setup), furnish and install with
reasonable diligence all work and materials set forth in
Exhibits"A" and "B" attached hereto and made a part hereof. Any
moveable partitions in the demised premises under the TLC lease
shall be moved and installed in the Demised Premises as the sole
cost and expense of LANDLORD. In addition LANDLORD, at its sole
cost and expense, will furnish and install in the Demised Premises
no more than sixty (60) low wall, sheet rock cubicles in
accordance with building standards. The design planner designated
by TENANT shall enter into a separate contract with LANDLORD,
pursuant to which the total obligation of LANDLORD shall not
exceed Twenty Thousand Dollars ($20,000). The installation is
intended by the parties to duplicate the quality and provide the
same pro-rata quantities utilized in the TLC Lease. To the extent
the installation exceeds those standards, TENANT shall be solely
responsible for the cost and expense of the excess. The parties
shall agree, prior to the commencement of the installation work,
to what extent, if any, TENANT shall be responsible for the cost
and expense of the installation. To the extent TENANT shall be
responsible, LANDLORD or its affiliate shall submit a Tenant Work
Proposal for each item of materials and/or work, which Tenant Work
Proposal shall be approved by TENANT before any such materials are
supplied or work is performed. TENANT shall receive a xxxx after
the materials are supplied and/or the work is performed. The
Tenant Work Proposal and the xxxx shall include a 1O% charge for
overhead and an additional 1O% charge for profit. TENANT agrees
to pay that xxxx promptly, as an item of additional rent, provided
the materials are properly supplied and the work properly
performed. Hunter Real Estate Construction Corp. ("Hunter"), an
affiliate of LANDLORD, shall be the general contractor for the
installation work, subject to and conditioned upon the consent of
GECC. LANDLORD hereby guarantees to TENANT the work of Hunter.
In the event that Hunter shall be in material default in
performing the installation work, TENANT shall notify LANDLORD in
writing, with a copy to GECC.
TENANT'S 35. (a) LANDLORD, at LANDLORD's sole cost and
DRAWINGS: expense, agrees to furnish to TENANT complete
detailed architectural working drawings and
specifications for TENANT's partition layout, a reflected ceiling,
electrical duplex receptacles, and other installations required
for the performance of LANDLORD's Building Standard Work. (b)
TENANT agrees that its instructions for said plans and
specifications referred to in subsection (a) hereinabove will be
communicated to the LANDLORD. TENANT and LANDLORD shall
mutuallycooperate on a timely basis in finalizing such drawings
and specification. (c) Within thirty (30) days of completion of
LANDLORD's above work, LANDLORD shall submit to TENANT an "as
built" reproducible tracing together with four (4) blueprint
copies thereof of all improvements in TENANT's Demised Premises.
ELECTRICITY: 36. A separate meter which will accuratley measure
all electricty used in the office space portions of the Demised
Premises shall be installed by LANDLORD at its sole cost and
expense. TENANT will pay to LILCO directly the amount billed by
LILCO. Any default by TENANT in the timely payment to LILCO of
all sums billed by LILCO shall constitute a default under this
Lease only if LILCO withholds electricity from the Building, or
otherwise penalizes LANDLORD, as a result of TENANT's said default
hi timely payment, or unless such penalty is curable and is
curedby TENANT on a timely basis.
RIGHT OF 37. Provided that (a) has given LANDLORD seven (7)
CANCELLATION: months prior written notice that it will exercise
this right of cancellation and (b) is not in
default under the terms, conditions or covenants of this Lease
beyond applicable notice and grace periods on the date when notice
is given or on the date when this tight of cancellation is
exercised, TENANT may exercise this right of cancellation five
years and six (6) months after December 1, 1994 (i.e. May 31,
2000) by paying to LANDLORD, in seven (7) equal monthly
installments, commencing upon notifying LANDLORD that it will
exercise this right of cancellation, a total sum computed as
follows: total cost of initial tenant installation divided by
105months and multiplied by the number of months from the date the
cancellation becomes effective to the end of the lease term. If
this Lease is terminated during said seven (7) month period, an
payments due under this Article shall thereafter cease provided
that TENANT is not in default under the terms, conditions and
covenants of this Lease beyond applicable notice and grace
periods. If TENANT does not elect to cancel on or before May
31,2000, then LANDLORD, at its sole cost and expense, shall
repaint and replace any carpeting having a useful life of less
than six (6) years in the Demised Premises (other than the Storage
Space) using similar paint and/or carpeting as used in Article 34
above, with the work to be done during regular business hours.
TENANT agrees to cooperate in a commercially reasonable manner and
LANDLORD agrees to have the work performed in a commercially
reasonable manner.
CLEANING: 38. TENANT, at its sole cost and expense, shall
provide cleaning service within its Demised Premises. LANDLORD
shall not provide any cleaning service within TENANT's Demised
Premises and shall have no responsibility or liability to TENANT
for the, work or for any damage to persons or property
occasionedby TENANT's cleaning service. TENANT hereby agrees to
indemnify LANDLORD against any liability to anyone caused by or
attributable to TENANT's cleaning service and agrees to obtain
from said cleaning service insurance from a New York licensed
insurance company, with commercially reasonable policy limits,
against personal injury and personal property claims from third
parties, which insurance shall name as additional insureds both
LANDLORD and LANDLORD's managing agent. During the period from
the Commencement Date through November 30, 1994, TENANT shall
receive a rent credit, as set forth in Schedule "A" annexed
hereto, to reflect the fact that Landlord will not be providing
these services to TENANT.
OPTION TO RENEW: 39. LANDLORD hereby gives TENANT an option to
extend the term of this Lease for a period of five (5) years on
the same terms, covenants and conditions herein except for this
option to renew, the workletter, the premises concession clause
and the rent abatement clause. The exercise of this option shall
require strict compliance with the following:
TENANT shall notify LANDLORD in writing of its exercise of
the option no later than nine (9) months prior to the expiration
date of the initial term of this Lease; and (b) at the time
ofgiving such written notice of election, and on the last day of
the initial term of the Lease, TENANT shall not be in default
under any of the terms, conditions or covenants of this Lease
beyond applicable notice and grace periods.
ADDENDUM TO 40. Notwithstanding anything to the contrary
ARTICLES 8, 14 contained herein, including, without
AND 15: limitation, any provisions of Articles 8, 14,
and 15 above to the contrary, if the Demised Premises are
damagedor destroyed by fire or other casualty (collectively, the
"Casualty"), or if all or a portion of the Demised Premises
shallbe taken permanently, or for a limited period by any
applicable condemning authority (collectively, the "Taking") or in
the event LANDLORD shall be required or shall otherwise elect (to
the extent such election is permitted by the terms of this Lease)
to make any repairs and/or maintenance to the Demised Premises
(the "Repairs and Maintenance") (the Casualty, the Taking and the
Repairs and Maintenance are hereinafter sometimes referred to in
this Article singly as a "Triggering Event" or collectively as the
"Triggering Events") then, provided TENANT is not in material
default beyond any applicable grace period and to the extent that
any of the Triggering Events shall prevent TENANT from utilizing
twenty-five (25%) percent or more of the Demised Premises or in
the event any such Triggering Event shall otherwise materially
adversely affect TENANT's intended uses and purposes of the
Demised Premises for a period (i) with respect to Repairs and
Maintenance of ninety (90) days or more or (ii) with respect to a
Casualty or Taking, of one (1) year or more (any of such periods
hereinafter referred to as the "Termination Period"), or in the
event the time to restore or repair the Demised Premises after the
occurrence or commencement of the Triggering Event is estimated to
take in excess of the Termination Period, then and in any such
event, TENANT shall be entitled at its sole discretion to
terminate this Lease by notice (the "Termination Notice") to the
LANDLORD within thirty (30) days after the later to occur of the
date of the Triggering Event or the date when TENANT first becomes
aware that LANDLORD'S obligations in connection with or by reason
of the Triggering Event shall not be completed prior to the end of
the Termination Period. In the event TENANT shall elect to
terminate this Lease as set forth above, (i) this Lease shall
terminate as of the date of the Triggering Event, (ii) all base
rent and other amounts payable under this Lease shall be
apportioned as of the date of the Triggering Event, (iii) TENANT
shall have a period of up to six (6) months from the effective
date of the Termination Notice in order to vacate and surrender
the Demised Premises but TENANT shall be required to pay all rent
and additional rent due hereunder on the portion of the Demised
Premises being used or occupied, and (iv) upon such apportioned,
vacating of the Demised Premises and any other obligations to be
performed by either party hereunder by reason of, or in connection
with such termination, the parties shall thereafter have no
obligations hereunder except for those obligations which
specifically survive the termination of this Lease. Also, in the
event any such Triggering Event shall occur within the last year
of the term of this Lease (or any renewal tenn) the Termination
Period shall be reduced (i) with regard to Repairs and
Maintenance, to sixty (60) days or more and (ii) with regard to a
Casualty or a Taking, to ninety (90) days or more.
Notwithstanding the ninety (90) day Termination Period with regard
to Repairs and Maintenance set forth above, in the event LANDLORD
shall be unable to complete such Repairs and Maintenance within
such ninety (90) day period for reason (s) beyond LANDLORD's
control as described in Article 8 (e) of this Lease and notifies
TENANT prior to the expiration of such ninety (90) day period
specifying in detail the reasons that such Repairs and Maintenance
could not be completed within such ninety (90) day period,
enclosing whatever documentation LANDLORD has or could readily
obtain to support those reasons and confirming in such notice that
to the best of LANDLORD's knowledge, such Repairs and Maintenance
will be completed within an additional 30-day period, then and in
only that event, LANDLORD shall have an additional period of
thirty (30) days in which to complete the Repairs and Maintenance.
TENANT during such additional thirty (30) day period shall retain
its right to terminate this Lease if the Repairs and Maintenance
shall, in fact, not be completed prior to the expiration of such
additional thirty (30) day period. In addition, TENANT agrees to
send copies of notices that TENANT sends to LANDLORD hereunder,
contemporaneously with the giving of such notices to LANDLORD,
also to the existing Mortgagee on the Building, General Electric
Capital Corporation, North Tower, Suite 3000, 000 Xxxxxxxx Xxxxxx,
Xxxxxxxx, Xxxxxxxxxxx 00000, Attention: Commercial Real Estate
Financial Department.
LANDLORD DEFAULTS: 41. A. The provisions of this Article shall
take precedence over all other Articles in this
Lease to the extent any provisions of such other Articles are
contradictory or inconsistent with the terms of this Article,
butthe provisions of this Article are otherwise in addition to any
other tights and/or remedies afforded to TENANT by other
provisions of this Lease.
B.(i) For purposes of this Article, a failure
by LANDLORD to perform its obligations under paragraphs (a) and
(b) of Article 7 of this Lease shall be deemed a "default" by
LANDLORD immediately upon LANDLORD's failure to perform such
obligations without TENANT having any obligation to provide notice
of such failure to LANDLORD, except with regard to the first
default by LANDLORD under Article 7 (b) of this Lease with
regardto LANDLORD's provision of heat and/or air conditioning,
which shall not be deemed a default until LANDLORD fails to
perform its obligations under such paragraph for a period of five
(5) days after notice from TENANT to LANDLORD of such failure to
perform.
(ii) Any other failure by LANDLORD to perform
its obligations under this Lease shall only be deemed a
"default"under this Article if LANDLORD fails to perform such
obligation within a period of five (5) days after notice from
TENANT to LANDLORD of such failure to perform.
(iii) It is understood and agreed that the only
difference for purposes of this Article between a default by
LANDLORD under subparagraph (i) above and a default under
subparagraph (H) above is whether LANDLORD is entitled to a period
of time to cure such failure to perform before it is classified as
a "default" under this Article. Once LANDLORD has failed to cure
such default after the appropriate cure period as set forth above,
if any, such failure shall constitute a "default" entitling TENANT
to exercise the remedies set forth in this Article (and other
provisions of this Lease). With regard to performance by LANDLORD
under Article 7 (b) of this Lease, it is understood that
LANDLORD's failure to provide the required amount of heat and/or
air conditioning shall be covered by subparagraph (i) above but a
true mechanical breakdown building-wide (or substantially
building-wide) affecting the Demised Premises shall be subject to
the notice and cure requirements of subparagraph (ii).
(iv) In order to measure objectively whether
the temperature in the Demised Premises is in compliance with
theprovisions of Article 7 above, LANDLORD shall be required to
install at its expense a sufficient number of appropriate
measuring devices and recording devices in various locations of
the Demised Premises, the number of which and the location of
which shall be subject to the approval of TENANT and TENANT's HVAC
engineer or advisor, which approval shall not be unreasonably
withheld or delayed. The temperature readings on such appropriate
measuring devices, absent mechanical breakdown, shall be binding
upon LANDLORD and TENANT and shall serve as the basis for
determining whether LANDLORD has complied with its obligations
under Article 7(b) of this Lease.
(v) TENANT shall be required to send
copiesof any notices that TENANT gives under this Article to
LANDLORD, contemporaneously with the giving of such notices to
LANDLORD, also to the existing Mortgagee on the Building, General
Electric Capital Corporation, North Tower, Suite 3000, 000
Xxxxxxxx Xxxxxx, Xxxxxxxx, XX 00000, Attention: Commercial Real
Estate Financing Department.
(vi) It is further understood that with
regard to defaults by LANDLORD which are subject to the notice and
cure provisions set forth in subparagraph (ii) above, the
provisions of Article 8 (e) shall be applicable as a justifiable
basis for LANDLORD's failure to perform its obligations on a
timely basis provided: (1) LANDLORD continues with all due
diligence to correct the problem notwithstanding such force
majeure occurrence, (2) LANDLORD notifies TENANT prior to the
endof the five (5) day cure period specifying in detail the
reasons that such obligations could not be satisfied within such
five (5) day period, enclosing whatever documentation LANDLORD has
or could readily obtain to support these reasons and confirming in
such notice when, to the best of LANDLORD's knowledge, such
obligation will be satisfied and (3) such force majeure occurrence
has not been caused in any manner by LANDLORD's own economic
situation, LANDLORD's failure to operate the entire facility as a
first-class office building and/or LANDLORD's willful acts which
adversely affect or affected LANDLORD's failure to timely perform
its obligations hereunder. It is understood that it will be
presumed that LANDLORD's failure to perform its obligations under
the Lease were for non-force majeure reasons and the burden is
absolutely and solely upon LANDLORD to show that such failure to
perform was caused by an event covered by Article 8 (e) of this
Lease.
C. (i) For purposes of this Article, a
"Lease Year" shall be deemed to run for a period of twelve (12)
months as of any particular day during the term of this Lease
(including renewal terms).
(ii) Upon the occurrence of the first
"default"by LANDLORD hereunder in any Lease Year, TENANT shall be
entitled to offset against base rent or any other amounts due from
TENANT to LANDLORD hereunder, TENANT's actual expenses necessary
to cure LANDLORD's default (the "Cure Expenses"), which cure
TENANT shall be entitled to perform at TENANT's sole option but
without any obligation to do so ("TENANTs Cure").
(iii) Upon the occurrence of the second
"default" by LANDLORD hereunder in any Lease Year, TENANT shall be
entitled to offset against base rent or any other amounts due from
TENANT to LANDLORD hereunder, an amount equal to the higher of
$2,500 or TENANT's Cure Expenses incurred in performing TENANT's
Cure.
(iv) Upon the occurrence of the third "default"
by LANDLORD hereunder in any Lease Year, TENANT shall be
entitledto offset against base rent or any other amounts due from
TENANT to LANDLORD hereunder, an amount equal to the higher of
$10,000 or TENANT's Cure Expenses incurred in performing TENANT's
Cure.
(v) Upon the occurrence of the fourth "default"
by LANDLORD hereunder in any Lease Year, TENANT shall be
entitledto offset against base rent or any other amounts due from
TENANT to LANDLORD hereunder, an amount equal to the higher of
$15,000 or TENANT's Cure Expenses incurred in performing TENANT's
Cure.
(vi) Upon the occurrence of the fifth "default" by
LANDLORD hereunder in any Lease Year, TENANT shall be entitled
tooffset against base rent or any other amounts due from TENANT to
LANDLORD hereunder, an amount equal to the higher of $30,000 or
TENANT's Cure Expenses incurred in performing TENANT's Cure.
(vii) Upon the occurrence of the sixth "default" by
LANDLORD hereunder in any Lease Year, TENANT shall be entitled
tooffset against base rent or any other amounts due from TENANT to
LANDLORD hereunder, an amount equal to the higher of $50,000 or
TENANT's Cure Expenses incurred in performing TENANTs Cure.
(viii) Upon the occurrence of the seventh
"default" by LANDLORD hereunder in any Lease Year, TENANT shall be
entitled to offset against base Tent or any other amounts due from
TENANT to LANDLORD hereunder, an amount equal to the higher of
$75,000 or TENANT's Cure Expenses incurred in performing TENANTs
Cure.
(ix) Upon the occurrence of the eighth and
subsequent "defaults" by LANDLORD hereunder in any Lease Year, the
base amount to be offset by TENANT shall be increased by $25,000
over the amount for the previous default by
LANDLORD.
(x) Notwithstanding the foregoing, TENANT shall
beentitled to the offsets set forth in subparagraphs (vi), (vii),
(viii) and (ix) during any Lease Year only in the event the
defaults covered by such subparagraphs occurred due to the
negligence, willfulness, recklessness, disregard or otherwise
through a pattern of neglect by LANDLORD in its obligations
hereunder. It is understood, however, that it will be presumed
that defaults by LANDLORD and remedies under those subparagraphs
shall be fully applicable and the burden will be upon the LANDLORD
to show that the occurrence of such defaults were (1) due to the
normal wear and tear and maintenance requirements of the
Building(taking into account LANDLORD's obligation to operate this
Building as a first-class office building) or (2) otherwise not
due to the negligence, willfulness, recklessness, disregard or
pattern of neglect of LANDLORD, such as under certain
circumstances or events which occur due to reasons beyond
LANDLORD's control.
D. In addition to the foregoing, during the Lease
Year in which the expiration date of the term of this Lease (or
renewal term as the case may be) shall occur, TENANT shall be
entitled, at its sole option, at such time as the base rent and
other amounts due from TENANT to LANDLORD hereunder shall be
insufficient to reimburse TENANT in full for LANDLORD's defaults
hereunder based upon the number of defaults at any given time
during that year, to terminate this Lease upon fifteen(15) days
notice to LANDLORD in which event upon the exercise of such option
by TENANT, this Lease shall terminate with the same force and
effect as if such termination date were the expiration date of
this Lease except that TENANT shall have a period of up to the
shorter of (1) six months from the date of TENANT's notice of
termination, or (2) the remaining term of this Lease, to vacate
and surrender the Demised Premises to LANDLORD, but TENANT shall
be required to pay all rent and additional rent due hereunder on
the Demised Premises being used or occupied during that period
tothe extent such rent obligation exceeds the credit to which
TENANT is otherwise entitled.
IN WITNESS WHEREOF, LANDLORD and TENANT have respectively signed
and sealed this Lease as of the day and year first above written.
WITNESS FOR LANDLORD: TRIAD III ASSOCIATES
By: TRIAD LAND ASSOCIATES
/S/ Xxxxxx Xxxx By:/S/ Xxxxxx Xxxxxxx
WITNESS FOR TENANT: STAFF BUILDERS, INC.
/S/ Xxxxxxx Xxxxxxxx BY:/S/ Xxxxx Xxxxxxxx
SCHEDULE "A"
For the Period from the Commencement Date
Through Novmeber 30, 1994
TENANT shall pay to LANDLORD all rental payments due under
the existing lease between Triad IV Associates and Tender Loving
Care Home Care Services, Inc. dated as of September 30, 1987, as
amended by amendments dated August 19, 1988, September 1, 1988,
August 6, 1992, and January 22, 1993 (referred to in this Lease as
the "TLC Lease"), except: (a) Tenant shall receive a credit of
Seventy-Five Cents ($.75) per rentable square foot only on the
Office Space and (b) TENANT shall pay only Six Dollars ($6.00) per
square foot per year for that portion of the Storage Space in
excess of 2,983 square feet and " TENANT shall pay only Twenty
Dollars ($20.00) per rentable square foot per year for that
portion of the Office Space in excess of 39,117 rentable square
feet.
For the Period from December 1, 1994 to the End of the Term
TENANT shall pay to LANDLORD only on the Office Space the
basic annual rent of TWENTY Dollars ($20.00) per rentable square
foot per year plus all escalation rents provided for in this
Lease. In addition, TENANT shall pay to LANDLORD on the entire
Storage Space Six Dollars ($6.00) per square foot per year,
whichsum shall increase at the rate of three percent (3%) per year
utilizing a base year of October 1, 1993 - September 30, 1994.
