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STANDARD FORM OF LOFT LEASE
The Real Estate Board of New York, Inc.
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AGREEMENT OF LEASE, dated as of this 11th day of June 1997, between Xxxxxx
Holding Company having an address at 000 Xxxxx Xxxxxxxx, Xxxxxxx, Xxx Xxxx
00000, party of the first part, hereinafter referred to as OWNER and Home Care
Alliance, Inc., a New York Corporation having an address at 000 Xxxxxxx Xxxx,
Xxxxx 000, Xxxxxxx, Xxx Xxxx 00000, party of the second part, hereinafter
referred to as TENANT,
WITNESSETH: Owner hereby leases to Tenant and Tenant hereby leases from Owner
000 Xxxxxx Xxxxxx, Xxxxxxxx, Xxx Xxxx in the building known as 000 Xxxxx Xxxxxx,
Xxxxxxxx, Xxx Xxxx for the term of ten (10) years (or until such term shall
sooner cease and expire as hereinafter provided) to commence on the first day of
the month in which delivery of possession of the Premises occurs and to
terminate on the last day of the 119th month following the month in which
delivery of possession of the Premises occurs, both dates inclusive, at an
annual rental rate of Sixty Seven Thousand Nine Hundred Fifty and 00/100 Dollars
($67,950.00) during the first year of the term and thereafter as provided for in
Rider B 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, the office of Owner or such other
place as Owner may designate, without any set off or deduction whatsoever,
except that Tenant shall pay the first monthly installment(s) on the execution
hereof (unless this lease be a renewal).
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 Owner pursuant
to the terms of another lease with Owner or with Owner's predecessor in
interest, Owner may at Owner's option and without notice to Tenant add the
amount of such arrears to any monthly installment of rent payable hereunder and
the same shall be payable to Owner as additional rent.
The parties hereto, for themselves, their heirs, distributees, executors,
administrators, legal representatives, successors and assigns, hereby covenant
as follows:
Occupancy: 1. Tenant shall pay the rent as above and as hereinafter provided.
Use: 2. Tenant shall use and occupy demised premises for warehouse and storage
of home Products provided such use is in accordance with the Certificate of
Occupancy for the building, if any, and for no other purpose.
Tenant Alternations: 3. Tenant shall make no changes in or to the demised
premises of any nature without Owner's prior written consent which consent as to
non-structural alterations and which do not affect Building Systems, shall not
be unreasonably withheld or delayed. Subject to the prior written consent of
Owner, and to the provisions of this article, Tenant at Tenant's expense, may
make alterations, installations, additions or improvements which are
nonstructural and which do not affect utility services or plumbing and
electrical lines, in or to the interior of the demised premises by using
contractors or mechanics first approved by Owner. Tenant shall, before making
any alterations, additions, installations or improvements, at its expense,
obtain all permits, approvals and certificates required by any governmental or
quasi-governmental bodies and (upon completion) certificates of final approval
thereof and shall deliver promptly duplicates of all such permits, approvals and
certificates to Owner and Tenant agrees to carry and will cause Tenant's
contractors and sub-contractors to carry such xxxxxxx'x compensation, general
liability, personal and property damage insurance as Owner may require. If any
mechanic's lien is filed against the demised premises, or the building of which
the same forms a part, for work claimed to have been done for, or materials
furnished to, Tenant, whether or not done pursuant to this article, the same
shall be discharged by Tenant within thirty days thereafter, at Tenant's
expense, taking all necessary legal steps including filing such bonds as will be
set by the court to remove the mechanics lien. All fixtures and all paneling,
partitions, railings and like installations, installed in the
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premises at any time, either by Tenant or by Owner in Tenant's behalf, shall,
upon installation, become the property of Owner and shall remain upon and be
surrendered with the demised premises. Nothing in this Article shall be
construed to give Owner title to or to prevent Tenant's removal of trade
fixtures, moveable office furniture and equipment, but upon removal of any such
from the premises or upon removal of other installations as may be required by
Owner, Tenant shall immediately and at its expense, repair and restore the
premises to the condition existing prior to installation and repair any damage
to the demised premises or the building due to such removal. All property
permitted or required to be removed, by Tenant at the end of the term remaining
in the premises after Tenant's removal shall be deemed abandoned and may, at the
election of Owner, either be retained as Owner's property or may be removed from
the premises by Owner, at Tenant's expense.
Repairs: 4. See Rider C.
Window Cleaning: 5. Tenant will not clean nor require, permit, suffer or allow
any window in the demised premises to be cleaned from the outside in violation
of Section 202 of the New York State Labor Law or any other applicable law or of
the Rules of the Board of Standards and Appeals, or of any other Board or body
having or asserting jurisdiction.
Requirements of Law, Fire Insurance, Floor Loads: 6. Prior to the commencement
of the lease term, if Tenant is then in possession, and at all times thereafter,
Tenant, at Tenant's sole cost and expense, shall promptly comply with all
present and future laws, orders and regulations of all state, federal, municipal
and local governments, departments, commissions and boards and any direction of
any public officer pursuant to law, and all orders, rules and regulations of the
New York Board of Fire Underwriters, Insurance Services Office, or any similar
body which shall impose any violation, order or duty upon Owner or Tenant with
respect to the demised premises, arising out of Tenant's use or manner of use
thereof, or with respect to the building if arising out of Tenant's use or
manner of use of the demised premises or the building (including the use
permitted under the lease). Except as provided in Article 30 hereof nothing
herein shall require Tenant to make structural repairs or alterations unless
Tenant has, by its manner of use of the demised premises or method of operation
therein, violated any such laws, ordinances, orders, rules, regulations or
requirements with respect thereto. Tenant shall not do or permit any act or
thing to be done in or to the demised premises which is contrary to law, or
which will invalidate or be in conflict with public liability, fire or other
policies of insurance at any time carried by or for the benefit of Owner with
respect to the demised premises or the building of which the demised premises
form a part, or which shall or might subject Owner to any liability or
responsibility to any person or for property damage. Tenant shall not keep
anything in the demised premises except as now or hereafter permitted by the
Fire Department, Board of Fire Underwriters, Fire Insurance Rating Organization
or other authority having jurisdiction, and then only in such manner and such
quantity so as not to increase the rate for fire insurance applicable to the
building, nor use the premises in a manner which will increase the insurance
rate for the building or any property located therein over that in effect prior
to the commencement of Tenant's occupancy. Tenant shall pay all costs, expenses,
fines, penalties, or damages, which may be imposed upon Owner by reason of
Tenant's failure to comply with the provisions of this article and if by reason
of such failure the fire insurance rate shall, at the beginning of this lease or
at any time thereafter, be higher than it otherwise would be, then Tenant shall
reimburse Owner, as additional rent hereunder, for that portion of all fire
insurance premiums thereafter paid by Owner which shall have been charged
because of such failure by Tenant. In any action or proceeding wherein Owner and
Tenant are parties, a schedule or "make-up" of rate for the building or demised
premises issued by the New York Fire Insurance Exchange, or other body making
fire insurance rates applicable to said premises shall be conclusive evidence of
the facts therein stated and of the several items and charges in the fire
insurance rates then applicable to said premises. Tenant shall not place a load
upon any floor of the demised premises exceeding the floor load per square foot
area which it was designed to carry and which is allowed by law. Owner reserves
the right to prescribe the weight and position of all safes, business machines
and mechanical equipment. Such installations shall be placed and maintained by
Tenant, at Tenant's expense, in settings sufficient, in Owner's judgment, to
absorb and
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maintained by Tenant, at Tenant's expense, in settings sufficient, in Owner's
judgment, to absorb and prevent vibration, noise and annoyance.
Subordination: 7. This lease is subject and subordinate to all ground or
underlying leases and to all mortgages which may now or hereafter affect such
leases or the real property of which demised premises are a part and to all
renewals, modifications, consolidations, replacements and extensions of any such
underlying leases and mortgages. This clause shall be self-operative and no
further instrument of subordination shall be required by any ground or
underlying lessor or by any mortgagee, affecting any lease or the real property
of which the demised premises are a part. In confirmation of such subordination,
Tenant shall execute promptly any certificate that Owner may request.
Property--Loss, Damage, Reimbursement, Indemnity: 8. Owner or its agents shall
not be liable for any damage to property of Tenant or of others, 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 the negligence or willful wrongful conduct of Owner,
its agents, servants or employees. Owner or its agents will not 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. 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). Owner shall not be liable for any damage Tenant may sustain
thereby and Tenant shall not be entitled to any compensation there for nor
abatement or diminution of rent nor shall the same release Tenant from its
obligations hereunder nor constitute an eviction. Tenant shall indemnify and
save harmless Owner against and from all liabilities, obligations, damages,
penalties, claims, costs and expenses for which Owner shall not be reimbursed by
insurance, including reasonable attorneys fees, paid, suffered or incurred as a
result of any breach by Tenant, Tenant's agents, contractors, employees,
invitees, or licensees, of any covenant or condition of this lease, or the
carelessness, negligence or improper conduct of the Tenant, Tenant's agents,
contractors, employees, invitees or licensees. Tenant's liability under this
lease extends to the acts and omissions of any sub-tenant, and any agent,
contractor, employee, invitee or licensee of any sub-tenant. In case any action
or proceeding is brought against Owner by reason of any such claim, Tenant, upon
written notice from Owner, will, at Tenant's expense, resist or defend such
action or proceeding by counsel approved by Owner in writing, such approval not
to be unreasonably withheld.
Destruction, Fire and Other Casualty: 9. (a) If the demised premises or any part
thereof shall be damaged by fire or other casualty, Tenant shall give immediate
notice thereof to Owner and this lease shall continue in full force and effect
except as hereinafter set forth. (b) If the demised premises are partially
damaged or rendered partially unusable by fire or other casualty, the damages
thereto shall be repaired by and at the expense of Owner and the rent, until
such repair shall be substantially completed, shall be apportioned from the day
following the casualty according to the part of the premises which is usable.
(c) If the demised premises are totally damaged or rendered wholly unusable by
fire or other casualty, then the rent shall be proportionately paid up to the
time of the casualty and thenceforth shall cease until the date when the
premises shall have been repaired and restored by Owner, subject to Owner's
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 Owner shall decide to demolish it or to rebuild it, then, in any of such
events, Owner may elect to terminate this lease by written notice to Tenant,
given within 90 days after such fire or casualty, specifying a date for the
expiration of the lease, which date shall not be more than 60 days after the
giving of such notice. 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 premises without prejudice however, to Landlord's
rights and remedies against Tenant under the lease provisions in effect prior to
such termination, and any rent owing shall be paid up to such date and any
payments of rent made by Tenant
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which were on account of any period subsequent to such date shall be returned to
Tenant. Unless Owner shall serve a termination notice as provided for herein,
Owner shall make the repairs and restorations under the conditions of (b) and
(c) hereof, with all reasonable expedition, subject to delays due to adjustment
of insurance claims, labor troubles and causes beyond Owner's control. After any
such casualty, Tenant shall cooperate with Owner's restoration by removing from
the premises as promptly as reasonably possible, all of Tenant's salvageable
inventory and movable equipment, furniture, and other property. Tenant's
liability for rent shall resume five (5) days after written notice from Owner
that the premises are substantially ready for Tenant's occupancy. (e) Nothing
contained hereinabove shall relieve Tenant from liability that may exist as a
result of damage from fire or other casualty. Notwithstanding anything to the
contrary contained in subdivisions (a) through (e) hereof, each party shall look
first to any insurance in its favor before making any 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, Owner and Tenant each hereby releases and waives all right of
recovery against the other or any one claiming through or under each of them by
way of subrogation or otherwise. The foregoing release and waiver shall be in
force only if both releasors' insurance policies contain a clause providing that
such a release or waiver shall not invalidate the insurance. If, and to the
extent, that such waiver can be obtained only by the payment of additional
premiums, then the party benefitting from the waiver shall pay such premium
within ten days after written demand or shall be deemed to have agreed that the
party obtaining insurance coverage shall be free of any further obligation under
the provisions hereof with respect to waiver of subrogation. Tenant acknowledges
that Owner will not carry insurance on Tenant's furniture and/or furnishings or
any fixtures or equipment, improvements, or appurtenances removable by Tenant
and agrees that Owner 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.
Eminent Domain: 10. [Deleted]
Assignment, Mortgage, Etc.: 11. Tenant, for itself, its heirs, distributees,
executors, administrators, legal representatives, successors and assigns,
expressly covenants that it shall not assign, mortgage or encumber this
agreement, nor underlet, or suffer or permit the demised premises or any part
thereof to be used by others, without the prior written consent of Owner in each
instance. Transfer of the majority of the stock of a corporate Tenant shall be
deemed an assignment. If this lease be assigned, or if the demised premises or
any part thereof be underlet or occupied by anybody other than Tenant, Owner
may, after default by Tenant, collect rent from the assignee, under-tenant or
occupant, and apply the net amount collected to the rent herein reserved, but no
such assignment, underletting, occupancy or collection shall be deemed a waiver
of this covenant, or the acceptance of the assignee, under-tenant or occupant as
tenant, or a release of Tenant from the further performance by Tenant of
covenants on the part of Tenant herein contained. The consent by Owner to an
assignment or underletting shall not in any wise be construed to relieve Tenant
from obtaining the express consent in writing of Owner to any further assignment
or underletting.
Electric Current: 12. Tenant covenants and agrees that at all times its uses of
electric current shall not exceed the capacity of existing feeders to the
building or the risers or wiring installation and Tenant may not use any
electrical equipment which, in Owner's opinion, reasonably exercised, will
overload such installations or interfere with the use thereof by other tenants
of the building. The change at any time of the character of electric service
shall in no wise make Owner liable or responsible to Tenant, for any loss,
damages or expenses which Tenant may sustain.
Access to Premises: 13. Owner or Owner's agents shall have the right (but shall
not be obligated) to enter the demised premises in any emergency at any time,
and, at other reasonable times, to examine
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the same and to make such repairs, replacements and improvements as Owner may
deem necessary and reasonably desirable to the demised premises or to any other
portion of the building or which Owner may elect to perform. Tenant shall permit
Owner to use and maintain and replace pipes and conduits in and through the
demised premises and to erect new pipes and conduits therein provided they are
concealed within the walls, floor, or ceiling. Owner may, during the progress of
any work in the demised premises, take all necessary materials and equipment
into said premises without the same constituting an eviction nor shall the
Tenant be entitled to any abatement of rent while such work is in progress nor
to any damages by reason or loss or interruption of business or otherwise.
Throughout the term hereof Owner shall have the right to enter the demised
premises at reasonable hours for the purpose of showing the same to prospective
purchasers or mortgagees of the building, and during the last six months of the
term for the purpose of showing the same to prospective tenants. If Tenant is
not present to open and permit an entry into the premises, Owner or Owner's
agents may enter the same whenever such entry may be necessary or permissible by
master key or forcibly and provided reasonable care is exercised to safeguard
Tenant's property, such entry shall not render Owner or its agents liable
therefor, nor in any event shall the obligations of Tenant hereunder be
affected. If during the last month of the term Tenant shall have removed all or
substantially all of Tenant's property therefrom, Owner may immediately enter,
alter, renovate or redecorate the demised premises without limitation or
abatement of rent, or incurring liability to Tenant for any compensation and
such act shall have no effect on this lease or Tenant's obligations hereunder.
Vault, Vault Space, Area: 14. No Vaults, vault space or area, whether or not
enclosed or covered, not within the property line of the building is leased
hereunder, anything contained in or indicated on any sketch, blue print or plan,
or anything contained elsewhere in this lease to the contrary notwithstanding.
Owner makes no representation as to the location of the property line of the
building. All vaults and vault space and all such areas not within the property
line of the building, which Tenant may be permitted to use and/or occupy, is to
be used and/or occupied under a revocable license, and if any such license be
revoked, or if the amount of such space or area be diminished or required by any
federal, state or municipal authority or public utility, Owner shall not be
subject to any liability nor shall Tenant be entitled to any compensation or
diminution or abatement of rent, nor shall such revocation, diminution or
requisition be deemed constructive or actual eviction. Any tax, fee or charge of
municipal authorities for such vault or area shall be paid by Tenant.
Occupancy: 15. Tenant will not at any time use or occupy the demised premises in
violation of the certificate of occupancy issued for the building of which the
demised premises are a part. Tenant has inspected the premises and accepts them
as is, subject to the riders annexed hereto with respect to Owner's work, if
any. In any event, Owner makes no representations as to the condition of the
premises and Tenant agrees to accept the same subject to violations of record.
If any government license or permit shall be required for the proper and lawful
conduct of Tenant's business, Tenants shall be responsible for and shall procure
and maintain such license or permit.
Bankruptcy: 16. (a) Anything elsewhere in this lease to the contrary
notwithstanding, this lease may be cancelled by Owner by the sending of a
written notice to Tenant within a reasonable time after the happening of any one
or more of the following events: (1) the commencement of a case in bankruptcy or
under the laws of any state naming Tenant as the debtor; or (2) the making by
Tenant of an assignment or any other arrangement for the benefit of creditors
under any state statute. Neither Tenant nor any person claiming through or under
Tenant, or by reason of any statute or order of court, shall thereafter be
entitled to possession of the premises demised but shall forthwith quit and
surrender the premises. If this lease shall be assigned in accordance with its
terms, the provisions of this Article 16 shall be applicable only to the party
then owning Tenant's interest in this lease.
(b) It is stipulated and agreed that in the event of the termination of
this lease pursuant to (a) hereof, Owner shall forthwith, notwithstanding any
other provisions of this lease to the contrary, be entitled to recover from
Tenant as and for liquidated damages an amount equal to the difference between
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the rent reserved hereunder for the unexpired portion of the term demised and
the fair and reasonable rental value of the demised premises for the same
period. In the computation of such damages the difference between any
installment of rent becoming due hereunder after the date of termination and the
fair and reasonable rental value of the demised premises for the period for
which such installment was payable shall be discounted to the date of
termination at the rate of four percent (4%) per annum. If such premises or any
part thereof be relet by the Owner for the unexpired term of said lease, or any
part thereof, before presentation of proof of such liquidated damages to any
court, commission or tribunal, the amount of rent reserved upon such reletting
shall be deemed to be the fair and reasonable rental value for the part or the
whole of the premises so re-let during the term of the re-letting. Nothing
herein contained shall limit or prejudice the right of the Owner to prove for
and obtain as liquidated damages by reason of such termination, an amount equal
to the maximum allowed by any statute or rule of law in effect at the time when,
and governing the proceedings in which, such damages are to be proved, whether
or not such amount be greater, equal to, or less than the amount of the
difference referred to above.
Default: 17. (1) If Tenant defaults in fulfilling any of the covenants of this
lease other than the covenants for the payment of rent or additional rent; or if
the demised premises becomes vacant or deserted; or if any execution or
attachment shall be issued against Tenant or any of Tenant's property whereupon
the demised premises shall be taken or occupied by someone other than Tenant; or
if this lease be rejected under Section 365 of Title 11 of the U.S. Code
(bankruptcy code); or if Tenant shall fail to move into or take possession of
the premises within fifteen (15) days after the commencement of the term of this
lease or if Tenant shall be in default under any other lease for space in the
building, then, in any one or more of such events, upon Owner serving a written
15 days notice upon Tenant specifying the nature of said default and upon the
expiration of said 15 days, if Tenant shall have failed to comply with or remedy
such default, or if the said default or omission complained of shall be of a
nature that the same cannot be completely cured or remedied within said 15 day
period, and if Tenant shall not have diligently commenced during such default
within such 15 day period, and shall not thereafter with reasonable diligence
and in good faith, proceed to remedy or cure such default, then Owner may serve
a written three (3) days' notice of cancellation of this lease upon Tenant, and
upon the expiration of said three (3) days this lease and the term thereunder
shall end and expire as fully and completely as if the expiration of such three
(3) day period were the day herein definitely fixed for the end and expiration
of this lease and the term thereof and Tenant shall then quit and surrender the
demised premises to Owner but Tenant shall remain liable as hereinafter
provided.
(2) If the notice provided for in (1) hereof shall have been given, and the
term shall expire as aforesaid; or if Tenant shall make default in the payment
of the rent reserved herein or any item of additional rent herein mentioned or
any part of either or in making any other payment herein required, then and in
any of such events Owner may without notice, re-enter the demised premises
either by force or otherwise, and dispossess Tenant by summary proceedings or
otherwise, and the legal representative of Tenant or other occupant of demised
premises and remove their effects and hold the premises as if this lease had not
been made, and Tenant hereby waives the service of notice of intention to
re-enter or to institute legal proceedings to that end. If Tenant shall make
default hereunder prior to the date fixed as the commencement of any renewal or
extension of this lease, Owner may cancel and terminate such renewal or
extension agreement by written notice.
Remedies of Owner and Waiver of Redemption: 18. In case of any such default,
re-entry, expiration and/or dispossess by summary proceedings or otherwise, (a)
the rent shall become due thereupon and be paid up to the time of such re-entry,
dispossess and/or expiration, (b) Owner may re-let the premises or any part or
parts thereof, either in the name of Owner or otherwise, for a term or terms,
which may at Owner's option be less than or exceed the period which would
otherwise have constituted the balance of the term of this lease and may grant
concessions or free rent or charge a higher rental than that in this lease,
and/or (c) Tenant or the legal representatives of Tenant shall also pay Owner as
liquidated damages for the failure of Tenant to observe and perform said
Tenant's covenants herein contained, any deficiency between the rent hereby
reserved and/or covenanted to be paid and the net amount, if any, of the rents
collected on account of the lease or leases of the demised premises for each
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amount, if any, of the rents collected on account of the lease or leases of the
demised premises for each month of the period which would otherwise have
constituted the balance of the term of this lease. The failure of Owner to
re-let the premises or any part or parts thereof shall not release or affect
Tenant's liability for damages. In computing such liquidated damages there shall
be added to the said deficiency such expenses as Owner may incur in connection
with re-letting, such as legal expenses, attorneys' fees, brokerage, advertising
and for keeping the demised premises in good order or for preparing the same for
re-letting. Any such liquidated damages shall be paid in monthly installments by
Tenant on the rent day specified in this lease and any suit brought to collect
the amount of the deficiency for any month shall not prejudice in any way the
rights of Owner to collect the deficiency of any subsequent month by a similar
proceeding. Owner, in putting the demised premises in good order or preparing
the same for re-rental may, at Owner's option, make such alterations, repairs,
replacements, and/or decorations in the demised premises as Owner, in Owner's
sole judgment, considers advisable and necessary for the purpose of re-letting
the demised premises, and the making of such alterations, repairs, replacements,
and/or decorations shall not operate or be construed to release Tenant from
liability hereunder as aforesaid. Owner shall in no event be liable in any way
whatsoever for failure to re-let the demised premises, or in the event that the
demised premises are re-let, for failure to collect the rent thereof under such
re-letting, and in no event shall Tenant be entitled to receive any excess, if
any, of such net rents collected over the sums payable by Tenant to Owner
hereunder. In the event of a breach or threatened breach by Tenant of any of the
covenants or provisions hereof, Owner shall have the right of injunction and the
right to invoke any remedy allowed at law or in equity as if re-entry, summary
proceedings and other remedies were not herein provided for. Mention in this
lease of any particular remedy, shall not preclude Owner from any other remedy,
in law or in equity. Tenant hereby expressly waives any and all rights of
redemption granted by or under any present or future laws in the event of Tenant
being evicted or dispossessed for any cause, or in the event of Owner obtaining
possession of demised premises, by reason of the violation by Tenant of any of
the covenants and conditions of this lease, or otherwise.
Fees and Expenses: 19. If Tenant shall default in the observance or performance
of any term or covenant on Tenant's part to be observed or performed under or by
virtue of any of the terms or provisions in any article of this lease, then,
unless otherwise provided elsewhere in this lease, Owner may immediately or at
any time thereafter and without notice perform the obligation of Tenant
thereunder. If Owner, in connection with the foregoing or in connection with any
default by Tenant in the covenant to pay rent hereunder, makes any expenditures
or incurs any obligations for the payment of money, including but not limited to
attorney's fees, in instituting, prosecuting or defending any action or
proceeding, then Tenant will reimburse Owner for such sums so paid or
obligations incurred with interest and costs. The foregoing expenses incurred by
reason of Tenant's default shall be deemed to be additional rent hereunder and
shall be paid by Tenant to Owner within days of rendition of any xxxx or
statement to Tenant therefor. If Tenant's lease term shall have expired at the
time of making of such expenditures or incurring of such obligations, such sums
shall be recoverable by Owner as damages.
Building Alterations and Management: 20. There shall be no allowance to Tenant
for diminution of rental value and no liability on the part of Owner by reason
of inconvenience, annoyance or injury to business arising from Owner or other
Tenants making any repairs in the building or any such alterations, additions
and improvements.
No Representations by Owner: 21. Neither Owner nor Owner'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 or thing affecting or related
to the 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 demised
premises and is thoroughly acquainted with their condition and agrees to take
the same "as is" and acknowledges that the taking of possession of the demised
premises by Tenant shall be conclusive evidence that the said premises and the
building of
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which the same form a part were in good and satisfactory condition at the time
such possession was so taken, except as to latent defects. All understandings
and agreements heretofore made between the parties hereto are merged in this
contract, which alone fully and completely expresses the agreement between Owner
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,
unless such executory agreement is in writing and signed by the party against
whom enforcement of the change, modification, discharge or abandonment is
sought.
End of Term: 22. Upon the expiration or other termination of the term of this
lease, Tenant shall quit and surrender to Owner the demised premises, broom
clean, in good order and condition, ordinary wear and damages which Tenant is
not required to repair as provided elsewhere in this lease excepted, and Tenant
shall remove all its property. Tenant's obligation to observe or perform this
covenant shall survive the expiration or other termination of this lease. If the
last day of the term of this Lease or any renewal thereof, falls on Sunday, this
lease shall expire at noon on the preceding Saturday unless it be a legal
holiday in which case it shall expire at noon on the preceding business day.
Quiet Enjoyment: 23. Owner covenants and agrees with Tenant that upon Tenant
paying the rent and additional rent and observing and performing all the terms,
covenants and conditions, on Tenant's part to be observed and performed, Tenant
may peaceably and quietly enjoy the premises hereby demised, subject,
nevertheless, to the terms and conditions of this lease including, but not
limited to, Article 31 hereof and to the ground leases, underlying leases and
mortgages hereinbefore mentioned.
Failure to Give Possession: 24. If Owner is unable to give possession of the
demised premises on the date of the commencement of the term hereof, because of
the holding-over or retention of possession of any tenant, undertenant or
occupants or if the demised premises are located in a building being
constructed, because such building has not been sufficiently completed to make
the premises ready for occupancy or because of the fact that a certificate of
occupancy has not been procured or for any other reason, Owner shall not be
subject to any liability for failure to give possession on said date and the
validity of the lease shall not be impaired under such circumstances, nor shall
the same be construed in any wise to extend the term of this lease, but the rent
payable hereunder shall be abated (provided Tenant is not responsible for
Owner's inability to obtain possession) until after Owner shall have given
Tenant written notice that the premises are substantially ready for Tenant's
occupancy. If permission is given to Tenant to enter into the possession of the
demised premises or to occupy premises other than the demised premises prior to
the date specified as the commencement of the term of this lease, Tenant
covenants and agrees that such occupancy shall be deemed to be under all the
terms, covenants, conditions and provisions of this lease, except as to the
covenant to pay rent. The provisions of this article are intended to constitute
"an express provision to the contrary" within the meaning of Section 223-a of
the New York Real Property Law.
No Waiver: 25. The failure of Owner to seek redress for violation of, or to
insist upon the strict performance of any covenant or condition of this lease or
of any of the Rules or Regulations, set forth or hereafter adopted by Owner,
shall not prevent a subsequent act which would have originally constituted a
violation from having all the force and effect of an original violation. The
receipt by Owner of rent with knowledge of the breach of any covenant of this
lease shall not be deemed a waiver of such breach and no provision of this lease
shall be deemed to have been waived by Owner unless such waiver be in writing
signed by Owner. No payment by Tenant or receipt by Owner of a lesser amount
than the monthly rent herein stipulated shall be deemed to be other than on
account of the earliest stipulated rent, nor shall any endorsement or statement
of any check or any letter accompanying any check or payment as rent be deemed
an accord and satisfaction, and Owner may accept such check or payment without
prejudice to Owner's right to recover the balance of such rent or pursue any
other remedy in this lease provided. No act or thing done by Owner or Owner's
agents during the term hereby demised shall be deemed an acceptance of a
surrender of said premises, and no agreement to accept such surrender shall
8
be valid unless in writing signed by Owner. No employee of Owner or Owner's
agent shall have any power to accept the keys of said premises prior to the
termination of the lease and the delivery of keys to any such agent or employee
shall not operate as a termination of the lease or a surrender of the demised
premises.
Waiver of Trial by Jury: 26. It is mutually agreed by and between Owner and
Tenant that the respective parties hereto shall and they hereby do waive trial
by jury in any action, proceeding or counterclaim brought by either of the
parties hereto against the other (except for personal injury or property damage)
on any matters whatsoever arising out of or in any way connected with this
lease, the relationship of Owner and Tenant, Tenant's use of or occupancy of
said premises, and any emergency statutory or any other statutory remedy. It is
further mutually agreed that in the event Owner commences any summary proceeding
for possession of the premises, Tenant will not interpose any counterclaim of
whatever nature or description in any such proceeding including a counterclaim
under Article 4, except for statutory mandatory counterclaims, except, however,
a compulsory counterclaim that tenant would otherwise be precluded from
asserting a separate plenary proceeding.
Inability to Perform: 27. This Lease and the obligation of Tenant to pay rent
hereunder and perform all of the other covenants and agreements hereunder on
part of Tenant to be performed shall in no wise be affected, impaired or excused
because Owner is unable to fulfill any of its obligations under this lease or to
supply or is delayed in supplying any service expressly or impliedly to be
supplied or is unable to make, or is delayed in making any repair, additions,
alterations or decorations or is unable to supply or is delayed in supplying any
equipment or fixtures if Owner is prevented or delayed from so doing by reason
of strike or labor troubles or any cause whatsoever including, but not limited
to, government preemption in connection with a National Emergency or by reason
of any rule, order or regulation of any department or subdivision thereof of any
government agency or by reason of the conditions of supply and demand which have
been or are affected by war or other emergency.
Bills and Notices: 28. Except as otherwise in this lease provided, a xxxx,
statement, notice or communication which Owner may desire or be required to give
to Tenant, shall be deemed sufficiently given or rendered if, in writing,
delivered to Tenant personally or sent by registered or certified mail addressed
to Tenant at the building of which the demised premises form a part or at the
last known residence address or business address of Tenant or left at any of the
aforesaid premises addressed to Tenant, and the time of the rendition of such
xxxx or statement and of the giving of such notice or communication shall be
deemed to be the time when the same is delivered to Tenant, mailed, or left at
the premises as herein provided. Any notice by Tenant to Owner must be served by
registered or certified mail addressed to Owner at the address first hereinabove
given or at such other address as Owner shall designate by written notice.
Waiver Charge: 29. If Tenant requires, uses or consumes water for any purpose in
addition to ordinary lavatory purposes (of which fact Tenant constitutes owner
to be the sole judge) Owner may install a water meter and thereby measure
Tenant's water consumption for all purposes. Tenant shall pay Owner for the cost
of the meter and the cost of the installation, thereof and throughout the
duration of Tenant's occupancy, Tenant shall keep said meter and installation
equipment in good working order and repair at Tenant's own cost and expense in
default of which Owner may cause such meter and equipment to be replaced or
repaired and collected the cost thereof from Tenant as additional rent. Tenant
agrees to pay for water consumed, as shown on said meter as and when bills are
rendered, and on default in making such payment Owner may pay such charges and
collect the same from Tenant, as additional rent. Tenant covenants and agrees to
pay, as additional rent, the sewer rent, charge or any other tax, rent, levy or
charge which now or hereafter is assessed, impose or a lien upon the demised
premises or the realty of which they are part pursuant to law, order or
regulation made or issued in connection with the use, consumption, maintenance
or supply of water, water system or sewage or sewage connection or system.
Independently of and in addition to any of the remedies reserved to Owner
hereinabove or elsewhere in
9
this lease, Owner may xxx for and collect any monies to be paid by Tenant or
paid by Owner for any of the reasons or purposes hereinabove set forth.
Sprinklers: 30. Anything elsewhere in this lease to the contrary
notwithstanding, if the New York Board of Fire Underwriters or the New York Fire
Insurance Exchange or any bureau, department or official of the federal, state
or city government recommend or require the installation of a sprinkler system
or that any changes, modifications, alterations, or additional sprinkler heads
or other equipment be made or supplied in an existing sprinkler system by reason
of Tenant's business, or the location of partitions, trade fixtures, or other
contents of the demised premises, or for any other reason, or if any such
sprinkler system installations, modifications, alterations, additional sprinkler
heads or other such equipment, become necessary to prevent the imposition of a
penalty or charge against the full allowance for a sprinkler system in the fire
insurance rate set by any said Exchange or by any fire insurance company, Tenant
shall, at Tenant's expense, promptly make such sprinkler system installations,
changes, modifications, alterations and supply additional sprinkler heads or
other equipment as required whether the work involved shall be structural or
non-structural in nature. Tenant shall pay to Owner as additional rent the sum
of 100 percent, on the first day of each month during the term of this lease, as
Tenant's portion of the contract price for sprinkler supervisory service. The
cost of said sprinkler supervisory service shall be commercially reasonable.
Elevators, Heat, Cleaning: 31. Tenant shall, at Tenant's expense, keep the
demised premises, including the windows, clean and in order, to the satisfaction
of Owner and for that purpose shall employ the person or persons, or corporation
approved by Owner. Bills for the same shall be rendered by Owner to Tenant at
such time as Owner may elect and shall be due and payable hereunder, and the
amount of such bills shall be deemed to be, and be paid as, additional rent.
Tenant shall, however, have the option of independently contracting for the
remove of such rubbish and refuse in the event that Tenant does not wish to have
same done by employees of Owner. Under such circumstances, however, the removal
of such refuse and rubbish by other shall be subject to such rules and
regulations as, in the judgment of Owner, are necessary for the proper operation
of the building. Owner reserves the right to stop service of the heating,
plumbing and electric systems, when necessary by reason or accident, or
emergency or for repairs, alterations, replacements or improvements, in the
judgment of owner desirable or necessary to be made, until said repairs,
alterations, replacements or improvements shall have been completed.
Security: 32. Tenant has deposited with Owner the sum of $11,415.00 as security
for the faithful performance and observance by Tenant of the terms, provisions
and conditions of this lease; it is agreed that in the event Tenant defaults in
respect of any of the terms, provisions and conditions of this lease, including,
but not limited to, the payment of rent and additional rent, Owner may use,
apply or retain the whole or any part of the security so deposited to the extent
required for the payment of any rent and additional rent or any other sum as to
which Tenant is in default or for any sum which Owner may expend or may be
required to expend by reason of Tenant's default in respect of any of the terms,
covenants and conditions of this lease, including but not limited to, any
damages or deficiency in the re-letting of the premises, whether such damages or
deficiency accrued before or after summary proceedings or other re-entry by
Owner. In the event that Tenant shall fully and faithfully comply with all of
the terms, provisions, covenants and conditions of this lease, the security
shall be returned to Tenant after the date fixed as the end of the Lease and
after delivery of entire possession of the demised premises to Owner. In the
event of a sale of the land and building or leasing of the building, of which
the demised premises form a part, Owner shall have the right to transfer the
security to the vendee or lessee and Owner shall thereupon be released by Tenant
from all liability for the return of such security; and Tenant agrees to look to
the new Owner solely for the return of said security, and it is agreed that the
provisions hereof shall apply to every transfer or assignment made of the
security to a new Owner. Tenant further covenants that it will not assign or
encumber or attempt to assign or encumber the monies deposited herein as
security and that neither Owner nor its successors or assigns shall be bound by
any such assignment, encumbrance, attempted assignment or attempted encumbrance.
10
Captions: 33. The Captions are inserted only as a matter of convenience and for
reference and in no way define, limit or describe the scope of this lease nor
the intent of any provision thereof.
Definitions: 34. The term "Owner" as used in this lease means only the owner of
the fee or of the leasehold of the building, or the mortgagee in possession for
the time being of the land and building (or the owner of a lease of the building
or of the land and building) of which the demised premises form a part, so that
in the event of any sale or sales of said land and building or of said lease, or
in the event of a lease of said building or of the land and building, the said
Owner shall be and hereby is entirely freed and relieved of all covenants and
obligations of Owner hereunder, and it shall be deemed and construed without
further agreement between the parties or their successor in interest, or between
the parties and the purchaser, at any such sale, or the said lessee of the
building, or of the land and building, that the purchaser or the lessee of the
building has assumed and agreed to carry out any and all covenants and
obligations of Owner hereunder. The words "re-enter" and re-entry" as used in
this lease are not restricted to their technical legal meaning. The term "rent"
includes the annual rental rater whether so-expressed or expressed in monthly
installments, and "additional rent." "Additional rent" means all sums, which
shall be due to new Owner from Tenant under this lease, in addition to the
annual rental rate. The term "business days" as used in this lease, shall
exclude Saturdays (except such portion thereof as is covered by specific hours
in Article 31 hereof), Sundays and all days observed by the State or Federal
Government as legal holidays and those designated as holidays by the applicable
building service union employees service contract or by the applicable Operating
Engineers contract with respect to HVAC service.
Adjacent Excavation: 35. 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 any claim for damages or indemnity against Owner, or diminution or
abatement of rent.
Rules and Regulations: 36. Tenant and Tenant's servants, employees, agents,
visitors, and licensees shall observe faithfully, and comply strictly with, the
Rules and Regulations annexed hereto and such other and further reasonable Rules
and Regulations as Owner or Owner's agents may from time to time adopt. Notice
of any additional rules or regulations shall be given in such manner as owner
may elect. In case Tenant disputes the reasonableness of any additional Rule or
Regulation hereafter made or adopted by Owner or Owner's agents, the parties
hereto agree to submit the questions of the reasonableness of such Rule or
Regulation for decision to the Nassau County office of the American Arbitration
Association, whose determination shall be final and conclusive upon the parties
hereto. The right to dispute the reasonableness of any additional Rule or
Regulation upon Tenant's part shall be deemed waived unless the same shall be
asserted by service of a notice, in writing upon Owner within ten (10) days
after the giving of notice thereof. Nothing in this lease contained shall be
construed to impose upon Owner any duty or obligation to enforce the Rules and
Regulations or terms, covenants or condition in any other lease, as against any
other tenant and Owner shall not be liable to Tenant for violation of the same
by any other tenant, its servants employees, agents, visitors or licensees.
Glass: 37. Tenant shall replace, at the expense of the Tenant, any and all plate
and other glass damaged or broken from any cause whatsoever in and about the
demised premises. Tenant shall insure, and keep insured, at Tenant's expense,
all plate and other glass in the demised premises for and in the name of Owner.
Bills for the premiums therefore shall be rendered by the Owner to Tenant at
such times as Owner may elect, and shall be due from, and payable by, Tenant
when rendered, and the amount thereof shall be deemed to be, and be paid, as
additional rent.
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Estoppel Certificate: 38. Tenant, at any time, and from time to time, upon at
least 10 days prior notice by Owner, shall execute, acknowledge and deliver to
Owner, and/or to any other person, firm or corporation specified by Owner, a
statement certifying that this lease is unmodified in full force and effect (or,
if there have been modifications, that the same is in full force and effect as
modified and stating the modification), stating the dates to which the rent and
additional rent have been paid, and stating whether or not there exists any
default by Owner under this lease, and if so, specifying each such default.
Directory Board Listing: 39. If, at the request of and as accommodation to
Tenant, Owner shall place upon the directory board in the lobby of the building,
one or more names of persons other than Tenant, such directory board listing
shall not be construed as the consent by Owner to an assignment or subletting by
Tenant to such person or persons.
Successors and Assigns: 40. The covenants, conditions and agreements contained
in this lease shall bind and inure to the benefit of Owner and Tenant and their
respective heirs, distributees, executors, administrators, successors, and
except as otherwise provided in this lease, their assigns.
See Riders annexed hereto containing additional lease paragraphs.
IN WITNESS WHEREOF, Owner and Tenant have respectively signed and sealed this
lease as of the day and year first above written.
Witness for Owner: Xxxxxx Holding Company, LLC
By: Xxxxxx Holding General Corp.
/s/ Xxxxxx X. Xxxxxxx
----------------------------- --------------------------------
By: Xxxxxx X. Xxxxxxx, Vice President
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Witness for Tenant: HOMECARE ALLIANCE, INC.
_____________________________ /s/_____________________
By: President
STATE OF NEW YORK ) ss.:
COUNTY OF )
On this ___________ day of ______________ in the year _______, before me the
undersigned, a Notary Public in and for the Stat, personally appeared
________________________________, personally known to me or proved to me on the
basis of satisfactory evidence to be the individual(s) whose name(s) is (are)
subscribed to the within instrument and acknowledged to me that he/she/they
executed the same in his/her/their capacity(ies) and that by his/her/their
signature(s) on the instrument, the individual(s), or the person upon behalf of
which the individual(s) acted, executed the instrument.
Notary Public
IMPORTANT - PLEASE READ RULES AND REGULATIONS ATTACHED TO AND MADE A PART OF
THIS LEASE IN ACCORDANCE WITH ARTICLE 36.
1. The sidewalks, entrances, driveways, passages, courts, elevators,
vestibules, stairways, corridors or halls shall not be obstructed or encumbered
by any Tenant or used for any purpose other than for ingress or egress from the
demised premises and for delivery of merchandise and equipment in a prompt and
efficient manner using elevators and passageways designated for such delivery by
Owner. There shall not be used in any space, or in the public hall of the
building either by any Tenant or by jobbers or others in the delivery or receipt
of merchandise, any hand trucks, except those equipped with rubber tires and
sideguards. If said premises are situated on the ground floor of the building,
Tenant thereof shall further, at Tenant's expense, keep the sidewalk and curb in
front of said premises clean and free from ice, snow, dirt and rubbish.
2. The water and wash closets and plumbing fixtures shall not be used for
any purposes other than those for which they were designed or constructed and no
sweepings, rubbish, rags, acids or other substances shall be deposited therein,
and the expense of any breakage, stoppage, or damage resulting from the
violation of this rule shall be borne by the Tenant, whether or not caused by
Tenant, or its clerks, agents, employees or visitors.
3. No carpet, rug or other article shall be hung or shaken out of any
window of the building and no Tenant shall sweep or throw or permit to be swept
or thrown from the demised premises any dirt or other substances into any of the
corridors or halls, elevators, or out of the doors or windows or stairways of
the building and Tenant shall not use, keep or permit to be used or kept any
foul or noxious gas or substance in the demised premises, or permit or suffer
the demised premises to be occupied or used in a manner offensive or
objectionable to Owner or other occupants of the building by reason of noise,
odors, and/or vibrations, or interfere in any way with other Tenants or those
having business therein, nor shall any bicycles, vehicles, animals, fish, or
birds be kept in or about the building. Smoking or carrying lighted cigars or
cigarettes in the elevators of the building is prohibited.
4. No awnings or other projections shall be attached to the outside walls
of the building without the prior written consent of Owner.
13
5. No sign, advertisement, notice or other lettering shall be exhibited,
inscribed, painted or affixed by any Tenant on any part of the outside of the
demised premises or the building or on the inside of the demised premise if the
same is visible from the outside of the premises without prior written consent
of Owner, except that the name of Tenant may appear on the entrance door of the
premises. In the event of the violation of the foregoing by any Tenant, Owner
may remove same without any liability, and may charge the expense incurred by
such removal to Tenant or Tenants violating this rule. Interior signs on doors
and directory tablet shall inscribed, painted or affixed for each Tenant by
Owner at the expense of such Tenant, and shall be of a size, color and style
acceptable to Owner.
6. No Tenant shall xxxx, paint, drill into, or in any way deface any part
of the demised premises or the building of which they form a part. No boring,
cutting or stringing of wires shall be permitted, except with the prior written
consent of Owner, and as Owner may direct. No Tenant shall lay linoleum, or
other similar floor covering, so that the same shall come in direct contact with
the floor of the demised premises, and, if linoleum or other similar floor
covering is desired to be used an interlining of builder's deadening felt shall
be first affixed to the floor, by a paste or other material, soluble in water,
the use of cement or other similar adhesive material being expressly prohibited.
7. No additional locks or bolts of any kind shall be placed upon any of the
doors or windows by any Tenant, nor shall any changes be made in existing locks
or mechanism thereof. Each Tenant must, upon the termination of his Tenancy,
restore to Owner all keys of stores, offices and toilet rooms, either furnished
to, or otherwise procured by, such Tenant, and in the event of the loss of any
keys, so furnished, such Tenant shall pay to Owner the cost thereof.
8. Freight, furniture, business equipment, merchandise and bulky matter of
any description shall be delivered to and removed from the premises only on the
freight elevators and through the service entrances and corridors, and only
during hours and in a manner approved by Owner. Owner reserves the right to
inspect all freight to be brought into the building and to exclude from the
building all freight which violates any of these Rules and Regulations of the
lease or which these Rules and Regulations are a part.
9. No Tenant shall obtain for use upon the demised premises ice, drinking
water, towel and other similar services, or accept barbering or boot blacking
services in the demised premises, except from persons authorized by Owner, and
at hours and under regulations fixed by Owner. Canvassing, soliciting and
peddling in the building is prohibited and each Tenant shall cooperate to
prevent the same.
10. Owner reserves the right to exclude from the building between the hours
of 6 pm and 8 am on business days, after 1 pm on Saturdays, and at all hours on
Sunday and legal holidays all persons who do not present a pass to the building
signed by Owner. Owner will furnish passes to persons for whom any Tenant
requests same in writing. Each Tenant shall be responsible for all persons for
whom the requests such pass and shall be liable to Owner for all acts of such
persons. Notwithstanding the foregoing, Owner shall not be required to allow
Tenant or any person to enter or remain in the building, except on business days
from 8:00 am to 1:00 pm.
11. Owner shall have the right to prohibit any advertising by any Tenant
which in Owner's opinion, tends to impair the reputation of the building or its
desirability as a building for offices, and upon written notice from Owner,
Tenant shall refrain from or discontinue such advertising.
12. Tenant shall not bring or permit to be brought or kept in or on the
demised premises, any inflammable, combustible, explosive, or hazardous fluid,
material, chemical or substance, or cause or permit any odors of cooking or
other processes, or any unusual or other objectionable odors to permeate in or
emanate from the demised premises.
13. Tenant shall not use the demised premises in a manner, which disturbs
or interferes with other Tenants in the beneficial use of their premises.
14. Dogs and animals of any kind shall not be kept or harbored in the
Demised Premises. Because of the health hazard and possible disturbance of other
tenants which arise form the uncontrolled presence of animals, especially dogs,
in the Building, the strict adherence to the provisions of this rule by Tenant
is a material requirement of this Lease.
14
RIDER A
Provisions Of General Application
Tenant I.D. #004-020-0762-0006
Article A-1. Definitions
The following terms placed within quotations are used throughout this Lease
with the respective definitions set forth below:
A-1.01 "Base Tax Liability" shall mean the Taxes set forth below for the
respective calendar and/or fiscal year(s), if any, specified:
Taxes Calendar or Fiscal Year
(a) County and Town Taxes: 1997
(b) School Taxes: 1997/98
A-1.02 "Building" shall mean any building of which the Premises are a part
or which is included in its entirety in the Premises.
A-1.03 "Daily Late Charge" shall mean the daily sum of $25.00 and increased
annually at the same percentage increase as Minimum Rent shall increase.
A-1.04 "Minimum Rent", "Fixed Rent", or "Fixed Minimum Rent" shall mean the
annual rent specified in the preamble to this Lease, as increased in accordance
with Article B-1.
A-1.05 "Landlord", "Owner" and "Lessor" are used inter-changeably in this
Lease and shall all have the meaning given "Owner" in the printed form portion
of this Lease.
A-1.06 Intentionally Omitted.
A-1.07 (a) "Minimum Insurance Coverage" shall mean the limits designated
below for the corresponding types of insurance:
Insurance Limit -(All limits specified herein are subject to change by Landlord
if the underlying limit of Landlord's blanket policy shall increase. Any change
in limits shall be commercially reasonable.)
Public Liability - $2,000,000.00 annual aggregate, $1,000,000.00 per
occurrence, written on an industry standard form.
15
Boiler and Machinery $1,000,000.00
Contents - Full Replacement Value Coverage
(b) "Monthly Insurance Payment" shall mean the monthly sum of $35.00, or
such increased amount, which shall result from any recomputation thereof under
Section A-5.02.
A-1.8 Intentionally Omitted.
A-1.09 "Monthly Water Charge" shall mean the monthly sum of $10.00, or such
increased amount, which shall result from any recomputation thereof under
Section C-2.02.
A-1.10 "Premises" and "Demised Premises" are used interchangeably in this
Lease and mean the property leased to Tenant as A described in the preamble to
this Lease.
A-1.11 "Property" shall mean the entire real estate of which the Premises
are a part, including, without limitation, all land, buildings, parking
facilities (existing or hereafter acquired, whether or not the same are
contiguous to the Building) and the Premises.
A-l.12 (a) "Principals of Tenant" shall mean all persons and/or entities
who own, directly or indirectly, ten percent or more of the beneficial ownership
of Tenant, whose names, titles, addresses and home telephone numbers are set
forth below:
Name and Title Address
-------------- -------
South Nassau Community Hospital 000 Xxxxxxx Xxxx
Xxxxxxxx University Hospital Xxxxxxx, Xxx Xxxx 00000
Winthrop/South Nassau Health Systems, Inc. Attn: Xxxxxx Xxxx
(b) Tenant designates the following individual(s) as the person(s) to whom
all notices, communications and correspondence pertaining to this Lease should
be directed:
Name and Title Business Address Business Telephone
-------------- ---------------- ------------------
Xxxxxx X. Xxxx c/o Home Care Alliance, Inc. 663-2211
President 000 Xxxxxxx Xxxx
Xxxxxxx, Xxx Xxxx 00000
Unless indicated otherwise in this Lease, Landlord, at its option, may
direct any notice to Tenant under this Lease to the Premises, or, if the
preamble to this Lease refers to another office of Tenant, to such office. If
more than one individual is enumerated above, Landlord's service of notice upon
anyone or more of them shall satisfy Landlord's notice obligations under this
Lease.
A-l.13 "Rent" shall mean all amounts payable by Tenant under this Lease,
including, without limitation, all Minimum Rent, real estate tax payments,
insurance payments and utility, maintenance and late charges.
16
A-l.4 "Rent Commencement Date" shall mean upon the substantial completion
of Landlord's Work set forth in Rider E. In the event the Rent Commencement Date
is other than the first day of a calendar month, then the Rent for the partial
calendar month at the beginning of the Term shall be prorated and paid on the
Rent Commencement Date.
A-l.15 "Rentable Square Footage" shall mean approximately 9,060 square
feet, and is subject to adjustment by Landlord.
A-l.16 "Taxes" shall mean any and all taxes, assessments, sewer and water
rents, rates and charges, license fees, impositions, liens, fees, interest,
penalties and all other municipal and governmental charges of any nature
whatsoever (except only inheritance and estate taxes and income taxes not herein
expressly agreed to be paid by Tenant), whether general or special, ordinary or
extraordinary, foreseen or unforeseen, which may presently or in the future
become due or payable or which may be levied, assessed or imposed by any taxing
authority on or with respect to all or any part of the Property, or upon the
estate or interest of Landlord in the Property or any part thereof, including,
without limitation, all taxes, and assessments for improving any streets,
alleys, sidewalks, sidewalk vaults and alley vaults, if any.
Inserts to Standard Form of Home Care Alliance Inc.
Insert #1
Landlord shall obtain from any holder of future mortgages to which this
Lease shall be subordinated covering the Building and Land, a non-disturbance
agreement in a form acceptable to Landlord's Mortgagee, providing in effect that
so long as Tenant shall not be in default under this Lease beyond the expiration
of any applicable grace period with respect to such default, that neither Tenant
nor any party claiming through or under Tenant shall be named or joined as a
party-defendant in any action or proceeding which may be instituted by the
holder of any such mortgage to foreclose its mortgage, and that neither Tenant
nor any party claiming through or under Tenant shall be evicted from the demised
premises hereunder, nor shall Tenant's or such party's possession be affected or
disturbed by any default under such fee mortgage. The right of possession and
other rights arising out of the Lease shall not be affected or disturbed by a
mortgagee in the exercise of its rights under such fee mortgage or the note. The
cost and expense of attempting to obtain such non-disturbance agreements in
favor of Tenant shall be borne by Tenant.
Insert #2
If Landlord elects not to terminate the Lease, then Tenant may terminate
this Lease, by written notice to Landlord, if Landlord has not substantially
completed the making of the required repair and restored and rebuilt the
Building and the Demised Premises within two hundred and seventy (270) days from
the date of such damage or destruction. Tenant's termination right expires on
the date that Landlord substantially completes the making of the required repair
and restored and rebuilt the Building and the Demised Premises.
17
Notwithstanding (c) and (d) above, if the Premises are totally damaged or
rendered wholly unusable by fire or other casualty, during the last year of the
term of this Lease, Owner or Tenant may terminate this Lease, by written notice
to the other, given within forty-five (45) days after such fire or casualty,
specifying a date for the expiration of the Lease, which date shall not be more
than thirty (30) days after giving of such notice, and upon the date
specified-in such notice the term of this Lease shall expire as if such date
were the date set forth for Lease termination.
A-l.17 "Tenant and Lessee" are used interchangeably in this Lease and shall
be deemed to mean the person or entity described in the preamble to this Lease
as having leased the Premises from Landlord, and any permitted successor to
Tenant's interest hereunder.
A-l.18 "Tenant's Proportionate Share" shall mean 100 percent.
A-l.19 Tenant's federal taxpayer identification number is 113 360 710.
A-l.20 "Term" shall mean the period for which Tenant shall have leased the
Premises from Landlord hereunder as stated in the preamble to this Lease.
Article A-2. Rent
A-2.01 Tenant's obligation to pay Rent shall begin on the Rent Commencement
Date. Tenant acknowledges delivery of possession by its acceptance of keys from
Landlord.
Landlord may apply any payment by Tenant of Rent hereunder against any
item(s), or portion(s) thereof, of Rent then remaining unpaid and any
designation by Tenant as to the application of amounts paid by Tenant under this
Lease shall not bind Landlord in any manner whatsoever.
A-2.02 If Tenant shall fail to pay Rent, in whole or in part, on or before
the fifth day of any month during which the same shall become due, Tenant shall
pay Landlord late charges computed by multiplying the Daily Late Charge by the
number of days from the first day of such month through the date on which Tenant
pays such Rent in full. Tenant shall become liable for the payment of separate
late charges for each amount of Rent, which remains unpaid. All late charges
shall be deemed Rent and be payable by Tenant as they accrue, and Landlord shall
have all rights with respect to the non-payment of late charges as Landlord has
with respect to the non-payment of all other Rent due hereunder. Landlord's
demand for and collection of late charges shall not be deemed a waiver of any
remedies that Landlord may have under this Lease by summary proceedings or
otherwise. Rent shall be deemed received (a) when delivered to Landlord, if
Tenant's representative shall personally deliver the same to Landlord's office,
or (b) on the date of the official U. S. Postal Service postmark stamped on the
envelope in which the Rent is enclosed, if Tenant shall mail the same to
Landlord.
A-2.03 If Tenant shall fail to vacate and surrender the Premises on the
last day of the Term, Tenant, at Landlord's option, shall be deemed a
month-to-month tenant and shall pay Landlord monthly rent at a rate equal to
300% of the Rent payable during the last month of the Term, subject to all of
the other terms of this Lease insofar as they apply to a month-to-month
18
tenancy. The application of this Section shall under no circumstances be deemed
to establish a month-to-month or other form of tenancy in favor of Tenant.
A-2.04 If Landlord shall institute summary proceedings for the non-payment
of Rent, Tenant shall pay Landlord's attorneys' fee in an amount equal to ten
percent of the amount of unpaid Rent but not less than $600.00. Such fee shall
be deemed Rent and Landlord, at its option, may include such amount in said
proceedings as an unpaid item.
A-2.05 Landlord's acceptance of Rent from any person or entity other than
Tenant shall not be deemed to establish a tenancy of any nature with such party
unless Landlord shall so elect in writing, nor shall the same relieve Tenant
from any of its obligations under this Lease.
Article A-3. Indemnification
A-3.0 Tenant agrees to indemnify and hold harmless Landlord from and
against any loss, cost, liability and expense of any nature whatsoever,
including reasonable attorneys' fees and disbursements, which may arise in
connection with Tenant's failure to surrender the Premises upon the expiration
of the Term including any claims by any succeeding tenant.
Article A-4. Real Estate Taxes and Assessments
A-4.01 If in any year during the Term any Taxes shall exceed the Base Tax
Liability, Tenant shall pay as Rent in accordance with Section A-4.02 Tenant's
Proportionate Share of the excess. If the Base Tax Liability for any Taxes shall
at any time be reduced as a result of appropriate proceedings or otherwise,
Landlord shall give Tenant notice of the amount by which any tax payments
previously made by Tenant were less than the tax payments required to be made
under this Article, and Tenant shall pay the amount of the deficiency within ten
days after Landlord's xxxx therefor.
A-4.02 Tenant shall pay Landlord's Taxes within fifteen (15) days after
Landlord shall deliver to Tenant a demand thereof. Each such notice shall be
accompanied by a copy of the appropriate tax xxxx.
A-4.03 Landlord's failure to deliver to Tenant a statement showing Tenant's
liability for additional Taxes for any year during the Term under Section A-4.02
above shall neither prejudice nor waive Landlord's right to deliver any such
statement for any subsequent year or include in said statement an amount of Rent
due from Tenant for any increase in Taxes during a previous year in which
Landlord did not provide Tenant with any such statement. Tenant's obligation to
pay Rent under Section A-4.02 with respect to the last year of the Term shall
survive the expiration of the Term for a period of eighteen (18) months.
A-4.04 Tenant shall in all events pay the full amount of any increases in
Taxes which may result from any improvements made by or on behalf of Tenant.
Taxes shall be apportioned at the commencement and expiration of the Term.
Article A-5. Insurance
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A-5.01 Tenant acknowledges that Landlord maintains a blanket "all-risk"
property insurance policy ("Landlord's Policy") which covers substantially all
buildings and improvements owned from time to time by Landlord and all Rent due
under all lease agreements pertaining to such buildings and improvements.
Landlord's Policy provides protection against all risks and hazards as may from
time to time be insurable thereunder, including, without limitation, fire,
vandalism, malicious mischief, sprinkler leakage, boilers and machinery and
extended coverage type perils and public liability, personal and bodily injury
and property damage. Landlord's Policy provides full replacement coverage, as
the same may be determined from time to time.
If the premium for including the Premises under Landlord's Policy shall at
any time during the Term increase over such premium in effect on the date of
this Lease, Tenant shall pay as Rent in accordance with Section 5.02 Tenant's
Proportionate Share of each such increase.
Tenant acknowledges that Landlord's Policy provides for a deductible in the
event of an occurrence and submission of a claim. Tenant agrees that if any loss
or damage to the Premises covered by Landlord's Policy shall occur as a result
of any negligence, act and/or failure to act of Tenant or any of Tenant's
employees, agents, contractors or invitees, Tenant shall pay as Rent the lesser
of (a) the repairs required to be made in the Premises or (b) the deductible.
Landlord agrees to use reasonable efforts to cap the deductible on Landlord's
Policy at $15,000.00, except however, said deductible may be higher if said
higher amount is commercially reasonable.
Tenant acknowledges that Landlord's Policy is solely the property of
Landlord, and that all rights and benefits thereunder shall accrue exclusively
to Landlord or its designee. Further, Tenant agrees that it acquires no rights
of any nature with respect to Landlord's Policy and the benefits and rights
thereunder, whether by virtue of any theory of constructive trust or otherwise.
A-5.02 (a) Tenant shall pay on the first day of each and every month during
the first year of the Term, in advance, the Monthly Insurance Payment. If at the
end of the first lease year of the Term the total of such insurance payments
made by Tenant shall be less than the total actual amount of insurance payable
under Article A-5 by Tenant for said year, Tenant shall pay the deficiency to
Landlord upon demand. If such payments shall exceed said total actual amount of
insurance, the excess shall be credited toward the Monthly Insurance Payment
next coming due. At the end of the first lease year of the Term, Landlord shall
recompute the Monthly Insurance Payment required to be made by Tenant during the
second lease year of the Term, said payments to be one-twelfth (1/12) of the
total actual amount of insurance premiums which
Tenant was required to pay under Article A-5 during the first lease year of the
Term. A like procedure shall be followed for each succeeding lease year.
Notwithstanding the foregoing, if at any time during any lease year Landlord
shall determine that the Monthly Insurance Payment will be insufficient to pay
Tenant's share of the insurance premiums as they come due, Landlord may, at its
election, require Tenant to pay the amount of the deficiency in one payment or
increase the Monthly Insurance Payment. Insurance payments under this Section
shall be apportioned at the commencement and expiration of the Term. In the
event of a deficiency, Landlord shall give the Tenant reasonable supporting
backup and show how the deficiency was calculated.
20
In lieu of Landlord requiring Tenant to pay its share of insurance premiums
in the manner hereinabove set forth, Landlord may elect to require Tenant to pay
Landlord the total actual amount of such premiums within ten days after landlord
shall deliver to Tenant a demand therefor.
(b) Landlord's failure to deliver to Tenant a statement showing Tenant's
liability for additional insurance premiums for any year during the Term under
Section A-5.02 shall neither prejudice nor waive Landlord's right to deliver any
such statement for any subsequent year or include in said statement an amount of
Rent due from Tenant for any increase in insurance premiums during a previous
year in which Landlord did not provide Tenant with any such statement. Tenant's
obligation to pay Rent under Section A- 5.02 with respect to the last year of
the Term shall survive the expiration of the Term for a period of eighteen (18)
months.
A-5.03 Tenant shall obtain and maintain in full force and effect during the
Term (a) Public Liability Insurance on an occurrence basis written on a
Comprehensive General Liability Basis, including Premises/Operations,
Independent Contractor's Liability, Products/Completed Operations Liability,
Water Damage Legal Liability, Sprinkler Leakage Legal Liability and a Broad Form
Comprehensive General Liability Endorsement, covering occurrences in or about
the Premises, with a deductible not to exceed $5,000.00, (b) a Plate Glass
Policy covering all plate glass in and about the Premises, if any, and (c)
insurance against loss of or damage to Tenant's property and fixtures on or
about the Premises by fire and such other risks and hazards as are insurable
under the latest available standard form of policy for "all-risk" property
insurance, providing full replacement value coverage. All such insurance shall
be written with limits not less than the Minimum Insurance Coverage or any
increased limits Landlord may from time to time reasonably require provided same
are commercially reasonable. All policies shall be written as primary coverage,
not contributing with, nor in excess of, coverage that Landlord may carry. All
insurance maintained by Tenant under this Section shall name Landlord as a loss
payee as respects the improvements and betterments of the Property and all
insurance maintained by Tenant under (a) and (b) of this Section shall protect
Landlord and name Landlord as an additional named insured.
A-5.04 ON OR BEFORE THE DATE TENANT IS GIVEN KEYS TO THE PREMISES, Tenant
shall deliver to Landlord certificates for the insurance specified in Section
A-S.03, together with proof of payment of the premium for the same; all
certificates required to be delivered to Landlord under this Lease as provided
above and thereafter from time to time for the insurance specified in (a) and
(b) of Section A-5.03 shall name Landlord as an additional named insured, and
shall state unequivocally that such policy shall not be cancelled or changed in
any manner without sixty (60) days prior written notice to Landlord. Tenant
shall renew or replace the same and shall deliver to Landlord certificates for
all such renewals and replacements, at least thirty days before such policies,
or any renewal or replacement policies, expire. All such insurance shall be
issued by insurance companies having a Best's rating of at least A+/XV and
licensed to do business in the State of New York and authorized to issue such
policies. If Tenant shall fail to procure, place and/or maintain any such
insurance and/or pay any and all premiums and charges therefor, Landlord may
(but shall not be obligated to) do so and in such event Tenant shall pay the
amount thereof, plus an administrative charge equal to ten percent of such
amount, as Rent to Landlord on demand.
21
Tenant shall promptly deliver to Landlord a certificate for each
endorsement to the aforementioned insurance permitted under this Lease, and a
certificate naming Landlord as an additional named insured for each separate or
additional policy of insurance otherwise maintained by Tenant with respect to
the Premises.
A-5.05 Tenant shall have included in each policy of insurance it is
required to obtain and maintain under this Lease, as well as all other insurance
policies pertaining to the Premises, Tenant's operation in the Premises and/or
Tenant's fixtures and property in the Premises, a waiver of the insurer's right
of subrogation against Landlord.
A-5.06 Tenant's policies of insurance shall include the waiver of
subrogation or agreement or permission to release liability referred to in
Section A-5.05 and Tenant hereby waives any right of recovery against Landlord,
its employees, agents or contractors, for any loss occasioned by any insured
casualty.
A-5.07 Each policy of insurance which Tenant is required to maintain under
this Lease shall clearly specify by endorsement that (a) such policy may not be
cancelled or changed in any manner which affects Landlord's interest thereunder
without sixty days' prior written notice to Landlord by certified or registered
mail, return receipt requested, (b) the policy is taken out at the request of
Tenant, which is responsible for all premiums on said policy. Further, each
policy of insurance maintained by Tenant under (a) and (b) of Section A-5.03
shall clearly specify by endorsement that Landlord is an additional named
insured under such policy.
A-5.08 In the event of any loss or damage in or about the Premises which
constitutes a loss, damage, casualty or other occurrence covered by insurance
maintained by Tenant under this Lease or Landlord under Section A-5.01, Tenant
immediately shall give Landlord notice of such loss or damage by certified mail,
return receipt requested.
Article A-5. Alterations: Removal By Tenant
A-6.01 All alterations to the Premises of any nature whatsoever
("Alterations") are subject to Article 3 of this Lease and the following
requirements:
(a) Prior to the commencement of any Alterations, Tenant shall submit
to Landlord, for Landlord's written approval, plans and specifications (to
be prepared by and at the expense of Tenant) showing the proposed
Alterations in detail reasonably satisfactory to Landlord. No Alterations
shall begin until Landlord shall have approved such plans and
specifications, in writing, and Tenant shall have delivered to Landlord
certificates for all insurance Tenant is required to maintain under this
Lease in connection with making Alterations. Tenant shall make all approved
Alterations at its own expense, in accordance with the plans and
specifications therefor approved by Landlord and then only by contractors
and mechanics approved by Landlord said approval not be unreasonably
withheld or delayed. No amendments or additions shall be made to any plans
and specifications for Alterations approved by Landlord without Landlord's
prior written consent. Notwithstanding anything to the contrary contained
herein, Landlord's consent as to non- structural alterations and which do
not affect Building systems shall not be unreasonably withheld or delayed.
Furthermore, any non-structural alterations that do not affect a Building
system and which costs less then $15,000.00 in the aggregate shall not
22
require Landlord's consent provided that Landlord receives a copy of the
applicable plans prior to Tenant commencing its work;
(b) The Alterations will not result in a violation of or require a
change in any certificate of occupancy covering the Premises or the
Building;
(c) The character, outside appearance, usefulness and/or rentability
of the Premises or the Property or any part thereof, shall not be affected
in any way, and such Alterations shall not, in the sole opinion of
Landlord, weaken or impair (temporarily or permanently) the structure or
lessen the value or cubic content of the Building, either during the making
of such Alterations or upon their completion. Landlord's consent as to
non-structural alterations and which do not affect Building systems shall
not be unreasonably withheld or delayed;
(d) No part of the Property other than the Premises shall be
physically affected. Without limiting the generality of the foregoing,
Tenant shall not, without Landlord's specific prior written consent, cause
to be made, constructed, erected, installed or otherwise placed through, on
or about the exterior walls or the roof of the Building any holes, vents,
windows, fans, pipes, ducts, doors, machinery, equipment, appliances
(including, without limitation, air conditioning unit(s), television or
radio antenna or other tangible objects of any nature whatsoever;
(e) The proper functioning of the Building's equipment, in the sole
opinion of Landlord, shall not be adversely affected;
(f) Upon completion of any Alterations (excluding mere decorations),
Tenant shall deliver to Landlord a copy of "as-built" plans for such
Alterations;
(g) Tenant shall not perform Alterations in any manner which for any
reason whatsoever would, in Landlord's opinion, interfere or conflict with
work being performed by contractors or laborers then engaged in the
Building or would in any way disturb the management, operation or
maintenance of the Building or any part thereof;
(h) No approval by Landlord of Alterations to be made by Tenant shall
in any way be deemed to be an agreement by Landlord that such Alterations
comply with applicable legal or insurance carrier requirements. Notice is
hereby given that Landlord shall not be liable for any labor or materials
furnished to Tenant, and that no mechanic's or other lien for such labor or
materials shall attach to or affect any interest of Landlord;
(i) Throughout the performance of Tenant's Alterations, Tenant, at its
expense, shall carry, or cause to be carried by Tenant's contractors and
subcontractors all insurance, including without limitation, that required
by Articles A-1.07 and A-5.03 of this Lease or as otherwise may be required
by law. Tenant shall furnish Landlord with copies of the insurance policies
required hereunder or certificates thereof that such insurance is in effect
at or before the commencement of Alterations and, on request, at reasonable
intervals thereafter during the continuance of Alterations;
(j) All work to be performed other than Landlord's Work shall be
performed by
23
Tenant using union labor, if required by Landlord, at Tenant's sole
cost and expense; and
(k) In connection with all work to be performed in and for the Demised
Premises, Tenant shall file all drawings, plans and specifications, pay all
fees and obtain all permits and applications from the Building Department,
the Department of Labor and any other authorities having jurisdiction; and
Tenant shall obtain a Certificate of Occupancy and all other approvals
required for Tenant to use and occupy the Demised Premises and to open for
business to the public. If Tenant shall delay in obtaining a Certificate of
Occupancy for the Demised Premises, Landlord, at Tenant's cost and expense,
may attempt to obtain such Certificate of Occupancy and Tenant shall
cooperate with Landlord (including the signing of any necessary forms or
applications) in connection with such efforts. Tenant shall reimburse
Landlord, as additional rent, for any costs incurred in obtaining such
Certificate of Occupancy.
(l) Tenant shall submit its requirements for any and all Tenant work
to Landlord and Landlord shall submit a written proposal to Tenant to
perform the work at Tenant's cost as outlined. Tenant may obtain proposals
from other contractors, however, Landlord reserves the right to review said
proposals and perform the work at or below the costs indicated. Landlord's
failure to respond within three (3) business days of receipt of said
proposals shall mean Landlord will not perform the work and Tenant may
proceed with the work with other contractors subject to the applicable
terms and conditions in this agreement governing alterations and
improvements. Any work that Tenant authorizes the Landlord to perform will
be at the sole cost and expense of the Tenant. Tenant will execute a Work
Authorization Form prepared by Landlord and issue a check for the full
amount of the cost of such work prior to Landlord performing any such work.
A-6.02 Pursuant to Article 3 of this Lease, Landlord hereby elects to
require Tenant to remove its installation in the Premises prior to the
expiration of this Lease, at Tenant's sole expense. The foregoing election is
not irrevocable and Landlord reserves the right at any time and from time to
time by notice to Tenant to void the same and assume the ownership of Tenant's
installation (other then Tenant's trade fixtures, merchandise, and personal
property of Tenant or its employees and agents) in accordance with Article 3
hereof, or reinstitute said election.
Article A-7. Acceptance and Occupancy of the Premises
A-7.01 Landlord makes no representations as to the condition of the
Premises. Tenant represents that it has inspected the Premises and agrees to
accept the same "as is".
A-7.02 The taking of occupancy of the whole or any part of the Premises by
Tenant shall be conclusive evidence, as against Tenant, that Tenant accepts
possession of the same and that the Premises so occupied and the Property were
in good and satisfactory condition at the time such occupancy was so taken and
that the Premises were substantially as shown on Exhibit A except for latent
defects, if any.
A-7.03 Landlord shall not be required to provide Tenant with possession of
or keys to the Premises until Tenant shall have delivered to Landlord
certificates of insurance as required under Section A-5.03 of this Lease.
Landlord's refusal to grant Tenant occupancy of the Premises in accordance with
the foregoing shall not be a defense of Tenant against its
24
obligation to pay Rent.
Article A-8. Security Deposit
A-8.01 Landlord shall deposit all security under this Lease in an interest
bearing account. All interest earned on the security hereunder (less Landlord's
administration fee under Section A-8.02) shall be added to the then existing
security and constitute additional security and be disposed of in the manner set
forth in the Article of this Lease captioned "Security". Tenant's rights under
this Lease to its security deposit may not be assigned, transferred, pledged,
mortgaged or otherwise encumbered by Tenant, and any attempt by Tenant to do so
shall be void and of no effect.
A-8.02 Landlord shall retain an annual administration fee with respect to
the security under this lease equal to one (1%) percent per annum upon the
security money so deposited. If the annual administration fee payable to
Landlord hereunder at any time exceeds the amount permissible under applicable
laws or if the fee is less then the amount permissible under applicable law,
then such fee shall be the amount legally prescribed.
A-8.03 If at any time or times during the Term the amount of security
(excluding any portion thereof which shall be accrued interest) then held by
Landlord shall be less than two (2) months' installments of Minimum Rent, Taxes
and, if Tenant is required to pay insurance in monthly installments, insurance,
all at the then current rates hereunder, whether due to an increase in Rent or
Landlord's application of all or part of the security in accordance with this
Lease, Tenant shall deposit with Landlord an additional sum so that the security
on deposit with Landlord shall then equal such two (2) months' installments in
the aggregate.
Tenant shall make such payment no later than the payment due date of any
increase in Rent, or, in the case of Landlord's application of security as
aforesaid, within five days after Landlord's demand. Landlord shall have the
same rights and remedies in the event of Tenant's failure to deposit with
Landlord any security required under this Lease as Landlord has with respect to
the non-payment of any other items of Rent.
A-8.04 Intentionally Deleted
A-8.05 At no time shall security, or any part thereof, be permitted to be
used by Tenant toward the payment of its Rent or other obligations under this
Lease.
A-8.06 Tenant agrees that upon the return of its Security Deposit less any
appropriate setoffs and/or deductions by Landlord, Tenant shall waive any and
all rights and/or claims against Landlord that Tenant has failed to assert in
writing within thirty (30) days of the expiration of the Lease term.
Article A-9. Brokerage
A-9.0l Landlord and Tenant each represent to the other that it had no
dealings or negotiations of any nature with any broker or agent other than
Spiegel Associates and Island Associates ("Broker") in connection with the
negotiation and/or consummation of this Lease.
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Landlord agrees to pay the commission due Broker in accordance with a
separate agreement, and Tenant agrees to indemnify Landlord against all claims,
liabilities and expenses (including, without limitation, reasonable attorneys
fees and disbursements) arising out of any inaccuracy or alleged inaccuracy of
Tenant's representation above. Further if Tenant vacates (unless Tenant vacates
with Landlord's prior written consent) or is evicted from the Premises or
otherwise ceases doing business in the Premises prior to the expiration of the
full Term, so long as the same is not due to any material default by Landlord
under this Lease, Tenant shall reimburse Landlord for that portion of the
aforementioned brokerage commission which shall be allocable to the unexpired
portion of the Term. Such amount shall be computed in the same manner as was the
commission, including, without limitation, if applicable, the use of different
percentage rates for various periods during the Term.
Article A-10. Sewers & Sanitary Disposal Systems
A-10.01 If the Premises shall be connected to a sanitary disposal system
for Tenant's exclusive use, Tenant shall be required to maintain, repair and
replace the same at its sole cost and expense, and shall not be required to
share in the expense of maintaining any other sanitary disposal system unless
Tenant shall also use such other system.
A-10.02 If the Building shall not be connected to the street sewer line,
Landlord, at its option, may perform all work necessary to so connect the
Building. Landlord and Tenant shall share the cost of such work, including,
without limitation, the costs of resurfacing and repaving. The portion of such
cost for which Tenant shall be responsible and shall pay to Landlord on demand
shall equal Tenant's Proportionate Share of the amount obtained by multiplying
said cost by a fraction, the numerator of which shall be the number of months
remaining in the Term including and after the month in which such work was
commenced, the denominator of which shall be sixty months.
Article A-11. Noxious Odors, Noise, etc.
A-11.01 Tenant shall not permit any unusual, excessive or noxious noise,
vibration, odor or other annoying condition to emanate from the Premises. Within
five days of Landlord's notice to Tenant, Tenant shall install or institute, at
its sole cost and expense, control devices or procedures to eliminate such
condition(s). Tenant's failure to eliminate the same within such five day period
shall be deemed a material default of a substantial obligation of Tenant.
Article A-12. Easements; Reservation of Rights
A-12.0l Landlord reserves the right to create and grant on or about the
Premises utility easements in the form required by any utility company, whether
public or private, in order to furnish utility services to the Premises or to
any other premises provided that no such easement shall materially and adversely
interfere with Tenant's permitted use and occupancy of the Premises.
A-12.02 Unless the Premises constitute the entire Building, Landlord
reserves the right to place in, under, over or through the Premises pipes,
wires, lines and facilities serving
26
other areas of the Property, provided that Landlord shall only do so in a manner
which does not unreasonably interfere with Tenant's conduct of its business in
the Premises.
Article A-13. Non-Liability and Indemnification
A-13.01 Neither Landlord nor Landlord's principals, officers, directors,
agents or employees (individually and collectively, the "Landlord Group") shall
be liable to Tenant, its principals, officers, directors, agents or employees
(individually and collectively, the "Tenant Group"), and Tenant shall save the
Landlord Group harmless from any loss, liability, claim and/or expense
(including, without limitation, reasonable attorneys' fees and disbursements)
arising from or in connection with any injury to the Tenant Group, its
contractors, licensees or invitees, any interruption of Tenant's business, or
for damage to, or loss (by theft or otherwise) of, any property and/or fixtures
of every kind, regardless of the cause thereof, unless the same shall be
proximately caused by the sole negligence or willful wrongful conduct of
Landlord for which Landlord is legally liable. Notwithstanding the foregoing,
(a) Tenant immediately shall notify Landlord of any claim against Landlord, (b)
the Landlord Group shall not be liable for any loss, damage or expense
whatsoever to the extent of Tenant's insurance coverage therefor and (c) Tenant
shall first seek reimbursement for any such loss, damage or expense against its
insurance carrier.
A-13.02 Tenant indemnifies and shall hold harmless the Landlord Group from
and against any and all loss, liability, claim and/or expense (including,
without limitation, reasonable attorneys' fees and disbursements) in connection
with or arising from (a) any default by Tenant under this Lease, (b) Tenant's
use or occupancy of the Premises and/or any acts, omissions or the negligence of
the Tenant Group in or about the Premises, including, without limitation,
sidewalks, if any, adjoining the Premises. Tenant shall pay to Landlord as Rent
an amount equal to all such losses, liabilities, claims and expenses within five
days after Landlord's rendition to Tenant of bills or statements therefor.
A-13.03 If Tenant's use of the Premises shall be enjoined or prohibited,
provided the same shall not have resulted from any act or omission by or on
behalf of Tenant or use of the Premises in any manner other than as is permitted
under this Lease, Tenant shall have the right to elect to terminate this Lease
upon written notice to Landlord setting forth the date of termination, and such
right shall be Tenant's sole available remedy against Landlord in connection
therewith.
A-13.04 Notwithstanding anything in this Lease to the contrary, the
Landlord Group shall have no personal liability under or with respect to this
Lease and the liability of the Landlord Group in connection with this Lease is
limited solely to Landlord's equity interest in the Property. Under no
circumstances whatsoever shall Landlord be liable to Tenant in connection with
this Lease for consequential or special damages.
Article A-14. Corporate Tenant and Partnership Tenant
A-14.01 If Tenant is a corporation, as a condition to the making of this
Lease, Tenant shall within twenty days from the date of execution of this Lease
deliver to Landlord a duly authorized resolution of the Board of Directors of
Tenant, in form reasonably satisfactory to Landlord, ratifying and approving the
terms and provisions of this Lease.
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A-14.02 If Tenant is a partnership, or is comprised of two or more persons,
individually or as co-partners of a partnership (individually and collectively,
the "Partnership Tenant"), the following provisions shall apply to the
Partnership Tenant: (i) Tenant represents that the ownership of and/or power to
control a majority in interest of Tenant is vested and/or owned beneficially by
the individual(s) executing this Lease and members of his or their immediate
family, (ii) the liability of each of the parties comprising Partnership Tenant
shall be joint and several, (iii) each of the parties comprising Partnership
Tenant hereby consents in advance to, and agrees to be bound by, any
modifications of this Lease which may hereafter be made and by any notices,
demands, requests or other communications which may hereafter be given, by
Partnership Tenant or by any of the parties comprising Partnership Tenant, (iv)
any bills, statements, notices, demands, requests, service of-process, or other
communication given or rendered to Partnership Tenant or to any of the parties
comprising Partnership Tenant shall be deemed given or rendered to Partnership
Tenant and to all such parties and shall be binding upon Partnership Tenant and
all such parties, (v) if Partnership Tenant shall admit new partners, all of
such new partners shall, by their admission to Partnership Tenant, be deemed to
have assumed performance of all of the terms covenants and conditions of this
Lease on Tenant's part to be observed and performed, and (vi) Partnership Tenant
shall give prompt notice to Landlord of the admission of any such new partners,
and upon demand of Landlord, shall cause each such new partner to execute and
deliver to Landlord an agreement in form satisfactory to Landlord, wherein each
such new partner shall assume performance of all of the terms, covenants and
conditions of this lease on Tenant's part to be observed and performed (but
neither Landlord's failure to request any such agreement nor the failure of any
such new partner to execute or deliver any such agreement to Landlord shall
vitiate the provisions of subdivision (v) of this paragraph).
If there shall occur without Landlord's prior written consent, whether by
operation of law or otherwise (including, without limitation, merger,
consolidation and dissolution), any (a) transfer of Tenant's interest in this
Lease, (b) if Tenant is a corporation, change in the ownership of and/or power
to vote a majority of the outstanding capital stock of Tenant or (c) if Tenant
is a partnership or other association, any change in the beneficial ownership of
and/or power to control a majority in interest of Tenant, then Landlord may
terminate this Lease upon thirty days' notice to Tenant.
Article A-15. Rent Control
A-15.01 If at the commencement of, or at any time(s) during the term of
this Lease, the Rent shall not be fully collectible by reason of any Federal,
State, County or local law, proclamation, order or regulation, or direction of a
public officer or body pursuant to law, Tenant shall enter into such
agreement(s), and take such other lawful steps (without additional expense to
Tenant), as Landlord may request to permit Landlord to collect the maximum rents
which may from time to time during the continuance of such legal rent
restriction be legally permissible (but not in excess of the amounts reserved
therefor under this Lease). Upon the termination of such legal rent restriction
prior to the expiration of the term of this Lease, (a) the Rent shall become and
thereafter be payable hereunder in accordance with the amounts reserved in this
Lease for the periods following such termination and (b) Tenant shall pay to
Landlord, if legally permissible, an amount equal to (i) the Rent which would
have been paid pursuant to this lease but for such
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legal rent restriction less (i) the Rent paid by Tenant to Landlord during the
period(s) such legal rent restriction was in effect.
Article A-16. Tenant Defaults
A-16.01 Tenant agrees that in the event that Landlord shall commence a
Summary Proceeding for non-payment of Rent to be paid by Tenant pursuant to the
terms of this Lease, Tenant will not interpose any counterclaim or set-off of
any nature whatsoever except a compulsory counterclaim that Tenant would
otherwise be precluded from asserting in a separate plenary proceeding. If
Tenant shall be evicted from or vacate the Premises or this Lease shall be
terminated prior to its expiration as a result of Tenant's failure to perform
any obligation hereunder, without limiting Landlord's other remedies under this
Lease or at law, (a) if Landlord shall relet the Premises, Tenant shall remain
liable for any deficiency in Rent which Landlord does not receive from the
succeeding tenant and shall not be entitled to any excess. Rent, which Landlord
may receive from such tenant, (b) Tenant shall reimburse Landlord as Rent for
the cost of preparing the Premises for Tenants occupancy, including, without
limitation, Landlord's Work, if any, and all carpentry, electrical, HVAC,
plumbing and painting work, which Landlord's Work shall then remain unamortized,
and (c) Tenant shall pay to Landlord the amount of any rent concession under
this Lease, including, without limitation the Rent, if any, which Tenant was not
required to pay at the commencement of the Term.
A-16.02 If Tenant shall default's in the performance of any covenant, term
or provision of this Lease, Landlord, without thereby waiving such default, may
perform the same for the account and at the expense of Tenant, without notice in
a case of emergency or if Landlord may be subject to any civil or criminal
liability, and in any other case if such default shall continue for ten days
after the date Landlord shall have given written notice to Tenant of its
intention to do so. Landlord shall furnish Tenant with a xxxx for any actual
costs and expenses Landlord may incur in so performing for Tenant's account, and
Tenant shall pay as Rent the amount shown on each such xxxx within ten days
after the same is sent by Landlord to Tenant.
A-16.03 Landlord's acceptance of a check, draft or any other instrument
from Tenant in the payment of Rent is solely a consideration to Tenant. If (a)
any check delivered to Landlord in payment of Rent hereunder shall be returned
to Landlord for any reason whatsoever, including, without limitation,
insufficient or deposited but uncollected funds, or (b) Landlord commences
summary proceedings against Tenant for the non-payment of Rent or otherwise
institutes any proceedings against Tenant as a result of Tenant's default
hereunder, or (c) Tenant pays Rent after the tenth day of any month, Landlord
may require Tenant to pay Rent by cash or bank certified check 'only.
A-16.04 If Tenant shall default (i) in the timely payment of Rent and such
default shall continue or be repeated for three consecutive months or for a
total of four months in any period of twelve months, or (ii) in the performance
of any particular term, condition or covenant of this Lease more than six times
in any period of six months, then, notwithstanding that such defaults shall have
each been cured within the applicable grace periods under this Lease, if any,
any further similar default shall be deemed to be deliberate and Landlord
thereafter may terminate this Lease on ten days written notice to Tenant,
without affording Tenant an opportunity to cure such further default.
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A-16.05 Intentionally Omitted.
A-16.06 The remedies of Landlord under this Lease shall be deemed
cumulative and none of such remedies, whether exercised or not, shall be deemed
to be to the exclusion of any other.
Article A-17 Eminent Domain
A-17.01 If the whole or substantially all of the Premises shall be acquired
or condemned by eminent domain for any public or quasi public use or purpose,
then and in that event, the term of this Lease shall cease and terminate from
the date of title vesting in such proceeding and the Tenant shall have no claim
against Landlord for the value of any unexpired term of said lease.
In the event that more than 25%, but less than the whole or substantially
the whole of the ground floor area of the Premises shall be so condemned, or
should Tenant's manner of ingress to or egress from the Premises be so
substantially altered so as to materially and adversely interfere with Tenant's
use of the Premises for the purposes permitted in this Lease, the Landlord and
the Tenant shall each have the right to cancel and terminate this Lease, upon
the giving of written notice to the other party not later than thirty (30) days
after the date of vesting of title in the condemning authority, of the said
party's election to terminate said Lease. Termination shall be effected as of
the time that possession of the part so taken shall be required for public use,
Rent shall be apportioned and adjusted as of the time of termination and Tenant
shall have no claim against Landlord for the value of any unexpired term of this
Lease.
In the event that not more than 25% of the ground floor area of the
Premises shall be taken by condemnation or in the event that the Lease shall not
be terminated as aforesaid, then the Term of this Lease shall continue in full
force and effect and the Landlord shall repair the remaining part of the
Premises, if any part thereof has been taken in such condemnation, and
thereafter the Rent shall xxxxx in the proportion which the square foot area of
any part of the Premises so taken bears to the entire Premises.
In the event that any condemnation shall not affect the building in which
the Premises are contained this Lease shall in no way be affected and Rent shall
in no way xxxxx.
No part of any award for any such taking by condemnation or eminent domain
shall belong to the Tenant and Tenant covenants to execute such instruments of
assignment as shall be necessary or reasonably required by Landlord in any
condemnation or eminent domain proceedings if so requested and to turn over to
Landlord any damages that may be recovered in such proceedings but provided it
does not diminish Landlord's award, Tenant may prosecute a separate claim with
the condemning authority for Tenant's trade fixtures and moving expenses. Any
award, however, for damages for trade fixtures installed by Tenant or anyone
claiming under Tenant at its own expense and which are not part of the realty
shall belong to the Tenant.
The Landlord shall have the absolute right to settle any claim in
condemnation proceedings without interference from Tenant and without any
obligation to Tenant, and
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Landlord shall have the absolute right to make a conveyance of title of the
real property being taken by condemnation proceedings to the public or quasi
public authority having the power of eminent domain in lieu of the condemnation
proceedings and where said conveyance is made in lieu thereof, it shall have the
same force and effect herein as if the condemnation proceedings had proceeded to
full and final completion.
A conveyance of title in lieu of such proceedings shall not be made prior
to the actual commencement of proceedings or the filing of formal notice of the
taking.
Article A-18 Miscellaneous
A-18.01 Any reference in the printed portion of this Lease to the City of
New York and the Administrative Code of the City of New York shall, where
applicable, be deemed to refer to the ordinances, rules and regulations of the
county, town and other governmental authorities with jurisdiction over the
Premises.
A-18.02 If any term or provision of this Lease or the application thereof
to any person or circumstances 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. Each term and provision
of this Lease shall be valid and enforced to the fullest extent permitted by
law.
A-18.03 This agreement shall be governed by and construed in accordance
with the laws of the State of New York.
A-18.04 Any conflict between the printed form and Riders which together
constitute this Lease shall be resolved in favor of the provisions of such
Riders.
A-18.05 The submission of this Lease for examination or the negotiation of
the transaction described herein or the execution of this Lease by only one of
the parties will not in any way constitute an offer to lease on behalf of either
Landlord or Tenant, and this Lease shall not be binding on either party until
duplicate originals thereof, duly executed on behalf of both parties, have been
delivered to each of the parties hereto.
A-18.06 If Landlord shall make application to any bank, insurance company
or other lender for a mortgage loan to be secured in part or in whole by the
Building and such third party requires a certified financial statement of Tenant
or other reasonable documentation of Tenant's financial condition, Tenant shall
furnish the same to Landlord promptly after Landlord's request.
A-18.07 Unless the Premises shall include the Property in its entirety,
Landlord reserves the right to extend or add additional floors to or otherwise
alter the Building, and/or create such additional tenancies in the Building, as
Landlord may from time to time determine, provided the same shall not physically
reduce the Premises.
A-18.08 Neither this Lease nor any memorandum hereof shall be recorded
without Landlord's prior written consent.
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Landlord and Tenant will upon the written request of the other, at any
time, join in the execution and recording of a memorandum of lease in proper
form for recording in the proper office or offices wherein the property is
situated, setting forth the existence and term of this lease. Either party may
record the memorandum at its own expense. Said instrument shall contain the
following statement: "It is distinctly understood and agreed that the Landlord
or the Premises shall not be liable or responsible for the payment of any labor
or materials performed or furnished at the instance of the Tenant, and that no
contractor, subcontractor, laborer, or material man employed by or through the
Tenant shall have the right to file a mechanic's lien or other lien against the
Premises or to make the Landlord or the Premises liable or responsible for the
payment of such labor or materials. Every contractor, sub-contractor, laborer
and material man supplying labor or materials at the instance of the Tenant
shall and will rely strictly upon the financial responsibility of the Tenant for
the cost of such work and materials."
Said instrument shall also give notice with respect to the subordination of
this Lease to mortgages. In no event shall the instrument provide the terms of
the Rent to be paid by Tenant under this Lease.
A-18.09 Each provision of this Lease which requires the consent or approval
of Landlord shall be deemed to require the same in each instance in which such
provision may be applicable. Any consent or approval by Landlord to or of any
act or omission by Tenant requiring Landlord's consent or approval shall not be
deemed to waive any future requirement for such consent or approval to or of any
subsequent similar act or omission. With respect to any provision of this lease
which provides, in effect, that Landlord shall not unreasonably withhold or
unfeasibly delay any consent or any approval, Tenant shall in no event be
entitled to make, nor shall Tenant make, any claim for, and Tenant hereby waives
any claim for money damages; nor shall Tenant claim any money damages by way of
setoff, counterclaim or defense, based upon any claim or assertion by Tenant
that Landlord has unreasonably withheld or unreasonably delayed consent or
approval, but Tenant's sole remedy shall be an action or proceeding to enforce
any such provision, or for specific performance, injunction or declaratory
judgment.
A-18.10 Tenant shall not, without Landlord's prior written consent, use,
occupy, have any right to use or occupy, or otherwise have any interest in or to
any space in the Building other than the Premises.
A-18.11 Tenant shall not, without Landlord's prior written consent, install
or maintain, or permit any other party to install or maintain, any vending
machines, pinball games, video games or any other mechanical or electronic
device of any nature whatsoever, whether for the dispensing of food or other
products or the provision of entertainment. Nothing in this Section A-18.11,
however, shall prohibit Tenant from using mechanical or electrical equipment in
its business.
A-18.12 Intentionally Omitted.
A-18.13 No interruption or malfunction of any utility services for any
cause whatsoever shall constitute an eviction or disturbance of Tenant's use and
possession of the Premises, or a breach by Landlord of any of its obligations
hereunder or render Landlord liable
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for any damages (including without limitation consequential and special
damages), or entitle Tenant to be relieved from any of its obligations hereunder
or grant Tenant any right of set-off or recoupment. In the event of any such
interruption of any such services, Landlord shall use reasonable diligence to
restore such service in any circumstances in which such interruption is caused
by Landlord's fault.
A-18.14 Intentionally Omitted.
A-18.15 Intentionally Deleted
A-18.16 Intentionally Deleted
A-18.17 Notwithstanding any other provision of this Lease, Landlord's or
Tenant's service of notice by way of express mail or courier service shall be
deemed sufficiently rendered so long as it satisfies all other requirements
contained in the notice provision of the printed portion of this Lease, and
shall be deemed given at the time when the same is mailed or delivered,
respectively.
A-18.18 If the Premises include a basement, Tenant shall use the same only
for storage purposes.
A-18.19 Tenant must give Landlord advance notice of the date and time when
tenant plans to move in and out of the building.
A-18.20 Landlord's acceptance at its option of the check of any third party
in payment of rent or of any other money obligation under this lease shall not
be deemed an acceptance by Landlord of the maker or any endorser of such check
as tenant hereunder or assignee of the Tenant hereunder.
A-18.21 The headings and captions of articles or paragraphs contained in
this Lease and Exhibits and Riders attached hereto are inserted only as a matter
of convenience and in no way define, limit, construe, or describe the scope or
intent of such articles or paragraphs nor in any way affect this Lease.
A-18.22 Both parties acknowledge and agree that this Lease has been freely
negotiated by both parties, and that, in any dispute over the meaning,
interpretation, validity, or enforceability of this Lease or any of its, terms
or conditions, there shall be no presumption whatsoever against either party by
virtue of that party having drafted this Lease or any portion thereof.
Article A-19. Tenant's Representations and Warranties
A-19.01 As material inducements for Landlord entering into this Lease,
Tenant hereby represents and warrants to Landlord that Tenant is a corporation
duly organized and validly, existing under the laws of the State of New York;
the persons executing and delivering this Lease on behalf of Tenant have been
lawfully and duly authorized to do so; and when so
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executed and delivered this Lease represents the valid, binding and legally
enforceable obligations of the Tenant.
Article A-20. Locking System
A-20.0l Tenant agrees that it will not change the Key Locking System
currently installed at the demised premises, however, Tenant can change the
cylinder.
Article A-21.
A-21.01 Intentionally Omitted.
Article A-22.
A-22.01 The consummation of this Lease is expressly contingent upon the
following terms and conditions:
Landlord agrees to execute a lease assignment agreement in favor of Franchisor
(hereinafter defined) in the form attached hereto as Exhibit B and further
agrees as follows:
1. Anything contained in this Lease to the contrary notwithstanding,
Landlord agrees that provided: (a) Landlord gets written notice of
said assignment and a copy of the executed Assignment and Assumption
Agreement and (b) Tenant is not in default of any of the terms and
conditions of the Lease at the time of said assignment, then in such
event, without its consent, this Lease and the right, title and
interest of Tenant hereunder, may be assigned by the Tenant to
HomeCare America Holdings, Inc., a Delaware Corporation, or its
successor Franchisee provided that said corporation shall execute such
documents evidencing its agreement to thereafter keep and perform or
cause to be kept and performed, all of the obligations of the Tenant
arising under this Lease from and after the time of such assignment.
Any Assignor shall remain liable under the Lease.
2. Tenant hereby agrees that Landlord may, upon the written request of
HomeCare America Holdings, Inc., disclose to said corporation all
reports, information or data in Landlord's possession with respect to
sales made in, upon or from the leased Premises. Notwithstanding
anything to the contrary contained herein, there is no percentage rent
clause in this Lease and therefore Landlord will not have any such
reports, information or data and therefore this clause is moot.
3. Landlord shall give written notice to HomeCare America Holdings, Inc.,
concurrently with the giving of such notice to Tenant of any default
by Tenant under the Lease, but service of such notice to HomeCare
America Holdings, Inc. shall not be deemed a requirement of effective
notice for any legal proceedings.
4. Landlord shall permit representatives of HomeCare America Holdings,
Inc. on prior written notice to Landlord and Tenant, to enter the
Premises during normal business hours to visually inspect the leased
Premises, provided that: (a) said inspection is for a good business
purpose and is done in accordance with the terms and conditions of
this Lease, (b) HomeCare
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America Holdings, Inc. indemnifies and holds Landlord harmless in
connection with said inspection, (c) said right of inspection is only
valid while the Franchisee is in existence and is only the right to a
visual inspection.
Article A-23.
A-23.01 Landlord hereby represents and warrants to Tenant that Landlord is
a New York Limited Partnership.
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RIDER B
Rent Escalation
Article B-1. Rent Escalation
B-1.01 The Fixed Minimum Rent of Sixty Seven Thousand Nine Hundred Fifty
and 00/100 ($67,950.00) Dollars reserved in the preamble to this Lease shall be
increased (the "Recomputed Fixed Minimum Rent") as of the first day of the
second and each subsequent Lease year of the Term, in accordance with the
following schedule:
Lease Year Recomputed Fixed Minimum Rent
2 $67,950.00
3 $67,950.00
4 $74,745.00
5 $74,745.00
6 $74,745.00
7 $82,219.50
8 $82,219.50
9 $82,219.50
10 $90,441.45
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RIDER C
Provisions of Specific Application
Non-Office Premises
Article C-l. Repairs; Maintenance-Single Tenant
C-1.01 Tenant, at its, sole, cost and expense, shall keep and maintain (a)
the entire interior of the Premises, including, without limitation, all
fixtures, machinery, systems (including, without limitation, heating and
ventilating and air conditioning and sprinkler, if any) attached to or used in
connection with the operation of the Premises, (b) all plumbing lines and
electrical wires (above ground and underground) which serve exclusively the
Premises, (c) all exterior doors, glass windows, plate glass and xxxxx for all
of the same on or leading into the Premises and (d) all sidewalks adjoining the
Premises, and shall keep said sidewalks free and clear of all rubbish, ice, snow
and other debris. Tenant, without limiting the generality of the foregoing,
shall make all non-structural installations, modifications, alterations, repairs
and replacements to the foregoing as may be necessary to keep the same in good
order and condition and to comply with all laws and requirements of utilities
except for such installations, modifications, alterations, repairs and
replacements that were necessitated by Landlord's willful wrongful conduct or
negligence. Further, Tenant shall make any and all non-structural and structural
repairs whatsoever necessitated by the acts or omissions of Tenant, its
employees, agents and/or contractors, including, without limitation, any
cleaning and/or pumping of the Building's sanitary disposal system necessitated
by Tenant's abuse thereof or consumption of water in excess of normal lavatory
use. Such repairs and replacements shall be done in a good and workmanlike
manner with materials at least equal in quality (but no used materials) to the
original construction materials and, in the case of structural repairs, subject
to Landlord's prior written approval of the materials, methods and contractors
to be used or engaged.
Tenant shall not commit or suffer waste or injury to the Premises. All
janitorial work in and about the Premises shall be done by Tenant at its own
cost and expense. Tenant shall place all of its refuse and rubbish in a dumpster
Tenant shall obtain and maintain at the rear of the Premises. No trash or other
debris shall be permitted to remain outside of the dumpster. If, in Landlord's
opinion, the dumpster maintained by Tenant is insufficient for Tenant's use,
Tenant shall at its own cost and expense obtain either a larger or, if space
permits, an additional dumpster. If Landlord so elects, Landlord may supply a
dumpster and/or compactor and Tenant shall pursuant to C-l.03 be responsible'
for its proportionate share. Tenant shall not cause or permit any materials or
substances of any nature to be poured or otherwise deposited in the storm drains
and drywells situated about the Property.
C-l.02 If Tenant shall fail to perform any repairs or maintenance work as
required under this Lease or necessitated by any breach by Tenant of its
covenants hereunder within ten days of Landlord's notice thereof to Tenant or
immediately in the case of an emergency, or, if such work be of such nature that
it cannot with due diligence be completed within ten days and Tenant shall not
have commenced making such repair within such ten day period and thereafter
prosecuted the same in good faith with due diligence to completion within a
reasonable period of time, then Landlord, without any further notice to Tenant,
may perform such work. In such event,
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Tenant shall pay as Rent the cost of such work, plus twenty-five percent for
overhead and supervision, on demand from Landlord. Receipted bills from
contractors, materialmen and/or laborers shall be conclusive proof of the cost
thereof.
C-1.03 Landlord shall make all structural and exterior repairs (except
those set forth in Section C-l.0l and, at Landlord's option, those repairs
necessitated by the acts or omissions of Tenant, its employees, agents and/or
contractors) to the Building, and shall maintain and make all necessary repairs
and replacements to the common areas, sidewalks and parking areas, including,
without limitation, the maintenance of appropriate insurance, removal of snow
and ice, necessary repairs to any plumbing lines and electrical wires (above
ground and underground, except those which serve exclusively the Premises or any
other premises in the Building), striping, landscaping, clean-up, bulb, lamp and
light stanchion replacement (excluding any permitted signs of Tenant and other
tenants in the Building), systems maintenance and the cost of rental collection.
Tenant shall be responsible for Tenant's Proportionate Share of the cost of all
work performed by Landlord under this Section except Tenant shall not be
responsible for structural repairs as defined in Article C-l.04, and shall pay
Landlord as Rent on account thereof the amount billed Tenant by Landlord within
five (5) days of receipt of a xxxx from Landlord. Such payments shall constitute
Tenant's contribution to the cost of Landlord's maintenance and repair work
under this Section. Notwithstanding the foregoing, Tenant shall bear the entire
cost of any repair or maintenance work necessitated by any act or omission of
Tenant, its employees, agents and/or contractors, including, without limitation,
the costs of cleaning and pumping the storm drains and drywells situated about
the Property.
C-l.04 The term "structural repairs" shall be deemed to mean repairs and
replacements of and to the structural steel, foundation, and bearing walls only.
The term non- structural repairs shall be deemed to mean all repairs and
replacements other than structural repairs.
C-l.05 Tenant shall not cause or permit any person to enter upon the roof
of the Building except for the purpose of performing maintenance and/or repair
work on the roof. If any such maintenance or repair work requires a penetration
through the roof, Landlord, at its option and at Tenant's sole expense, may make
such penetration. Tenant shall not allow any grease or other foreign substance
of any nature to be deposited within the plumbing system or HVAC system
servicing the Premises or elsewhere in or about the Premises. Nor shall Tenant
cause or permit any materials or substances of any nature whatsoever to be
poured or otherwise deposited in the storm drain(s) situated about the Property.
C-l.06 Tenant, at its own expense, shall obtain and maintain a supervisory
service for the Building's sprinkler system, if any, and shall make all
necessary repairs to such system.
C-l.07 During the Term, Tenant shall, at its sole cost and expense,
maintain service agreements for the maintenance of all heating and air
conditioning equipment in or on the roof of the Premises or Tenant at its option
shall, at its sole cost and expense, maintain (without service agreements) all
heating and air conditioning equipment in or on the roof of the Premises and
deliver said equipment to Landlord in working condition at the end of the Lease
term. Within thirty (30) days of the commencement of and during the Term, Tenant
shall furnish Landlord with copies of all such agreements.
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C-l.08 Tenant shall at its own expense, comply with all applicable laws,
ordinances and requirements for the sorting or separation of Tenant's garbage.
Article C- 2. Utilities
C-2.01 Tenant shall within five (5) days make application to Lilco and pay,
as and when the same shall become due and payable, all charges for gas,
electricity, heat, steam, and other utilities supplied to the Premises. Landlord
if necessary will request Lilco to take a final reading and disconnect the
service to Landlord so that Tenant will be billed directly. Tenant shall pay all
of the foregoing directly to the utility companies furnishing the different
services, provided that if at Landlord's election any of said rents, rates or
charges are billed directly to Landlord, Tenant shall pay each such amount to
Landlord as Rent on demand. If the Premises do not constitute the entire
Building and any such direct bills to Landlord pertain to utilities also
furnished to other premises in the Building, then the amount due Landlord from
Tenant for each such utility shall equal (a) Tenant's Proportionate share of the
total amount of each such xxxx which pertains to a utility furnished to all
tenants in the Building or (b) Tenant's pro-rata share (based on the proportion
of the Rentable Square footage of the Premises to the total rentable square
footage of all premises to which such utility is furnished) of the total amount
of each such xxxx which pertains to a utility furnished to less than all tenants
in the Building.
C-2.02 Tenant shall not apply for a separate water meter without Landlord's
prior written consent. If and so long as Tenant shall not have a separate water
meter, Tenant shall pay Landlord as Rent the Monthly Water Charge with each
installment of Fixed Rent. If Landlord shall at any time determine that the
Monthly Water Charge is insufficient to cover the xxxx for Tenant's water
consumption, Landlord may increase the Monthly Water Charge accordingly. If the
rates for water are increased by the utility company furnishing water, the
Monthly Water Charge shall be increased proportionately by the same percentage
as the rate was increased.
C-2.03 Tenant, at its sole cost and expense, shall maintain all Long Island
Lighting Company service lines and meters located in the Premises.
Article C-3. Parking Facilities
C-3.01 Unless the Premises shall constitute the entire building, Tenant
shall cause all of its principals, officers and employees to park Tenant's and
their vehicles (collectively, the "Company Vehicles") solely in areas of the
parking field, if any, designated by Landlord for such purpose. Each and every
violation of this clause shall be deemed a breach of a substantial obligation;
if Tenant, and, without limiting Landlord's other remedies therefor, Tenant
shall pay per diem as Rent the Daily Late Charge for each motor vehicle parked
in violation of this provision.
C-3.02 The parking area(s) behind the rear of the Building shall be the
area designated for the parking of Company Vehicles. Tenant shall, upon
Landlord's request, furnish Landlord with the automobile registrations (year,
make and license plate) of all principals, employees and agents of Tenant who
either are employed at or frequently visit the Premises.
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C-3.03 Landlord reserves the right, at any time and from time to time, to
(a) close all or any part of the parking facility as may be necessary, in
Landlord's sole judgment, to prevent a dedication thereof and/or the accrual of
any rights therein of any person or the public, or (b) establish and modify and
enforce reasonable rules and regulations with respect to the use of the parking
facility, and Tenant shall cause all of its principals, employees, agents,
invitees and licensees to comply with the same; and/or (e) transfer, in whole or
in part, any of the foregoing rights to any party as Landlord may, from time to
time, determine.
C-3.04 Unless the Premises shall constitute the entire Building, Landlord
shall have the right to place self-adhering stickers on or have towed away any
Company Vehicles which are parked in areas other than those designated therefor
by Landlord or which otherwise are not in compliance with any rules and
regulations of Landlord with respect to the parking facilities. In the event of
repeated occurrences of the above, Landlord may terminate this Lease in the
manner herein elsewhere provided Landlord shall have no liability whatsoever for
towing or stickering Company Vehicles as aforesaid, and Landlord shall use
reasonable efforts to notify Tenant of the first occurrence (only) of the same
before taking any such action.
Article C-4. Signage
C-4.01 Tenant shall not cause or permit the placement or other installation
of any signs on or about the Property which are visible from outside the
Premises without Landlord's prior written approval which approval shall not be
unreasonably withheld or delayed, and, after the installation of any such
approved sign, Tenant shall not cause or permit the same to be changed or
altered in any respect without Landlord's prior written approval. Any signs
which Landlord may approve shall in all events comply with all applicable rules
and regulations of county, town and other governmental authorities, be of a
dignified character and satisfy such other standards as Landlord may require.
The term "sign" shall be deemed to include, without limitation, any form of
placard, light or other advertising symbol or object whatsoever, whether of a
permanent or temporary nature.
C-4.02 Tenant shall not cause or permit the placement or other installation
of any awning, exterior security gates or bars of any nature in, on or above any
window, door or other opening to the Premises without Landlord's prior written
consent.
C-4.03 If the Premises shall not constitute the entire Building and the
Premises shall be situated in whole or in part on the ground floor, Tenant shall
place a sign on the back door, if any, of the Premises, indicating Tenant's name
and the address of the Premises.
C-4.04 Unless the Premises shall constitute the entire Building, Landlord
reserves the right to place a sign or signs on the exterior walls of the
Premises and Building, indicating the name and/or business of other tenants in
the Building.
Article C-S. Liability for Hazardous Wastes
C-5.0l Tenant shall not cause or allow to be caused on or about the
Premises any Hazardous Environmental Condition and Tenant shall not store,
manufacture, dispose of, process, keep, or maintain at the Premises any
substance, or material whatsoever which has the
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potential of being deemed a hazardous substance or material by any governmental
jurisdiction or authority including, without limitation, the governmental
jurisdictions or authorities described below in the definition of term Hazardous
Environmental Condition. Notwithstanding the above, Tenant may store, keep and
maintain on the Premises any substance and material that is customarily employed
in the business of the Tenant, provided all such substances and materials are
stored, kept and maintained in full compliance with all applicable laws and
regulations and provided that it is not and does not create a Hazardous
Environmental Condition. Tenant shall indemnify and hold harmless Landlord, its
officers, directors, principals, successors and assigns and the Property from
and against any and all claims, obligations, liabilities, violations, penalties,
fines, governmental orders, suits, causes of action, judgments, damages (civil,
criminal or both) and all other costs and expenses of any nature whatsoever
including without limitation consultants' fees and attorney's fees, which may
result from any Hazardous Environmental Condition caused in connection with
Tenant's use or occupancy of the Premises. The term "Hazardous Environmental
Condition" shall mean any condition in, on or under the Premises arising from or
in connection with any source or cause whatsoever, including, without
limitation, the spilling, leaking, leaching, migration, discharge, dispersal,
release or escape of smoke, vapors, soot, fumes, acids, alkalis, toxic
chemicals, liquids or gases, petroleum or petroleum products, waste materials or
other irritants, contaminants, pollutants or other substances of any nature into
or upon land, the atmosphere, or any water course or body of water, or ground
water whether sudden and accidental or over a course of time, which either (a)
has caused or has the potential of causing bodily injury or property damage to
any person or thing or (b) is or may hereafter be designated as a "hazardous
waste", "hazardous substance", "regulated waste" or "regulated substance" or any
other term of similar import by any governmental jurisdiction with authority,
including, without limitation, the United States Environmental Protection
Agency, the New York Department of Environmental Conservation and/or the Nassau
County Department of Health, which require or may hereafter require the
development and implementation of a remedial program, and/or result in the
imposition of fines and/or penalties, and/or impose on the Owner of the Premises
any obligation whatsoever. The foregoing indemnification shall survive the
termination of this Lease, and without limiting the generality of the foregoing,
Tenant and Tenant's principals shall indemnify and hold harmless Landlord from
and against (i) any and all liens for remedial expenses in favor of any federal,
state and/or local governmental authority or municipality and (ii) any and all
legal fees and disbursements in connection with defending any suits or
proceedings pertaining to a Hazardous Environmental Condition including suits to
enforce this Article.
C-5.02 Landlord and its employees and agents shall have the right to enter
the Demised Premises at any time to conduct tests at Landlord's expense except,
however, at Tenant's expense if Tenant is in violation of Article C-5.0l and to
inspect the Demised Premises. The purpose of any such tests or inspections shall
be to determine the condition, specifically the environmental condition, of the
Premises and to insure Tenant's compliance with Article C- 5.01. During said
inspection and testing Landlord shall use reasonable efforts not to interfere
with Tenant's use.
C-5.03 Landlord represents that to the best of its knowledge it has not
received any notice or other communication relating to the Premises from any
governmental agency (with jurisdiction over the Premises) regarding the presence
of, or need to remediate any Hazardous Environmental Condition.
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C-5.04 Landlord agrees to comply with any order or direction of the United
States Environmental Protection Agency, the New York State Department of
Environmental Protection, the Nassau County Department of Health, or any other
agency having appropriate jurisdiction over the premises (the "Agency") which
requires the removal of any contamination or remediation of any contaminating
condition at the Premises caused by a release, discharge or dispersal of
hazardous wastes or hazardous substances from or at the premises which occurred
prior to the effective date of this Lease (hereinafter a "Covered Response") at
its sole cost and expense and to defend and indemnify the Tenant from any claims
by or proceedings instituted by any such agency to compel Tenant to perform a
Covered Response. Landlord shall, however have the right, at its sole
discretion, to institute or defend any appropriate action or proceeding relating
to its obligation to perform any Covered Response and shall not be obligated to
Tenant under the terms of this paragraph of this Lease unless and until there
has been a final order entered in any such proceeding. For the purposes of this
paragraph, the terms "hazardous wastes" and "hazardous substances" shall have
the same meaning as that set forth in the Comprehensive Environmental Response
Compensation and Liability Act of 1980. Notwithstanding anything to the contrary
contained anywhere in this Lease, Tenant hereby grants Landlord the right to
enter upon the premises to conduct any and all soil and groundwater testing
which the Landlord, in its sole discretion, deems necessary and appropriate for
the purposes of effectuating this paragraph.
Article C- 6. Miscellaneous
C-6.0l. The Rentable Square Footage of the Premises has been computed by
measuring at floor level from the outside exterior walls (or, in the case of any
overhang(s) extending from any such wall(s), from the outside of each such
overhang at the furthest point from said exterior wall) and, if the Premises do
not constitute the entire Building, the midpoint of demising walls, and the
outside (common area side) of demising walls between the Premises and common
corridors and areas, if any.
THERE IS NO RIDER D FOR THIS LEASE
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RIDER E
HOME CARE ALLIANCE, INC.
000 XXXXX XXXXXX
XXXXXXXX, XXX XXXX
E-l.0l Tenant acknowledges and agrees to accept the Demised Premises in its
"as is" condition in all respects as of the date hereof, except for "Landlord's
Work." Landlord's Work shall mean and be strictly limited to the construction as
indicated on the plans attached to this Lease and made a part hereof (Exhibit A)
and as described below. Landlord's Work does not imply any ongoing
responsibility for repairs and maintenance, such conditions and terms being set
forth in the body of this Lease. In the event of a discrepancy between the plan
and this work letter, the work letter shall take precedence.
A. Utility service to Demised Premises:
1. Electric Individually metered 400 Amp, 120/20B-volt and
3-Phase Service.
2. Gas Individually metered and sized to satisfy requirements
for heating.
3. Water Municipal supply master metered to building. Tenant to
pay pursuant to terms and conditions of Lease.
4. Sanitary 4-inch sanitary sewer pipe.
5. Trash Removal Tenant to pay to maintain and service carting.
6. Utility Service Tenant to apply to utility company for
electric and gas service immediately upon receipt of
Delivery of Possession from Landlord. Landlord will
discontinue such service (in Landlord's name) 72-hours
following Delivery of Possession.
B. Building standard demising wall between office and warehouse
demised areas comprising 5/8" type "X" fire-rated sheetrock on
metal studs spaced no more than 24" o.c. with full batt
insulation, extending from floor to underside of roof deck or
structural steel.
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C. Building standard interior ceiling-height partitions comprising
type "X" 5/8" sheetrock on metal studs spaced no more than 24"
o.c., with full batt insulation, taped and spackled, ready for
paint finish.
D. Suspended acoustical ceiling comprising 2'x2' lay-in exposed tee
spline with tegular tile in office and bathrooms only
(approximately 1,950 s.f.). Six inches (6") batt insulation laid
above ceiling.
E. Building standard 3'0" x7'0" paint grade interior wood doors with
steel frame. Interior hardware to comprise 1 1/2 pair building
standard hinges with latch set. Hardware to be lever type brushed
aluminum. Provide new exterior 3'x7' HM steel door and frame
located on east wall near northeast corner of building with 1 1/2
pair hinges, cylinder lock and closer. Door buzzer at Tenant's
sole cost and expense.
F. Wall outlets provided at the rate of one outlet per 125 square
feet of rentable office area (approximately 1,950 s.f. = 16
outlets). Existing outlets, if any, to remain and are in working
order.
G. Office lighting fixtures comprising 2'x2' lay-in fluorescent
fixtures with parabolic lens at the rate of one fixture per 40
s.f. of rentable office area. Switches shall be ganged in open
office areas. Exit signs as required. Warehouse lighting fixtures
are existing and are in working order.
H. Five and one-half (5 1/2) ton roof-mounted HVAC unit to serve
office area, including all associated ducts, registers, diffusers
and control thermostat. Gas-fired unit heater in warehouse is in
working order. Additional gas-fired heater to be installed near
rear of warehouse area. Manufacturer's warranties on HVAC units
to be provided to Tenant.
I. Existing two (2) bathrooms to be reconfigured to be handicapped
accessible with one WC and one lavatory in each, including
Building Standard accessories, all in accordance with Town of
North Hempstead Building Code.
J. Sprinklers to be reconfigured to suit new office arrangement per
code.
K. Existing warehouse floor to be repaired and patched as necessary.
L. Building Standard paint finish on interior office drywall, doors
and frames and new exterior door on east wall. Color selection by
Tenant from samples provided by Landlord. Limit one (1) color to
a room or contiguous area. Walls to receive "egg shell" finish,
doors and frames with semi-gloss finish.
M. Building standard carpeting of 26 oz. weight in office area only.
Bathrooms to receive vinyl tile. Color selection by Tenant from
samples provided by landlord. Limit one color to an office or
contiguous open area. Four (4) inch vinyl base in office area and
bathrooms only.
00
X. Xxxxxxxx represents that as of the date of Delivery of Possession
of the Demised Premises, all electrical, mechanical (HVAC) and plumbing
systems and overhead. door(s) are in working order.
O. Existing ______ in rear to be refinished at dry well where it is
currently suppressed.
E-1.02. Any additional work that Tenant authorizes the Landlord to perform
will be at the sole cost and expense of the Tenant. Tenant will execute a Work
Authorization Form prepared by Landlord and issue a check for the full amount of
the cost of such work prior to Landlord performing any such additional work.
Tenant shall submit its requirements for such additional improvements to
Landlord and Landlord shall submit a written proposal to Tenant to perform the
work as outlined. Tenant may obtain proposals from other contractors, however,
Landlord reserves the right to review said proposals and perform the work at or
below the costs indicated. Landlord's failure to respond within three (3)
business days of receipt of said proposals shall mean Landlord will not perform
the work and Tenant may proceed with the work with other Contractors subject to
the applicable terms and conditions in this agreement governing such additional
alterations and improvements.
E-1.03 Landlord's Work shall be deemed substantially completed when (1) the
work is completed in accordance with Exhibit "A" of the Lease notwithstanding
the fact that minor or insubstantial details of construction, mechanical
adjustment or decoration remain to be performed, (2) all inspections have been
approved by all individual building inspectors and the process of securing the
Certificate of compliance has begun by the Town of North Hempstead.
Within Five (5) business days of Landlord's written "Delivery of
Possession," Tenant shall provide Landlord with a punchlist of those items of
Landlord's Work deemed unacceptable or incomplete. Failure to provide said
punchlist within the specified time shall constitute Tenant's acceptance of
Landlord's Work as completed and acceptable. Landlord shall use it's best
efforts to complete the work on said punchlist within fifteen (15) days of its
receipt thereof.
Upon Lease signing, Landlord has sixty (60) days to arrive at substantial
completion. As an incentive, Landlord will receive $1,000 per day for every day
Landlord has completed work before fifty-six (56) calendar days after Lease
execution. Concurrently, Landlord will be penalized $1,000 per day for every day
beyond sixty (60) days after Lease execution when the work is not substantially
complete. No penalties or bonus will apply between days 56 through 60.
Incentive and penalties as a result of delays due to Nassau County Fire
Xxxxxxxx approvals and inspections shall be exempt from this agreement.
45
RIDER F
Assignment and Subletting
F-l.0l Notwithstanding anything in this Lease to the contrary, subject to
Landlord's consent which shall not be unreasonably withheld or delayed, Tenant
may sublet up to 9,060 square feet of the Premises on the following terms and
conditions.
a) Tenant shall not be in default of any of the terms, covenants
and conditions of the Lease beyond any applicable cure period at the
time of such subletting;
b) Tenant shall submit to Landlord: (i) the name and business
address of the proposed sublessee, (ii) the home address and telephone
number(s) of the principals of the proposed sublessee, (iii) a fully
executed duplicate original (for Landlord's retention) of the
instrument of sublease (which shall, without limitation, provide for
the proposed sublessee taking subject to all of the terms, covenants,
conditions and provisions of the Lease) and (iv) information
demonstrating the proposed sublessee's financial condition and credit
worthiness to Landlord's reasonable satisfaction;
c) The subletting shall be for the same occupancy and use set
forth in this Lease;
d) If the sublease agreement provides for the payment of Rent, on
a per square foot basis, or any other consideration in excess of that
provided for in this Lease, Tenant shall immediately pay over fifty
percent (50%) of such excess to Landlord as Rent upon Tenant's receipt
of the same;
e) Intentionally Omitted;
f) Any sublease is subject and subordinate to this Lease and if
at any time this Lease is terminated or Tenant surrenders possession
to Landlord the sublease shall immediately end and terminate;
F-l.02 Notwithstanding anything in this Lease to the contrary, subject to
Landlord's consent which shall not be unreasonably withheld or delayed, Tenant
may assign this Lease on the following terms and conditions:
a) Tenant shall not be in default of any of the terms, covenants
and conditions of the Lease beyond any applicable cure period at the
time of such assignment;
b) Tenant shall submit to Landlord: (i) the name and business
address of the proposed assignee, (ii) the home address and telephone
number(s) of the principals of the proposed assignee, (iii) a fully
executed duplicate original (for Landlord's retention) of the
instrument of assignment (which shall, without limitation, provide for
the proposed assignee's assumption of all of Tenant's obligations
under this Lease) and (iv) information demonstrating the proposed
assignee's financial condition and credit worthiness to Landlord's
reasonable satisfaction;
46
c) The assignment shall be for any non-noxious warehouse use and
any hazardous or potentially hazardous environmental use is strictly
prohibited;
d) If the instrument of assignment provides for the payment of
Rent, on a per square foot basis, or any other consideration in excess
of that provided for in this Lease, Tenant shall immediately pay over
fifty percent (50%) of such excess to Landlord as Rent upon Tenant's
receipt of the same. Tenant may deduct from Landlord's 50% share of
the excess provided for as Rent one-half of any reasonable and
customary actual out of pocket costs incurred by Tenant in connection
with said assignment.
e) Tenant's right to assign this Lease pursuant to this Section
F-l.02 is personal to Home Care Alliance, Inc. and shall after being
exercised once by said Home Care Alliance, Inc. expire and be of no
further force or effect.
f) Tenant shall pay to Landlord the sum of One Thousand
($1,000.00) Dollars to cover Landlord's administrative costs and
overhead.
F-l.03 Intentionally Omitted.
F-l.04 Not less than forty-five (45) days prior to the effective date (the
"Effective Date") of any assignment of this Lease, Tenant shall deliver to the
Landlord executed counterparts of all agreements with the proposed assignee and
copies of all instruments of assignment or transfer of this Lease.
Notwithstanding any provisions to the contrary, Landlord shall have the right to
terminate this Lease on the Effective Date, as if it were the date for the
expiration of the Term. This termination right does not apply to a permitted
assignment to Homecare America Holdings, Inc. or its successor franchisee
pursuant to the franchise Agreement attached herein as Exhibit B. Landlord shall
exercise such right by written notice to Tenant given within thirty (30) days
after the Landlord's receipt of the foregoing documents and any other documents
or information in connection there with which Landlord shall request. If the
Landlord exercises its right under this Section, Landlord may then lease the
Premises or any portion thereof to Tenant's proposed assignee without any
liability whatsoever to the Tenant. Notwithstanding anything to the contrary
contained herein, Landlord shall have no option to terminate this Lease and
Landlord's consent shall not be required in connection with an assignment of
this Lease pursuant to any transaction with an entity into which Tenant is
merged or consolidated, or an assignment to a parent or subsidiary of Tenant
provided that Tenant gives Landlord written notice of same.
F-l.05 Notwithstanding anything to the contrary contained in this Rider,
Tenant is strictly prohibited from assigning or subletting to any other tenant
of Landlord or any of Landlord's affiliates, subsidiaries, or related entities
or to any tenant in a location that is managed by Spiegel Associates as managing
agent.
F-l.06 Nothing herein contained shall be deemed to release or discharge
Tenant of any past, present or future obligations or duties under or in
connection with the Lease, all of which shall continue in full force and effect
for all purposes.
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F-l.07 The consent by Landlord to an assignment and/or subletting shall not
in any way be construed to relieve Tenant from obtaining the express consent of
Landlord to any further assignment and/or subletting for the use of any part of
the Demised Premises, nor shall the collection of rent by Landlord from any
assignee, sublessee or other occupant, after default by Tenant, be deemed a
waiver of this covenant or the acceptance of assignee, sublessee or occupant as
Tenant or a release of Tenant from the further performance by Tenant of the
covenants in this Lease on Tenant's part to be performed.
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RIDER G
Option To Renew Article G-1. Option to Renew
G-1.01 Subject to the terms and conditions set forth below, Landlord hereby
grants Tenant an option ("Option") to renew this Lease for a renewal term
("Renewal Term") of ten (10) years, commencing on the day immediately following
the last day of the original Lease term and terminating on the last day of the
l19th month following the month in which the Renewal Term commences;
(a) Tenant shall deliver to Landlord, by certified mail, return
receipt requested, at least two hundred and seventy (270) days prior
to the expiration of the Term written notice of Tenant's exercise of
the Option;
(b) Tenant shall not be in default under any of the terms of this
Lease beyond the applicable grace period, if any, at the time of its
exercise of the Option and the commencement of the Renewal Term;
(c) The Minimum Rent for the first year of the Renewal Term shall
be the greater of: (1) $90,441.45 or (2) in accordance with the
following formula:
$67,950.00 plus the product of $67,950.00 multiplied by the cost of living
percentage increase from the Index for the month of November, 1996 through the
Index for the month of November, 2006
The term "Index" shall mean the Consumer Price Index of the United States
Bureau of Labor Statistics, or its successors, for All Urban Consumers, New
York, New York -Northeastern N.J. area All Items (1982-84=100) or its
successors. If the Consumer Price Index is discontinued, then that index or
other measure substituted therefor by the United States Bureau of Labor
Statistics, or its successor or any other reputable agency, shall be utilized in
lieu of the Consumer Price Index.
The Fixed Minimum Rent for Renewal Lease year two shall be the same amount
as the Fixed Minimum Rent for Renewal Lease year one.
The Fixed Minimum Rent for the third Lease year of the Renewal Term shall
be the Fixed Minimum Rent for the second Lease year of the Renewal Term
recomputed and increased by twelve percent (12%) (the "Recomputed Minimum Rent")
as of the first day of the third Lease year of the Renewal Term.
The Fixed Minimum Rent for Renewal Lease year four shall be the same amount
as the Fixed Minimum Rent for Renewal Lease year three.
The Fixed Minimum Rent for Renewal Lease year five shall be the same amount
as the Fixed Minimum Rent for Renewal Lease year four.
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The Fixed Minimum Rent for the sixth Lease year of the Renewal Term shall
be the Fixed Minimum Rent for the fifth Lease year of the Renewal Term
recomputed and increased by twelve percent (12%) (the "Recomputed Minimum Rent")
as of the first day of the sixth Lease year of the Renewal Term.
The Fixed Minimum Rent for Renewal Lease year seven shall be the same
amount as the Fixed Minimum Rent for Renewal Lease year six.
The Fixed Minimum Rent for Renewal Lease year eight shall be the same
amount as the Fixed Minimum Rent for Renewal Lease year seven.
The Fixed Minimum Rent for the ninth Lease year of the Renewal Term shall
be the Fixed Minimum Rent for the eighth Lease year of the Renewal Term
recomputed and increased by twelve percent (12%) (the "Recomputed Minimum Rent")
as of the first day of the ninth Lease year of the Renewal Term.
The Fixed Minimum Rent for Renewal Lease year ten shall be the same amount
as the Fixed Minimum Rent for Renewal Lease year nine.
(d) The Option is personal to and may be exercised solely by Home
Care Alliance, Inc. or any permitted assignee thereof, and after any
such exercise, Tenant shall have no further options to renew or extend
the Term; and
(e) Upon Tenant's exercise of the Option in accordance with this
Section, the Term shall be deemed to include the initial Term and the
Renewal Term.
G-1.02 Time shall be of the essence with regard to Tenant's delivery of the
exercise notice required under Section G-1.01 (a). If Tenant shall fail to
deliver to Landlord its exercise notice exactly as and when required under this
Article, the Option shall terminate immediately and shall have no further force
or effect. The parties acknowledge that they have fully negotiated the terms and
provisions of this Article. Tenant acknowledges and agrees that Landlord has
granted Tenant the Option in consideration for Tenant's agreement that the same
shall be strictly construed and enforced and that in the event the Option shall
terminate as provided above, Tenant shall not commence any action, either at law
or in equity, to effectuate the validity of the Option.
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