SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
FORM 10-Q
[X] Quarterly Report pursuant to Section 13 or 15(d) of the Securities
Exchange Act of 1934.
For the quarterly period ended September 30, 1999
[ ] Transition Report pursuant to Section 13 or 15(d) of the Securities
Exchange Act of 1934.
For the transition period from ___________ to __________
Commission File Number 000-27081
AMERICAN HOME MORTGAGE HOLDINGS, INC.
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(Exact Name of Registrant as Specified in Its Charter)
Delaware 13-4066303
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(State or Other Jurisdiction of (I.R.S. Employer Identification No.)
Incorporation or Organization)
12 East 49th Street, New York, NY 10017
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(Address of Principal Executive Offices) (Zip Code)
(212) 755-8600
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(Registrant's Telephone Number, Including Area Code)
Indicate by check mark whether the registrant (1) has filed
all reports required to be filed by Section 13 or 15(d) of the Securities
Exchange Act of 1934 during the preceding 12 months (or for such shorter period
that the registrant was required to file such reports), and (2) has been subject
to such filing requirements for the past 90 days. Yes [ ] or No [X].
As of November 10, 1999, the latest practicable date, there
were 7,500,000 shares of Common Stock, $.01 par value, outstanding.
<PAGE>
AMERICAN HOME MORTGAGE HOLDINGS, INC. AND SUBSIDIARY
QUARTER ENDED SEPTEMBER 30, 1999
INDEX
PART I-FINANCIAL INFORMATION
Item 1. Condensed Financial Statements
Consolidated Balance Sheets as of September 30, 1999
(unaudited) and December 31, 1998
Consolidated Statements of Income for the three and nine
months ended September 30, 1999 (unaudited) and September 30,
1998 (unaudited)
Consolidated Statement of Changes in Stockholders' Equity for
the nine months ended September 30, 1999 (unaudited)
Consolidated Statements of Cash Flows for the nine months
ended September 30, 1999 (unaudited) and September 30, 1998
(unaudited)
Notes to Consolidated Financial Statements
Item 2. Management's Discussion and Analysis of Financial Condition
and Results of Operations
Item 3. Quantitative and Qualitative Disclosures about Market Risk
PART II-OTHER INFORMATION
Item 2. Changes in Securities and Use of Proceeds
Item 4. Submission of Matters to a Vote of Security Holders
Item 5. Other Information
Item 6. Exhibits and Reports on Form 8-K
SIGNATURE
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<PAGE>
ITEM 1.
FINANCIAL STATEMENTS
<TABLE>
AMERICAN HOME MORTGAGE HOLDINGS, INC.
CONSOLIDATED BALANCE SHEETS
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<CAPTION>
SEPTEMBER 30,
1999 DECEMBER 31,
(UNAUDITED) 1998
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<S> <C> <C>
ASSETS
Cash and cash equivalents................................... $2,473,994 $2,891,513
Loans held for sale, net.................................... 33,168,096 34,666,863
Loans held for investment................................... 168,955 88,900
Accounts receivable......................................... 3,356,768 2,892,807
Mortgage servicing rights, net.............................. 34,887 39,887
Premises and equipment, net................................. 2,199,880 1,575,154
Prepaid expenses and security deposits...................... 905,907 236,810
----------- -----------
Total assets....................................... $42,308,487 $42,391,934
=========== ===========
LIABILITIES AND STOCKHOLDERS' EQUITY
LIABILITIES
Warehouse lines of credit................................... $22,880,512 $34,069,526
Drafts payable.............................................. 7,932,897 --
Income taxes payable, current and deferred.................. 640,000 --
S corporation distribution note............................. 7,805,611 --
Accrued expenses and other.................................. 2,794,665 2,297,542
----------- -----------
Total liabilities........................................... 42,053,685 36,367,068
=========== ===========
COMMITMENTS AND CONTINGENCIES
MINORITY INTEREST........................................... 15,592 100,760
STOCKHOLDERS' EQUITY:
Preferred stock, $1.00 par value per share,
1,000,000 shares authorized,
none issued and outstanding.............................. -- --
Common stock, $.01 par value per share,
19,000,000 shares authorized,
5,000,000 issued and outstanding......................... 50,000 50,000
Additional paid-in capital.................................. 268,600 267,600
Retained earnings/(accumulated deficit)..................... (79,390) 5,606,506
----------- -----------
Total stockholders' equity.................................. 239,210 5,924,106
----------- -----------
TOTAL LIABILITIES AND STOCKHOLDERS'
EQUITY................................................... $42,308,487 $42,391,934
=========== ===========
</TABLE>
See Notes to Consolidated Financial Statements.
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<PAGE>
<TABLE>
AMERICAN HOME MORTGAGE HOLDINGS, INC.
CONSOLIDATED STATEMENTS OF INCOME
(UNAUDITED)
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<CAPTION>
FOR THE THREE MONTHS ENDED FOR THE NINE MONTHS ENDED
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SEPTEMBER 30, SEPTEMBER 30,
REVENUES: 1999 1998 1999 1998
----------- ----------- ----------- -----------
<S> <C> <C> <C> <C>
Gain on sale of mortgage loans.................... $5,015,536 $4,846,630 $15,837,750 $12,536,352
Interest income, net.............................. 482,583 99,647 1,190,951 547,929
Other............................................. 330,838 967,553 269,302
----------- ----------- ----------- -----------
Total revenues.................................... 5,828,957 4,946,277 17,996,254 13,353,583
----------- ----------- ----------- -----------
EXPENSES:
Salaries, commissions and benefits, net........... 2,831,315 2,036,459 8,654,829 5,672,567
Marketing and promotion........................... 336,141 316,299 1,205,089 914,426
Occupancy and equipment........................... 552,826 488,671 1,575,884 1,136,867
Data processing and communications................ 267,910 298,977 884,572 722,455
Provision for loss................................ 0 100,363 27,967 133,785
Other............................................. 567,928 238,075 1,670,729 952,494
----------- ----------- ----------- -----------
Total expenses.................................... 4,556,120 3,478,844 14,019,070 9,532,594
----------- ----------- ----------- -----------
INCOME BEFORE INCOME TAXES AND MINORITY INTEREST.. 1,272,837 1,467,433 3,977,184 3,820,989
PROVISION FOR INCOME TAXES........................ 79,859 70,048 211,125 188,290
----------- ----------- ----------- -----------
INCOME BEFORE MINORITY INTEREST................... 1,192,978 1,397,385 3,766,059 3,632,699
MINORITY INTEREST IN INCOME (LOSS) OF CONSOLIDATED
JOINT VENTURE.................................. (17,159) 33,236 27,332 27,591
INCOME TAX EXPENSE DUE TO CONVERSION OF "S" CORP.. 625,000 -- 625,000 --
----------- ----------- ----------- -----------
NET INCOME........................................ $585,137 $1,364,149 $3,113,727 $3,605,108
=========== =========== =========== ===========
Basic and diluted earnings per share.............. $0.12 $0.62
=========== ===========
Weighted average number of shares outstanding..... 5,000,000 5,000,000
=========== ===========
Unaudited pro forma information:
Provision for pro forma income taxes........... 548,669 633,999 1,737,935 1,669,000
----------- ----------- ----------- -----------
Pro forma earnings................................ $741,327 $800,198 $2,211,917 $2,124,398
=========== =========== =========== ===========
Pro forma basic and diluted earnings per share.... $0.10 $0.29
=========== ===========
Pro forma weighted average number of shares
outstanding--basic 7,500,000 7,500,000
=========== ===========
Pro forma weighted average number of shares
outstanding--diluted............................ 7,533,334 7,533,334
=========== ===========
</TABLE>
See Notes to Consolidated Financial Statements.
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<PAGE>
<TABLE>
AMERICAN HOME MORTGAGE HOLDINGS, INC.
CONSOLIDATED STATEMENT OF CHANGES IN STOCKHOLDERS' EQUITY
(UNAUDITED)
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<CAPTION>
RETAINED
ADDITIONAL EARNINGS/
COMMON PAID-IN ACCUMULATED TOTAL
STOCK CAPITAL DEFICIT EQUITY
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<S> <C> <C> <C> <C>
BALANCE JANUARY 1, 1996........................... $50,000 $267,600 $402,814 $720,414
Net income........................................ -- -- 606,036 606,036
----------- ----------- ----------- -----------
BALANCE DECEMBER 31, 1996......................... 50,000 267,600 1,008,850 1,326,450
Net income........................................ -- -- 2,319,314 2,319,314
Distributions..................................... -- -- (1,072,218) (1,072,218)
----------- ----------- ----------- -----------
BALANCE DECEMBER 31, 1997......................... 50,000 267,600 2,255,946 2,573,546
Net income........................................ -- -- 4,869,955 4,869,955
Distributions..................................... -- -- (1,519,395) (1,519,395)
----------- ----------- ----------- -----------
BALANCE DECEMBER 31, 1998......................... 50,000 267,600 5,606,506 5,924,106
Net income (unaudited)............................ -- -- 3,113,727 3,113,727
S corporation distribution note (unaudited)....... -- -- (7,805,611) (7,805,611)
Distributions (unaudited)......................... -- -- (994,012) (994,012)
Proceeds from issuance of common stock
(unaudited).................................... -- 1,000 -- 1,000
----------- ----------- ----------- -----------
BALANCE, SEPTEMBER 30, 1999 (unaudited)........... $50,000 $268,600 ($79,390) $239,210
=========== =========== =========== ===========
</TABLE>
See Notes to Consolidated Financial Statements.
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<PAGE>
<TABLE>
AMERICAN HOME MORTGAGE HOLDINGS, INC.
CONSOLIDATED STATEMENTS OF CASH FLOWS
(UNAUDITED)
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<CAPTION>
FOR THE NINE MONTHS ENDED
SEPTEMBER 30,
-------------------------------
1999 1998
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<S> <C> <C>
CASH FLOWS FROM OPERATING ACTIVITIES:
Net income........................................................ $3,113,727 $3,605,108
Adjustments to reconcile net income to net cash (used in) provided
by operating activities:
Gain on mortgage-related securities........................... -- (76,088)
Depreciation and amortization................................. 258,783 165,394
Provision for loss............................................ 27,967 133,785
Origination of mortgage loans................................. (894,744,878) (819,019,293)
Proceeds on sale of mortgage loans............................ 896,215,678 805,510,387
Proceeds on sale of equity securities, trading................ -- 176,088
Purchases of equity securities, trading....................... -- (100,000)
(Increase) decrease in:
Accounts receivable......................................... (463,961) (936,782)
Mortgage servicing rights................................... (1,000) (12,332)
Prepaid expenses and security deposits...................... (669,097) (33,673)
Increase in accrued expenses and other liabilities............ 497,123 288,710
Increase in provision for current and deferred income tax..... 640,000 --
------------ ------------
Net cash provided by (used in) operating activities........... 4,874,342 (10,298,696)
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CASH FLOWS FROM INVESTING ACTIVITIES:
Sales of real estate owned, net................................... -- 186,000
Net (purchases)/sales of loans held for investment................ (80,055) 16,041
Net purchases of premises and equipment........................... (877,509) (841,274)
(Decrease)/increase in minority interest.......................... (85,168) 77,590
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Net cash (used in) investing activities....................... (1,042,732) (561,643)
------------ ------------
CASH FLOWS FROM FINANCING ACTIVITIES:
(Decrease)/increase in warehouse lines of credit.................. (11,189,014) 12,900,707
Increase in drafts payable........................................ 7,932,897 --
Capital distribution.............................................. (994,012) (1,444,924)
Proceeds from issuance of capital stock........................... 1,000 --
------------ ------------
Net cash (used in) provided by financing activities........... (4,249,129) 11,455,783
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NET (DECREASE) INCREASE IN CASH...................................... (417,519) 595,444
CASH AND CASH EQUIVALENTS, BEGINNING OF PERIOD....................... 2,891,513 2,057,619
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CASH AND CASH EQUIVALENTS, END OF PERIOD............................. $2,473,994 $2,653,063
============ ============
SUPPLEMENTAL DISCLOSURE-CASH PAID FOR:
Interest.......................................................... $1,332,523 $1,437,964
Taxes............................................................. 396,134 235,382
</TABLE>
SUPPLEMENTAL DISCLOSURE-NON-CASH: In September 1999, the Company transferred
$7,805,611 from retained earnings to S corporation distribution note upon
termination of the Company's S corporation tax status.
See Notes to Consolidated Financial Statements.
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<PAGE>
AMERICAN HOME MORTGAGE HOLDINGS, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
NOTE 1-BASIS OF PRESENTATION
- ----------------------------
The accompanying unaudited interim consolidated financial statements of American
Home Mortgage Holdings, Inc. and its subsidiary, American Home Mortgage Corp.
("American Home Mortgage") (collectively the "Company") reflect all adjustments
which, in the opinion of management, are necessary for a fair presentation of
the results of the interim periods presented. All such adjustments are of a
normal recurring nature. All intercompany accounts and transactions have been
eliminated. Operating results for the nine months ended September 30, 1999 are
not necessarily indicative of the results that may be expected for the full year
ended December 31, 1999.
The unaudited interim consolidated financial statements should be read in
conjunction with the Company's audited consolidated financial statements and
notes thereto for the year ended December 31, 1998 included in the Company's
Registration Statement on Form S-1 (Registration No. 333-82409), effective
September 30, 1999.
NOTE 2-INITIAL PUBLIC OFFERING AND RELATED MATTERS
- --------------------------------------------------
On October 6, 1999, the Company completed its initial public offering (the
"Offering") of 2.5 million shares of common stock, $.01 par value (the "Common
Stock"), at a price of $6.00 per share. The net proceeds from the Offering,
after deducting the distribution under the S Corporation Note dated September
28, 1999 (the "S Corporation Note") and underwriting discounts and expenses in
connection with the issuance of the Common Stock were approximately $4.7
million.
The Company's September 30, 1999 Balance Sheet reflects the following in
connection with the Offering: the establishment of the S Corporation Note of
approximately $7.8 million; and the establishment of a deferred tax liability of
$625,000 in connection with the termination of the Company's S corporation
status.
NOTE 3-INCOME TAXES
- -------------------
Prior to September 29, 1999, the Company was treated as an S corporation for
income tax purposes. Effective September 29, 1999, the Company changed its
income tax treatment to a C corporation. Income tax expense of approximately
$80,000 and $211,000 has been recorded for the third quarter and nine months
ending September 30, 1999, respectively. Pro forma income tax provisions have
been presented as if the Company was taxable as a C corporation for Federal and
state income tax purposes for all periods presented.
The pro forma financial information has been presented to show the effect on the
historical results of operations of the Company had it been treated as a C
corporation for Federal and state income tax purposes as of the beginning of the
earliest period presented. The pro forma earnings do not include a $625,000
non-cash, non-recurring tax expense relating to the Company's conversion from an
S corporation to a C corporation. The pro forma earnings per share has been
presented as if the shares issued at the time of the Offering were outstanding
as of the beginning of each period.
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<PAGE>
NOTE 4-EARNINGS PER SHARE
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Basic earnings per share is based on the weighted average number of shares
outstanding and excludes the dilutive effect of common stock equivalents.
Diluted earnings per share is based on the weighted average number of shares
outstanding and includes the dilutive effect of common stock equivalents. There
was a de minimus dilutive effect as of September 30, 1999.
NOTE 5-INCORPORATION TRANSACTION
- --------------------------------
On June 15, 1999, the Company was formed to serve as a holding company for
American Home Mortgage. In conjunction with the closing of its Offering, all of
the issued and outstanding shares of stock of American Home Mortgage were
exchanged for 4,999,900 shares of the Company's Common Stock. ITEM 2.
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<PAGE>
ITEM 2.
MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION
AND RESULTS OF OPERATIONS
GENERAL
- -------
American Home Mortgage Holdings, Inc. and its subsidiary, American Home Mortgage
Corp. ("AHM") (collectively the "Company") is a leading independent retail
mortgage banking company primarily engaged in the business of originating and
selling residential mortgage loans. The Company offers a broad array of
residential mortgage products targeted primarily to high-credit-quality
borrowers over the Internet, as well as through its 145 primarily
commission-compensated loan originators. AHM operates from 16 loan offices in
the New York metropolitan area and 5 other eastern states. The Company operates
primarily as a mortgage banker, underwriting, funding and selling its loan
products to more than 45 different buyers.
Since its founding in 1988, AHM has grown its origination volume by building a
retail origination network through the expansion of its branch office network
and the addition of sales personnel. The Company has maintained its focus on
purchase rather than refinance transactions by concentrating its marketing,
advertising and personnel resources on lending to home buyers rather than to
home owners seeking to refinance their mortgage loans.
Since January 1999, the Company's growth has been further fueled by the
marketing of its mortgage products over the Internet. Internet originations
totaled $42.0 million during the third quarter, an increase of 142% over the
second quarter of 1999, bringing year-to-date Internet originations to $66
million. Mortgage products are originated online through arrangements with a
number of popular Web sites and through the Company's MortgageSelect.com Web
site.
The Company generates revenues through the origination and subsequent sale of
loans. These revenues are made up of gain on sale of mortgage loans, net
interest income and other income. Gain on sale consists of the net gain realized
upon the sale of the mortgage loan and its related servicing rights. Such sales
typically take place within 40 days of origination. Gain on sale also includes
loan-related fees consisting of application, document preparation, commitment
and processing fees paid by borrowers and certain direct loan origination costs.
Net interest income is the difference between interest received by the Company
on mortgage loans held for sale and interest paid by the Company under its
credit facilities. Other income is primarily a result of periodic volume
incentive bonuses received from loan buyers.
Expenses largely consist of salaries, portions of commissions and benefits paid
to employees; marketing and promotion expenses; occupancy and equipment costs;
data processing and communication costs; and other expenses which include
underwriting fees, office supplies, travel, professional fees and insurance. A
substantial portion of these expenses is variable in nature. Commissions paid to
loan originators are 100% variable and primarily included within the
determination of gains on sales of loans. Other salaries and benefits fluctuate
quarterly based on the Company's assessment of the appropriate levels of
non-sales staffing, which correlates to the current and projected level of loan
origination volume.
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<PAGE>
INITIAL PUBLIC OFFERING
- -----------------------
On June 15, 1999, the Company was formed to serve as a holding company for AHM.
In conjunction with the closing of its initial public offering (the "Offering"),
all of the issued and outstanding shares of common stock of AHM were exchanged
for 4,999,900 shares of the Company's common stock.
On October 6, 1999, the Company completed its Offering of 2.5 million shares of
common stock at a price of $6.00 per share. The Company's September 30, 1999
Balance Sheet reflects the following in connection with the Offering: the
increase in common stock and additional paid-in-capital in connection with the
shares sold in the Offering; the establishment of an S corporation distribution
note of approximately $7.8 million; and the establishment of a deferred tax
liability of $625,000 in connection with the termination of the Company's S
corporation status.
Prior to September 29, 1999, the Company was an S corporation for tax purposes.
As of September 29, 1999, the Company has elected C corporation status. Income
tax expense of approximately $65,000 and $196,000 has been recorded for the
third quarter and nine months ending September 30, 1999, respectively. A pro
forma income tax provision has been presented as if the Company was taxable as a
C corporation for Federal and state income tax purposes for all periods
presented, excluding the effect of the $625,000 deferred income tax liability
resulting from the change in income tax status.
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<PAGE>
RESULTS OF OPERATIONS
- ---------------------
The following table sets forth information derived from the Company's
Consolidated Statements of Income expressed as a percentage of total revenues:
<TABLE>
<CAPTION>
FOR THE THREE MONTHS ENDED FOR THE NINE MONTHS ENDED
SEPTEMBER 30, SEPTEMBER 30,
---------------------------- ---------------------------
1999 1998 1999 1998
------------ ------------ ------------ ------------
<S> <C> <C> <C> <C>
REVENUES
Gain on sale of mortgage loans............................ 86.0% 98.0% 88.0% 93.9%
Interest income, net...................................... 8.3 2.0 6.6 4.1
Other..................................................... 5.7 -- 5.4 2.0
------------ ------------ ------------ ------------
Total revenues............................................ 100.0 100.0 100.0 100.0
------------ ------------ ------------ ------------
EXPENSES
Salaries, commissions and benefits, net................... 48.6 41.2 48.1 42.5
Marketing and promotion................................... 5.8 6.4 6.7 6.9
Occupancy and equipment................................... 9.5 9.9 8.7 8.5
Data processing and communications........................ 4.6 6.0 4.9 5.4
Provision for loss........................................ -- 2.0 .2 1.0
Other..................................................... 9.7 4.8 9.3 7.1
------------ ------------ ------------ ------------
Total expenses............................................ 78.2 70.3 77.9 71.4
------------ ------------ ------------ ------------
Income before income taxes and minority interest.......... 21.8 29.7 22.1 28.6
Minority interest in income (loss) of consolidated joint
venture................................................ (.3) .7 .1 .2
Provision for income taxes................................ 1.4 1.4 1.2 1.4
Income tax expense due to conversion of "S" Corp.......... 10.7 -- 3.5 --
------------ ------------ ------------ ------------
Net income................................................ 10.0% 27.6% 17.3% 27.0%
============ ============ ============ ============
Provision for pro forma income taxes(1)................... 9.4 12.8 9.7 12.5
------------ ------------ ------------ ------------
Pro forma net income(1)................................... 12.7% 16.2% 12.3% 15.9%
============ ============ ============ ============
</TABLE>
THREE MONTHS ENDED SEPTEMBER 30, 1999 COMPARED TO THE THREE MONTHS ENDED
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SEPTEMBER 30, 1998
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REVENUES
- --------
Revenues for the quarter were $5.8 million in 1999 compared to $4.9 million in
1998, an increase of 17.8%. The increase was a result of greater net interest
income and volume incentive bonuses.
Gain on sale increased by 3.5% to $5.0 million from $4.8 million a year earlier,
generally a result of slightly improved margins. Loans sold in the third quarter
of 1999 were $337.1 million compared to $365.0 million in the third quarter of
1998. The Company's focus remained on
- ------------------
(1) The pro forma provision for income taxes and earnings does not include a
$625,000 non-cash, non-recurring tax expense related to the Company's conversion
from an S corporation to a C corporation.
-11-
<PAGE>
purchase transactions as 83% of originations were made to home buyers for the
three month period ended September 30, 1999 versus 66% for the comparable period
last year.
Net interest income increased to $483,000 from $100,000 a year ago, an increase
of 384.3%. The increase resulted from more efficient cash management, including
the implementation of sweep accounts which use existing cash balances overnight
to reduce outstanding borrowings.
Other income was $331,000 for the quarter compared to no income for the third
quarter of 1998. Other income primarily consists of volume incentive bonuses
received from loan purchasers. These bonus payments are earned and recognized
when the Company achieves volume targets specified in agreements with these
purchasers.
EXPENSES
- --------
Salaries, commissions and benefits increased by 39.0% to $2.8 million from $2.0
million a year earlier. The increase was generally a result of increased
staffing levels primarily in our Internet division. Total personnel increased to
344 from 255 at September 30, 1998. Included in these staffing numbers are 145
and 71 sales personnel for 1999 and 1998, respectively.
Marketing and promotion expenses increased by 6.3% to $336,000 from $316,000 in
the third quarter of 1998. Increased advertising expense in support of retail
operations accounted for the increase.
Occupancy and equipment costs increased by 13.1% to $553,000 for the current
quarter from $489,000 in 1998. The increase in costs is reflective of the
opening of new community loan offices and Internet sites and greater
depreciation charges as a result of the Company's increased investments in
computer networking. As of September 30, 1999, the Company had 16 office
locations compared to 12 locations a year earlier.
Data processing and communications decreased by 10.4% to $268,000 from $299,000
in the third quarter of 1998. The decrease in costs reflects a vendor refund as
a result of a cost review that relates to the first six months of the year.
Without this adjustment, costs were $358,000, representing a 19.7% increase from
the prior year. The increase, as adjusted, is primarily a result of opening new
office locations.
Other expenses increased by 138.6% to $568,000 from $238,000 in 1998. These
expenses which consist generally of office supplies, travel, professional fees
and insurance have increased as a result of the Company's Internet effort, new
office openings and higher employment levels.
NET INCOME
- ----------
Net income, before taking into account the non-cash, non-recurring tax expense
of $625,000 related to the conversion from S corporation to C corporation
status, was $1.2 million versus $1.4 million a year earlier. The decrease in net
income is reflective of start-up expenses in connection with the Internet
initiative.
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<PAGE>
NINE MONTHS ENDED SEPTEMBER 30, 1999 COMPARED TO THE NINE MONTHS ENDED SEPTEMBER
- --------------------------------------------------------------------------------
30, 1998
- --------
REVENUES
- --------
Revenues increased to $18.0 million from $13.4 million a year earlier, an
increase of 34.8%. The increase was a result of greater loan sale volume,
increased net interest income and greater volume incentive bonuses.
Gain on sale increased by 26.3% to $15.8 million from $12.5 million for the nine
months ended September 30, 1998. The increase was generally a result of a
greater amount of loan sales. The Company sold $945.1 million of loans on a
year-to-date basis compared to $885.0 million of loans for the same period in
1998. Purchase transactions accounted for approximately 70% of originations for
the nine month period ended September 30, 1999 compared to 64% a year ago.
Net interest income increased by 117.4% to $1.2 million from $548,000 a year
ago. The increase resulted from more efficient cash management, including the
implementation of sweep accounts which use existing cash balances overnight to
reduce outstanding borrowings.
Other income increased by 259.3% to $968,000 year-to-date from $269,000 in 1998.
Other income consists primarily of volume incentive bonuses received from loan
purchasers. These bonus payments are earned and recognized when the Company
achieves volume targets specified in agreements with these purchasers.
EXPENSES
- --------
Salaries, commissions and benefits increased by 52.6% to $8.7 million from $5.7
million last year. The increase was a result of greater commissions paid related
to increased loan origination volume and increased staffing levels required to
support greater loan activity.
Marketing and promotion expenses increased by 31.8% to $1.2 million from
$914,000 a year earlier. The increase is primarily attributable to advertising
and promotional expenses in connection with new community loan office openings
and Internet sites.
Occupancy and equipment costs increased by 38.6% to $1.6 million from $1.1
million in 1998. The increase in costs is reflective of the opening of new
community loan offices and Internet sites and greater depreciation charges as a
result of the Company's increased investments in computer networking.
Data processing and communications increased by 22.4% to $885,000 from $722,000
a year ago. The increase is primarily a result of greater activity and resultant
headcount increases as well as opening new community loan offices.
Other expenses increased by 75.4% to $1.7 million from $952,000. These expenses
consist generally of underwriting fees, office supplies, travel, professional
fees and insurance and have increased as a result of the Company's Internet
effort, new office openings and higher employment levels.
NET INCOME
- ----------
Net income, before taking into account the non-cash, non-recurring tax expense
of $625,000 related to the conversion from S corporation to C corporation
status, was $3.7 million versus $3.6 million last year.
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<PAGE>
LIQUIDITY AND CAPITAL RESOURCES
- -------------------------------
The Company has a warehouse facility with First Union National Bank for $40
million. This facility is secured by the mortgages that the Company originates
and certain other assets. Loans bear interest at rates that vary depending on
the type of underlying loan, and these loans are subject to sublimits, advance
rates and terms that vary depending on the type of underlying loan and the ratio
of the Company's liabilities to tangible net worth. The Company is in
negotiations to replace this facility with a new $60 million warehouse facility
that will be agented by First Union.
In addition to the First Union warehouse facility, the Company has purchase and
sale agreements with Fannie Mae, Greenwich Capital Financial Products, Inc.,
Prudential Securities Funding Corp. and Paine Webber Real Estate Securities,
Inc. Pursuant to these arrangements, the Company obtains commitments from the
ultimate buyer to purchase our loans. These loans are then sold together with
the commitment from the end investor to one of the four institutions above, who
subsequently take responsibility for consummating the final transaction. These
agreements allow the Company to accelerate the sale of mortgage loan inventory
resulting in a more effective use of the warehouse facility.
For the nine months ended September 30, 1999, net cash provided by (used in)
operating, investing and financing activities was $4.9 million, $(1.0) million
and $(4.2) million respectively. Net cash provided by operating activities was
primarily due to net income, an excess of loan sales over originations, an
increase in accrued expenses and provision for taxes. Net cash used in investing
activities was primarily due to the purchase of furniture and equipment. Net
cash used in financing activities was a result of a decrease in warehouse lines
of credit which are collateral for mortgage loans held for sale.
For the comparable period a year ago, net cash provided by (used in) operating,
investing and financing activities was $(10.3) million, $(.6) million and $11.5
million respectively. Net cash used in operating activities was primarily a
result of loan originations exceeding loan sales. Net cash used in investing
activities was primarily due to the purchase of furniture and equipment. Net
cash provided by financing activities was a result of an increase in warehouse
lines of credit.
The Company realized net proceeds of approximately $4.7 million from the
Offering which was completed on October 6, 1999.
NEW ACCOUNTING PRONOUNCEMENTS
- -----------------------------
In June 1998, the Financial Accounting Standards Board issued Statement of
Financial Accounting Standards ("SFAS") No. 133, "Accounting for Derivative
Instruments and Hedging Activities." This statement requires that all
derivatives be carried on the balance sheet at fair value and that changes in
the fair value of derivatives be recognized in income when they occur, unless
the derivatives qualify as hedges in accordance with the standard. If a
derivative qualifies as a hedge, a company can elect to use hedge accounting.
The type of accounting to be applied varies depending upon whether the nature of
the exposure that is being hedged is classified as one of three hedged risks
defined in the statement: change in fair value, change in cash flows and change
in foreign-currency. This statement's implementation has been delayed to be
effective for all fiscal quarters of fiscal years beginning after June 15, 2000
and cannot be
-14-
<PAGE>
applied retroactively. The Company has not yet determined the impact SFAS No.
133 will have on its financial position or results of operations after this
statement is adopted.
In October 1998, the Financial Accounting Standards Board issued SFAS No. 134,
"Accounting for Mortgage-Backed Securities Retained after the Securitization of
Mortgage Loans Held for Sale by a Mortgage Banking Enterprise." SFAS No. 134 is
effective for the first fiscal quarter beginning after December 15, 1998. The
adoption of SFAS No. 134 did not have a material impact on the Company's
financial position or its results of operations.
In March 1998, the American Institute of Certified Public Accountants issued
Statement of Position 98-1, "Accounting for the Costs of Computer Software
Developed for Internal Use" ("SOP 98-1"), which will become effective for
financial statements for calendar year 1999, with early adoption encouraged. SOP
98-1 requires the capitalization of eligible costs of specified activities
related to computer software developed or obtained for internal use. The Company
does not believe that the adoption of this statement will have a material impact
on its financial condition or results of operations.
YEAR 2000 COMPLIANCE
- --------------------
Many existing computer programs use only 2 digits to identify a year. These
programs were designed and developed without addressing the impact of the
upcoming change in century. If not corrected, many computer software
applications could fail or create erroneous results by, at or beyond, the Year
2000. The Company is at risk if any of the information technology systems on
which it depends are not Year 2000 compliant. Potential areas of exposure
include business-critical computerized applications relating to, among others,
loan origination, servicing, hedging, payroll, financing, accounting and
financial reporting.
Most, if not all, of the Company's computer hardware and software is less than
two years old and has been certified as Year 2000 compliant. In addition, all
hardware and business-function and networking software platforms have been
tested using commercially available diagnostics programs. Based on this testing,
the Company believes that these hardware and software platforms are Year 2000
compliant in all material respects. Accordingly, the Company believes that its
exposure to Year 2000-related hardware and software problems will not be
significant. The Company expects to resolve any further internal Year 2000
readiness issues primarily through normal upgrades or replacement of its
existing software. The New York State Banking Department has recently certified
that the Company is Year 2000 compliant.
The Company has requested third party providers, vendors, suppliers, financial
institutions and customers that are material to its operations to certify in
writing that they are Year 2000 compliant. Responses have been received from the
supplier of the Company's main software platform and from several of the
financial institutions to which it sells loans. Based on these responses, the
Company believes that these institutions comply with Year 2000 requirements. The
Company is unable to predict whether Year 2000 issues will affect the operations
of its customers, suppliers, vendors or the remaining financial institutions. If
any of these third party providers are adversely affected by the Year 2000
issue, the Company's operations could incur substantial interruptions and its
business and financial condition could be materially adversely affected.
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<PAGE>
The costs of upgrades or replacements are included in the Company's capital
budget and it does not expect them to be material to its financial position or
results of operations. To date, significant expenses have not been incurred to
ensure Year 2000 readiness. The Company estimates that the total cost to become
Year 2000 compliant will not exceed $25,000.
The Company has a contingency plan in place in the event any unforeseen Year
2000 problems occur. The plan addresses hardware, software and Internet back-up.
FORWARD-LOOKING STATEMENTS
- --------------------------
This Form 10-Q contains "forward-looking statements" within the meaning of
Section 27A of the Securities Act of 1933, as amended, and Section 21E of the
Securities Exchange Act of 1934, as amended, which are intended to be covered by
the safe harbors created thereby. The words "plan," "believe," "anticipate,"
"estimate," "expect," "objective," "projection," "forecast," "goal" or similar
words are intended to identify forward-looking statements. Such statements
involve risks and uncertainties that exist in the Company's operations and
business environment that could render actual outcomes and results materially
different than predicted. The Company's forward-looking statements are based on
assumptions about many factors, including, but not limited to, general
volatility of the capital markets; changes in the real estate market, interest
rates or the general economy of the markets in which the Company operates;
economic, technological or regulatory changes affecting the use of the Internet
and changes in government regulations that are applicable to the Company's
regulated brokerage and property management businesses. These and other factors
are more fully discussed in the Company's prospectus filed with the Securities
and Exchange Commission as part of its Registration Statement on Form S-1
(Registration No. 333-82409). While the Company believes that its assumptions
are reasonable at the time forward-looking statements were made, it cautions
that it is impossible to predict the actual outcome of numerous factors and,
therefore, readers should not place undue reliance on such statements.
Forward-looking statements speak only as of the date they are made, and the
Company undertakes no obligation to update such statements in light of new
information or future events.
ITEM 3.
QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK
Movements in interest rates can pose a major risk to the Company in either a
rising or declining interest rate environment. When interest rates rise, loans
held for sale and any applications in process with locked-in rates decrease in
value. To preserve the value of such loans or applications in process with
locked-in rates, agreements are executed for mandatory loan sales to be settled
at future dates with fixed prices. These sales take the form of forward sales of
mortgage-backed securities.
When interest rates decline, fallout may occur as a result of customers
withdrawing their applications. In those instances, the Company may be required
to purchase loans at current market prices to fulfill existing mandatory loan
sale agreements, thereby incurring losses upon sale. The Company uses an
interest rate hedging program to manage these risks. Through this program,
mortgage-backed securities are purchased and sold forward and options are
acquired on mortgage and treasury securities.
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<PAGE>
The board of directors establishes thresholds which limit exposure to such risk.
An analysis is performed daily to determine the risk exposure under various
interest rate scenarios and such risk is managed by executing the program
discussed above. All derivatives are obtained for hedging (or other than
trading) purposes, and management evaluates the effectiveness of the hedges on
an on-going basis.
The following table summarizes the Company's interest rate sensitive
instruments:
<TABLE>
<CAPTION>
SEPTEMBER 30, 1999 DECEMBER 31, 1998
------------------------------- -------------------------------
NOTIONAL AMOUNT FAIR VALUE NOTIONAL AMOUNT FAIR VALUE
--------------- ---------- --------------- ----------
<S> <C> <C> <C> <C>
Instruments:
Commitments to fund mortgages at
locked-in rates................... $171,231,781 $2,827,510 $122,430,687 $2,075,471
Forward delivery commitments......... 102,520,000 (2,100,739) 79,841,139 (215,571)
Option contracts to buy securities... 9,000,000 -- 4,000,000 --
</TABLE>
In the event that the Company does not deliver into the forward delivery
commitments or exercise its option contracts, the instruments can be settled on
a net basis. Net settlement entails paying or receiving cash based upon the
change in market value of the existing instrument. All forward delivery
commitments and option contracts to buy securities are to be contractually
settled within six months of the balance sheet date.
The following methods and assumptions are used in estimating fair values of the
aforementioned financial instruments:
Fair value estimates are made as of a specific point in time
based on estimates using present value or other valuation
techniques. These techniques involve uncertainties and are
significantly affected by the assumptions used and the
judgments made regarding risk characteristics of various
financial instruments, discount rates, estimates of future
cash flows, future expected loss experience, and other
factors.
Changes in assumptions can significantly affect the Company's
estimates and the resulting fair values. Derived fair value
estimates cannot be substantiated by comparison to independent
markets and, in many cases, cannot be realized in an immediate
sale of the instrument. Also, as a result of differences in
methodologies and assumptions used to estimate fair values,
the Company's fair values should not be compared to those of
other companies.
The fair value of commitments to fund with locked-in rates are
estimated using the fees and rates currently charged to enter
into similar agreements, taking into account the remaining
terms of the agreements and the present creditworthiness of
the counterparties. For fixed rate loan commitments, fair
value also considers the
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<PAGE>
difference between current market interest rates and the
existing committed rates.
The fair value of these instruments is estimated using current
market prices for dealer or investor commitments relative to
existing positions.
The Company's hedging program contains an element of risk since the
counterparties to its mortgage and treasury securities transactions may be
unable to meet their obligations. While the Company does not anticipate
nonperformance by any counterparty, it is exposed to potential credit losses in
the event that the counterparty fails to perform. The exposure to credit risk in
the event of default by a counterparty is the difference between the contract
and the current market price. This credit risk is minimized by limiting the
counterparties to well-capitalized banks and securities dealers who meet
established credit and capital guidelines.
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<PAGE>
PART II-OTHER INFORMATION
ITEM 2. CHANGES IN SECURITIES AND USE OF PROCEEDS
- --------------------------------------------------
(A) CHANGES IN CERTIFICATE OF INCORPORATION AND BY-LAWS
---------------------------------------------------
Prior to the Offering, the Company's Board of Directors approved the Restated
Certificate of Incorporation which, among other things, (1) increases the number
of shares of authorized stock to 20 million, including 19 million shares of
common stock, par value $0.01 per share, and 1 million shares of preferred
stock, par value $1.00 per share, (2) provides for a Board of Directors divided
into three classes, with each director serving a staggered three-year term
ending on the first, second or third succeeding annual meeting of stockholders
of the Company, (3) provides indemnification to the Company's officers and
directors to the fullest extent authorized or permitted by law and (4) provides
that any action required or permitted to be taken by the stockholders of the
Company must be effected at an annual or special meeting of the stockholders and
that the stockholders cannot consent in writing to the taking of any action.
Prior to the Offering, the Company's Board of Directors also approved the
Company's Amended and Restated By-Laws.
(C) SALES OF UNREGISTERED SECURITIES
--------------------------------
Immediately prior to the Offering, the sole stockholder of American Home
Mortgage Corp. exchanged all of his shares of common stock of American Home
Mortgage Corp. for an aggregate of 4,999,900 shares of common stock of the
Company.
(D) USE OF PROCEEDS
---------------
On October 6, 1999, the Company completed the Offering of 2,500,000 shares of
common stock at a price of $6.00 per share for gross proceeds to the Company of
$15.0 million. The Offering was underwritten by a group of underwriters for
which Friedman Billings Ramsey and Advest, Inc. (the "Underwriters") served as
representatives. The effective date of the Company's Registration Statement on
Form S-1 (Registration No. 333-82409) in connection with the Offering was
September 30, 1999. The Offering closed on October 6, 1999 after the sale of all
the securities registered.
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<PAGE>
The following table provides information concerning the estimated amount of
expenses incurred for the Company's account in connection with the Offering
through November 10, 1999:
<TABLE>
<CAPTION>
PAYMENTS TO PAYMENTS
"AFFILIATES"(1) TO OTHERS
--------------- ---------------
<S> <C> <C>
Underwriting discounts and commissions................................. $ -- $1,012,365
Finder's fees.......................................................... -- --
Expenses paid to or for underwriters................................... -- 448,509
Other expenses......................................................... -- 1,026,881
--------------- ---------------
Total expenses......................................................... $ -- $2,487,755
=============== ===============
</TABLE>
The estimated net Offering proceeds to the Company after deducting the total
estimated expenses described above and the S Corporation Note is $4.7 million.
The following table provides information concerning the amount of the net
Offering proceeds to the Company used for the following purposes through
November 10, 1999:
<TABLE>
<CAPTION>
PAYMENTS TO PAYMENTS
"AFFILIATES"(1) TO OTHERS
------------------- ------------------
<S> <C> <C>
Construction of plant, building and facilities........................ $ -- $ --
Purchase and installation of machinery and equipment.................. -- --
Purchases of real estate.............................................. -- --
Acquisition of other business(es)..................................... -- --
Repayment of indebtedness, including credit facilities................ -- --
Working capital....................................................... -- 4,668,999
Temporary investment.................................................. -- --
Other purposes (S corporation distribution)........................... 7,805,611 --
------------------- ------------------
Total uses................................................... $ 7,805,611 $ 4,668,999
=================== ==================
</TABLE>
(1) Affiliates represent directors and officers of the Company and their
associates, persons owning ten percent or more of any class of equity
securities of the Company and other affiliates of the Company.
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<PAGE>
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS
- ------------------------------------------------------------
Prior to the Offering, the Company's sole stockholder, pursuant to written
consents dated June 15, 1999 and August 16, 1999, (1) approved the Company's
Restated Certificate of Incorporation, (2) elected Robert E. Burke, Leonard
Schoen, Jr., Joseph P. Bryant and C. Cathleen Raffaeli to serve as directors of
the Company and Michael Strauss to continue to serve as a director of the
Company, effective upon consummation of the Offering, and (3) approved the
Company's 1999 Omnibus Stock Incentive Plan.
ITEM 5. OTHER INFORMATION
- --------------------------
SUBMISSION OF STOCKHOLDER PROPOSALS FOR THE 2000 ANNUAL MEETING
- ---------------------------------------------------------------
The Company's 2000 Annual Meeting of Stockholders is expected to be held on or
about April 27, 2000. In accordance with Rule 14a-8 promulgated pursuant to the
Securities Exchange Act of 1934, as amended, any stockholder proposal submitted
for inclusion in the proxy material to be distributed by the Company in
connection with the 2000 Annual Meeting must be received by the Company at its
principal executive office, 12 East 49th Street, New York, New York 10017,
Attention: Secretary, by no later than December 1, 1999.
In addition, in accordance with Article II, Section 7 and Article III, Section 2
of the Company's Amended and Restated By-Laws, written notice of any other
matter (including nominations of persons for election to the Board of Directors)
which a stockholder may wish to raise at the 2000 Annual Meeting (other than
stockholder proposals submitted in accordance with Rule 14a-8) must conform to
the requirements set forth in the Company's Amended and Restated By-Laws, and be
received by the Company, at the address set forth in the preceding paragraph, by
no later than February 27, 2000. The persons designated as proxies by the
Company in connection with the 2000 Annual Meeting will have discretionary
voting authority with respect to any stockholder proposal of which the Company
did not receive timely notice.
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K
- ----------------------------------------
(a) Exhibits
3.1 Restated Certificate of Incorporation of the Registrant (incorporated
by reference to Exhibit 3.1 to the Company's Registration Statement on
Form S-1 (Registration No. 333-82409)).
3.2 Amended and Restated Bylaws of the Registrant (incorporated by
reference to Exhibit 3.2 to the Company's Registration Statement on
Form S-1 (Registration No. 333-82409)).
4.1 Specimen Certificate for the Registrant's Common Stock (incorporated by
reference to Exhibit 4.2 to the Company's Registration Statement on
Form S-1 (Registration No. 333-82409)).
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<PAGE>
10.1 Employment Agreement, dated as of August 26, 1999, between American
Home Mortgage Corp. and Michael Strauss (incorporated by reference to
Exhibit 10.1 to the Company's Registration Statement on Form S-1
(Registration No. 333-82409)).
10.2 Employment Agreement, dated as of January 6, 1989, between American
Home Mortgage Corp. and Leonard Schoen, Jr., as amended on August 26,
1999 (incorporated by reference to Exhibit 10.2 to the Company's
Registration Statement on Form S-1 (Registration No. 333-82409)).
10.3 Employment Agreement, dated as of April 14, 1999, between American Home
Mortgage Corp. and Nicholas P. Rizzetta, as amended on August 26, 1999
(incorporated by reference to Exhibit 10.3 to the Company's
Registration Statement on Form S-1 (Registration No. 333-82409)).
10.4 Employment Agreement, dated as of April 3, 1997, between American Home
Mortgage Corp. and Robert Burke, as amended on August 26, 1999
(incorporated by reference to Exhibit 10.4 to the Company's
Registration Statement on Form S-1 (Registration No. 333-82409)).
10.5 Employment Agreement, dated as of March 9, 1998, between American Home
Mortgage Corp. and James P. O'Reilly (incorporated by reference to
Exhibit 10.5 to the Company's Registration Statement on Form S-1
(Registration No. 333-82409)).
10.6 Employment Agreement, dated as of July 14, 1999, between American Home
Mortgage Holdings, Inc. and Ronald D. Taylor (incorporated by reference
to Exhibit 10.6 to the Company's Registration Statement on Form S-1
(Registration No. 333-82409)).
10.7 1999 Omnibus Stock Incentive Plan (incorporated by reference to Exhibit
10.7 to the Company's Registration Statement on Form S-1 (Registration
No. 333-82409)).
10.8 Sublease, dated as of February 1996, between Credit Suisse First Boston
Corporation and Michael Strauss, Inc., d/b/a American Home Mortgage
(incorporated by reference to Exhibit 10.8 to the Company's
Registration Statement on Form S-1 (Registration No. 333-82409)).
10.9 Sublease, dated as of December 17, 1997, between Suntory International
Corp. and Michael Strauss, Inc., d/b/a American Home Mortgage
(incorporated by reference to Exhibit 10.9 to the Company's
Registration Statement on Form S-1 (Registration No. 333-82409)).
10.10 Mortgage Warehousing Loan and Security Agreement, dated as of December
8, 1998, between First Union National Bank and Michael Strauss, Inc.,
d/b/a American Home Mortgage (incorporated by reference to Exhibit
10.10 to the Company's Registration Statement on Form S-1 (Registration
No. 333-82409)).
10.11 Software Licensing Agreement, dated as of July 7, 1999, between
American Home Mortgage Corp. and James P. O'Reilly (incorporated by
reference to Exhibit 10.11 to the Company's Registration Statement on
Form S-1 (Registration No. 333-82409)).
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<PAGE>
10.12 Form of Warrant Agreement, between American Home Mortgage Holdings,
Inc., and Friedman, Billings, Ramsey & Co., Inc. (incorporated by
reference to Exhibit 10.12 to the Company's Registration Statement on
Form S-1 (Registration No. 333-82409)).
10.13 Form of Lock-up Agreement, between Michael Strauss and Friedman,
Billings, Ramsey & Co., Inc. (incorporated by reference to Exhibit
10.13 to the Company's Registration Statement on Form S-1 (Registration
No. 333-82409)).
10.14 Form of Lock-up Agreement, between each of American Home Mortgage
Holdings, Inc., and its Employees, Directors and Officers and Friedman,
Billings, Ramsey & Co., Inc. (incorporated by reference to Exhibit
10.14 to the Company's Registration Statement on Form S-1 (Registration
No. 333-82409)).
10.15 Loan Purchase Agreement, dated as of July 8, 1996, between Michael
Strauss, Inc., d/b/a American Home Mortgage, and Norwest Funding, Inc.
(incorporated by reference to Exhibit 10.15 to the Company's
Registration Statement on Form S-1 (Registration No. 333-82409)).
10.16 Origination and Sales Agreement, dated as of July 8, 1994, between
American Home Mortgage Corp. and Chase Manhattan Mortgage Corporation
(incorporated by reference to Exhibit 10.16 to the Company's
Registration Statement on Form S-1 (Registration No. 333-82409)).
10.17 Loan Sales Agreement, dated as of March 31, 1995, between American Home
Mortgage Corp. and Columbia Federal Savings Bank (incorporated by
reference to Exhibit 10.17 to the Company's Registration Statement on
Form S-1 (Registration No. 333-82409)).
10.18 Master Agreement for the Sale and Purchase of Mortgages, dated as of
April 19, 1994, between Astoria Federal Savings and Loan Association
and Michael Strauss, Inc., d/b/a American Home Mortgage (incorporated
by reference to Exhibit 10.18 to the Company's Registration Statement
on Form S-1 (Registration No. 333-82409)).
10.19 Mortgage Loan Purchase and Sale Operating Agreement, dated as of
February 1996, between Independence Savings Bank and American Home
Mortgage, Inc. (incorporated by reference to Exhibit 10.19 to the
Company's Registration Statement on Form S-1 (Registration No.
333-82409)).
10.20 Correspondent Origination and Sales Agreement, dated as of April 25,
1997, between Dime Mortgage Inc., and Michael Strauss, Inc. d/b/a
American Home Mortgage (incorporated by reference to Exhibit 10.20 to
the Company's Registration Statement on Form S-1 (Registration No.
333-82409)).
10.21 Employment Agreement, dated as of January 18, 1996, between America
Home Mortgage Corp. and Leslie E. Tao, as amended on August 26, 1999
(incorporated by reference to Exhibit 10.21 to the Company's
Registration Statement on Form S-1 (Registration No. 333-82409)).
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<PAGE>
10.22 Tax Indemnification Agreement, by and among American Home Mortgage
Holdings, Inc., American Home Mortgage Corp. and Michael Strauss
(incorporated by reference to Exhibit 10.22 to the Company's
Registration Statement on Form S-1 (Registration No. 333-82409)).
10.23 First Amendment of Lease, dated as of September 30, 1999, between
Reckson Operating Partnership, L.P., Vytra Health Plans Long Island,
Inc. and American Home Mortgage Corp.; Assignment and Assumption of
Lease, dated September 30, 1999, between Vytra Health Plans Long
Island, Inc. and American Home Mortgage Corp. and Agreement of Lease,
dated October 20, 1995, between Reckson Operating Partnership, L.P. and
ChoiceCare Long Island, Inc. (now known as Vytra Health Plans Long
Island, Inc.).
27 Financial Data Schedule.
(b) Reports on Form 8-K
There have been no reports on Form 8-K filed during the nine months
ended September 30, 1999.
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<PAGE>
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
AMERICAN HOME MORTGAGE HOLDINGS, INC.
-------------------------------------
(Registrant)
Date: November 15, 1999
By: /S/ NICHOLAS P. RIZZETTA
---------------------------------
Nicholas P. Rizzetta
Chief Financial Officer
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<PAGE>
AMERICAN HOME MORTGAGE HOLDINGS, INC.
FORM 10-Q
EXHIBIT INDEX
-------------
EXHIBIT NO. DESCRIPTION PAGE
- ----------- ----------- ----
3.1 Restated Certificate of Incorporation of the Registrant
(incorporated by reference to Exhibit 3.1 to the
Company's Registration Statement on Form S-1
(Registration No. 333-82409)).
3.2 Amended and Restated Bylaws of the Registrant
(incorporated by reference to Exhibit 3.2 to the
Company's Registration Statement on Form S-1
(Registration No. 333-82409)).
4.1 Specimen Certificate for the Registrant's Common Stock
(incorporated by reference to Exhibit 4.2 to the
Company's Registration Statement on Form S-1
(Registration No. 333-82409)).
10.1 Employment Agreement, dated as of August 26, 1999,
between American Home Mortgage Corp. and Michael Strauss
(incorporated by reference to Exhibit 10.1 to the
Company's Registration Statement on Form S-1
(Registration No. 333-82409)).
10.2 Employment Agreement, dated as of January 6, 1989,
between American Home Mortgage Corp. and Leonard Schoen,
Jr., as amended on August 26, 1999 (incorporated by
reference to Exhibit 10.2 to the Company's Registration
Statement on Form S-1 (Registration No. 333-82409)).
10.3 Employment Agreement, dated as of April 14, 1999,
between American Home Mortgage Corp. and Nicholas P.
Rizzetta, as amended on August 26, 1999 (incorporated by
reference to Exhibit 10.3 to the Company's Registration
Statement on Form S-1 (Registration No. 333-82409)).
10.4 Employment Agreement, dated as of April 3, 1997, between
American Home Mortgage Corp. and Robert Burke, as
amended on August 26, 1999 (incorporated by reference to
Exhibit 10.4 to the Company's Registration Statement on
Form S-1 (Registration No. 333-82409)).
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<PAGE>
10.5 Employment Agreement, dated as of March 9, 1998, between
American Home Mortgage Corp. and James P. O'Reilly
(incorporated by reference to Exhibit 10.5 to the
Company's Registration Statement on Form S-1
(Registration No. 333-82409)).
10.6 Employment Agreement, dated as of July 14, 1999, between
American Home Mortgage Holdings, Inc. and Ronald D.
Taylor (incorporated by reference to Exhibit 10.6 to the
Company's Registration Statement on Form S-1
(Registration No. 333-82409)).
10.7 1999 Omnibus Stock Incentive Plan (incorporated by
reference to Exhibit 10.7 to the Company's Registration
Statement on Form S-1 (Registration No. 333-82409)).
10.8 Sublease, dated as of February 1996, between Credit
Suisse First Boston Corporation and Michael Strauss,
Inc., d/b/a American Home Mortgage (incorporated by
reference to Exhibit 10.8 to the Company's Registration
Statement on Form S-1 (Registration No. 333-82409)).
10.9 Sublease, dated as of December 17, 1997, between Suntory
International Corp. and Michael Strauss, Inc., d/b/a
American Home Mortgage (incorporated by reference to
Exhibit 10.9 to the Company's Registration Statement on
Form S-1 (Registration No. 333-82409)).
10.10 Mortgage Warehousing Loan and Security Agreement, dated
as of December 8, 1998, between First Union National
Bank and Michael Strauss, Inc., d/b/a American Home
Mortgage (incorporated by reference to Exhibit 10.10 to
the Company's Registration Statement on Form S-1
(Registration No. 333-82409)).
10.11 Software Licensing Agreement, dated as of July 7, 1999,
between American Home Mortgage Corp. and James P.
O'Reilly (incorporated by reference to Exhibit 10.11 to
the Company's Registration Statement on Form S-1
(Registration No. 333-82409)).
10.12 Form of Warrant Agreement, between American Home
Mortgage Holdings, Inc., and Friedman, Billings, Ramsey
& Co., Inc. (incorporated by reference to Exhibit 10.12
to the Company's Registration Statement on Form S-1
(Registration No. 333-82409)).
10.13 Form of Lock-up Agreement, between Michael Strauss and
Friedman, Billings, Ramsey & Co., Inc. (incorporated by
reference to Exhibit 10.13 to the Company's Registration
Statement on Form S-1 (Registration No. 333-82409)).
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<PAGE>
10.14 Form of Lock-up Agreement, between each of American Home
Mortgage Holdings, Inc., and its Employees, Directors
and Officers and Friedman, Billings, Ramsey & Co., Inc.
(incorporated by reference to Exhibit 10.14 to the
Company's Registration Statement on Form S-1
(Registration No. 333-82409)).
10.15 Loan Purchase Agreement, dated as of July 8, 1996,
between Michael Strauss, Inc., d/b/a American Home
Mortgage, and Norwest Funding, Inc. (incorporated by
reference to Exhibit 10.15 to the Company's Registration
Statement on Form S-1 (Registration No. 333-82409)).
10.16 Origination and Sales Agreement, dated as of July 8,
1994, between American Home Mortgage Corp. and Chase
Manhattan Mortgage Corporation (incorporated by
reference to Exhibit 10.16 to the Company's Registration
Statement on Form S-1 (Registration No. 333-82409)).
10.17 Loan Sales Agreement, dated as of March 31, 1995,
between American Home Mortgage Corp. and Columbia
Federal Savings Bank (incorporated by reference to
Exhibit 10.17 to the Company's Registration Statement on
Form S-1 (Registration No. 333-82409)).
10.18 Master Agreement for the Sale and Purchase of Mortgages,
dated as of April 19, 1994, between Astoria Federal
Savings and Loan Association and Michael Strauss, Inc.,
d/b/a American Home Mortgage (incorporated by reference
to Exhibit 10.18 to the Company's Registration Statement
on Form S-1 (Registration No. 333-82409)).
10.19 Mortgage Loan Purchase and Sale Operating Agreement,
dated as of February 1996, between Independence Savings
Bank and American Home Mortgage, Inc. (incorporated by
reference to Exhibit 10.19 to the Company's Registration
Statement on Form S-1 (Registration No. 333-82409)).
10.20 Correspondent Origination and Sales Agreement, dated as
of April 25, 1997, between Dime Mortgage Inc., and
Michael Strauss, Inc. d/b/a American Home Mortgage
(incorporated by reference to Exhibit 10.20 to the
Company's Registration Statement on Form S-1
(Registration No. 333-82409)).
10.21 Employment Agreement, dated as of January 18, 1996,
between America Home Mortgage Corp. and Leslie E. Tao,
as amended on August 26, 1999 (incorporated by reference
to Exhibit 10.21 to the Company's Registration Statement
on Form S-1 (Registration No. 333-82409)).
-28-
<PAGE>
10.22 Tax Indemnification Agreement, by and among American
Home Mortgage Holdings, Inc., American Home Mortgage
Corp. and Michael Strauss (incorporated by reference to
Exhibit 10.22 to the Company's Registration Statement on
Form S-1 (Registration No. 333-82409)).
10.23 First Amendment of Lease, dated as of September 30,
1999, between Reckson Operating Partnership, L.P., Vytra
Health Plans Long Island, Inc. and American Home
Mortgage Corp.; Assignment and Assumption of Lease dated
September 30, 1999, between Vytra Health Plans Long
Island, Inc. and American Home Mortgage Corp. and
Agreement of Lease, dated October 20, 1995, between
Reckson Operating Partnership, L.P. and ChoiceCare Long
Island, Inc. (now known as Vytra Health Plans Long
Island, Inc.).
27 Financial Data Schedule.
-29-
FIRST AMENDMENT OF LEASE
AGREEMENT made as of the 30th day of September, 1999 by and between
RECKSON OPERATING PARTNERSHIP, L.P., a Delaware limited partnership having an
office at 225 Broadhollow Road, CS 5341, Melville, New York l1747 (hereinafter
called "Landlord"); VYTRA HEALTH PLANS LONG ISLAND, INC., a corporation having
an office at 395 North Service Road, Melville, New York 11747, formerly known as
Choice Care Long Island, Inc. (hereinafter called "Tenant" or "Assignor"); and
AMERICAN HOME MORTGAGE CORP., a corporation having an office at 12 East 49th
Street, New York, New York 10017 (hereinafter called "Assignee").
RECITALS
WHEREAS, Landlord and Tenant entered into a lease agreement dated
October 20, 1995 as clarified by letter agreement between Landlord and Tenant
dated October 20, 1995 (the lease agreement and letter agreement collectively
referred to as the "Lease") for the lease of 43,200 square feet in the building
located at 520 Broadhollow Road, Melville, New York (the "Building"); and
WHEREAS, Tenant intends to assign to Assignee, effective from and
after October 1, 1999 (the "Effective Date"), all of Tenant's right, title and
interest as tenant in to and under the Lease pursuant to that certain Assignment
and Assumption of Lease Agreement between Assignor and Assignee dated September
30, 1999 ("Assignment"); and
WHEREAS, Assignee shall assume all of Tenant's right, title and
interest as tenant in to and under the Lease from and after the Effective Date
pursuant to the Assignment; and
WHEREAS, Landlord shall grant its consent to the assignment of the
Lease, as modified by this First Amendment of Lease, subject to and in
accordance with that certain consent to
<PAGE>
assignment letter executed simultaneously herewith by and among Landlord,
Assignor and Assignee.
NOW, THEREFORE, in consideration of the mutual promises contained
herein and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties agree as follows:
ARTICLE I
Definitions
1.1 The recitals are specifically incorporated into the body of this
Agreement and shall be binding upon the parties hereto.
1.2 Unless expressly set forth to the contrary and except as
modified by this Agreement, all defined terms shall have the meanings ascribed
to them in the Lease.
ARTICLE II
Lease Modifications
2.1 As of the Effective Date, the Lease is hereby modified and
amended as follows:
2.1.1 Tenant's Initial Construction. Article 5 of the Lease is hereby
deleted in its entirety.
2.1.2 Services. The third and fourth sentences of Article 6(B) of the
Lease are hereby deleted and the following is inserted in their place:
"Landlord has converted the Demised Premises to
gas heat and, prior to the Effective Date, shall
install, at Landlord's expense, a separate gas
meter to measure the consumption of gas in the
Demised Premises. Tenant shall make arrangements
to secure gas directly from the utility
servicing the Building and shall pay all charges
for such gas directly to such utility in a
timely manner."
2
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2.1.3 Signs. (a) The third through seventh sentences of Article 18
are deleted and the following is inserted in their place: "Notwithstanding the
foregoing, to the extent permitted by applicable laws and regulations, Landlord,
at Landlord's sole expense, shall provide Tenant with one (1) monument sign on
the side of the Building which faces Route 110. The dimensions and design of
such sign have been approved by Landlord in the form annexed hereto as Exhibit
1, subject to applicable laws and regulations. Landlord may grant other tenants
the right to monument signage provided that such signage does not obstruct view
of Tenant's monument signage. Landlord shall not permit any other monument
signage to be affixed to Tenant's proposed monument signage. Provided that
Tenant physically occupies the entire Demised Premises, Landlord agrees that it
shall not grant monument signage to any other tenant in the Building that is
larger than Tenant's proposed monument sign. If the number of such monument
signs is limited by applicable laws and regulations, Tenant shall be entitled to
the first monument sign excluding any Building monument sign used by Landlord.
In connection with the monument sign to be provided to Tenant, in the event it
becomes necessary to obtain a variance to erect and maintain the monument sign,
Tenant shall be responsible for and shall pay for such variance application and
proceeding but Landlord agrees to cooperate with Tenant's variance application
provided Tenant shall afford Landlord a reasonable period to review and approve
Tenant's variance application and other submissions relating thereto (which
approval shall not be unreasonably withheld or delayed).
2.1.4 Right to Sublet or Assign. The last sentence of Article 20(C)
of the Lease is hereby deleted and the following is inserted in its place:
"Notwithstanding the foregoing, the public offering of shares of stock of
Assignee shall not be deemed to be an assignment of this lease which requires
Landlord's consent."
3
<PAGE>
2.1.5 Notices. In Article 34 of the Lease, six (6) lines from the top
of the provision, delete the following: "regular,".
2.1.6 Renewal Option. Article 44 of the Lease is hereby deleted in
its entirety and the following is inserted in its place:
"Tenant shall have the right, to be exercised as hereinafter
provided, to extend the term of this lease for one period of five (5) years
(hereinafter referred to as the "Renewal Term") upon the following terms and
conditions:
(A) That at the time of the exercise of such right and at the
commencement of the Renewal Term, Tenant shall not be in default in the
performance of any of the terms, covenants or conditions, which Tenant is
required to perform under this lease beyond any applicable notice and cure
period provided herein for the cure hereof.
(B) That Tenant shall notify Landlord in writing of Tenant's election
to exercise its option with respect to the Renewal Term at least one (1) year
prior to the expiration of the term of this lease.
(C) That the Renewal Term shall be upon the same terms, covenants and
conditions as in this lease provided, except that (a) there shall be no further
option to extend this lease beyond the Renewal Term referred to above; (b) the
Premises shall be delivered at the beginning of the Renewal Term in its then "as
is" condition; and (c) the Rent to be paid by Tenant during the Renewal Term
shall be as follows:
During the first year of the Renewal Term, the Rent shall be ninety
(90%) percent of the then fair market annual minimum rent being received by
Landlord for comparable size space in the Building, but in no event less than
the Rent payable under this lease for the Lease Year
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<PAGE>
immediately preceding the Renewal Term. The Rent applicable to the first year of
the Renewal Term shall be payable in equal monthly installments.
During each of the second through fifth years of the Renewal Term,
the Rent shall be increased by three (3%) percent per year over the Rent payable
for the prior year. Said sums shall be payable in equal monthly installments.
"Fair market annual minimum rent" shall mean the rate Landlord
generally receives or that is received for comparable space in the Building. In
determining fair market annual minimum rent, no adjustment shall be made in
consideration of and Tenant shall not be entitled to a credit for Tenant
improvements, brokerage commissions, rent concessions and other concessions
which Landlord may from time to time offer to other tenants. Landlord shall
determine the fair market annual minimum rent on the basis of the foregoing
criteria. In the event Tenant disputes Landlord's determination of fair market
annual minimum rent, Tenant, by written demand, may commence arbitration
strictly in accordance with the terms and conditions of this Subparagraph. The
sole issue to be determined by such arbitration shall be the fair market annual
minimum rent to be charged in accordance with this Subparagraph. Such written
demand shall contain the name and address of the arbitrator appointed by Tenant.
Within ten (10) days after its receipt of the written demand, Landlord will give
Tenant written notice of the name and address of its arbitrator. Within ten (10)
days after the date of the appointment of the second arbitrator, the two (2)
arbitrators will meet. If the two (2) arbitrators are unable to agree on the
fair market annual minimum rent as provided herein within ten (10) days after
their first meeting, they will select a third arbitrator. The third arbitrator
will be designated as chairman and will immediately give Landlord and Tenant
written notice of its appointment. The three (3) arbitrators will meet within
ten (10) days after the appointment of the third arbitrator. If they are unable
to
5
<PAGE>
agree on the fair market annual minimum rent within ten (10) days after their
first meeting, the third arbitrator will select a time, date and place for a
hearing and will give Landlord and Tenant thirty (30) days prior written notice
of it. The date for the hearing will not be more than sixty (60) days after the
date of appointment of the third arbitrator. The arbitrators must be licensed
real estate appraisers with at least five (5) years experience in the
Nassau/Suffolk real estate market. No arbitrator may be an active real estate
broker. The arbitration will be governed by the laws of the State of New York
and, when not in conflict with such law, by the general procedures in the
commercial arbitration rules of the American Arbitration Association. The
arbitrators will not have the power to add to, modify, detract from or alter in
any way the provisions of this lease or any amendments or supplements to this
lease. The arbitrators will not have any power to decide or consider anything
other than the specific issue of the fair market annual minimum rent in
accordance with the terms of this lease. The written decision of at least two
(2) arbitrators will be conclusive and binding upon Landlord and Tenant. No
arbitrator is authorized to make an award for damages of any kind, including,
without limitation, an award for punitive, exemplary, consequential or
incidental damages. Landlord and Tenant will each pay for the services of its
appointees, attorneys and witnesses plus one-half of the fees of the third
arbitrator and of all other proper costs relating to the arbitration. The
decision of the arbitrators will be final and non-appealable and may be enforced
according to the laws of the State of New York. Notwithstanding anything to the
contrary contained herein, in the event Tenant disputes Landlord's determination
of the fair market annual minimum rent, Tenant shall nevertheless continue to
pay Rent at the same rate then being paid under this lease. In the event the
Rent as determined hereunder is at variance with the Rent being paid by Tenant,
Tenant shall either pay the difference in a lump sum or receive a credit as the
case may be.
6
<PAGE>
This Renewal Option is personal to American Home Mortgage Corp., Inc.
and is non-transferable by operation of law or otherwise, except to an assignee
of Tenant approved by Landlord pursuant to this lease or other transferee
permitted pursuant to this lease."
2.1.7 Right of First Offer. Article 45 of the Lease is hereby deleted
in its entirety and the following is inserted in its place:
"(a) Whenever space in the Building that becomes available
during the term of this Lease (the "Offer Space"), and so long as Tenant is not
in default under this Lease beyond applicable notice and cure periods provided
herein for the cure thereof, Landlord shall notify Tenant ("Landlord's Notice")
of the market rent and market rental increases ("Market Rent") upon which it
would be willing to lease the Offer Space. This right of first offer shall not
apply during the last year of the initial term of this Lease or during the last
year of any Renewal Term unless Tenant shall have previously exercised the next
available renewal option. If, within thirty (30) days after receipt of
Landlord's Notice, Tenant notifies Landlord in writing ("Tenant's Notice") of
its intention to exercise Tenant's right to lease the entire Offer Space upon
the terms contained in Landlord's Notice (which Tenant's Notice shall be
effective only if sent by Tenant to Landlord, via certified mail, return receipt
requested, to the attention of Landlord's Chief Financial Officer, at Landlord's
address set forth in this Lease), Landlord and Tenant shall execute a lease or
lease modification agreement (the "Offer Agreement"), at Landlord's option, for
the Offer Space within twenty (20) days after Landlord's receipt of Tenant's
Notice. Such Offer Agreement shall be upon all the same terms as this Lease,
except (i) for the Market Rent terms, (ii) for other matters dependent upon the
size of the Offer Space, such as Tenant's Proportionate Share, (iii) that Tenant
is accepting the Offer Space in its "as is" condition and Landlord shall not be
required to perform any work in or to the Offer Space in order to prepare
7
<PAGE>
such space for Tenant's occupancy (except as otherwise set forth in Landlord's
Notice), (iv) the number of parking spaces and directory listings shall be
increased proportionately to reflect the addition of the Offer Space, and (v)
for such other terms and conditions as may be mutually agreed to by Landlord and
Tenant. The term of the Offer Agreement shall end on the Expiration Date. If
Tenant does not deliver such Tenant's Notice within such thirty (30) day period,
or if Tenant fails to enter into the Offer Agreement for the Offer Space within
such twenty (20) day period, then this Right of First Offer will lapse (only
with respect to the particular Offer Space that is the subject of that
particular Landlord's Notice) and be of no further force and effect and Landlord
shall have the right to lease the particular Offer Space that was the subject of
Landlord's Notice to a third party on the same or any other terms and conditions
whether or not such terms and conditions are more or less favorable than those
offered to Tenant. Time shall be of the essence with respect to all of Tenant's
obligations under this Article.
(b) This right of first offer is personal to American Home
Mortgage Corp., Inc. is non-transferable by operation of law or otherwise except
to an assignee of Tenant approved by Landlord pursuant to this lease or other
transferee permitted pursuant to this lease, and is subject to then existing
rights, if any, granted to other tenants at the Building."
2.1.8 Building Improvements. Article 46 of the Lease is hereby
deleted in its entirety and the following is inserted in its place:
"Intentionally Omitted."
2.1.9 Schedule E. Schedule E of the Lease is hereby deleted in its
entirety and the following is inserted in its place: "Intentionally Omitted."
8
<PAGE>
ARTICLE III
Broker
3.1 Tenant and Assignee represent that this First Amendment of Lease
was brought about by BDL Affiliates, Inc. and Real Estate Strategies, Ltd. as
brokers. Tenant agrees to pay the commissions due and payable to BDL Affiliates,
Inc. and Real Estate Strategies, Ltd. pursuant to one or more separate
agreements. Tenant and Assignee agree that if any claim is made for commissions
by any broker through or on account of any acts of Tenant or Assignee, Tenant
and Assignee will each hold Landlord harmless from any and all liabilities and
expenses in connection with the claims arising out of the acts of Tenant or
Assignee, respectively, including Landlord's reasonable attorney's fees. Tenant,
Assignee and Landlord understand that Real Estate Strategies, Ltd. shall waive
any claim for commissions that Real Estate Strategies Ltd. may have in
connection with a renewal of the Lease or the exercise of the right of first
offer pursuant to the Lease. Tenant will hold Landlord and Assignee harmless
from any and all liability and expenses in connection with any claim for
commissions by Real Estate Strategies, Ltd. in connection with a renewal of the
Lease or exercise of the right of first offer pursuant to the Lease through or
on account of any acts of Tenant or Assignee, respectively, including Landlord's
and Assignee's respective reasonable attorney's fees. Assignee agrees that if
any claim is made for commissions by any broker other than BDL Affiliates, Inc.
in connection with a renewal of the Lease or the exercise of the right of first
offer pursuant to the Lease, through or on account of any acts of Assignee,
Assignee will hold Landlord harmless from any and all liability and expenses in
connection therewith, including Landlord's reasonable attorney's fees. Landlord
shall pay a commission to BDL Affiliates, Inc. in the event that Assignee
exercises a renewal of the Lease pursuant to and in accordance with the terms of
a separate agreement.
9
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ARTICLE IV
Ratification
4.1 Tenant represents and warrants that the Lease is presently in
full force and effect, that no event of default has occurred on the part of
Landlord and that Tenant has no defense or right of offset in connection with
Landlord's performance under the Lease to this date.
4.2 The parties hereby ratify and confirm all of the terms, covenants
and conditions of the Lease except to the extent that those terms, covenants and
conditions are amended, modified or varied by this Agreement. If there is a
conflict between the provisions of the Lease and the provisions of this
Agreement, the provisions of this Agreement shall control.
IN WITNESS WHEREOF, the parties have executed this First Amendment of
Lease as of the day and year first above written.
RECKSON OPERATING PARTNERSHIP, L.P.
By: RECKSON ASSOCIATES REALTY
CORP., its general partner
By:
-----------------------------------
VYTRA HEALTH PLANS LONG ISLAND, INC.
By: /s/ Philip Gandolfo
-----------------------------------
AMERICAN HOME MORTGAGE CORP.
By: /s/ Michael Strauss
-----------------------------------
10
<PAGE>
ASSIGNMENT AND ASSUMPTION OF LEASE
THIS AGREEMENT made the 30th day of September, 1999 between VYTRA
HEALTH PLANS LONG ISLAND, INC., formerly known as ChoiceCare Long Island, Inc.
(the "Assignor), having an office at 395 North Service Road, Melville, New York
11747, and American Home Mortgage Corp. (the "Assignee"), having an address at
12 East 49th Street, New York, New York 10017.
W I T N E S S E T H:
WHEREAS, Assignor is a tenant of a portion of the building known as
and by street number 520 Broadhollow Road, Melville, New York, located in the
County of Suffolk, State of New York, containing according to the Lease (as
hereinafter defined), approximately 43,200 square feet and which is depicted on
Exhibit A-l of the Lease (the "Premises") pursuant to an Agreement of Lease made
October 20, 1995, between ChoiceCare Long Island, Inc., as tenant, and Reckson
Operating Partnership, L. P. (the "Landlord"), as landlord, a copy of which is
annexed to this Agreement as Exhibit A, as shall be modified by that certain
First Amendment of Lease, a copy of which is annexed to this Agreement as
Exhibit B and which Assignor and Landlord intend to execute simultaneously with
the Landlord's Consent to Assignment attached hereto as Exhibit C (the
"Landlord's Consent") (said lease and First Amendment of Lease and the leasehold
created thereby, being hereinafter referred to as the "Lease"); and
WHEREAS, Assignee desires to assume all of Assignor's right, title
and interest, as tenant, in, to and under the Lease, and Assignor desires to
assign all of Assignor's right, title and interest, as tenant, in, to and under
the Lease to Assignee on and subject to the terms and conditions hereinafter set
forth.
<PAGE>
NOW, THEREFORE, in consideration of the sum of One Dollar ($1.00) by
each party hereto to the other in hand paid, the receipt of which is hereby
acknowledged, and or other good and valuable consideration, the parties hereto
hereby covenant and agree as follows:
1. Assignor assigns to Assignee, effective from and after October 1,
1999 (the "Effective Date"), all of Assignor's right, title and interest, as
tenant, in, to and under the Lease.
2. Assignee assumes all of Assignor's right, title and interest, as
tenant, in, to and under the Lease from and after the Effective Date and will
perform and observe all of the covenants and conditions therein contained on
Assignor's part to be performed and observed, which shall accrue from and after
the Effective Date provided, however, that it is expressly understood and agreed
that Assignee does not assume any obligations or liabilities of Assignor
incurred under the Lease, or arising out of actions or omissions occurring or
accruing in connection with any portion of the Premises, prior to the Effective
Date.
3. (a) Assignor hereby agrees to save, defend, hold harmless and
indemnify Assignee from and against any damages, claims, demands, suits by any
person or persons, losses, costs and expenses, including court costs and
reasonable attorneys' fees, judgments and settlements, arising out of, relating
to or resulting from any of the following: (i) Assignor's breach of this
Agreement, (ii) any obligations or liabilities under the Lease or acts or
omissions on the part of Assignor or its employees or agents in connection with
the Lease with respect to, or Assignor's use or occupancy of, the Premises,
which obligation, liability, act or omission occurs or accrues prior to the
Effective Date, and (iii) a failure by Assignor to make any payments to Landlord
that are expressly required to be made under the Lease pursuant to the terms of
the Lease in connection with the transaction contemplated by this Agreement, if
any.
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(b) Assignee hereby agrees to save, defend, hold harmless and
indemnify Assignor from and against any and all damages, claims, demands and
suits by any person or persons, losses, costs and expenses, including court
costs and reasonable attorneys' fees, judgments and settlements arising out of,
relating to or resulting from any of the following: (i) Assignee's breach of
this Agreement or the Lease from and after the Effective Date, and (ii) any
obligations or liabilities under the Lease, or acts or omissions on the part of
Assignee or its employees or agents in connection with the Lease with respect
to, or Assignee's use or occupancy of, the Premises, which obligation,
liability, act or omission occurs or accrues on or after the Effective Date.
4. This Agreement is subject to receipt by Assignor and Assignee of
fully executed originals of the following documents: (i) the Landlord's Consent
to this Agreement, (ii) First Amendment of Lease, and (iii) estoppel certificate
from Landlord to the effect set forth in Section 22(c) of the Lease. Assignor
shall use commercially reasonable efforts to obtain the foregoing items (i),
(ii) and (iii). Assignor shall promptly submit this Agreement to the Landlord
for its consent and shall promptly request the Landlord's estoppel certificate.
"Commercially reasonable efforts", for the purposes of this section shall mean
that Assignor shall comply with the requirements of Sections 20(A) (iv) and
20(B) of the Lease and promptly forward to Landlord a fully executed copy of
this Agreement and make follow-up phone calls to Landlord, if necessary or as
reasonably requested by Assignee. In the event that any of the aforementioned
items are not received within forty-five (45) days from the date of this
Agreement, or as further extended by mutual agreement, this Agreement, at
Assignee's or Assignor's option, shall be deemed to be null and void and of no
further force and effect. If this Agreement shall terminate as provided in this
Paragraph 4, Assignor shall promptly return to Assignee all funds paid to
3
<PAGE>
Assignor under this Agreement, and each party shall bear its own costs and fees
incurred in connection with this Agreement and neither party shall have any
further rights or obligations hereunder.
5. The parties acknowledge that Assignor is not being released of any
liability for the performance and observance of the covenants and conditions in
the Lease contained on tenant's part to be performed and observed through
January 31, 2003, the expiration date of the initial term of this Lease.
Assignor is being released of such liability by Landlord for any term
thereafter. As between Assignor and Assignee, Assignee's said liability under
this Lease shall be primary.
6. Notwithstanding anything to the contrary herein, in consideration
for Assignee assuming and agreeing to perform and observe all of the covenants
and conditions in the Lease contained on tenant's part to be performed and
observed on and after the Effective Date, Assignor hereby agrees to pay to
Assignee monthly payments, as reimbursement for part of the annual minimum rent
provided in the Lease in the amounts set forth in the column titled "Difference
due AHMC monthly" on Exhibit D annexed hereto and made a part hereof. Assignor
agrees to pay said monthly payments to Assignee within five (5) business days
after receipt of evidence of payment of the respective monthly installment of
annual minimum rent made by Assignee to the Landlord in accordance with the
terms of the Lease. Assignor agrees that a copy of the check for the monthly
installment of annual minimum rent along with a written statement stating that
such check was sent to Landlord is sufficient evidence that such payment was
made in accordance with the Lease.
7. As between Assignor and Assignee, Assignee shall be required to
pay the portion of Tenant's Tax Payment that is equal to the increase in Taxes
above the 1999/2000 tax year.
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Assignor shall remain fully liable to pay to Assignee all Taxes that are due
under the Lease, except for the portion of the Taxes set forth in the
immediately preceding sentence. Assignor shall pay to Assignee, Assignor's
portion of the Taxes on a monthly basis with the rental payment set forth on
Exhibit D.
8. Assignee shall deliver to Assignor upon receiving the Landlord's
consent to this Agreement, the sum of $133,200.00, as security for Assignee's
performance of the terms of this Agreement and for the performance and
observance by Assignee of the terms, provisions and conditions of the Lease (the
"Security Deposit"). The Security Deposit shall be held in an interest bearing
account with such interest accruing to the benefit of Assignee. It is agreed
that in the event Assignee defaults in respect of any of the terms, provisions
and conditions of this Agreement or the Lease, including, but not limited to,
the payment of rent or additional rent, and such default continues after notice
and the expiration of the applicable grace period, Assignor may use, apply or
retain the whole or any part of security to the extent required for the payment
of any rent or additional rent or any other sum as to which Assignee is in
default or for any sum which Assignor may expend or may be required to expend by
reason of Assignee's default in respect of any of the terms, covenants or
conditions of this Agreement or the Lease. In the event that Assignee shall
fully and faithfully comply with all the terms, provisions, covenants and
conditions of this Agreement and the Lease, the security shall be returned to
Assignee within 30 days after the earlier of (i) the date fixed as the end of
the Lease or (ii) the release of Assignor from all of its obligations under the
Lease.
9. Assignor hereby warrants and represents to Assignee that, as of
the date of execution of this Agreement:
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(a) A true and complete copy of the Lease is attached hereto as
Exhibit A, and the Lease is valid and in full force and effect
and there exists no other agreement affecting Assignor's
tenancy under the Lease other than that certain letter
agreement dated October 20, 1995, a copy of which is annexed
to this Agreement as Exhibit E;
(b) Rent under the Lease has been paid as due through and
including September, 1999;
(c) The Lease has not been altered, amended or modified in any
manner or respect, except by the First Amendment of Lease
dated as of the date hereof;
(d) The Commencement Date of the Lease is February 1, 1996 and the
Expiration Date of the Lease is January 31, 2003;
(e) Neither Landlord nor Assignor is in noticed default under the
Lease;
(f) Assignor knows of no acts or omissions which have occurred on
the part of either which may give rise to an event of default
thereunder other than Landlord's obligation to convert the
Premises to gas heat as more particularly set forth in
subparagraph (j) below and there are no pending disputes
between Landlord and Assignor with respect to the Premises or
the Lease which would adversely affect Assignee's use of the
Premises after the Effective Date or adversely affect in any
material manner any right or obligation Assignee may have
after the Effective Date and Assignor will advise Assignee of
any pending dispute;
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(g) Assignor is the current Tenant under the Lease and has full
authority to assign the Lease, subject only to obtaining the
consent of the Landlord to this assignment of the Lease;
(h) Assignor has not received any written notices of (i)
violations of any state or local building codes or other
similar laws with respect to the Premises, or (ii) any notice
from any governmental entity relating to requirements to
conform the Premises or the Building to the A.D.A. (as defined
in the Lease);
(i) As of the date of this Agreement, the Real Estate Tax
escalation which Landlord is billing Assignor under the Lease
is approximately $409.80 per month, as evidenced by a billing
invoice dated December 15, 1998 for the 1998/99 tax year
covering the period from December 1, 1998 through and
including November 30, 1999, copies of which have been
submitted to Assignee under separate cover;
(j) As of the date of this Agreement, electric current is being
supplied to the Premises and metered directly by the utility
company in accordance with the provisions of Section 6(B) of
the Lease. As of the date of this Agreement, Landlord has
completed the conversion to gas heat except for the
installation and connection of the meter set;
(k) There are no subleases, licenses, occupancy agreement or other
agreements, other than the Lease and the aforementioned letter
agreement dated October 25, 1995, relating to the Premises
which have been executed by Assignor and which might bind
Assignee;
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(l) Assignor has not executed any subordination or nondisturbance
agreement with respect to the Lease;
(m) Assignor has not exercised any options pursuant to the Lease
to renew or extend the term therefor to expand the size of the
Premises; and
(n) Assignor has not made, constructed or installed any
alterations, additions or modifications to the Premises as to
which Landlord has notified Assignor that Assignor must remove
the same at the expiration or earlier termination of the
Lease.
Assignor's representations and warranties contained in Subparagraphs 9(f), (h)
and (n) are made to the best of Assignor's knowledge as of the date such
warranties or representations are made. Assignor's "knowledge" shall be deemed
to mean only the actual knowledge of Mr. Philip Gandolfo, Executive Vice
President and Chief Financial Officer, and no other person or entity. All of
Assignor's representations and warranties contained in this Paragraph 9 must be
true in all material respects as of the Effective Date. This condition is an
express condition to Assignee's obligations under this Agreement, except that
same shall not be an express condition to Assignee's obligations under this
Agreement by reason of any breach of representation or warranty which results
from any change that occurs between the date hereof and the Effective Date which
are not materially adverse to Assignee's (i) intended use of the Premises and
(ii) rights and obligations under the Lease after the Effective Date. To the
extent Assignee has actual knowledge thereof, assignee shall notify Assignor of
any other breach and Assignor shall have a reasonable period to cure same.
Assignor shall notify Assignee of any breach in the foregoing representation
promptly after discovering such breach.
8
<PAGE>
10. In consideration for Assignor's execution and delivery of this
Agreement, Assignor covenants as follows:
(a) Between the date of this Agreement and the Effective Date,
Assignor shall maintain and repair the Premises in the
condition required by the Lease and this Agreement;
(b) Subject to any rights of setoff under the Lease, Assignor
shall pay all Rent accruing for the period between the date
of this Agreement and the Effective Date pursuant to the
Lease. If an event occurs that gives Assignor the right to
set off against Rent, Assignor shall promptly notify Assignee
of such event. If the Effective Date shall occur on any day
other than the first day of a month, Assignor and Assignee
shall prorate between them any rent due for the month based
on the actual number of days in such month;
(c) Assignor shall deliver actual possession of the Premises to
Assignee on the Effective Date in the same condition as on
the date of this Agreement, reasonable wear and tear
excepted, but vacant of all of Assignee's personal property
(except as otherwise provided herein), broom clean and free
from any occupancies;
(d) Assignor shall not amend the Lease (except as provided for
herein) or exercise any options pursuant to the Lease to
renew or extend the term therefor to expand the size of the
Premises;
9
<PAGE>
(e) Between the date of this Agreement and the Effective Date,
Assignor shall comply in all material respects with the
terms, conditions and covenants of the Lease; and
(f) Assignor and Assignee will execute and deliver to each other
any further instruments and do such further acts as are
necessary to effectuate this assignment, at Assignor's or
Assignee's reasonable request.
11. All notices hereunder shall be in writing and shall be given by
personal delivery, registered or certified mail, or by a nationally recognized
overnight courier service. Notices shall be effective upon delivery, in the case
of personal delivery, or on the third business day after mailing, or one
business day after being sent by overnight courier (marked for one day
delivery).
Notices shall be sent to the following addresses:
TO ASSIGNEE:
Prior to the Effective Date:
American Home Mortgage Corp.
12 East 49th Street-29th Floor
New York, New York 10017
On or after the Effective Date:
American Home Mortgage Corp.
520 Broadhollow Road
Melville, New York 11747
With a copy to:
Corbin Silverman & Sanseverino LLP
805 Third Avenue-11th Floor
New York, New York 10022
Attention: Kenneth W. Sold, Esq.
10
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TO ASSIGNOR:
Vytra Health Plans Long Island, Inc.
395 North Service Road
Melville, New York 11747
Attention: Mr. Philip Gandolfo
With a copy to:
Farrell Fritz, P.C.
EAB Plaza
Uniondale, New York 11556
Attention: Charles M. Strain, Esq.
Any party may change its address(es) for notice by notice to the other as
provided in this paragraph.
12. As additional consideration for Assignee assuming Assignor's
obligations under the Lease, Assignor hereby grants to Assignee, free and clear
of all liens and encumbrances, all of Assignor's right, title and interest in
and to the furniture and other personal property listed on Exhibit F attached
hereto and made a part hereof (the "Furniture"). The Furniture shall be
delivered to Assignee in "as is" condition on the date of this Agreement (normal
wear and tear excepted). Assignor represents and warrants to Assignee that the
Furniture is free and clear of all liens and encumbrances, and that Assignor has
the power and authority to transfer the Furniture to Assignee. All sales taxes
that may be due as a result of the transfer of the Furniture shall be paid by
Assignee and in the event such taxes are payable, Assignee shall deliver
evidence of such payment within a reasonable amount of time after the
consummation of the transactions contemplated by this Agreement.
13. This Agreement may not be changed, modified, discharged or
terminated orally or in any other manner than by an agreement in writing signed
by the parties hereto or their respective successors and assigns.
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<PAGE>
14. This Agreement shall be binding on and inure to the benefit of
the parties and their successors and/or assigns.
15. It is the express intention of the parties that this Agreement
shall be interpreted as an assignment and assumption of the Lease, and not a
sublease.
16. Any capitalized terms not defined herein shall have the meanings
ascribed to them in the Lease. On and after the Effective Date and subject to
the terms and conditions of the Lease, the terms Assignor and Assignee shall be
deemed to include the respective subsidiaries, affiliates, and successors by
merger, acquisition or reorganization of the parties hereto.
17. All representations, warranties and indemnities made by the
parties in this Agreement shall survive the consummation of the transactions
contemplated by this Agreement. Notwithstanding anything to the contrary herein,
except for Assignor's representation that it has full authority to assign the
Lease, which shall survive the consummation of the transactions contemplated by
this Agreement without limitation, the representations and warranties of
Assignor made in this Agreement shall survive the consummation of the
transactions contemplated by this Agreement for a period of one hundred eighty
(180) days from the Effective Date. No claim for a breach of any representation
or warranty of Assignor shall be actually payable (a) if the breach in question
results from or is based on a condition, state of facts or other matter which
was actually known to Assignee and expressly waived by Assignee prior to the
consummation of the transactions contemplated by this Agreement, and (b) unless
written notice containing a description of the specific nature of such breach
shall have been given by Assignee to Assignor prior to the expiration of said
one hundred eighty (180) day period and an action shall have been commenced by
Assignee against Assignor within two hundred seventy (270) days of the Effective
Date.
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<PAGE>
18. This Agreement shall be governed by and construed in accordance
with the laws of the State of New York.
19. Time is of the essence in the performance of Section 4 of this
Agreement.
20. This Agreement is intended by the parties to be the final
expression of their agreement and is the complete and exclusive statement of the
terms hereof notwithstanding any representations or statements to the contrary
heretofore made and not contained in this Agreement. This Agreement supersedes
all other agreements by and between the parties hereto and with respect to the
subject matter hereof. In the event that any provision of this Agreement shall
be held unenforceable by a court of competent and final jurisdiction, then this
Agreement shall be modified in accordance as much as possible with the original
intent of the parties to the extent necessary to render such provision
enforceable.
21. No waiver by either Assignor or Assignee of any term, condition,
covenant or agreement, or the breach thereof, shall constitute a continuing
waiver of such term, condition, covenant or agreement, or of any subsequent
breach thereof.
22. Assignor and Assignee each represents and warrants to the other
that it has not dealt with any broker, finder or agent in connection with the
negotiation of this Agreement other than BDL Affiliates, Inc. and Real Estate
Strategies, Ltd. (hereinafter each are referred to individually as, "Broker" and
collectively as, the "Brokers"). Assignor agrees to pay the commission due the
Brokers in connection with this transaction pursuant to separate agreements with
each Broker, which the parties acknowledge will not cover any term beyond
January 31, 2003. Assignor and Assignee each agree to indemnify, defend and hold
the other harmless from and against any claims to a fee or commission in
connection with this Agreement made by any other broker, finder or agent
claiming under or through the indemnifying party; provided,
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<PAGE>
however, that the foregoing indemnity by Assignee shall not extend to claims by
either or both Brokers and the foregoing indemnity by Assignor shall not extend
to claims by either or both Brokers for any fee or commission in connection with
any term of this Agreement and/or the Lease beyond January 31, 2003. The terms
of this Paragraph 22 shall survive the termination of this Agreement.
23. This Agreement may be executed in two or more counterparts, each
of which shall be deemed an original, but all of which shall constitute a single
instrument. It shall not be necessary for both parties to execute the same
counterparts of this Agreement for this Agreement to become effective.
IN WITNESS WHEREOF, the parties hereto have duly executed or caused
these presents to be executed the day and year first above written.
ASSIGNOR: VYTRA HEALTH PLANS LONG
ISLAND, INC.
By: /s/ Philip Gandolfo
------------------------------------
Name: Philip Gandolfo
Title: Executive Vice President/CFO
ASSIGNEE: AMERICAN HOME
MORTGAGE CORP.
By: /s/ Michael Strauss
------------------------------------
Name: Michael Strauss
Title: President
14
<PAGE>
STATE OF NEW YORK )
)
COUNTY OF )
On __________ before me personally came
_____________________________, to me known, who, being by me duly sworn did
depose and say that he resides at _________________________; that he is the
_______________ of _______________________; the corporation described in and
which executed the above instrument; and that he signed his name thereto as the
_______________ of said corporation.
---------------------------------------
Notary Public
STATE OF NEW YORK )
)
COUNTY OF )
On __________ before me personally came
_____________________________, to me known, who, being by me duly sworn did
depose and say that he resides at _________________________; that he is the
_______________ of _______________________; the corporation described in and
which executed the above instrument; and that he signed his name thereto as the
_______________ of said corporation.
---------------------------------------
Notary Public
15
<PAGE>
EXHIBIT A
520 Broadhollow Road
AGREEMENT OF LEASE
BETWEEN
RECKSON OPERATING PARTNERSHIP, L. P.
AND
CHOICECARE LONG ISLAND, INC.
<PAGE>
TABLE OF CONTENTS
Page
SPACE..........................................................................1
TERM...........................................................................1
RENT...........................................................................1
USE............................................................................2
TENANT'S INITIAL CONSTRUCTION..................................................3
SERVICES.......................................................................5
LANDLORD'S REPAIRS.............................................................6
WATER SUPPLY...................................................................6
PARKING FIELD..................................................................6
DIRECTORY......................................................................7
TAXES AND OTHER CHARGES........................................................7
TENANT' S REPAIRS..............................................................8
FIXTURES & INSTALLATIONS.......................................................9
ALTERATIONS....................................................................9
REQUIREMENTS OF LAW...........................................................12
END OF TERM...................................................................14
QUIET ENJOYMENT...............................................................15
SIGNS.........................................................................16
RULES AND REGULATIONS.........................................................16
RIGHT TO SUBLET OR ASSIGN.....................................................16
LANDLORD' S ACCESS TO PREMISES................................................18
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SUBORDINATION.................................................................19
PROPERTY LOSS, DAMAGE REIMBURSEMENT...........................................21
TENANT'S INDEMNITY............................................................22
DESTRUCTION - FIRE OR OTHER CASUALTY..........................................22
INSURANCE.....................................................................24
EMINENT DOMAIN................................................................26
NONLIABILITY OF LANDLORD......................................................27
DEFAULT.......................................................................27
TERMINATION ON DEFAULT........................................................29
DAMAGES.......................................................................30
SUMS DUE LANDLORD.............................................................31
NO WAIVER.....................................................................31
WAIVER OF TRIAL BY JURY.......................................................32
NOTICES.......................................................................32
INABILITY TO PERFORM..........................................................33
INTERRUPTION OF SERVICE.......................................................34
CONDITIONS OF LANDLORD'S LIABILITY............................................34
TENANT'S TAKING POSSESSION....................................................34
ENTIRE AGREEMENT..............................................................35
DEFINITIONS...................................................................35
PARTNERSHIP TENANT............................................................36
SUCCESSORS, ASSIGNS, ETC......................................................36
BROKER........................................................................36
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CAPTIONS......................................................................37
NOTICE OF ACCIDENTS...........................................................37
TENANT'S AUTHORITY TO ENTER LEASE.............................................37
RENEWAL OPTION................................................................37
RIGHT OF FIRST OFFER..........................................................39
BUILDING IMPROVEMENTS.........................................................41
REASONABLE CONSENT............................................................41
TENANT' S REMEDY..............................................................41
ROOF ANTENNA..................................................................42
SCHEDULE "A"....................................................................
SCHEDULE "B"....................................................................
SCHEDULE "C"....................................................................
SCHEDULE "D"....................................................................
SCHEDULE "E"....................................................................
EXHIBIT 1.......................................................................
iii
<PAGE>
AGREEMENT OF LEASE, made as of this 20th day of October, 1995, between
RECKSON OPERATING PARTNERSHIP, L.P., a limited partnership, having its principal
office at 225 Broadhollow Road, Suite 212 W, CS 5341, Melville, New York
11747-0983 (hereinafter referred to as "Landlord"), and CHOICECARE LONG ISLAND,
INC. a corporation, having its principal place of business at 395 North Service
Road, Melville, New York 11747 (hereinafter referred to as "Tenant").
WITNESSETH: Landlord and Tenant hereby covenant and agree as follows:
SPACE
1. Landlord hereby leases to Tenant and Tenant hereby hires from
Landlord the space substantially as shown on the Rental Plan initialed by the
parties and made part hereof as Exhibit "l" ("Demised Premises" or "Premises")
in the building located at 520 Broadhollow Road, Melville, New York (hereinafter
referred to as the "Building") which space the parties agree contains
approximately 43,200 square feet in a Building containing approximately 83,176
square feet which constitutes 51.94 percent of the area of the Building
("Tenant's Proportionate Share").
TERM
2. The term ("Term" or "Demised Term" or "term") of this lease shall
commence and, subject to Article 5(F) below, Tenant's obligation to pay Rent
shall commence on the date (the "Term Commencement Date") that the Contractor
(defined below) shall substantially complete Tenant's Initial Construction
(defined below) in the Demised Premises. The Term of this lease shall expire on
the date (the "Expiration Date") which is seven (7) years after the last day of
the month in which the Term Commencement Date shall have occurred, unless the
Term shall sooner terminate pursuant to any of the terms, covenants or
conditions of this lease or pursuant to law.
A "Lease Year" shall comprise a period of twelve (12) consecutive
months. Notwithstanding the foregoing, the first Lease Year shall commence upon
the Term Commencement Date and if the Term Commencement Date is not the first
day of a month shall include the additional period from the Term Commencement
Date to the end of the then current month. Each succeeding Lease Year shall end
on the anniversary date of the last day of the preceding Lease Year. For
example, if the Term Commencement Date is January 1, 1996, the first Lease Year
would end on December 31, 1996 and each succeeding Lease Year would end on
December 31st. If, however, the Term Commencement Date is January 2, 1996 the
first Lease Year would end on January 31, 1997, the second Lease Year would
commence on February 1, 1997 and each succeeding Lease Year would end on January
31st.
RENT
3. The annual minimum rental ("Rent" or "rent") is as follows:
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During the first Lease Year, the Rent shall be $734,400.00, payable in monthly
installments of $61,200.00.
During the second Lease Year, the Rent shall be $756,432.00, payable in monthly
installments of $63,036.00.
During the third Lease Year, the Rent shall be $779,124.96, payable in monthly
installments of $64,927.08.
During the fourth Lease Year, the Rent shall be $802,498.68, payable in monthly
installments of $66,874.89.
During the fifth Lease Year, the Rent shall be $826,573.68, payable in monthly
installments of $68,881.14.
During the sixth Lease Year, the Rent shall be $851,370.84, payable in monthly
installments of $70,947.57.
During the seventh Lease Year, the Rent shall be $876,912.00, payable in monthly
installments of $73,076.00.
Tenant agrees to pay the Rent to Landlord, without notice or demand, in lawful
money of the United States which shall be legal tender in payment of the debts
and dues, public and private, at the time of payment in advance on the first day
of each calendar month during the Demised Term at the office of the Landlord, or
at such other place as Landlord shall designate, except that Tenant shall pay
the first monthly installment on the Term Commencement Date. Tenant shall pay
the Rent as above and as hereinafter provided, without any set off or deduction
whatsoever except as otherwise specifically permitted under this lease. Should
the Term Commencement Date be a date other than the first day of a calendar
month, the Tenant shall pay a pro rata portion of the Rent on a per diem basis,
based upon the fourth full calendar month of the first Lease Year, from such
date to and including the last day of that current calendar month, and the first
Lease Year shall include said partial month. The Rent payable for such partial
month shall be in addition to the Rent payable pursuant to the Rent schedule set
forth above.
Notwithstanding the foregoing, provided Tenant is not then in default under any
provision of this lease, Tenant shall be relieved of its obligations to pay Rent
for the first, second and third full calendar months of the Term of this lease.
USE
4. (A) Tenant shall use and occupy the Demised Premises only for
executive, administrative and general office purposes and for no other purpose.
(B) Tenant shall not use or occupy, suffer or permit the Premises,
or any part thereof, to be used in any manner which would in any way, in the
reasonable judgment of Landlord, (i) violate any laws or regulations of public
authorities; (ii) make void or voidable any insurance policy then in force with
respect to the Building; (iii) impair the appearance, character
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<PAGE>
or reputation of the Building; (iv) discharge objectionable fumes, vapors or
odors into the Building, air-conditioning systems or Building flues or vents in
such a manner as to offend other occupants. The provisions of this Section shall
not be deemed to be limited in any way to or by the provisions of any other
Section or any Rule or Regulation.
(C) The emplacement of any equipment which will impose an evenly
distributed floor load in excess of 100 pounds per square foot shall be done
only after written permission is received from the Landlord. Such permission
will be granted only after adequate proof is furnished by a professional
engineer that such floor loading will not endanger the structure. Business
machines and mechanical equipment in the Premises shall be placed and maintained
by Tenant, at Tenant's expense, in such manner as shall be sufficient in
Landlord's judgment to absorb vibration and noise and prevent annoyance or
inconvenience to Landlord or any other tenants or occupants of the Building.
(D) Tenant will not at any time use or occupy the Demised Premises
in violation of the certificate of occupancy (temporary or permanent) issued for
the Building or portion thereof of which the Demised Premises form a part.
(E) Tenant shall not conduct medical examinations or any other
activities which shall generate "red-bag" medical waste or install any MRI or
X-ray equipment in the Demised Premises.
(F) Tenant shall be permitted access to the Demised Premises
twenty-four (24) hours a day, seven (7) days a week.
TENANT'S INITIAL CONSTRUCTION
5. (A) At Tenant's expense, Landlord shall cause Reckson Construction
Group, Inc. (the "Contractor") to perform, on a turn-key basis, pursuant to a
separate contract, the work (including architectural services) and make the
installations required to provide the Demised Premises with substantially the
same finishes as currently exist in the premises presently leased by Tenant in
the building located at 395 North Service Road, Melville, New York (except for
extraordinary finishes, including, without limitation, interior stairwells)
("Tenant's Initial Construction"). The tenant's finish work which constitutes
Tenant's Initial Construction shall substantially conform to the specifications
for Tenant's Initial Construction set forth on Schedule "E" annexed hereto and
made a part hereof.
Landlord hereby agrees to pay to Tenant a work allowance
(hereinafter referred to as "Landlord's Contribution") of $1,080,000.00 to be
used by Tenant toward the cost of Tenant's Initial Construction. Tenant shall
draw down Landlord's Contribution by use of AlA Application for Payment forms
(hereinafter referred to as "Requisition" in the singular and "Requisitions" in
the plural). In the format set forth in the Requisitions, Tenant shall be
entitled to draw down, from time to time, that percentage of Landlord's
Contribution which equals the percentage of Tenant's Initial Construction that
has been completed by or on behalf of Tenant or by the Contractor. Tenant shall
submit a Requisition to Landlord's architect no more frequently than monthly and
Landlord's architect shall verify the percentage of completion claimed by Tenant
on the Requisition in question. Landlord shall pay Tenant that portion of
Landlord's Contribution
3
<PAGE>
requested by a Requisition within ten (10) days after Landlord's receipt of such
Requisition, provided Landlord's architect confirms that the percentage of
completion set forth on such Requisition is correct.
(B) Landlord and Tenant acknowledge that Tenant has delivered to
Landlord its Program of Space Requirements for the Premises and they have agreed
upon and signed the preliminary plans (the "preliminary plans") prepared by
Landlord based upon Tenant's Program of Space Requirements. A copy of the
preliminary plans is annexed hereto as Exhibit "2". Landlord and Tenant also
acknowledge Tenant has given to Landlord its furniture plan and a description of
Tenant's power, data and telephone requirements (hereinafter referred to as the
"Supplemental Information").
(C) Landlord shall cause the Contractor to deliver the Tenant's
Initial Construction in a substantially completed condition (the date of such
delivery being referred to herein as the "Delivery Date") on or before January
30, 1996 provided Tenant shall comply with the following schedule:
(i) Landlord shall prepare working plans on the basis of the
preliminary plans within thirty (30) days after Tenant shall have delivered the
Supplemental Information to Landlord.
(ii) Tenant shall comment on Landlord's working plans and
approve such working plans, subject to such comments, within seven (7) days
after Tenant's receipt of such working plans from Landlord.
(iii) Contractor shall substantially complete Tenant's Initial
Construction within sixty-four (64) days after Tenant shall have so approved
Landlord's working plans and delivered such approval to Landlord.
(D) The Delivery Date referred to in Paragraph (C) above shall be
extended by the period of any delay in the foregoing schedule resulting from
Tenant's non-compliance with such schedule. Such delay shall not, however, delay
the commencement of the Term or the Tenant's obligation to pay Rent as otherwise
provided hereunder.
(E) (i) If Landlord shall fail to cause the Contractor to deliver
the Premises in a substantially completed condition on or before March 30, 1996,
Tenant shall receive a rent credit equal to $2,012.05 per day for each day
beyond March 30, 1996, until Landlord causes the contractor to deliver the
Premises in a substantially completed condition. Such rent credit shall be
applied against the Rent payable pursuant to this lease beginning with the
fourth (4th) full calendar month of the term of this lease. Notwithstanding the
foregoing, the effective date of Tenant's receipt of the foregoing rent credit
shall be delayed beyond March 30, 1996 by one (1) day (a) for each day that
Tenant shall delay in complying with its obligations under the plan schedule set
forth in Paragraph (C) above, or (b) for each day that Tenant shall delay the
substantial completion of Tenant's Initial Construction by reason of any of the
causes set forth in Paragraph (F) below.
(ii) In the event Landlord shall fail to cause the Contractor
to deliver the Premises in a substantially completed condition on or before
March 30, 1996 and neither
4
<PAGE>
Landlord nor the Contractor shall cure such default within thirty (30) days
after Landlord shall have received from Tenant written notice of such default
(or, if such default cannot reasonably be cured within such thirty (30) day
period, Landlord or the contractor shall not have commenced the cure of such
default within such thirty (30) day period and thereafter diligently pursued
such cure to completion), then Tenant shall have the right to complete Tenant's
Initial Construction and deduct the reasonable cost thereof from the next
payments of Rent due under this Lease.
(iii) Receipt by Tenant of the rent credit set forth in
Subparagraph (i) above and Tenant's right of setoff set forth in Subparagraph
(ii) above shall be Tenant's sole remedies in the event Landlord or the
Contractor shall fail to deliver the Premises as required under this lease and
Tenant waives any right to rescind this lease under Section 223-a of the New
York Real Property Law or any successor statute of similar import then in force
and further waives the right to recover any damages which may result from
Landlord's or the Contractor's failure to deliver possession of the Premises on
the Term Commencement Date. Notwithstanding the foregoing, the remedies waived
by Tenant in the foregoing sentence shall be deemed reinstated in the event
neither Landlord nor the Contractor shall deliver the Demised Premises to Tenant
in a substantially completed condition on or before December 31, 1996.
(F) For purposes of this Article, the term "substantially
completed" shall mean when the only items to be completed are those which do not
materially interfere with the Tenant's use and occupancy of the Demised Premises
(including, without limitation, minor construction details, mechanical
adjustments and decorations). Subject to any applicable rent concession set
forth in this lease, the commencement of the Term and Tenant's obligation to pay
Rent shall commence upon the substantial completion of Tenant's Initial
Construction; but if Landlord or the Contractor shall be delayed in such
"substantial completion" as a result of (i) Tenant's failure to approve
Landlord's working plans within the time schedule set forth in Paragraph (C)
above; (ii) Tenant's request for materials, finishes or installations other than
Landlord or Contractor's standard; (iii) Tenant's changes in its Program of
Space Requirements, Supplemental Information, the preliminary plans or
Landlord's working plans; or (iv) the performance or completion of any work,
labor or services by a party employed by Tenant (other than the Contractor);
then the commencement of the Term of this lease and the payment of Rent
hereunder with respect to the space in question shall be accelerated by the
number of days of such delay.
SERVICES
6. (A) As long as Tenant is not in default under any covenants of
this lease, Landlord, during the hours of 8:00 A.M. to 7:00 P.M. on weekdays and
8:00 A.M. to 5:00 P.M. on Saturdays ("Working Hours"), excluding legal holidays,
shall provide normal services to the "Common Area" of the Building, which normal
services shall include lighting and heating, ventilation and air conditioning as
required by the respective season. During all other hours, Landlord shall
provide only limited lighting to the parking area servicing the Demised Premises
as may be necessary for Tenant's employees and agents to gain access to the
Demised Premises.
5
<PAGE>
(B) Landlord shall provide, at its expense, an electric meter
which shall measure Tenant's consumption of electricity in the Demised Premises
for all purposes, including, without limitation, lighting, office equipment,
heating, ventilation and air conditioning. Tenant shall make arrangements to
secure electricity for such purposes directly from the utility servicing the
Building and Tenant shall pay the charges for such electricity directly to such
utility in a timely manner. Upon completion by Landlord of the conversion of the
Demised Premises to gas heat pursuant to Article 46 below and the installation
by Landlord of a separate gas meter to measure the consumption of gas in the
Demised Premises, Tenant shall make arrangements to secure gas directly from the
utility servicing the Building and Tenant shall pay the charges for such gas
directly to such utility in a timely manner. Landlord shall cause the Contractor
to install the above-referenced electric and gas meters and the conversion to
gas heat as part of Tenant's Initial Construction and the time periods and
remedies referred to in Article 5 above shall pertain thereto.
LANDLORD'S REPAIRS
7. Landlord, at its expense, will make all necessary structural and
nonstructural repairs to and provide maintenance for the Building and all
mechanical systems servicing the Building, and generally keep the Building in
good order and repair, and make all the structural and nonstructural repairs to
and provide the maintenance for the Demised Premises (excluding painting and
decorating) and for all public areas and facilities as set forth in Schedules A
and B, except such repairs and maintenance as may be necessitated by the
negligence, improper care or use of such premises and facilities by Tenant, its
agents, employees, licensees or invitees, which will be made by Landlord at
Tenant's expense.
WATER SUPPLY
8. Landlord, at its expense, shall furnish hot and cold or tempered
water for lavatory purposes and for the kitchenette and other sinks permitted in
the Demised Premises and for no other purpose.
PARKING FIELD
9. Tenant shall have the right to use one hundred seventy-two (172)
parking spaces for the parking of automobiles of the Tenant, its employees and
invitees, in the parking areas servicing the Building (hereinafter sometimes
referred to as "Building Parking Area"), twenty-five (25) of which shall be
marked "reserved" for use by Tenant, subject to the reasonable Rules and
Regulations now or hereafter adopted by Landlord. Such reserved parking spaces
shall include all those spaces located adjacent to the Route 110 side of the
Building with the balance located as shown on the Rental Plan annexed as Exhibit
1 Tenant shall not use nor permit any of its officers, agents or employees to
use any parking spaces in excess of Tenant's allotted number of spaces therein.
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DIRECTORY
10. Landlord will furnish on the building directory listings
requested by Tenant, not to exceed five (5) listings. The initial listings will
be made at Landlord's expense and any subsequent changes by Tenant shall be made
at Tenant's expense. Landlord's acceptance of any name for listing on the
directory will not be deemed, nor will it substitute for, Landlord's consent, as
required by this lease, to any sublease, assignment or other occupancy of the
Premises.
TAXES AND OTHER CHARGES
11. (A) As used in and for the purposes of this Article 11, the
following definitions shall apply:
(i) "Taxes" shall be the real estate taxes, assessments,
special or otherwise, sewer rents, rates and charges, and any other governmental
charges, general, specific, ordinary or extraordinary, foreseen or unforeseen,
levied on a calendar year or fiscal year basis against the Real Property. If at
any time during the Term the method of taxation prevailing at the date hereof
shall be altered so that there shall be levied, assessed or imposed in lieu of,
or as in addition to, or as a substitute for, the whole or any part of the
taxes, levies, impositions or charges now levied, assessed or imposed on all or
any part of the Real Property (a) a tax, assessment, levy, imposition or charge
based upon the rents received by Landlord, whether or not wholly or partially as
a capital levy or otherwise, or (b) a tax, assessment, levy, imposition or
charge measured by or based in whole or in part upon all or any part of the Real
Property and imposed on Landlord, or (c) a license fee measured by the rent
payable by Tenant to Landlord, or (d) any other tax, levy, imposition, charge or
license fee however described or imposed (excluding income, capital levy,
estate, inheritance and transfer taxes imposed on any corporate owner and any
tax on rental income), then all such taxes, levies, impositions, charges or
license fees or any part thereof, so measured or based, shall be deemed to be
Taxes.
(ii) "Base Year Taxes" shall be the taxes actually due and
payable in the 1995/96 tax year. Notwithstanding the foregoing, Base Year Taxes
applicable to each Offer Space shall be the taxes actually due and payable for
the fiscal tax year in which such Offer Space is added to the Premises.
(iii) "Escalation Year" shall mean each calendar year which
shall include any part of the Demised Term.
(iv) "Real Property" shall be the land upon which the
Building stands and any part or parts thereof utilized for parking, landscaped
areas or otherwise used in connection with the Building, and the Building and
other improvements appurtenant thereto.
(B) Tenant shall pay Landlord increases in Taxes levied against
the Real Property as follows: If the Taxes actually due and payable with respect
to the Real Property in any Escalation Year shall be increased above the Base
Year Taxes, then Tenant shall pay
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to Landlord, as additional rent for such Escalation Year, a sum equal to
Tenant's Proportionate Share of said increase ("Tenant's Tax Payment" or "Tax
Payment").
(C) Landlord shall render to Tenant, together with the then
current tax bill, a statement containing a computation of Tenant's Tax Payment
("Landlord's Statement"). Within fifteen (15) days after the rendition of the
Landlord's Statement, Tenant shall pay to Landlord the amount of Tenant's Tax
Payment. On the first day of each month following the rendition of each
Landlord's Statement, Tenant shall pay to Landlord, on account of Tenant's next
Tax Payment, a sum equal to one-twelfth (1/12th) of Tenant's last Tax Payment
due hereunder, which sum shall be subject to adjustment for subsequent increases
in Taxes.
(D) If during the Term Taxes are required to be paid as a tax
escrow payment to a mortgagee, then, at Landlord's option, the installments of
Tenant's Tax Payment shall be correspondingly accelerated so that Tenant's Tax
Payment or any installment thereof shall be due and payable by Tenant to
Landlord at least thirty (30) days prior to the date such payment is due to such
mortgagee.
(E) Tenant shall not, without Landlord's prior written consent,
institute or maintain any action, proceeding or application in any court or body
or with any governmental authority for the purpose of changing the Taxes.
However, if Landlord fails to commence such a proceeding within thirty (30) days
prior to the final date to file challenges for the tax year in question and
Landlord has not provided a reasonable justification for not doing so by such
thirtieth (30th) day, then Tenant shall be permitted to commence such a
proceeding for the tax year in question at Tenant's sole cost and expense and
upon prior notice to Landlord. In the event Tenant commences such a proceeding
as permitted by this Article, Tenant shall furnish Landlord with copies of all
documents delivered and received by or on behalf of Tenant in connection with
said proceeding. In the event any such action initiated by Landlord or Tenant is
successful, then Landlord and Tenant shall share any tax refund or credit
obtained thereby (after reimbursement to the appropriate party for reasonable
legal fees and other customary out of pocket expenses) on the basis of the Taxes
paid by each such party.
(F) Landlord's failure to render a Landlord's Statement with
respect to any Escalation Year shall not prejudice Landlord's right to render a
Landlord's Statement with respect to any Escalation Year, unless more than three
(3) years have transpired since the expiration or sooner termination of this
lease. The obligation of Landlord and Tenant under the provisions of this
Article with respect to any additional rent for any Escalation Year shall
survive the expiration or any sooner termination of the Demised Term.
TENANT' S REPAIRS
12. Tenant shall take good care of the Demised Premises and, subject
to the provisions of Article 7 hereof, Landlord, at the expense of Tenant, shall
make as and when needed as a result of misuse or neglect by Tenant or Tenant's
servants, employees, agents or licensees, all repairs in and about the Demised
Premises necessary to preserve them in good order and condition. Except as
specifically provided in this lease, there shall be no allowance to Tenant for a
diminution of rental value and no liability on the part of Landlord by reason of
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inconvenience, annoyance or injury to business arising from Landlord, Tenant or
others making any repairs, alterations, additions or improvements in or to any
portion of the Building or of Demised Premises, or in or to the fixtures,
appurtenances or equipment thereof, and no liability upon Landlord for failure
of Landlord or others to make any repairs, alterations, additions or
improvements in or to any portion of the Building or of the Demised Premises, or
in or to the fixtures, appurtenances or equipment thereof, except that Landlord
shall be subject to a claim for damages to Tenant (without a right of rent
setoff except as specifically provided in this lease) if Landlord shall be
negligent in the performance of any repairs Landlord shall elect or be required
to make to the Building or the Demised Premises or if Landlord shall
unreasonably interfere with the conduct of Tenant's business when performing
such repairs. Any rights which Tenant may have at law to claim constructive
eviction by reason of the foregoing shall be subject to Article 35(C)(i) below.
FIXTURES & INSTALLATIONS
13. All appurtenances, fixtures, improvements, additions and other
property attached to or built into the Demised Premises, whether by Landlord or
Tenant or others, and whether at Landlord's expense, or Tenant's expense, or the
joint expense of Landlord and Tenant, shall be and remain the property of
Landlord (except for purposes of sales tax which shall remain Tenant's
obligation), except that any trade fixtures, furniture, furnishings and other
articles of movable personal property belonging to Tenant, and which are
removable without material damage to the Demised Premises or the Building
("Tenant's Property"), may be removed by Tenant on condition that Tenant shall
repair, at its expense, any damage to the Demised Premises or the Building
resulting from such removal. Tenant, before so removing Tenant's Property, shall
establish to Landlord's reasonable satisfaction that no structural damage or
change will result from such removal and that Tenant can and promptly will
repair and restore any damage caused by such removal without cost or charge to
Landlord. Any such repair and removal shall itself be deemed an Alteration (as
defined in Article 14 below) within the purview of this lease. All the outside
walls of the Demised Premises including corridor walls and the outside entrance
doors to the Demised Premises, any balconies, terraces or roofs adjacent to the
Demised Premises, and any space in the Demised Premises used for shafts, stacks,
pipes, conduits, ducts or other building facilities, and the use thereof, as
well as access thereto in and through the Demised Premises for the purpose of
operation, maintenance, decoration and repair, are expressly reserved to
Landlord, and Landlord does not convey any rights to Tenant therein.
Notwithstanding the foregoing, Tenant shall enjoy full right of access to the
Demised Premises through the public entrances, public corridors and public areas
within the Building.
ALTERATIONS
14. (A) Tenant shall make no alterations, decorations, installations,
additions or improvements (hereinafter collectively referred to as
"Alterations") in or to the Demised Premises without Landlord's prior written
consent, which consent shall not be unreasonably withheld or delayed, and then
only by contractors or mechanics reasonably approved by Landlord and at such
times and in such manner as Landlord may from time to time reasonably designate.
Notwithstanding the foregoing, Tenant shall be permitted to paint and install
wall
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coverings and floor coverings and make other similar decorative alterations in
the Premises ("Decorative Alterations") without Landlord's prior consent, but
Tenant must notify Landlord prior to performing such Decorative Alterations.
(B) All Alterations done by Tenant shall at all times comply with
(i) laws, rules, orders and regulations of governmental authorities having
jurisdiction thereof, and (ii) rules and regulations of the Landlord attached as
Schedule D.
(C) With respect to all Alterations, except Decorative
Alterations, plans and specifications prepared by and at the expense of Tenant
shall be submitted to Landlord for its prior written approval which shall not be
unreasonably withheld or delayed in accordance with the following requirements:
(i) With respect to any Alterations to be performed by
Tenant pursuant to this lease, except Decorative Alterations, Tenant shall, at
its expense, furnish Landlord with all drawings, plans, layouts and
specifications for work to be performed by Tenant, including, without
limitation, architectural, plumbing, electrical, mechanical and heating,
ventilating and air conditioning plans (the "Tenant's Plans"). All of the
Tenant's Plans shall: (a) be compatible with the Landlord's building plans, (b)
comply with all applicable laws and the rules, regulations, requirements and
orders of any and all governmental agencies, departments or bureaus having
jurisdiction, and (c) be fully detailed, including locations and complete
dimensions;
(ii) Tenant's Plans shall be subject to approval by Landlord
which shall not be unreasonably withheld or delayed;
(iii) Tenant shall, at Tenant's expense, (a) cause Tenant's
Plans to be filed with the governmental agencies having jurisdiction thereover,
(b) obtain when necessary all governmental permits, licenses and authorizations
required for the work to be done in connection therewith, and (c) obtain all
necessary certificates of occupancy, both temporary and permanent. Landlord
shall execute such documents as may be reasonably required in connection with
the foregoing and Landlord shall otherwise cooperate with Tenant in connection
with obtaining the foregoing, but without any expense to Landlord. Tenant shall
make no amendments or additions to Tenant's Plans without the prior written
consent of Landlord in each instance;
(iv) No work shall commence in the Premises until (a) Tenant
has procured all necessary permits therefor and has delivered copies of same to
Landlord, (b) Tenant has procured a paid builder's risk insurance policy naming
Landlord as an additional insured and has delivered to Landlord a certificate of
insurance evidencing such policy, and (c) Tenant or its contractor has procured
a workmen's compensation insurance policy covering the activities of all persons
working at the Premises naming Landlord as an additional insured and has
delivered to Landlord a certificate of insurance evidencing such policy;
(v) Tenant may use any licensed architect or engineer to
prepare its plans and to file for permits. However, all such plans and permit
applications shall be subject to review, revision and approval by Landlord or
its architect which approval shall not be unreasonably withheld or delayed;
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(vi) Tenant, at its expense, shall perform all work in
accordance with Tenant's Plans (except Decorative Alterations), and all
Alterations, unless Landlord performs same, shall be subject to Landlord's
supervisory fee charge of 10% of the cost thereof (excluding the cost of
Decorative Alterations). In receiving such fee, Landlord assumes no
responsibility for the quality or manner in which such work has been performed;
and
(vii) Tenant agrees that it will not, either directly or
indirectly, use any contractors and/or labor and/or materials if the use of such
contractors and/or labor and/or materials would or will create any difficulty
with other contractors and/or labor engaged by Tenant or Landlord or others in
the construction, maintenance or operation of the Building or any part thereof.
Tenant hereby agrees that only "AFL-ClO Building Trades" workers and contractors
shall be used for any work to be performed by or on behalf of Tenant.
(D) Tenant's right to make Alterations shall be subject to the
following additional conditions: (i) the Alterations will not result in a
violation of, or require a change in, any Certificate of Occupancy applicable to
the Premises or the Building; (ii) the outside appearance, character or use of
the Building shall not be affected; (iii) no part of the Building outside of the
Premises shall be physically affected; (iv) subject to Landlord's consent
provisions set forth in this Article, functioning of any air-conditioning,
elevator, plumbing, electrical, sanitary, mechanical and other service or
utility system of the Building shall not be affected.
(E) Except if arising out of the Contractor's performance of
Tenant's Initial Construction, Tenant shall defend, indemnify and save harmless
Landlord against any and all mechanics' and other liens filed in connection with
its Alterations, repairs or installations, including the liens of any
conditional sales of, or chattel mortgages upon, any materials, fixtures or
articles so installed in and constituting part of the Premises and against any
loss, cost, liability, claim, damage and expense, including reasonable counsel
fees, penalties and fines incurred in connection with any such lien, conditional
sale or chattel mortgage or any action or proceeding brought thereon.
(F) Tenant, at its expense, shall procure the satisfaction or
discharge of all such liens within thirty (30) days of the filing of such lien
against the Premises or the Building. If Tenant shall fail to cause such lien to
be discharged within the aforesaid period, then, in addition to any other right
or remedy, Landlord may, but shall not be obligated to, discharge the same
either by paying the amount claimed to be due or by procuring the discharge of
such lien by deposit or by bonding proceedings, and in any such event Landlord
shall be entitled, if Landlord so elects, to compel the prosecution of an action
for the foreclosure of such lien by the lienor and to pay the amount of the
judgment in favor of the lienor with interest, costs and allowances. Any amount
so paid by Landlord, and all costs and expenses incurred by Landlord in
connection therewith, together with interest thereon at the maximum rate
permitted by law from the respective dates of Landlord's making of the payments
or incurring of the cost and expense, shall constitute additional rent and shall
be paid on demand.
(G) Nothing in this lease contained shall be construed in any way
as constituting the consent or request of Landlord, expressed or implied, to any
contractor, subcontractor, laborer or materialman for the performance of any
labor or the furnishing of any material for any improvement, alteration or
repair of the Premises, nor as giving any right or
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authority to contract for the rendering of any services or the furnishing of any
materials that would give rise to the filing of any mechanics' liens against the
Premises.
REQUIREMENTS OF LAW
15. (A) Except with respect to violations existing as of the date of
this lease, Tenant, as Tenant's sole cost and expense, shall comply with all
statutes, laws, ordinances, orders, regulations and notices of Federal, State,
County and Municipal authorities, and with all directions, pursuant to law, of
all public officers, which shall impose any duty upon Landlord or Tenant with
respect to the Demised Premises or the use or occupation thereof, if arising out
of Tenant's use or manner of use thereof, except that Tenant shall not be
required to make any structural alterations in order so to comply unless such
alterations shall be necessitated or occasioned, in whole or in part, by the
acts, omissions, or negligence of Tenant or any person claiming through or under
Tenant or any of their servants, employees, contractors, agents, visitors or
licensees, or by the specific use or occupancy or specific manner of use or
occupancy of the Demised Premises by Tenant, or any such person.
(B) The parties acknowledge that there are certain Federal, State
and local laws, regulations and guidelines now in effect and that additional
laws, regulations and guidelines may hereafter be enacted, relating to or
affecting the Premises, the Building, and the land of which the Premises and the
Building may be a part, concerning the impact on the environment of
construction, land use, the maintenance and operation of structures and the
conduct of business. Tenant will not cause, or permit to be caused, any act or
practice, by negligence, omission, or otherwise, that would adversely affect the
environment or do anything or permit anything to be done that would violate any
of said laws, regulations, or guidelines. Any violation of this covenant shall
be an event of default under this lease.
(C) Tenant shall keep or cause the Premises to be kept free of
Hazardous Materials (hereinafter defined). Without limiting the foregoing,
Tenant shall not cause or permit the Premises to be used to generate,
manufacture, refine, transport, treat, store, handle, dispose, transfer, produce
or process Hazardous Materials, except in compliance with all applicable
Federal, State and Local laws or regulations, nor shall Tenant cause or permit,
as a result of any intentional or unintentional act or omission on the part of
Tenant or any person or entity claiming through or under Tenant or any of their
employees, contractors, agents, visitors or licensees (collectively, "Related
Parties"), a release of Hazardous Materials onto the Premises or onto any other
property. Tenant shall comply with and ensure compliance by all Related Parties
with all applicable Federal, State and Local laws, ordinances, rules and
regulations, whenever and by whomever triggered, and shall obtain and comply
with, and ensure that all Related Parties obtain and comply with, any and all
approvals, registrations or permits required thereunder. With respect to
Hazardous Materials for which Tenant 1S responsible hereunder, Tenant shall (i)
conduct and complete all investigations, studies, samplings, and testing, and
all remedial removal and other actions necessary to clean up and remove such
Hazardous Materials, on, from, or affecting the Premises (a) in accordance with
all applicable Federal, State and Local laws, ordinances, rules, regulations,
policies, orders and directives, and (b) to the reasonable satisfaction of
Landlord, and (ii) defend, indemnify, and hold harmless Landlord, its employees,
agents, officers, and directors, from and against any claims, demands,
penalties, fines, liabilities,
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settlements, damages, costs, or expenses of whatever kind or nature, known or
unknown, contingent or otherwise, arising out of, or in any way related to, (a)
the presence, disposal, release, or threatened release of such Hazardous
Materials which are on, from, or affecting the soil, water, vegetation,
buildings, personal property, persons, animals, or otherwise; (b) any personal
injury (including wrongful death) or property damage (real or personal) arising
out of or related to such Hazardous Materials; (c) any lawsuit brought or
threatened, settlement reached, or government order relating to such Hazardous
Materials; and/or (d) any violation of laws, orders, regulations, requirements,
or demands of government authorities, or any policies or requirements of
Landlord which are based upon or in any way related to such Hazardous Materials,
including, without limitation, reasonable attorney and consultant fees,
investigation and laboratory fees, court costs, and litigation expenses. In the
event this lease is terminated, or Tenant is dispossessed, Tenant shall deliver
the Premises to Landlord free of any and all Hazardous Materials so that the
conditions of the Premises shall conform with all applicable Federal, State and
Local laws, ordinances, rules or regulations affecting the Premises. For
purposes of this paragraph, "Hazardous Materials" includes, without limitation,
any flammable explosives, radioactive materials, hazardous materials, hazardous
wastes, hazardous or toxic substances, or related materials defined in the
Comprehensive Environmental Response, Compensation, and Liability Act of 1980,
as amended (42 U.S.C. Sections 9601, et seq.), the Hazardous Materials
Transportation Act, as amended (49 U.S.C. Sections 1801 et seq.), the Resource
Conservation and Recovery Act, as amended (42 U.S.C. Sections 9601, et seq.),
and in the regulations adopted and publications promulgated pursuant thereto, or
any other Federal, State or Local environmental law, ordinance, rule, or
regulation.
(D) Landlord hereby covenants, warrants and represents as
follows:
(i) to the best of its knowledge, the Demised Premises are
currently in full compliance with all applicable federal, state and local
governmental laws, rules and regulations relating to environmental and
occupational hygiene matters; (ii) Landlord has not received any notice of and
has no knowledge of any claim, suit or other action or investigation with
respect to the violation of any federal, state or local environmental or
occupational hygiene laws, rules or regulations due to the presence of Hazardous
Materials in or about the Demised Premises. In addition, the Landlord shall
indemnify and save Tenant harmless from and against any and all claims,
obligations, liabilities, violations, penalties, fines, suits, governmental
orders, causes of actions, judgments, damages, whether civil or criminal or
both, of any and all kind or nature in connection with any remedial action
required of Tenant for the existence of toxic or Hazardous Materials at the
premises which are not covered by Tenant's Indemnification as provided above,
including, without limitation, claims caused by actions or omissions of persons
other than Tenant prior to the commencement of the Term of this lease or by
Landlord or other tenants during the Term of this lease. This indemnification
shall include, but not be limited to, reasonable legal fees and other charges to
which Tenant may be put, including cleanup costs, in defending against any
proceeding in connection with the foregoing.
(E) If a written notice or order shall be received by Landlord or
Tenant relating to requirements to conform to the Americans with Disabilities
Act ("A.D.A.") from any governmental body or agency having jurisdiction thereof:
(i) Tenant, at its own expense, shall be obligated to comply and cure any
violation thereof caused or occasioned by work in the Demised Premises completed
by or on behalf of Tenant (with the exception of work completed by
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Landlord or the Contractor as part of Tenant's Initial Construction); and (ii)
Landlord shall be obligated to comply and cure any violation within the Demised
Premises caused or occasioned by work in the Demised Premises completed by
Landlord or the Contractor and within portions of the Building beyond the
Demised Premises. In any such instance, the affected party need not commence
compliance until a court of final jurisdiction (or a court whose decision is not
appealed) shall determine that such compliance is mandatory; provided however,
that the expense of any such contest shall be borne by the party to be charged
as above provided and further provided that such contest shall not cause or
result in the party not so contesting (or its employees and agents) being
subject to fines or other criminal penalties.
(F) Tenant will have the right to contest, by appropriate
proceedings diligently conducted in good faith in the name of Tenant or, with
the prior consent of the Landlord (which will not be unreasonably withheld or
delayed), in the name of Landlord, or both, without cost or expense to Landlord,
the validity or application of any law, ordinance, order, rule, regulation or
legal requirement of any nature. If compliance with any law, ordinance, order,
rule, regulation, or requirement may legally be delayed pending the prosecution
of any proceeding without incurring any lien, charge, or liability of any kind
against the Premises, or Tenant's interest in the Premises, and without
subjecting Tenant or Landlord to any liability, civil or criminal, for failure
to comply, Tenant may delay compliance until the final determination of the
proceeding. Landlord will not be required to join any proceedings pursuant to
this Paragraph unless the provision of any applicable law, rule, or regulation
at the time in effect requires that the proceedings be brought by or in the name
of Landlord, or both. In that event, Landlord will join the proceedings or
permit them to be brought in its name if Tenant pays all related expenses,
including, without limitation, Landlord's reasonable attorney's fees.
END OF TERM
16. (A) Upon the expiration or other termination of the Term of this
lease, Tenant shall, at its own expense, quit and surrender to Landlord the
Demised Premises, broom clean, in good order and condition, ordinary wear, tear
and damage by fire or other insured casualty excepted, and Tenant shall remove
all of its property and shall pay the cost to repair all damage to the Demised
Premises or the Building occasioned by such removal. Any property not removed
from the Premises shall be deemed abandoned by Tenant and may be retained by
Landlord, as its property, or disposed of in any manner deemed appropriate by
the Landlord. Any expense incurred by Landlord in removing or disposing of such
property shall be reimbursed to Landlord by Tenant on demand. Tenant expressly
waives, for itself and for any person claiming through or under Tenant, any
rights which Tenant or any such person may have under the provisions of Section
2201 of the New York Civil Practice Law and Rules and of any successor law of
like import then in force, in connection with any holdover or summary proceeding
which Landlord may institute to enforce the foregoing provisions of this
Article. Tenant's obligation to observe or perform this covenant shall survive
the expiration or other termination of the Term of this lease. If the last day
of the Term of this lease or any renewal hereof falls on Sunday or a legal
holiday, this lease shall expire on the business day immediately preceding.
Tenant's obligations under this Article 16 shall survive the Expiration Date or
sooner termination of this lease.
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(B) In the event of any holding over by Tenant after the
expiration or termination of this Lease without the consent of Landlord, Tenant
shall:
(i) pay as holdover rental for each month of the holdover
tenancy an amount equal to the greater of (a) the fair market rental value of
the Premises for such month (as reasonably determined by Landlord) or (b) one
hundred fifty (150%) percent of the Rent payable by Tenant for the third month
prior to the Expiration Date of the term of this lease for the first three (3)
months of said holdover and two hundred (200%) percent of the Rent payable by
Tenant for such third month prior to the Expiration Date thereafter, and
otherwise observe, fulfill and perform all of its obligations under this lease,
including but not limited to, those pertaining to additional rent, in accordance
with its terms; and
(ii) be liable to Landlord for any payment or rent concession
which Landlord may be required to make to any tenant in order to induce such
tenant not to terminate an executed lease covering all or any portion of the
Premises by reason of the holdover over by Tenant less an amount equal to the
holdover rent paid by Tenant pursuant to Paragraph (B) (i) above minus 100% of
the monthly Rent payable by Tenant for the third month prior to the Expiration
Date of the term of this lease.
No holding over by Tenant after the Term shall operate to extend
the Term.
The holdover, with respect to all or any part of the Premises, of
a person deriving an interest in the Premises from or through Tenant, including,
but not limited to, an assignee or subtenant, shall be deemed a holdover by
Tenant.
Notwithstanding anything in this Article contained to the
contrary, the acceptance of any Rent paid by Tenant pursuant to this Paragraph
16(B), shall not preclude Landlord from commencing and prosecuting a holdover or
eviction action or proceeding or any action or proceeding in the nature thereof.
The preceding sentence shall be deemed to be an "agreement expressly providing
otherwise" within the meaning of Section 232-c of the Real Property Law of the
State of New York and any successor law of like import.
(C) If at any time during the last month of the Term Tenant shall
have removed all or substantially all of Tenant's property from the Premises,
Landlord may, and Tenant hereby irrevocably grants to Landlord a license to,
immediately enter and alter, renovate and redecorate the Premises, without
elimination, diminution or abatement of Rent, or incurring liability to Tenant
for any compensation, and such acts shall have no effect upon this lease.
QUIET ENJOYMENT
17. Landlord 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 Demised Premises during the Term of this
lease without hindrance or molestation by anyone claiming by or through
Landlord, subject, nevertheless, to the terms, covenants and conditions of this
lease including, but not limited to, Article 22.
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SIGNS
18. No signs or lettering of any nature may be put on or in any
window or on the exterior of the Building or elsewhere within the Demised
Premises such as will be visible from the street. No sign or lettering in the
public corridors or on the doors is permitted except Landlord's standard name
plaque. Notwithstanding the foregoing, to the extent permitted by applicable
laws and regulations, Landlord, at Landlord's sole expense, shall provide Tenant
with two (2) monument signs on the side of the Building which faces Route 110.
Tenant's right to such monument signage shall not be exclusive. To the extent
permitted by applicable laws and regulations, such monument signs shall each
have an area equal to fifty (50%) percent larger than the Ernst & Young monument
sign currently located at 395 North Service Road, Melville, New York, and shall
be located at the north and south entrances to the Real Property along Route
110. If the number of such monuments signs is limited by applicable laws and
regulations, Tenant shall be entitled to the first two (2) monument signs
excluding any Building monument sign used by Landlord. In connection with the
monument signs to be provided to Tenant, in the event it becomes necessary to
obtain a variance in order to maintain either or both monument signs outside the
Building, Tenant shall be responsible for and shall pay for such variance
application(s) and proceeding(s) but Landlord agrees to cooperate with Tenant's
variance application(s) provided Tenant shall afford Landlord a reasonable
period to review and approve Tenant's variance application(s) and other
submittals relating thereto (which approval shall not be unreasonably withheld
or delayed).
RULES AND REGULATIONS
19. Tenant and Tenant's agents, employees, visitors, and licensees
shall faithfully observe and comply with, and shall not permit violation of, the
Rules and Regulations set forth on Schedule C annexed hereto and made part
hereof, and with such further reasonable Rules and Regulations as Landlord at
any time may make and communicate in writing to Tenant which, in Landlord's
judgment, shall be necessary for the reputation, safety, care and appearance of
the Building and the land allocated to it or the preservation of good order
therein, or the operation or maintenance of the Building, and such land, its
equipment, or the more useful occupancy or the comfort of the tenants or others
in the Building. Landlord shall not be liable to Tenant for the violation of any
of said Rules and Regulations, or the breach of any covenant or condition, in
any lease by any other tenant in the Building. Landlord agrees to apply Rules
and Regulations in a manner which does not discriminate against Tenant.
RIGHT TO SUBLET OR ASSIGN
20. (A) Tenant covenants that it shall not assign this lease nor
sublet the Demised Premises or any part thereof by operation of law or
otherwise, including, without limitation, an assignment or subletting as defined
in (C) below, without the prior written consent of Landlord in each instance
which consent shall not be unreasonably withheld or delayed, except on the
conditions hereinafter stated. Tenant may assign this lease or sublet all or a
portion of the Demised Premises with Landlord's written consent which consent
shall not be unreasonably withheld or delayed, provided:
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(i) That such assignment or sublease is for a use which is
in compliance with the then existing zoning regulations and the Certificate of
Occupancy;
(ii) That, at the time of such assignment or subletting,
there is no default under the terms of this lease on the Tenant's part beyond
any applicable notice and cure periods provided herein for the cure thereof;
(iii) That, in the event of an assignment, the assignee shall
assume in writing the performance of all of the terms and obligations of the
within lease;
(iv) That a duplicate original of said assignment or sublease
shall be delivered by certified mail to the Landlord at the address herein set
forth within ten (10) days from the said assignment or sublease and within
ninety (90) days of the date that Tenant first advises Landlord of the name and
address of the proposed subtenant or assignee, as required pursuant to
subparagraph (B) hereof;
(v) Such assignment or subletting shall not, however,
release the within Tenant or any successor tenant or any guarantor from their
liability for the full and faithful performance of all of the terms and
conditions of this lease;
(vi) If this lease be assigned, or if the Demised Premises or
any part thereof be underlet or occupied by anybody other than Tenant, Landlord
may after default by Tenant collect rent from the assignee, undertenant, or
occupant, and apply the net amount collected to the rent herein reserved.
(B) Notwithstanding anything contained in this Article 20 to the
contrary, no assignment or underletting shall be made by Tenant in any event
until, with respect to an assignment, Tenant has offered to terminate this
entire lease and, with respect to a sublease, Tenant has offered to terminate
this lease with respect to the portion of the Demised Premises which is the
subject of the proposed sublease, as of the last day of any calendar month
during the Term hereof and to vacate and surrender the Demised Premises, or the
portion of the Demised Premises which is the subject of the proposed sublease,
as the case may be, to Landlord on the date fixed in the notice served by Tenant
upon Landlord (which date shall be prior to the date of such proposed assignment
or the commencement date of such proposed lease). Simultaneously with said offer
to terminate this lease in whole or in part, as the case may be, Tenant shall
advise the Landlord, in writing, of the name and address of the proposed
assignee or subtenant, a reasonably detailed statement of the proposed
subtenant/assignee's business, reasonably detailed financial references, and all
the terms, covenants, and conditions of the proposed sublease or assignment.
Within thirty (30) days after Landlord shall have received from Tenant such
offer to terminate and the information on the proposed assignee or subtenant
required in the preceding sentence, Landlord shall advise Tenant of its election
as to whether it shall recapture the applicable space.
(C) Except as otherwise permitted in Paragraph (D) below, for
purposes of this Article 20, (i) the transfer of a majority of the issued and
outstanding capital stock of any corporate tenant, or of a corporate subtenant,
or the transfer of a majority of the beneficial interest in any noncorporate
tenant or subtenant, however accomplished, whether in a single
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transaction or in a series of related or unrelated transactions, shall be deemed
an assignment of this lease, or of such sublease, as the case may be; (ii) any
person or legal representative of Tenant, to whom Tenant's interest under this
lease passes by operation of law or otherwise, shall be bound by the provisions
of this Article 20; and (iii) a modification or amendment of a sublease shall be
deemed a sublease. Notwithstanding the foregoing, the conversion of Tenant from
a not-for-profit corporation to a for-profit corporation, and the issuance of
shares in connection therewith to substantially the same persons that currently
hold membership interests in Tenant, shall not be deemed to be an assignment of
this lease which requires Landlord's consent.
(D) Tenant may, without the consent of Landlord, assign this
lease to an affiliate (i.e., a corporation or other entity 20% or more of whose
capital stock or beneficial interest is owned by the same stockholders or
beneficial owners owning 20% or more of Tenant's capital stock or beneficial
interest), parent or subsidiary corporation or entity of Tenant or (whether
through a private or public offering) to a corporation or entity to which it
sells or assigns all or substantially all of its assets or stock or beneficial
interest or with which it may be consolidated or merged, provided such
purchasing, consolidated, merged, affiliated or subsidiary corporation or entity
shall have assets and good will having a fair market value of at least
$10,000,000 over such corporation or entity's liabilities and shall, in writing,
assume and agree to perform all of the obligations of Tenant under this lease
and it shall deliver such assumption with a copy of such assignment to Landlord
within ten (10) days thereafter, and provided further than Tenant shall not be
released or discharged from any liability under this lease by reason of such
assignment. The right of recapture set forth in Paragraph B above shall not
apply to any assignments which are permitted under this paragraph to be made
without Landlord's consent.
(E) Whenever Tenant shall claim under this Article or any other
part of this lease that Landlord has unreasonably withheld or delayed its
consent to some request of Tenant, Tenant shall have no claim for damages by
reason of such alleged withholding or delay, and Tenant's sole remedy thereof
shall be a right to obtain specific performance or injunction but in no event
with recovery of damages.
(F) Tenant shall not mortgage, hypothecate, pledge, or otherwise
encumber its interest in this lease, without Landlord's prior written consent
which shall not be unreasonably withheld or delayed.
LANDLORD' S ACCESS TO PREMISES
21. (A) Landlord or Landlord's agents shall have the right to enter
and/or pass through the Demised Premises at all reasonable times on reasonable
notice, except in an emergency, to examine the same, and to show them to ground
lessors, prospective purchasers or lessees or mortgagees of the Building, and to
make such repairs, improvements or additions as Landlord may deem necessary or
desirable, and Landlord shall be allowed to take all material into and upon
and/or through said Demised Premises that may be required therefor. When
entering the Demised Premises pursuant to this Article 21, Landlord will use
reasonable efforts to minimize disruption of Tenant's business operations (but
such obligation shall not require Landlord to use overtime or after hour
services unless Tenant shall pay Landlord the additional
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cost for such services). During the twelve (12) months prior to the expiration
of the Term of this lease, or any renewal term, Landlord may exhibit the Demised
Premises to prospective tenants or purchasers at all reasonable hours and
without unreasonably interfering with Tenant's business. If Tenant shall not be
personally present to open and permit an entry into said premises at any time
after the notice required hereunder, when for any reason an entry therein shall
be necessary or permissible, Landlord or Landlord's agents may enter the same by
a master key, or forcibly in an emergency situation, without rendering Landlord
or such agent liable therefor (if during such entry Landlord or Landlord's
agents shall accord reasonable care to Tenant's property).
(B) Landlord shall also have the right, at any time, to change
the arrangement and/or location of entrances or passageways, doors and doorways,
and corridors, elevators, stairs, toilets, or other public parts of the
Building, provided, however, that Landlord shall make no change in the
arrangement and/or location of entrances or passageways or other public parts of
the Building which will adversely affect in any material manner Tenant's use and
enjoyment of the Demised Premises. Landlord shall also have the right, at any
time, to install signs and/or lettering on any or all entrances to the Building,
and to change the number or designation by which the Building is commonly known.
(C) Neither this lease nor any use by Tenant shall give Tenant
any right or easement to the use of any door or passage or concourse connecting
with any other building or to any public conveniences, and the use of such doors
and passages and concourse and of such conveniences may be regulated and/or
discontinued at any time and from time to time by Landlord without notice to
Tenant.
(D) The exercise by Landlord or its agents of any right reserved
to Landlord in this Article shall not constitute an actual or constructive
eviction, in whole or in part, or entitle Tenant to any abatement or diminution
of rent, or relieve Tenant from any of its obligations under this lease, or
impose any liability upon Landlord, or its agents, or upon any lessor under any
ground or underlying lease, by reason of inconvenience or annoyance to Tenant,
or injury to or interruption of Tenant's business, or otherwise.
SUBORDINATION
22. (A) Subject to the provisions of this Section 22 set forth below,
this lease and all rights of Tenant hereunder are, and shall be, subject and
subordinate in all respects to all ground leases and/or underlying leases and to
all mortgages and building loan agreements which may now or hereafter be placed
on or affect such leases and/or the Real Property of which the Demised Premises
form a part, or any part or parts of such Real Property, and/or Landlord's
interest or estate therein, and to each advance made and/or hereafter to be made
under any such mortgages, and to all renewals, modifications, consolidations,
replacements and extensions thereof and all substitutions therefor. This Section
A shall be self-operative and no further instrument of subordination shall be
required. In confirmation of such subordination, Tenant shall execute and
deliver promptly any certificate that Landlord and/or any mortgagee and/or the
lessor under any ground or underlying lease and/or their respective successors
in interest may request.
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(B) Without limitation of any of the provisions of this lease, in
the event that any mortgagee or its assigns shall succeed to the interest of
Landlord or of any successor-Landlord and/or shall have become lessee under a
new ground or underlying lease, then, at the option of such mortgagee, this
lease shall nevertheless continue in full force and effect and Tenant shall and
does hereby agree to attorn to such mortgagee or its assigns and to recognize
such mortgagee or its respective assigns as its Landlord.
(C) Either party shall, at any time and from time to time, upon
not less than ten (10) days prior notice by the other party, execute,
acknowledge and deliver to the requesting party a statement in writing
certifying that this lease is unmodified and 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) and the dates to which the Rent,
additional rent and other charges have been paid in advance, if any, and stating
whether or not to the best knowledge of the signer of such certificate, the
other party is in default in performance of any covenant, agreement, term,
provision or condition contained in this lease, and if so, specifying each such
default of which the signer may have knowledge. In the case of any such
statement requested of Tenant by Landlord, Tenant acknowledges that it is
intended that any such statement delivered pursuant hereto may be relied upon by
any prospective purchaser or lessee of the Building or the land on which it is
situated or any interest or estate therein, any mortgagee or prospective
mortgagee thereof, or any prospective assignee of any mortgage thereof. If, in
connection with obtaining financing for the Building and the land allocated to
it, a banking, insurance or other recognized institutional lender shall request
reasonable modifications in this lease as a condition to such financing, Tenant
will not unreasonably withhold, delay or defer its consent thereof, provided
that such modifications do not increase the obligations of Tenant hereunder or
materially adversely affect the leasehold interest hereby created. If, in
connection with such financing, such institutional lender shall reasonably
require financial audited information on the Tenant, Tenant shall promptly
comply with such request.
(D) The Tenant covenants and agrees that if by reason of a
default under any underlying lease (including an underlying lease through which
the Landlord derives its leasehold estate in the premises), such underlying
lease and the leasehold estate of the Landlord in the premises demised hereby is
terminated, providing notice has been given to the Tenant and leasehold
mortgagee, the Tenant will attorn to the then holder of the reversionary
interest in the premises demised by this lease or to anyone who shall succeed to
the interest of the Landlord or to the lessee of a new underlying lease entered
into pursuant to the provisions of such underlying lease, and will recognize
such holder and/or such lessee as the Tenant's landlord of this lease. The
Tenant agrees to execute and deliver, at any time and from time to time, upon
the request of the Landlord or of the lessor under any such underlying lease,
any instrument which may be necessary or appropriate to evidence such
attornment. The Tenant further waives the provision of any statute or rule of
law now or hereafter in effect which may give or purport to give the Tenant any
right of election to terminate this lease or to surrender possession of the
premises hereby in the event any proceeding is brought by the lessor under any
underlying lease to terminate the same, and agrees that unless and until any
such lessor, in connection with any such proceeding, shall elect to terminate
this lease and the rights of the Tenant hereunder, this lease shall not be
affected in any way whatsoever by any such proceeding.
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(E) Landlord represents that there are currently no mortgages or
ground or underlying leases (herein referred to as "ground leases") affecting
the Building or the Real Property appurtenant thereto. With respect to future
mortgages and ground leases, Landlord shall deliver to Tenant a subordination,
attornment and nondisturbance agreement ("Nondisturbance Agreement") from such
future mortgage lender or ground lessor which shall be in recordable form and
shall provide, inter alia, that the leasehold estate granted to Tenant under
this lease will not be terminated or disturbed by reason of the foreclosure of
any such mortgage or by reason of the termination of any such ground lease, so
long as Tenant shall not be in default under this lease beyond any applicable
notice or cure period, and shall pay all sums due under this lease without
offsets (unless specifically permitted under this lease) or defenses thereto,
and shall fully perform and comply with all of the terms, covenants, and
conditions of this lease on the part of Tenant to be performed and/or complied
with, and in the event a mortgagee or ground lessor or its respective successors
or assigns shall enter into and lawfully become possessed of the Premises
covered by this lease and shall succeed to the rights of Landlord hereunder,
Tenant will attorn to the successor as its landlord under this lease and, upon
the request of such successor landlord, Tenant will execute and deliver an
attornment agreement in favor of the successor landlord. Such Nondisturbance
Agreement shall also provide that, in the event Tenant shall not be in default
under this lease beyond any applicable notice and cure period, neither the
holder of any such mortgage nor any ground lessor shall name or join Tenant as a
party-defendant or otherwise in any suit, action or proceeding to enforce such
mortgagee's rights under such mortgage or to terminate any such ground lease,
nor will this lease nor the term hereof be terminated (except as permitted by
the provisions of this lease), nor will the rights and obligations of Tenant
under this lease be adversely affected by any enforcement action against
Landlord under such mortgage or ground lease by the holder of any such mortgage
or the lessor under any such ground lease. In addition, the Nondisturbance
Agreement which the holder of any future mortgage or ground lessor shall deliver
to Tenant shall provide that condemnation awards and insurance proceeds covered
by this lease shall be applied in the manner provided in this lease. Tenant
hereby acknowledges that such Nondisturbance Agreements may contain other
reasonable provisions in favor of the lender or ground lessor or their
respective designee including, without limitation, reasonable limitations on
such lender's or ground lessor's or designee's liability after such party shall
become a successor landlord under this lease for the prior acts or defaults of
Landlord under this lease, and reasonable limitations on Tenant's ability to
terminate this lease prior to giving such lender or ground lessor or designee a
reasonable opportunity to cure the default giving rise to such termination
right. In the event such mortgagee or ground lessor shall be unwilling to enter
into a Nondisturbance Agreement substantially in the form required hereunder,
this lease shall remain in full force and effect and the obligations of Tenant
shall not in any manner be affected except that, anything to the contrary
contained in this lease notwithstanding, this lease shall not be subject and
subordinate to such mortgage or ground lease.
PROPERTY LOSS, DAMAGE REIMBURSEMENT
23. (A) Landlord or its agents shall not be liable for any damages to
property of Tenant or of others entrusted to employees of the Building, nor for
the loss of or damage to any property of Tenant by theft. Unless due to the
negligence of Landlord, its agents, servants or employees and not covered by
Tenant's insurance, Landlord or its agents shall not be liable for
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any injury or damage to persons or property resulting from fire, explosion,
falling plaster, steam, gas, electricity, electrical disturbance, water, rain or
snow or leaks from any part of the Building or from the pipes, appliances or
plumbing works or from the roof, street or subsurface or from any other place or
by dampness or by any other cause of whatsoever nature; nor shall Landlord or
its agents be liable for any such damage caused by other tenants or persons in
the Building or caused by operations in construction of any private, public or
quasi-public work; nor shall Landlord be liable for any latent defect in the
Demised Premises or in the Building. If at any time any windows of the Demised
Premises are temporarily closed or darkened incident to or for the purpose of
repairs, replacements, maintenance and/or cleaning in, on, to or about the
Building or any part or parts thereof, Landlord shall not be liable for any
damage Tenant may sustain thereby and Tenant shall not be entitled to any
compensation therefor nor abatement of rent nor shall the same release Tenant
from its obligations hereunder nor constitute an eviction. Tenant shall
reimburse and compensate Landlord as additional rent for all expenditures
(including, without limitation, reasonable attorneys' fees) made by, or damages
or fines sustained or incurred by, Landlord due to non-performance or
non-compliance with or breach or failure to observe any term, covenant or
condition of this lease upon Tenant's part to be kept, observed, performed or
complied with. Tenant shall give immediate notice to Landlord in case of fire or
accidents in the Demised Premises or in the Building or of defects therein or in
any fixtures or equipment.
TENANT'S INDEMNITY
(B) To the extent Landlord is not reimbursed for same by
insurance, Tenant shall indemnify and save harmless Landlord against and from
any and all claims by or on behalf of any person or persons, firm or firms,
corporation or corporations arising from the conduct or management of or from
any work or breach of lease, negligence or willful misconduct (other than by
Landlord or its contractors or the agents or employees of either) in and on the
Demised Premises during any other period of occupancy by Tenant including the
Term of this lease and during the period of time, if any, prior to the specified
commencement date that Tenant may have been given access to the Demised Premises
for the purpose of making installations, and will further indemnify and save
harmless Landlord against and from any and all claims arising from any condition
of the Demised Premises or Tenant's occupancy thereof due to or arising from any
act or omissions or negligence of Tenant or any of its agents, contractors,
servants, employees, licensees or invitees and against and from all costs,
expenses, and liabilities incurred in connection with any such claim or claims
or action or proceeding brought thereon; and in case any action or proceeding be
brought against Landlord by reason of any such claim, Tenant, upon notice from
Landlord, agrees that Tenant, at Tenant's expense, will resist or defend such
action or proceeding and will employ counsel therefor reasonably satisfactory to
Landlord.
DESTRUCTION - FIRE OR OTHER CASUALTY
24. (A) If the Premises or any part thereof shall be damaged by fire
or other casualty Tenant shall give notice thereof to Landlord, Landlord shall
proceed with reasonable diligence to repair or cause to be repaired such damage.
The Rent shall be abated to the extent that the Premises shall have been
rendered untenantable, such abatement to be from the date of such damage or
destruction to the date the Premises shall be substantially repaired or rebuilt,
in
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proportion which the area of the part of the Premises so rendered untenantable
bears to the total area of the Premises.
(B) If a fire or other casualty shall render at least twenty
(20%) percent of the Premises totally damaged or wholly untenantable and such
damage shall substantially interfere with the conduct of Tenant's business in
the Premises, or if such fire or casualty damage shall render the Premises
materially inaccessible, and Landlord has not terminated this lease pursuant to
Subsection (C) and Landlord has not completed the making of the required repairs
and restored and rebuilt the Premises and/or access thereto within six (6)
months from the date of such damage or destruction, and such additional time
after such date (but in no event to exceed three (3) months) as shall equal the
aggregate period Landlord may have been delayed in doing so by unavoidable
delays, Tenant may serve notice on Landlord of its intention to terminate this
lease, and, if within thirty (30) days thereafter Landlord shall not have
completed the making of the required repairs and restored and rebuilt the
Premises, this lease shall terminate on the expiration of such thirty (30) day
period as if such termination date were the Expiration Date, and the Rent and
additional rent shall be apportioned as of such date and any prepaid portion of
Rent and additional rent for any period after such date shall be refunded by
Landlord to Tenant. Notwithstanding the foregoing, in the event Landlord shall
provide Tenant with reasonably suitable substitute space, within a seven (7)
mile radius of the Building, at a rental rate and additional rent rate not
higher than that payable by Tenant prior to the fire or other casualty, then the
six (6) month and three (3) month periods set forth in this Paragraph (B) above
shall be extended to nine (9) months and six (6) months, respectively.
(C) If a fire or other casualty shall so damage the Building that
substantial alteration or reconstruction of the Building shall, in Landlord's
opinion, be required (whether or not the Premises shall have been damaged by
such fire or other casualty), then in any of such events Landlord may, at its
option, terminate this lease and the Term and estate hereby granted, by giving
Tenant thirty (30) days notice of such termination within ninety (90) days after
the date of such damage provided Landlord also terminates leases covering at
least ninety (90%) percent of the usable area of the Building other than the
Premises and such other leases being terminated by Landlord cover at least forty
(40%) percent of the usable area of the entire Building. In the event that such
notice of termination shall be given, this lease and the Term and estate hereby
granted, shall terminate as of the date provided in such notice of termination
(whether or not the Term shall have commenced) with the same effect as if that
were the Expiration Date, and the Rent and additional rent shall be apportioned
as of such date or sooner termination and any prepaid portion of Rent and
additional rent for any period after such date shall be refunded by Landlord to
Tenant.
(D) Landlord shall not be liable for any inconvenience or
annoyance to Tenant or injury to the business of Tenant resulting in any way
from such damage by fire or other casualty or the repair thereof. Landlord will
not carry insurance of any kind on Tenant's property, and Landlord shall not be
obligated to repair any damage thereto or replace the same.
(E) This lease shall be considered an express agreement governing
any case of damage to or destruction of the Building or any part thereof by fire
or other casualty, and Section 227 of the Real Property Law of the State of New
York providing for such a contingency in the
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absence of such express agreement, and any other law of like import now or
hereafter enacted, shall have no application in such case.
INSURANCE
25. (A) Tenant shall not do anything, or suffer or permit anything to
be done, in or about the Premises which shall (i) invalidate or be in conflict
with the provisions of any fire or other insurance policies covering the
Building or any property located therein, or (ii) result in a refusal by fire
insurance companies of good standing to insure the Building or any such property
in amounts reasonably satisfactory to Landlord, or (iii) subject Landlord to any
liability or responsibility for injury to any person or property by reason of
any activity being conducted in the Premises or (iv) cause any increase in the
fire insurance rates applicable to the Building or equipment or other property
located therein at the beginning of the Term or at any time thereafter. Tenant,
at Tenant's expense, shall comply with all rules, orders, regulations or
requirements of the New York Board of Fire Underwriters and the New York Fire
Insurance Rating Organization or any similar body except to the extent such
compliance results from a condition which existed on the day preceding the Term
Commencement Date and which was not created or caused by Tenant. Landlord shall
obtain and maintain throughout the Term of this lease fire and casualty
insurance covering the Building for at least eighty (80%) percent of the
insurable value of the Building.
(B) If, by reason of any act or omission on the part of Tenant,
the rate of fire insurance with extended coverage on the Building or equipment
or other property of Landlord or any other tenant or occupant of the Building
shall be higher than it otherwise would be, Tenant shall reimburse Landlord and
all such other tenants or occupants, on demand, for the part of the premiums for
fire insurance and extended coverage paid by Landlord and such other tenants or
occupants because of such act or omission on the part of Tenant.
(C) In the event that any dispute should arise between Landlord
and Tenant concerning insurance rates, a schedule or make up of insurance rates
for the Building or the Premises, as the case may be, issued by the New York
Fire Insurance Rating Organization or other similar body making rates for fire
insurance and extended coverage for the Premises concerned, shall be conclusive
evidence of the facts therein stated and of the several items and charges in the
fire insurance rates with extended coverage then applicable to such Premises.
(D) Tenant shall obtain and keep in full force and effect during
the Term, at its own cost and expense, (i) Public Liability Insurance, such
insurance to afford protection in an amount of not less than Three Million
($3,000,000) Dollars for injury or death arising out of any one occurrence, and
Five Hundred Thousand ($500,000) Dollars for damage to property, protecting
Landlord and Tenant as insureds against any and all claims for personal injury,
death or property damage and (ii) Fire and Extended Coverage Insurance on
Tenant's property, insuring against damage by fire, and such other risks and
hazards as are insurable under present and future standard forms of fire and
extended coverage insurance policies, to Tenant's property for the full
insurable value thereof, protecting Landlord and Tenant as insureds.
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(E) Said insurance is to be written in form and substance
reasonably satisfactory to Landlord by a good and solvent insurance company of
recognized standing, admitted to do business in the State of New York, which
shall be reasonably satisfactory to Landlord. Tenant shall procure, maintain and
place such insurance and pay all premiums and charges therefor and upon failure
to do so Landlord may, but shall not be obligated to, procure, maintain and
place such insurance or make such payments, and in such event the Tenant agrees
to pay the amount thereof, plus interest at the maximum rate permitted by law,
to Landlord on demand and said sum shall be in each instance collectible as
additional rent on the first day of the month following the date of payment by
Landlord. Tenant shall cause to be included in all such insurance policies a
provision to the effect that the same will be non-cancelable except upon twenty
(20) days written notice to Landlord. On the Term Commencement Date the original
insurance policies or appropriate certificates shall be deposited with Landlord.
Any renewals, replacements or endorsements thereto shall also be deposited with
Landlord to the end that said insurance shall be in full force and effect during
the Term.
(F) Each party agrees to use its best efforts to include in each
of its insurance policies (insuring the Building and Landlord's property
therein, in the case of Landlord, and insuring Tenant's property, in the case of
Tenant, against loss, damage or destruction by fire or other casualty) a waiver
of the insurer's right of subrogation against the other party, or if such waiver
should be unobtainable or unenforceable (i) an express agreement that such
policy shall not be invalidated if the insured waives or has waived before the
casualty, the right of recovery against any party responsible for a casualty
covered by the policy, or (ii) any other form of permission for the release of
the other party, or (iii) the inclusion of the other party as an additional
insured, but not a party to whom any loss shall be payable. If such waiver,
agreement or permission shall not be, or shall cease to be, obtainable without
additional charge or at all, the insured party shall so notify the other party
promptly after learning thereof. In such case, if the other party shall agree in
writing to pay the insurer's additional charge therefor, such waiver, agreement
or permission shall be included in the policy, or the other party shall be named
as an additional insured in the policy, but not a party to whom any loss shall
be payable. Each such policy which shall so name a party hereto as an additional
insured shall contain, if obtainable, agreements by the insurer that the policy
will not be cancelled without at least twenty (20) days prior notice to both
insureds and that the act or omission of one insured will not invalidate the
policy as to the other insured.
(G) As long as Landlord's fire insurance policies then in force
include the waiver of subrogation or agreement or permission to release
liability referred to in Subsection (F) or name the Tenant as an additional
insured, Landlord hereby waives (i) any obligation on the part of Tenant to make
repairs to the Premises necessitated or occasioned by fire or other casualty
that is an insured risk under such policies, and (ii) any right of recovery
against Tenant, any other permitted occupant of the Premises, and any of their
servants, employees, agents or contractors, for any loss occasioned by fire or
other casualty that is an insured risk under such policies. In the event that at
any time Landlord's fire insurance carriers shall not include such or similar
provisions in Landlord's fire insurance policies, the waivers set forth in the
foregoing sentence shall be deemed of no further force or effect.
(H) As long as Tenant's fire insurance policies then in force
include the waiver of subrogation or agreement or permission to release
liability referred to in Subsection (F), or
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name the Landlord as an additional insured, Tenant hereby waives (and agrees to
cause any other permitted occupants of the Premises to execute and deliver to
Landlord written instruments waiving) any right of recovery against Landlord,
any other tenants or occupants of the Building, and any servants, employees,
agents or contractors of Landlord or of any such other tenants or occupants, for
any loss. occasioned by fire or other casualty which is an insured risk under
such policies. In the event that at any time Tenant's fire insurance carriers
shall not include such or similar provisions in Tenant's fire insurance
policies, the waiver set forth in the foregoing sentence shall, upon notice
given by Tenant to Landlord, be deemed of no further force or effect with
respect to any insured risks under such policy from and after the giving of such
notice. During any period while the foregoing waiver of right of recovery is in
effect, Tenant, or any other permitted occupant of the Premises, as the case may
be, shall look solely to the proceeds of such policies to compensate Tenant or
such other permitted occupant for any loss occasioned by fire or other casualty
which is an insured risk under such policies.
EMINENT DOMAIN
26. (A) In the event that the whole of the Demised Premises shall be
lawfully condemned or taken in any manner for any public or quasi-public use,
this lease and the Term and estate hereby granted shall forthwith cease and
terminate as of the date of vesting of title. In the event that only a part of
the Demised Premises shall be so condemned or taken, then effective as of the
date of vesting of title, the Rent hereunder shall be abated in an amount
thereof apportioned according to the area of the Demised Premises so condemned
or taken. In the event that a substantial part of the Building or the parking
servicing same shall be so condemned or taken, then (i) Landlord (whether or not
the Demised Premises be affected) may, at its option, terminate this lease and
the Term and estate hereby granted as of the date of such vesting of title by
notifying Tenant in writing of such termination within sixty (60) days following
the date on which Landlord shall have received notice of vesting of title, and
(ii) if such condemnation or taking shall be of a substantial part of the
Demised Premises or a substantial part of the means of access thereto or a
substantial part of the parking area servicing the Demised Premises, Tenant
shall have the right, by delivery of notice in writing to Landlord within sixty
(60) days following the date on which Tenant shall have received notice of
vesting of title, to terminate this lease and the Term and estate hereby granted
as of the date of vesting of title, except that Landlord shall have the right to
render such termination notice null and void if, within sixty (60) days after
Landlord's receipt of such notice, Landlord shall advise Tenant of its intention
to provide Tenant with substitute access or parking, as the case may be, of
substantially the same convenience as the access or parking being taken and
Landlord shall, prior to the vesting of such taking, provide Tenant with such
substitute access or parking; or (iii) if neither Landlord nor Tenant elects to
terminate this lease, as aforesaid, this lease shall be and remain unaffected by
such condemnation or taking, except that the Rent shall be abated to the extent,
if any, hereinabove provided in this Article 26. In the event that only a part
of the Demised Premises shall be so condemned or taken and this lease and the
Term and estate hereby granted are not terminated as hereinbefore provided,
Landlord will, at its expense, restore the remaining portion of the Demised
Premises as nearly as practicable to the same condition as it was in prior to
such condemnation or taking.
(B) In the event of a termination in any of the cases hereinabove
provided, this lease and the Term and estate granted shall expire as of the date
of such termination with the
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same effect as if that were the date hereinbefore set for the expiration of the
Term of this lease, and the Rent hereunder shall be apportioned as of such date.
(C) In the event of any condemnation or taking hereinabove
mentioned of all or part of the Building, Landlord shall be entitled to receive
the entire award in the condemnation proceeding, including any award made for
the value of the estate vested by this lease in Tenant, and Tenant hereby
expressly assigns to Landlord any and all right, title and interest of Tenant
now or hereafter arising in or to any such award or any part thereof, and Tenant
shall be entitled to receive no part of such award, except that the Tenant may
file a separate claim in a separate proceeding for any taking of nonmovable
fixtures owned by Tenant and for moving expenses incurred by Tenant and
leasehold improvements paid for by Tenant. It is expressly understood and agreed
that the provisions of this Article 26 shall not be applicable to any
condemnation or taking for governmental occupancy for a limited period.
NONLIABILITY OF LANDLORD
27. (A) If Landlord or a successor in interest is an individual
(which term as used herein includes aggregates of individuals, such as joint
ventures, general or limited partnerships or associations), such individual
shall be under no personal liability with respect to any of the provisions of
this lease, and if such individual hereto is in breach or default with respect
to its obligations under this lease, Tenant shall look solely to the equity of
such individual in the land and Building of which the Demised Premises form a
part for the satisfaction of Tenant's remedies and in no event shall Tenant
attempt to secure any personal judgment against any such individual or any
partner, employee or agent of Landlord by reason of such default by Landlord.
(B) The word "Landlord" as used herein means only the owner of
the landlord's interest for the time being in the land and Building (or the
owners of a lease of the Building or of the land and Building) of which the
Premises form a part, and in the event of any sale of the Building and land of
which the Demised Premises form a part, Landlord shall be and hereby is entirely
freed and relieved of all covenants and obligations of Landlord hereunder
arising after the date of such sale and, it shall be deemed and construed
without further agreement between the parties or between the parties and the
purchaser of the Premises, that such purchaser has assumed and agreed to carry
out any and all covenants and obligations of Landlord hereunder.
DEFAULT
28. (A) Upon the occurrence, at any time prior to or during the
Demised Term, of any one or more of the following events (referred to as "Events
of Default"):
(i) If Tenant shall default in the payment when due of any
installment of Rent or in the payment when due of any additional rent, and such
default shall continue for a period of ten (10) days after notice by Landlord to
Tenant of such default; or
(ii) If Tenant shall default in the observance or performance
of any term, covenant or condition of this lease on Tenant's part to be observed
or performed (other
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than the covenants for the payment of Rent and additional rent) and Tenant shall
fail to remedy such default within thirty (30) days after notice by Landlord to
Tenant of such default, or if such default is of such a nature that it cannot be
completely remedied within said period of thirty (30) days and Tenant shall not
commence within said period of thirty (30) days, or shall not thereafter
diligently prosecute to completion, all steps necessary to remedy such default;
or
(iii) If Tenant shall file a voluntary petition in bankruptcy
or insolvency, or shall be adjudicated a bankrupt or become insolvent, or shall
file any petition or answer seeking any reorganization, arrangement,
composition, readjustment, liquidation, dissolution or similar relief under the
present or any future federal bankruptcy code or any other present or future
applicable federal, state or other statute or law, or shall make an assignment
for the benefit of creditors or shall seek or consent to or acquiesce in the
appointment of any trustee, receiver or liquidator of Tenant or of all or any
part of Tenant's property; or
(iv) If, within sixty (60) days after the commencement of any
proceeding against Tenant, whether by the filing of a petition or otherwise,
seeking any reorganization, arrangement, composition, readjustment, liquidation,
dissolution or similar relief under the present or any future federal bankruptcy
code or any other present or future applicable federal, state or other statute
or law, such proceedings shall not have been dismissed, or if, within sixty (60)
days after the appointment or any trustee, receiver or liquidator of Tenant, or
of all or any part of Tenant's property, such appointment shall not have been
vacated or otherwise discharged, or if any execution or attachment shall be
issued against Tenant or any of Tenant's property pursuant to which the Demised
Premises shall be taken or occupied or attempted to be taken or occupied; or
(v) If Tenant shall default in the observance or performance
of any term, covenant or condition on Tenant's part to be observed or performed
under any other lease with Landlord in the Building and such default shall
continue beyond any grace period set forth in such other lease for the remedying
of such default; or
(vi) If seventy (70%) percent or more of the Demised Premises
shall become deserted or abandoned for a period of thirty (30) consecutive days;
or
(vii) If Tenant's interest in this lease shall devolve upon or
pass to any person, whether by operation of law or otherwise, except as
expressly permitted under Article 20;
Then, upon the occurrence, at anytime prior to or during the
Demised Term, of any one or more of such Events of Default, Landlord, at any
time thereafter, at Landlord's option, may give to Tenant a five (5) days'
notice of termination of this lease and, in the event such notice is given, this
lease and the Term shall come to an end and expire (whether or not said term
shall have commenced) upon the expiration of said five (5) days with the same
effect as if the date of expiration of said five (5) days were the Expiration
Date, but Tenant shall remain liable for damages as provided in Article 30.
(B) If, at any time (i) Tenant shall be comprised of two (2) or
more persons, or (ii) Tenant's obligations under this lease shall have been
guaranteed by any person other than
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Tenant, or (iii) Tenant's interest in this lease shall have been assigned, the
word "Tenant", as used in subsection (iii) and (iv) of Section 28(A), shall be
deemed to mean any one or more of the persons primarily or secondarily liable
for Tenant's obligations under this lease. Any monies received by Landlord from
or on behalf of Tenant during the pendency of any proceeding of the types
referred to in said subsections (iii) and (iv) shall be deemed paid as
compensation for the use and occupation of the Demised Premises and the
acceptance of such compensation by Landlord shall not be deemed an acceptance of
Rent or a waiver on the part of Landlord of any rights under Section 28(A).
TERMINATION ON DEFAULT
29. (A) If Tenant shall default in the payment when due of any
installment of rent or in the payment when due of any additional rent and such
default shall continue for a period of ten (10) days after notice by Landlord to
Tenant of such default, or if this lease and the Demised Term shall expire and
come to an end as provided in Article 28:
(i) Landlord and its agents and servants may immediately, or
at any time after such default or after the date upon which this lease and the
Demised Term shall expire and come to an end, re-enter the Demised Premises or
any part thereof, without notice, either by summary proceedings or by any other
applicable action or proceeding, or by force or other means provided such force
or other means are lawful (without being liable to indictment, prosecution or
damages therefor), and may repossess the Demised Premises and dispossess Tenant
and any other persons from the Demised Premises and remove any and all of their
property and effects from the Demised Premises; and
(ii) Landlord, at Landlord's option, may relet the whole or
any part or parts of the Demised Premises from time to time, either in the name
of Landlord or otherwise, to such tenant or tenants, for such term or terms
ending before, on or after the Expiration Date, at such rental or rentals and
upon such other conditions, which may include concessions and free rent periods,
as Landlord, in its sole discretion, may determine. Landlord will make
reasonable efforts to relet the Demised Premises or any part thereof and shall
in no event be liable for failure to relet the Demised Premises or any part
thereof, or, in the event of any such reletting, for failure to collect any rent
due upon any such reletting, and no such failure shall operate to relieve Tenant
of any liability under this lease or otherwise to affect any such liability;
Landlord, at Landlord's option, may make such repairs, replacements,
alterations, additions, improvements, decorations and other physical changes in
and to the Demised Premises as Landlord, in its sole discretion, considers
advisable or necessary in connection with any such reletting or proposed
reletting, without relieving Tenant of any liability under this lease or
otherwise affecting any such liability.
(B) Tenant, on its own behalf and on behalf of all persons
claiming through or under Tenant, including all creditors, does hereby waive any
and all rights which Tenant and all such persons might otherwise have under any
present or future law to redeem the Demised Premises, or to re-enter or
repossess the Demised Premises, or to restore the operation of this lease, after
(i) Tenant shall have been dispossessed by a judgment or by warrant of any court
or judge, or (ii) any re-entry by Landlord permitted by law, or (iii) any
expiration or termination of
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this lease and the Demised Term, whether such dispossess, re-entry, expiration
or termination shall be by operation of law or pursuant to the provisions of
this lease provided it's permitted by law. In the event of a breach or
threatened breach by Tenant or any persons claiming through or under Tenant, of
any term, covenant or condition of this lease on Tenant's part to be observed or
performed, Landlord shall have the right to enjoin such breach and the right to
invoke any other remedy allowed by law or in equity as if re-entry, summary
proceeding and other special remedies were not provided in this lease for such
breach. The rights to invoke the remedies hereinbefore set forth are cumulative
and shall not preclude Landlord from invoking any other remedy allowed at law or
in equity.
DAMAGES
30. (A) If this lease and the Demised Term shall expire and come to
an end as provided in Article 28 or by or under any summary proceeding or any
other action or proceeding, or if Landlord shall re-enter the Demised Premises
as provided in Article 29 or by or under any summary proceedings or any other
action or proceeding, then, in any of said events:
(i) Tenant shall pay to Landlord all Rent, additional rent
and other charges payable under this lease by Tenant to Landlord to the date
upon which this lease and the Demised Term shall have expired and come to an end
or to the date of re-entry upon the Demised Premises by Landlord, as the case
may be; and
(ii) Tenant shall also be liable for and shall pay to
Landlord, as damages, any deficiency (referred to as "Deficiency") between the
Rent and additional rent reserved in this lease for the period which otherwise
would have constituted the unexpired portion of the Demised Tent and the net
amount, if any, of rents collected under any reletting effected pursuant to the
provisions of Section 29(A) for any part of such period (first deducting from
the rents collected under any such reletting all of Landlord's expenses in
connection with the termination of this lease or Landlord's re-entry upon the
Demised Premises and with such reletting including, but not limited to, all
repossession costs, customary and usual brokerage commissions, legal expenses,
reasonable attorneys' fees, alteration costs and other expenses of preparing the
Demised Premises for such reletting). Any such Deficiency shall be paid in
monthly installments by Tenant on the days specified in this lease for payment
of installments of Rent. Landlord shall be entitled to recover from Tenant each
monthly Deficiency as the same shall arise, and no suit to collect the amount of
the Deficiency for any month shall prejudice Landlord's rights to collect the
Deficiency for any subsequent month by a similar proceeding; and
(B) If the Demised Premises, or any part thereof, shall be relet
together with other space in the Building, the rents collected or reserved under
any such reletting and the expenses of any such reletting shall be equitably
apportioned for the purposes of this Article 30. Tenant shall in no event be
entitled to any rents collected or payable under any reletting, whether or not
such rents shall exceed the rent reserved in this lease. Solely for the purposes
of this Article, the term "Rent" as used in Section 30(A) shall mean the rent in
effect immediately prior to the date upon which this lease and the Demised Term
shall have expired and come to an end, or the date of re-entry upon the Demised
Premises by Landlord, as the case may be, plus any
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additional rent payable pursuant to the provisions of Article 11 for the
Escalation Year (as defined in Article 11) immediately preceding such event.
Nothing contained in Articles 28 and 29 of this lease shall be deemed to limit
or preclude the recovery by Landlord from Tenant of the maximum amount allowed
to be obtained as damages by any statute or rule of law, or of any sums or
damages to which Landlord may be entitled in addition to the damages set forth
in Section 30(A).
SUMS DUE LANDLORD
31. If Tenant shall default in the performance of any covenants on
Tenant's part to be performed under this lease, Landlord may immediately, or at
anytime thereafter, with notice, and without thereby waiving such default,
perform the same for the account of Tenant and at the expense of Tenant. If
Landlord at any time is compelled to pay or elects to pay any sum of money, or
do any act which will require the payment of any sum of money by reason of the
failure of Tenant to comply with any provision hereof, or, if Landlord is
compelled to or elects to incur any expense, including reasonable attorneys'
fees, instituting, prosecuting and/or defending any action or proceeding
instituted by reason of any default of Tenant hereunder, the sum or sums so paid
by Landlord, with all interest, costs and damages, shall be deemed to be
additional rent hereunder and shall be due from Tenant to Landlord on the first
day of the month following the incurring of such respective expenses or, at
Landlord's option, on the first day of any subsequent month. Any sum of money
(other than Rent) accruing from Tenant to Landlord pursuant to any provisions of
this lease, including, but not limited to, the provisions of Schedule C, whether
prior to or after the Term Commencement Date, may, at Landlord's option, be
deemed additional rent, and Landlord shall have the same remedies for Tenant's
failure to pay any item of additional rent when due as for Tenant's failure to
pay any installment of Rent when due. Tenant's obligations under this Article
shall survive the expiration or sooner termination of the Demised Term. In any
case in which the Rent or additional rent is not paid within ten (10) days of
the day when same is due, Tenant shall pay a late charge equal to 8-1/2 cents
for each dollar so due. This late payment charge is intended to compensate
Landlord for its additional administrative costs resulting from Tenant's failure
to pay in a timely manner and has been agreed upon by Landlord and Tenant as a
reasonable estimate of the additional administrative costs that will be incurred
by Landlord as a result of Tenant's failure as the actual cost in each instance
is extremely difficult, if not impossible, to determine. This late payment
charge will constitute liquidated damages and will be paid to Landlord together
with such unpaid amounts. The payment of this late payment charge will not
constitute a waiver by Landlord of any default by Tenant under this lease.
NO WAIVER
32. No act or thing done by Landlord or Landlord's agents during the
term hereby demised shall be deemed an acceptance of a surrender of said Demised
Premises, and no agreement to accept such surrender shall be valid unless in
writing signed by Landlord. No employee of Landlord or of Landlord's agents
shall have any power to accept the keys of the Demised Premises prior to the
termination of this lease. The delivery of keys to any employee of Landlord or
of Landlord's agents shall not operate as a termination of this lease or a
surrender of
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the Demised Premises. In the event Tenant shall at any time desire to have
Landlord underlet the Demised Premises for Tenant's account, Landlord or
Landlord's agents are authorized to receive said keys for such purposes without
releasing Tenant from any of the obligations under this lease, and Tenant hereby
relieves Landlord of any liability for loss of or damage to any of Tenant's
effects in connection with such underletting. The failure of Landlord to seek
redress for violation of, or to insist upon the strict performance of, any
covenants or conditions of this lease, or any of the Rules and Regulations
annexed hereto and made a part hereof or hereafter adopted by Landlord, 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 Landlord of rent with knowledge of the breach of any covenant of this
lease shall not be deemed a wavier of such breach. The failure of a party to
enforce any of the Rules and Regulations annexed hereto and made a part hereof,
or hereafter adopted, against the other party and/or, in Landlord's case,
against any other tenant in the Building, shall not be deemed a waiver of any
such Rules and Regulations. No provision of this lease shall be deemed to have
been waived by a party, unless such waiver be in writing signed by that party.
No payment by Tenant or receipt by Landlord of a lesser amount then 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 on any check or
any letter accompanying any check or payment of Rent be deemed an accord and
satisfaction, and Landlord may accept such check or payment without prejudice to
Landlord's right to recover the balance of such Rent or pursue any other remedy
in this lease provided.
WAIVER OF TRIAL BY JURY
33. To the extent such waiver is permitted by law, Landlord and
Tenant hereby waive trial by jury in any action, proceeding or counterclaim
brought by Landlord or Tenant against the other on any matter whatsoever arising
out of or in any way connected with this lease, the relationship of landlord and
tenant, the use or occupancy of the Demised Premises by Tenant or any person
claiming through or under Tenant, any claim of injury or damage, and any
emergency or other statutory remedy. The provisions of the foregoing sentence
shall survive the expiration or any sooner termination of the Demised Term. If
Landlord commences any summary proceeding for nonpayment, Tenant agrees not to
interpose any counterclaim of whatever nature or description in any such
proceeding or to consolidate such proceeding with any other proceeding.
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 Landlord's obtaining
possession of the Demised Premises, by reason of the violation by Tenant of any
of the covenants and conditions of this lease or otherwise.
NOTICES
34. Except as otherwise expressly provided in this lease, any bills,
statements, notices, demands, requests or other communications (other than
bills, statements or notices given in the regular course of business) given or
required to be given under this lease shall be effective only if rendered or
given in writing, sent by regular, registered or certified mail (return receipt
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requested), addressed (A) to Tenant (to the attention of Tenant's Chief
Financial Officer) (i) at Tenant's address set forth in this lease if mailed
prior to Tenant's taking possession of the Demised Premises, or (ii) at the
Building if mailed subsequent to Tenant's taking possession of the Demised
Premises, or (iii) at any place where Tenant or any agent or employee of Tenant
may be found if mailed subsequent to Tenant's vacating, deserting, abandoning or
surrendering the Demised Premises, or (B) to Landlord (to the attention of
Landlord's Chief Financial Officer) at Landlord's address set forth in this
lease, or (C) addressed to such other address as either Landlord or Tenant may
designate as its new address for such purpose by notice given to the other in
accordance with the provisions of this Article. Any such bills, statements,
notices, demands, requests or other communications shall be deemed to have been
rendered or given on the third day after it is mailed as provided in this
Article.
INABILITY TO PERFORM
35. (A) (i) Except as otherwise provided in this lease, if, by reason
of strikes or other labor disputes, fire or other casualty, accidents, orders or
regulations of any Federal, State, County or Municipal authority, or any other
cause beyond Landlord's reasonable control, whether or not such other cause
shall be similar in nature to those hereinbefore enumerated, Landlord is unable
to furnish or is delayed in furnishing any utility or service required to be
furnished by Landlord under the provisions of this lease or any collateral
instrument or is unable to perform or make or is delayed in performing or making
any installations, decorations, repairs, alterations, additions or improvements,
whether or not required to be performed or made under this lease, or under any
collateral instrument, or is unable to fulfill or is delayed in fulfilling any
of Landlord's other obligations under this lease, or any collateral instrument,
no such inability or delay shall entitle Tenant to any abatement or diminution
of rent, or relieve Tenant from any of its obligations under this lease, or
impose any liability upon Landlord or its agents, by reason of inconvenience or
annoyance to Tenant, or injury to or interruption of Tenant's business, or
otherwise except that Landlord shall be subject to a claim for damages to Tenant
(without a right of setoff against Rent or additional rent) if such
inconvenience, injury or interruption is caused by Landlord's negligence.
(ii) If, by reason of strikes or other labor disputes, fire or
other casualty, accidents, orders or regulations of any Federal, State, County
or Municipal authority, or any other cause beyond Tenant's reasonable control,
Tenant is unable to perform or is delayed in performance of its obligations
under this lease, except obligations which may be met by the payment of a sum of
money, no such inability or delay on the part of Tenant shall impose any
liability upon Tenant.
(iii) Notwithstanding the foregoing, if delays in performance
permitted above by either party shall exceed ninety (90) days, each party
hereunder shall have the remedies against the other party for such default
otherwise permitted under this lease or otherwise permitted at law or equity to
the extent not limited by this lease.
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INTERRUPTION OF SERVICE
(B) Landlord reserves the right to stop the services of the air
conditioning, elevator, escalator, plumbing, electrical or other mechanical
systems or facilities in the Building when necessary by reason of accident or
emergency, or for repairs, alterations or replacements, which, in the reasonable
judgment of Landlord are necessary, until such repairs, alterations or
replacements shall have been completed. The exercise of such rights by Landlord
shall not entitle Tenant to any abatement or diminution of rent, or relieve
Tenant from any of its obligations under this lease, or impose any liability
upon Landlord or its agents by reason of inconvenience or annoyance to Tenant,
or injury to or interruption of Tenant's business or otherwise except that
Landlord shall be subject to a claim for damages to Tenant (without a right of
rent setoff) if such injury to or interruption of Tenant's business is caused by
Landlord's negligence. Landlord shall use reasonable efforts to diligently and
promptly complete repairs, alterations and replacements made pursuant to this
Paragraph (B) (but such obligation shall not require Landlord to use overtime or
after hour services unless Tenant shall pay the additional cost for such
services).
CONDITIONS OF LANDLORD'S LIABILITY
(C) (i) In addition to the requirements for constructive eviction
imposed by law, Tenant shall not be entitled to claim a constructive eviction
from the Demised Premises unless Tenant shall have first notified Landlord of
the condition or conditions giving rise thereto, and if the complaints be
justified, unless Landlord shall have failed to remedy such conditions within a
reasonable time after receipt of such notice.
(ii) If Landlord shall be unable to give possession of the
Demised Premises on any date specified for the commencement of the term by
reason of the fact that the Premises have not been sufficiently completed to
make the Premises ready for occupancy, or for any other reason, Landlord shall
not be subject to any liability for the failure to give possession on said date,
nor shall such failure in any way affect the validity of this lease or the
obligations of Tenant hereunder except that Tenant shall be entitled to the
remedies set forth in Article 5(E) above, and Landlord shall be subject to a
claim for damages to Tenant (without a right of setoff against Rent or
additional rent except as specifically permitted under this lease) if such
failure to give possession is caused by Landlord's negligence.
TENANT'S TAKING POSSESSION
(D) (i) Tenant, by entering into occupancy of the Premises, shall
be conclusively deemed to have agreed that Landlord, up to the time of such
occupancy has performed all of its obligations hereunder and that the Premises
were in satisfactory condition as of the date of such occupancy, unless, with
respect to those defects of which it has actual knowledge, Tenant, within sixty
(60) days after such date, shall have given written notice to Landlord
specifying the respects in which the same were not in such condition.
(ii) Subject to Landlord's prior written consent, if Tenant
shall use or occupy all or any part of the space in the Demised Premises prior
to the Term Commencement
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Date, such use or occupancy shall be deemed to be under all of the terms,
covenants and conditions of this lease, except that Tenant shall not be required
to pay annual minimum rent during such period. If Tenant shall be permitted by
Landlord to so occupy any portion of the Demised Premises prior to the Term
Commencement Date, Tenant shall not interfere with the performance by Landlord
or the Contractor of Tenant's Initial Construction or other work being performed
by Landlord or the Contractor in the Demised Premises.
ENTIRE AGREEMENT
36. This lease (including the Schedules and Exhibits annexed hereto)
contains the entire agreement between the parties and all prior negotiations and
agreements are merged herein. Tenant hereby acknowledges that neither Landlord
nor Landlord's agent or representative has made any representations or
statements, or promises, upon which Tenant has relied, regarding any matter or
thing relating to the Building, the land allocated to it (including the parking
area) or the Demised Premises, or any other matter whatsoever, except as is
expressly set forth in this lease, including, but without limiting the
generality of the foregoing, any statement, representation or promise as to the
fitness of the Demised Premises for any particular use, the services to be
rendered to the Demised Premises, or the prospective amount of any item of
additional rent. No oral or written statement, representation or promise
whatsoever with respect to the foregoing or any other matter made by Landlord,
its agents or any broker, whether contained in an affidavit, information
circular, or otherwise, shall be binding upon the Landlord unless expressly set
forth in this lease. No rights, easements or licenses are or shall be acquired
by Tenant by implication or otherwise unless expressly set forth in this lease.
This lease may not be changed, modified or discharged, in whole or in part,
orally, and no executory agreement shall be effective to change, modify or
discharge, in whole or in part, this lease or any obligations under this lease,
unless such agreement is set forth in a written instrument executed by the party
against whom enforcement of the change, modification or discharge is sought. All
references in this lease to the consent or approval of Landlord shall be deemed
to mean the written consent of Landlord, or the written approval of Landlord, as
the case may be, and no consent or approval of Landlord shall be effective for
any purpose unless such consent or approval is set forth in a written instrument
executed by Landlord.
DEFINITIONS
37. The words "re-enter", "re-entry", and "re-entered" as used in
this lease are not restricted to their technical legal meanings. The term
"business days" as used in this lease shall exclude Saturdays (except such
portion thereof as is covered by specific hours in Article 6 hereof), Sundays
and all days observed by the State or Federal Government as legal holidays. The
terms "person" and "persons" as used in this lease shall be deemed to include
natural persons, firms, corporations, partnerships, associations and any other
private or public entities, whether any of the foregoing are acting on their
behalf or in a representative capacity. The various terms which are defined in
other Articles of this lease or are defined in Schedules or Exhibits annexed
hereto, shall have the meanings specified in such other Articles, Exhibits and
Schedules for all purposes of this lease and all agreements supplemental
thereto, unless the context clearly indicates the contrary.
35
<PAGE>
PARTNERSHIP TENANT
38. If Tenant is a partnership (or is comprised of two (2) or more
persons, individually or as co-partners of a partnership) or if Tenant's
interest in this lease shall be assigned to a partnership (or to two (2) or more
persons, individually or as co-partners of a partnership) pursuant to Article 20
(any such partnership and such persons are referred to in this Section as
"Partnership Tenant"), the following provisions of this Section shall apply to
such Partnership Tenant: (a) the liability of each of the parties comprising
Partnership Tenant shall be joint and several, and (b) 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, and (c) any bills, statements, notices, demands, requests and other
communications 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, and (d) 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 (e) 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 (d) of this Section).
SUCCESSORS, ASSIGNS, ETC.
39. The terms, covenants, conditions and agreements contained in this
lease shall bind and inure to the benefit of Landlord and Tenant and their
respective heirs, distributees, executors, administrators, successors, and,
except as otherwise provided in this lease, their respective assigns.
BROKER
40. Tenant and Landlord each represent to the other that this lease
was brought about by Real Estate Strategies, Ltd. as broker and all negotiations
with respect to this lease were conducted exclusively with said broker. Each
party agrees that if any claim is made for commissions by any other broker
through or on account of any acts of a party, that party will hold the other
free and harmless from any and all liabilities and expenses in connection
therewith, including reasonable attorney's fees.
36
<PAGE>
CAPTIONS
41. The captions in this lease are included 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 provisions thereof.
NOTICE OF ACCIDENTS
42. Tenant shall give notice to Landlord, promptly after Tenant
learns thereof, of (i) any accident in or about the Premises, (ii) all fires and
other casualties within the Premises, (iii) all damages to or defects in the
Premises, including the fixtures, equipment and appurtenances thereof for the
repair of which Landlord might be responsible, and (iv) all damage to or defects
in any parts or appurtenances of the Building's sanitary, electrical, heating,
ventilating, air-conditioning, elevator and other systems located in or passing
through the Premises or any part thereof.
TENANT'S AUTHORITY TO ENTER LEASE
43. In the event that Landlord or Tenant hereunder is a corporation,
Landlord and/or Tenant, as the case may be, represents that the officer or
officers executing this lease have the requisite authority to do so. Tenant
agrees to give Landlord written notice of any change in the ownership of the
majority of the outstanding capital stock of Tenant or any change in the
ownership of the majority of the assets of Tenant as soon as legally permitted
after the occurrence thereof once same is announced to the public.
RENEWAL OPTION
44. Tenant shall have the right, to be exercised as hereinafter
provided, to extend the term of this lease for three (3) periods of five (5)
years each (hereinafter referred to individually as the "Renewal Term") upon the
following terms and conditions:
(A) That at the time of the exercise of each such right and at
the commencement of each Renewal Term, Tenant shall not be in default in the
performance of any of the terms, covenants or conditions which Tenant is
required to perform under this lease beyond any applicable notice and cure
period provided herein for the cure hereof.
(B) That Tenant shall notify Landlord in writing of Tenant's
election to exercise its option with respect to the applicable Renewal Term at
least one (1) year prior to the expiration of the then current term or Renewal
Term, as the case may be.
(C) That each Renewal Term shall be upon the same terms,
covenants and conditions as in this lease provided, except that (a) there shall
be no further option to extend this lease beyond the three (3) Renewal Terms
referred to above; (b) the Premises shall be delivered at the beginning of each
Renewal Term in its then "as is" condition; and (c) the Rent to be paid by
Tenant during each Renewal Term shall be as follows:
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During the first year of each Renewal Term, the Rent shall be
ninety (90%) percent of the then fair market annual minimum rent being received
by Landlord for comparable size space in the Building, but in no event less than
the Rent payable under this lease for the Lease Year immediately preceding the
applicable Renewal Term. In the event a portion of the Demised Premises is in
1660 Walt Whitman Road (by reason of Tenant's taking over Offer Space in such
building pursuant to Article 45 below), the Rent applicable to such space shall
be ninety (90%) percent of the then fair market annual minimum rent being
received by Landlord for comparable size space in that building, but in no event
less than the Rent payable under this lease (or a separate lease covering such
space) for the Lease Year immediately preceding the applicable Renewal Term. The
Rent applicable to the Renewal Term shall be payable in equal monthly
installments.
During each of the second through fifth years of each Renewal
Term, the Rent shall be increased by three (3%) percent per year over the Rent
payable for the prior year. Said sums shall be payable in equal monthly
installments.
"Fair market annual minimum rent" shall mean the rate Landlord
generally receives or that is received for comparable space in the Building or
1660 Walt Whitman Road, whichever is applicable. In determining fair market
annual minimum rent, no adjustment shall be made in consideration of and Tenant
shall not be entitled to a credit for Tenant improvements, brokerage
commissions, rent concessions and other concessions which Landlord may from time
to time offer to other tenants. Landlord shall determine the fair market annual
minimum rent on the basis of the foregoing criteria. In the event Tenant
disputes Landlord's determination of fair market annual minimum rent, Tenant, by
written demand, may commence arbitration strictly in accordance with the terms
and conditions of this Subparagraph. The sole issue to be determined by such
arbitration shall be the fair market annual minimum rent to be charged in
accordance with this Subparagraph. Such written demand shall contain the name
and address of the arbitrator appointed by Tenant. Within ten (10) days after
its receipt of the written demand, Landlord will give Tenant written notice of
the name and address of its arbitrator. Within ten (10) days after the date of
the appointment of the second arbitrator, the two (2) arbitrators will meet. If
the two (2) arbitrators are unable to agree on the fair market annual minimum
rent as provided herein within ten (10) days after their first meeting, they
will select a third arbitrator. The third arbitrator will be designated as
chairman and will immediately give Landlord and Tenant written notice of its
appointment. The three (3) arbitrators will meet within ten (10) days after the
appointment of the third arbitrator. If they are unable to agree on the fair
market annual minimum rent within ten (10) days after their first meeting, the
third arbitrator will select a time, date and place for a hearing and will give
Landlord and Tenant thirty (30) days prior written notice of it. The date for
the hearing will not be more than sixty (60) days after the date of appointment
of the third arbitrator. The arbitrators must be licensed real estate appraisers
with at least five (5) years experience in the Nassau/Suffolk real estate
market. No arbitrator may be an active real estate broker. The arbitration will
be governed by the laws of the State of New York and, when not in conflict with
such law, by the general procedures in the commercial arbitration rules of the
American Arbitration Association. The arbitrators will not have the power to add
to, modify, detract from or alter in any way the provisions of this lease or any
amendments or supplements to this lease. The arbitrators will not have any power
to decide or consider anything other than the specific issue of the fair market
annual minimum rent in accordance with the terms of this lease. The written
decision of at least two (2) arbitrators will be conclusive and binding upon
38
<PAGE>
Landlord and Tenant. No arbitrator is authorized to make an award for damages of
any kind, including, without limitation, an award for punitive, exemplary,
consequential or incidental damages. Landlord and Tenant will each pay for the
services of its appointees, attorneys and witnesses plus one-half of the fees of
the third arbitrator and of all other proper costs relating to the arbitration.
The decision of the arbitrators will be final and non-appealable and may be
enforced according to the laws of the State of New York. Notwithstanding
anything to the contrary contained herein, in the event Tenant disputes
Landlord's determination of the fair market annual minimum rent, Tenant shall
nevertheless continue to pay Rent at the same rate then being paid under this
lease. In the event the Rent as determined hereunder is at variance with the
Rent being paid by Tenant, Tenant shall either pay the difference in a lump sum
or receive a credit as the case may be.
This Renewal Option is personal to Choicecare Long Island, Inc.
and is non-transferable by operation of law or otherwise except to an assignee
of Tenant approved by Landlord pursuant to this lease or other transferee
permitted pursuant to this lease.
RIGHT OF FIRST OFFER
45. Whenever space (the "Offer Space") becomes available in the
Building or in 1660 Walt Whitman Road (provided Landlord still owns such
building), and subject to the existing rights of first offer or refusal with
respect to applicable space held by existing tenants of such buildings, Landlord
will notify Tenant of the availability of the Offer Space and the annual minimum
rental rate for same which shall be equal to the minimum annual rental rate (on
a per square basis) then payable by Tenant for the Demised Premises.
Landlord's notice of the availability of the Offer Space (the
"Offer Notice") shall contain the minimum annual rent which will be required to
be paid for the Offer Space. If, within thirty (30) days after receipt of the
Offer Notice, Tenant shall notify Landlord in writing (the "Acceptance Notice")
that Tenant agrees to lease the Offer Space for a term of not less than five (5)
years with a rental commencing at the minimum annual rental rate stated in the
Offer Notice, Landlord and Tenant will execute a separate lease or lease
modification agreement covering the Offer Space, at Landlord's option (except
that if the Offer Space is located in 1660 Walt Whitman Road, the parties hereto
agree a new lease shall be used), within twenty (20) days thereafter which lease
or lease modification agreement shall be on all of the same terms as this lease
except:
(A) The term of the lease with respect to the Offer Space shall
commence upon substantial completion of Landlord's Work (hereinafter defined)
pursuant to the following schedule: Tenant shall deliver to Landlord its Program
of Space Requirements for the Offer Space no later than thirty (30) days after
Tenant shall have given Landlord the Acceptance Notice. The term "Program of
Space Requirements" as used in this Article 45 shall include (a) the number,
size and location of rooms required by Tenant, including, without limitation,
offices, conference rooms and file areas; (b) the number, size and location of
work stations Tenant requires in the open bullpen area; and (c) a description of
its power, data and telephone requirements including the number and location of
outlets for such services. Landlord shall prepare preliminary plans on the basis
of Tenant's Program of Space Requirements within
39
<PAGE>
fourteen (14) days after Tenant shall deliver its Program of Space Requirements
to Landlord. Tenant shall comment on Landlord's preliminary plans and approve
such plans, subject to such comments, within seven (7) days after Tenant's
receipt of such preliminary plans from Landlord. Landlord shall prepare working
plans on the basis of such approved preliminary plans within thirty (30) days
after Tenant shall have so approved such preliminary plans and delivered such
approval to Landlord. Tenant shall comment on Landlord's working plans and
approve such working plans, subject to such comments, within (10) days after its
receipt of Landlord's working plans. Landlord shall substantially complete the
work described in Paragraph (E) below in the Offer Space within ninety (90) days
after Tenant shall have so approved Landlord's working plans and delivered such
approval to Landlord.
(ii) The term of this lease with respect to the Offer Space
shall expire five (5) years after the last day of the month in which such term
shall have commenced pursuant to the foregoing paragraph. In addition, in the
event the term of this lease with respect to the Offer Space extends beyond the
Expiration Date of this lease, then the lease or lease modification agreement
relating to the Offer Space shall extend the term of this lease as to the
balance of the Demised Premises so that it is coterminous with the end of the
term relating to the Offer Space. The Rent payable with respect to the balance
of the Demised Premises during such extension shall be that then applicable to
such space plus the three (3%) percent annual increases that would be applicable
thereto if such extension were part of the then current term of this lease, and
the additional rent payable with respect to the balance of the Demised Premises
during such extension shall be determined as if such extension were part of the
then current term of this lease.
(B) The annual minimum rental rate for the Offer Space for the
first Lease Year of such term shall be the rental rate stated in the Landlord's
Offer Notice as set forth above and the annual minimum rental rate for each
subsequent Lease Year shall be three (3%) percent more than the annual minimum
rental rate payable for the applicable Offer Space for the preceding Lease Year.
(C) Tenant's Proportionate Share shall be increased on a
building by building basis so that it equals the ratio which the Demised
Premises (inclusive of the Offer Space) located in the building in question
bears to the total area of the building in question.
(D) The number of parking spaces and directory listings shall be
increased proportionately, on a building by building basis, to reflect the
addition of the Offer Space.
(E) Landlord shall perform work in the Offer Space pursuant to
the specifications set forth in Schedule E hereto ("Landlord's Work"). Tenant's
obligation to pay Rent and additional rent with respect to the Offer Space shall
commence upon substantial completion by Landlord of Landlord's Work therein, but
the commencement of such Rent and additional rent obligation shall be
accelerated by any delays in substantial completion caused by Tenant as set
forth in Paragraph (F) below.
(F) For purposes of this Article 45, the term "substantially
completed" shall mean when the only items to be completed are those which do not
materially interfere with the Tenant's use and occupancy of the Demised Premises
(including, without limitation, minor construction details, mechanical
adjustments and decorations). The commencement of the Term
40
<PAGE>
and Tenant's obligation to pay Rent with respect to the Offer Space shall
commence upon Landlord's substantial completion of Landlord's Work in the Offer
Space; but if Landlord shall be delayed in such "substantial completion" as a
result of (i) Tenant's failure to furnish its Program of Space Requirements or
to approve Landlord's preliminary or working plans within the time schedules set
forth above; (ii) Tenant's request for materials, finishes or installations
other than Landlord's standard; (iii) Tenant's changes in its Program of Space
Requirements or Landlord's preliminary or working plans; or (iv) the performance
or completion of any work, labor or services by a party employed by Tenant; then
the commencement of the Term of this lease and the payment of Rent hereunder
with respect to the space in question shall be accelerated by the number of days
of such delay.
(G) This Right of First Offer is personal to Choicecare Long
Island, Inc. and is nontransferable by operation of law or otherwise except to
an assignee of Tenant approved by Landlord pursuant to this lease or other
transferee permitted pursuant to this lease.
BUILDING IMPROVEMENTS
46. As soon as reasonably possible after execution of this lease,
Landlord will perform, at its expense and as set forth in Schedule "E", the
following work in the Building:
(A) Renovate the lobby;
(B) Renovate and redecorate the bathrooms; and
(C) If the Demised Premises are currently serviced by electric
heating units, convert the Demised Premises from electric heat to gas heat.
REASONABLE CONSENT
47. Except as otherwise expressly set forth herein, whenever Tenant
is required to obtain Landlord's consent hereunder, Landlord agrees that said
consent shall not be unreasonably withheld or delayed.
TENANT'S REMEDY
48. In addition to the other remedies specifically provided in this
lease or at law or equity to the extent not limited by this lease, and subject
to the delays permitted under Article 35(A) above, in the event Landlord shall
fail to perform in a timely manner any obligation of Landlord under this lease
and Landlord shall fail to cure such default within thirty (30) days after
receipt from Tenant of written notice of such default (or, if such default
cannot reasonably be cured within such thirty (30) day period, Landlord shall
have failed to commence the cure of such default within such thirty (30) day
period and thereafter diligently pursued such cure to completion), then Tenant
shall have the right to cure such default and shall have a claim for damages
against Landlord in the amount it shall have reasonably expended in connection
with such cure (without a right of setoff against Rent or additional rent).
41
<PAGE>
ROOF ANTENNA
49. Provided Tenant shall comply with the requirements of Article 14
above, Tenant shall have the right, at its expense, to install up to two (2)
telecommunications antennas on the roof of the Building which shall in no event
extend higher than ten (10) feet above the level of the Building's roof. In
addition to the other requirements of Article 14, Tenant shall indemnify and
hold Landlord harmless from any claim, damage, liability or expense, including
reasonable attorney fees, caused by Tenant's installation of such antennas,
including, without limitation, any leaks caused thereby. Prior to the expiration
or termination of this lease, Tenant, shall, at Landlord's option, remove such
antennas from the Building and repair in a workmanlike manner any damage caused
to the roof or any other portion of the Building.
IN WITNESS WHEREOF, Landlord and Tenant have respectively
signed and sealed this lease as of the day and year first above written.
Witness for Landlord: RECKSON OPERATING PARTNERSHIP,
L.P.
By: RECKSON ASSOCIATES
REALTY CORP.
By:_________________________________
Witness for Tenant: CHOICECARE LONG ISLAND, INC.
By:_________________________________
42
<PAGE>
STATE OF NEW YORK )
) ss.:
COUNTY OF )
On this ________ day of __________________, 1995, before me
personally came _____________________________ to me known, who, being by me duly
sworn did depose and say that he resides at ______________________________, that
he is the _________________ of ______________________________, the corporation
described in and which executed the foregoing instrument as "Tenant"; that he
knows the seal of said corporation; that the seal affixed to said instrument is
such corporate seal; that it was so affixed by order of the Board of Directors
of said corporation, and that he signed his name thereto by like order.
---------------------------------------
Notary Public
43
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
THE SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM AMERICAN HOME
MORTGAGE HOLDINGS, INC. FINANCIAL STATEMENTS AND IS QUALIFIED IN ITS ENTIRETY BY
REFERENCE TO SUCH FINANCIAL STATEMENTS.
</LEGEND>
<MULTIPLIER> 1,000
<S> <C> <C>
<PERIOD-TYPE> 9-MOS YEAR
<FISCAL-YEAR-END> DEC-31-1999 DEC-31-1998
<PERIOD-START> JAN-01-1999 JAN-01-1998
<PERIOD-END> SEP-30-1999 DEC-31-1998
<CASH> 2,474 2,892
<SECURITIES> 0 0
<RECEIVABLES> 3,357 2,893
<ALLOWANCES> 0 0
<INVENTORY> 0 0
<CURRENT-ASSETS> 0 0
<PP&E> 3,083 2,202
<DEPRECIATION> (883) (627)
<TOTAL-ASSETS> 42,308 42,392
<CURRENT-LIABILITIES> 0 0
<BONDS> 0 0
0 0
0 0
<COMMON> 50 50
<OTHER-SE> 189 5,874
<TOTAL-LIABILITY-AND-EQUITY> 42,308 42,392
<SALES> 0 0
<TOTAL-REVENUES> 17,996 20,217
<CGS> 0 0
<TOTAL-COSTS> 12,320 13,272
<OTHER-EXPENSES> 1,671 1,543
<LOSS-PROVISION> 28 153
<INTEREST-EXPENSE> 0 0
<INCOME-PRETAX> 3,977 5,249
<INCOME-TAX> 836 328
<INCOME-CONTINUING> 3,141 4,921
<DISCONTINUED> 0 0
<EXTRAORDINARY> 0 0
<CHANGES> 0 0
<NET-INCOME> 3,114 4,870
<EPS-BASIC> 0.62 0.00
<EPS-DILUTED> 0.62 0.00
</TABLE>
