SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-QSB
/ / 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
Commission file number 1-13587
QUERYOBJECT SYSTEMS CORPORATION
(Exact name of registrant as specified in its charter)
Delaware 94-3087939
(State or other jurisdiction of (IRS Employer Identification Number)
incorporation or organization)
One Expressway Plaza " Suite 208
Roslyn Heights, New York 11577
(Address of principal executive offices)
(516) 228-8500
(Registrant's telephone number, including area code)
60 Charles Lindbergh Boulevard
Uniondale, New York 11553
(Former address of Registrant since last report)
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 / / No /X/
As of October 31, 1999 there were 7,785,297 shares of the Registrant's
common stock outstanding.
Transitional Small Business Disclosure Format. Yes / / No /X/
<PAGE>
QUERYOBJECT SYSTEMS CORPORATION
FORM 10-QSB
INDEX
PART I. FINANCIAL INFORMATION PAGE
Item 1. Financial Statements
Condensed Consolidated Balance Sheet
As of September 30, 1999 (unaudited)................................3
Condensed Consolidated Statement of Operations
For the three months and nine months ended September 30, 1999
and 1998 (unaudited)................................................4
Condensed Consolidated Statement of Cash Flows
For the nine months ended September 30, 1999 and 1998 (unaudited)...5
Notes to the Condensed Consolidated Financial Statements............6
Item 2. Management's Discussion and Analysis or Plan of Operation...........9
PART II. OTHER INFORMATION
Item 2. Changes in Securities and Use of Proceeds..........................21
Item 6. Exhibits and Reports on Form 8-K...................................21
SIGNATURES...................................................................22
2
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Part I. FINANCIAL INFORMATION
Item 1. Financial Statements
QUERYOBJECT SYSTEMS CORPORATION
CONDENSED CONSOLIDATED BALANCE SHEET
(Unaudited)
<TABLE>
<CAPTION>
September 30,
1999
ASSETS
Current assets
<S> <C>
Cash and cash equivalents......................................... $ 1,789,870
Accounts receivable, net of allowance for doubtful
accounts of $104,000........................................... 2,432
Prepaid expenses and other current assets......................... 269,972
-----------
Total current assets.......................................... 2,952,274
Property and equipment, net........................................... 824,305
Deposits and other assets 104,488
-----------
Total assets.................................................. $ 3,881,067
===========
LIABILITIES AND STOCKHOLDERS' EQUITY
Current liabilities
Accounts payable ............................................... $ 362,072
Accrued expenses 776,976
Deferred revenue 141,006
Deferred rent 9,362
Capital lease obligations due within one year..................... 157,642
-----------
Total current liabilities..................................... 1,447,058
Deferred rent 245,095
Capital lease obligations 59,409
-----------
Total liabilities............................................. 1,751,562
===========
Stockholders' equity
Preferred stock, $.001 par value, 4,000,000 shares authorized;
1,633,125, 93,000 and 4,500 shares of Series A, B and C,
respectively, issued and outstanding ......................... 1,731
Common stock, $0.001 par value: 60,000,000 shares
authorized; 7,093,647 shares issued and outstanding............ 7,094
Additional paid-in capital........................................ 41,976,196
Accumulated deficit............................................... (39,855,516)
-----------
Total stockholders' equity.................................... 2,129,505
Total liabilities and stockholders' equity.................... $ 3,881,067
===========
</TABLE>
See accompanying Notes to Condensed Consolidated Financial Statements.
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QUERYOBJECT SYSTEMS CORPORATION
CONDENSED CONSOLIDATED STATEMENT OF OPERATIONS
(Unaudited)
<TABLE>
<CAPTION>
Three Months Ended Nine Months Ended
September 30, September 30,
1999 1998 1999 1998
Revenues
<S> <C> <C> <C> <C>
Software licenses $ 525,200 $ 177,500 $ 1,078,400 $ 312,500
Services and maintenance.................... 29,365 25,064 82,459 86,090
------------ ------------ ----------- ------------
Total revenues.................... 554,565 202,564 1,160,859 398,590
Cost of revenues
Software licenses 20,004 3,750 42,182 5,250
Services and maintenance.................... 18,949 16,229 56,807 62,140
------------ ------------ ----------- ------------
Total cost of revenues............ 38,953 19,979 98,989 67,390
------------ ------------ ----------- ------------
Gross profit 515,612 182,585 1,061,870 331,200
------------ ------------ ----------- ------------
Operating expenses
Sales and marketing 877,889 975,097 2,727,863 3,443,543
Research and development.................... 507,827 596,842 1,747,454 1,778,098
General and administrative.................. 326,368 366,890 1,018,884 1,217,620
------------ ------------ ----------- ------------
Total operating expenses.......... 1,712,084 1,938,829 5,494,201 6,439,261
------------ ------------ ----------- ------------
Loss from operations (1,196,472) (1,756,244) (4,432,331) (6,108,061)
Interest income 14,165 11,819 25,477 113,184
Interest expense (7,896) (31,695) (34,918) (109,031)
Other expense -- -- (1,288) (206)
------------ ------------ ----------- ------------
Net loss....................................... $ (1,190,203) $(1,776,120) $(4,443,060) $ (6,104,114)
============ ============ =========== ============
Basic and diluted net loss per common share.... $ (.17) $ (.35) $ (.70) $ (1.19)
------------ ------------ ----------- ------------
Weighted average shares used in per share
computation (Note 2)........................ 7,008,391 5,121,422 6,325,624 5,119,538
============ ============ =========== ============
</TABLE>
See accompanying Notes to Condensed Consolidated Financial Statements.
4
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XX
QUERYOBJECT SYSTEMS CORPORATION
CONDENSED CONSOLIDATED STATEMENT OF CASH FLOWS
(Unaudited)
<TABLE>
<CAPTION>
Nine Months Ended
September 30,
1999 1998
Cash flows from operating activities
<S> <C> <C>
Net loss $ (4,443,060) $ (6,104,114)
Adjustments to reconcile net loss to net cash used in operating ...........
activities
Depreciation and amortization......................................... 319,808 310,021
Loss on disposition of computer equipment............................. 1,288 206
Options issued for consulting services................................ 380,565 114,102
Changes in assets and liabilities
Accounts receivable, net........................................... (615,905) 240,172
Prepaid expenses and other current assets.......................... (232,221) 599
Deferred offering costs -- (41,340)
Deposits and other assets.......................................... (23,457) 2,094
Accounts payable and accrued expenses.............................. (147,727) (20,865)
Deferred rent...................................................... (15,371) 672
Deferred revenue................................................... 56,215 22,151
------------ -----------
Net cash used in operating activities.............................. (4,719,865) (5,476,302)
------------ -----------
Cash flows from investing activities
Loan receivable from stockholder......................................... -- (65,000)
Acquisitions of property and equipment................................... (184,158) (96,278)
Repayment of stockholder loan............................................ 65,000 --
Purchase of restricted certificate of deposit............................ -- (22,554)
------------ -----------
Net cash used in investing activities.............................. (119,158) (183,832)
------------ -----------
Cash flows from financing activities
Proceeds from exercise of common stock warrants and options............. 719,331 10,384
Proceeds from interim and bridge financing notes payable to .........
shareholders, net.............................................. -- 410,000
Proceeds from issuance of preferred stock, net.......................... 4,089,791 --
Collection of stock subscriptions receivable, net....................... 1,396,000 --
Repayment of notes payable to stockholders.............................. (700,000) (433,586)
Release of restricted certificate of deposit............................ -- 403,586
Payments of capital lease obligations................................... (130,247) (163,282)
Proceeds from notes payable to stockholders............................. 400,000 --
Repayment of loan receivable from stockholder........................... -- 12,300
Proceeds from sale-leaseback transaction................................ -- 29,202
------------ -----------
Net cash provided by financing activities 5,774,875 268,604
------------ -----------
Net increase (decrease) in cash and cash equivalents............................ 935,852 (5,391,530)
Cash and cash equivalents at beginning of year.................................. 854,018 5,437,350
------------ -----------
Cash and cash equivalents at end of period......................................$ 1,789,870 $ 45,820
============ ===========
</TABLE>
See accompanying Notes to Condensed Consolidated Financial Statements.
5
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QUERYOBJECT SYSTEMS CORPORATION
NOTES TO THE CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
1. BASIS OF PRESENTATION
The unaudited condensed consolidated financial statements included
herein reflect all adjustments, consisting only of normal recurring adjustments,
which in the opinion of management are necessary to fairly state the Company's
financial position, results of operations and cash flows for the periods
presented. These financial statements should be read in conjunction with the
Company's audited financial statements included in the Company's Annual Report
on Form 10-KSB for the year ended December 31, 1998, and have been prepared on
the basis that the Company will continue as a going concern, which contemplates
the realization of assets and the satisfaction of liabilities in the normal
course of business. The results of operations for the period ended September 30,
1999 are not necessarily indicative of the results to be expected for any
subsequent quarter, or for the entire fiscal year ending December 31, 1999, or
for any future period.
In March 1999, the Company formed internetQueryObject Corporation, a
wholly owned subsidiary. The condensed consolidated financial statements include
the accounts of the Company and its subsidiaries. All significant intercompany
accounts and transactions have been eliminated.
2. NET LOSS PER SHARE
Basic net loss per share is computed by dividing net loss for the
period by the sum of the weighted average number of shares of common stock
outstanding. Options and warrants to acquire common stock and the Series A,
Series B and Series C Convertible Preferred Stock have not been included in the
computation of net loss per share because to do so would have been antidilutive
for the periods presented.
3. SUPPLEMENTAL CASH FLOW INFORMATION
Nine Months Ended
September 30,
1999 1998
Interest paid during the period......................$ 45,059 $ 85,014
Common stock options issued for consulting services.. 380,565 114,102
4. USE OF ESTIMATES
The preparation of the financial statements in conformity with
generally accepted accounting principles requires management to make estimates
and assumptions that affect the amounts reported in the financial statements and
accompanying notes. Actual results could differ from those estimates.
6
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5. LIQUIDITY AND BUSINESS RISKS
The Company has incurred operating losses since inception, has incurred
negative cash flows from operating activities and had an accumulated deficit of
$39,855,516 and $35,412,456 as of September 30, 1999 and December 31, 1998,
respectively. The Company has had a limited operating history as a software
product company and has not made significant sales of its products, therefore,
revenues are difficult to predict. The Company anticipates that its cash and
cash equivalent balances may be insufficient to satisfy its operating cash flow
requirements in the foreseeable future. Given the Company's continued operating
losses, the Company may need additional financing to continue operations. If the
Company's cash and cash equivalent balances are insufficient to satisfy its
operating cash flow requirements, the Company may seek to sell additional equity
securities. In this case, there can be no assurance that the Company will be
successful in raising additional funds. See "Risk Factors That May Affect Future
Results" included elsewhere herein. The sale of additional equity securities
would result in additional dilution to the Company's stockholders.
6. SERIES C CONVERTIBLE PREFERRED STOCK
During June, July and August 1999, the Company sold 45 Units (the
"Units") of Series C Preferred Stock totaling gross proceeds of $4,500,000 in a
private placement (the "Series C Private Placement"). The purchase price per
Unit was $100,000. Each Unit consists of 100 shares of newly-created Series C
Preferred Stock and a Common Stock Purchase Warrant (the "Series C Warrants")
exercisable until December 28, 2001 to purchase 100,000 shares of Common Stock
at an exercise price of $.8625 per share. As described below, the Series C
Warrants may be called for redemption. The Company received net proceeds of
$4,089,791 and issued 4,500 shares of Series C Preferred Stock, convertible into
and aggregate of 5,217,399 shares of Common Stock, and granted Series C Warrants
to purchase 4,500,000 shares of Common Stock.
The Company granted the placement agent and the selected dealer in the
Series C Private Placement options to purchase an aggregate of 440,001 shares of
Common Stock and received commissions and non-accountable expense allowances
equal to $321,650. The securities offered and sold in the Series C Private
Placement were not registered under the Securities Act of 1933, as amended, and
may not be offered or sold in the United States by the holders thereof absent
registration or an applicable exemption from registration requirements.
The following is a description of the securities issued in the Series C
Private Placement:
SERIES C PREFERRED STOCK
Stated Value. Each share of Series C Preferred Stock has a stated value
(the "Stated Value") equal to $1,000.
Ranking. The Series C Preferred Stock will rank junior to the Company's
Series A Convertible Preferred Stock $.001 par value (the "Series A Preferred
Stock") and Series B Convertible Preferred Stock, $.001 par value (the "Series B
Preferred Stock") with respect to rights on liquidation, dissolution or winding
up of the Company. The Series C Preferred Stock
7
<PAGE>
will rank senior to all other classes and series of capital stock of the Company
then existing or thereinafter authorized, issued or outstanding, including,
without limitation, the Common Stock (collectively the "Junior Securities").
Liquidation Preference. Upon a liquidation of the Company (including a
sale by the Company of all or substantially all of its assets or a merger or
consolidation of the Company with another Company where the Company is not the
surviving entity), the assets of the Company available for distribution to the
stockholders of the Company (after payment or provision for liabilities of the
Company), whether from capital, surplus or earnings, will be distributed in the
following order of priority: (i) first, to the holders of the Series A Preferred
Stock and the Series B Preferred Stock to the extent of their liquidation
preference, presently $2.00 per share and $10.00 per share, respectively: (ii)
second, to the holders of the Series C Preferred Stock, prior and in preference
to any distribution to the holders of any Junior Securities an amount equal to
the Stated Value for each share of Series C Preferred Stock then outstanding and
(iii) third, to the holders of issued and outstanding Junior Securities,
including shares of Common Stock.
Dividends. The holders of the Series C Preferred Stock will not be
entitled to receive any stated amount of dividends, whether in cash or otherwise
unless dividends are paid on any other securities of the Company that are equal
to or junior to the Series C Preferred Stock.
Conversion. The holders of the Series C Preferred Stock have the right,
subject to adjustment to protect against dilution, at the holder's option, at
any time, to convert each share of Series C Preferred Stock into one thousand
one hundred and fifty nine (1,159) shares of Common Stock.
Voting. The holders of the Series C Preferred Stock are entitled to
vote on all matters submitted for a vote to the stockholders of the Company. The
holder of a share of Series C Preferred Stock is entitled to cast that number of
votes as equals the number of votes entitled to be cast by a holder of the
shares of Common Stock into which it is convertible as of the record date of the
proposed stockholder action. The holders of the Series C Preferred Stock vote as
a separate class on all matters upon which the Delaware General Corporation Law
specifically requires the holders of such preferred stock to vote as a separate
class.
WARRANTS
Each Series C Warrant entitles the registered holder to purchase at
anytime until December 28, 2001, 100,000 shares of Common Stock, subject to
adjustment to protect against dilution, at a per share exercise price equal to
$.8625. The Series C Warrants may be called for redemption by the Company at a
redemption price of $.01 per Series C Warrant upon not less than 30 days' prior
written notice if the closing price of the Common Stock shall have been at least
$1.20 per share (subject to adjustment in the event of a subdivision or
combination of the shares of Common Stock) on 20 trading days during any
30-consecutive day trading period ending not more than three days prior to the
date such notice is given.
8
<PAGE>
ITEM 2. MANAGEMENT's DISCUSSION AND ANALYSIS OR PLAN OF OPERATION
The discussion in this report on Form 10-QSB contains forward-looking
statements that involve risks and uncertainties. The Company's actual results
may differ materially from those discussed herein. Factors that could cause or
contribute to such differences include, but are not limited to, those discussed
in "Risk Factors" in this Part I, Item 2 as well as those discussed in this
section and elsewhere in this Report, and the risks discussed in "Risk Factors"
in Part I, Item 1 " Business, included in the Company's Annual Report on Form
10-KSB for the year ended December 31, 1998.
The discussion and analysis below should be read in conjunction with
the Condensed Consolidated Financial Statements of the Company and the Notes
thereto, included elsewhere herein.
OVERVIEW
The Company commenced operations in February 1989, and until 1997
substantially all of its revenues have been derived from providing contract
services to customers using its proprietary business intelligence technology. In
the third quarter of 1996, the Company shifted its focus to commercializing its
proprietary business intelligence technology and most of its activities since
then have been devoted to research and development, recruiting personnel,
raising capital and developing a sales and marketing strategy and
infrastructure. In November 1997, the Company began implementation of full-scale
marketing activity for QueryObject System. The Company has a limited operating
history as a software product company and has made only limited sales of its
QueryObject System.
To date, the Company has incurred substantial losses from operations,
and at September 30, 1999, had an accumulated deficit of $39,855,516. The
Company expects to incur substantial operating expenses in the future to support
its product development efforts, establish and expand its domestic and
international sales and marketing capabilities, including recruiting additional
indirect channel partners, and support and expand its technical and management
personnel and organization.
Revenues from the sales of the Company's products are generally
recognized upon the execution of a software licensing agreement and shipment of
the product, provided that no significant vendor obligations remain and the
resulting receivable is deemed collectible by management. In instances where a
significant vendor obligation exists, revenue recognition is delayed until such
obligation has been satisfied. Allowances for estimated future returns are
provided for upon shipment.
9
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RESULTS OF OPERATIONS
The following table sets forth certain items in the Company's
consolidated statements of operations for the three and nine month periods ended
September 30, 1999 and 1998 ($ in thousands):
<TABLE>
<CAPTION>
Three Months Ended Nine Months Ended
September 30, September 30,
1999 1998 1999 1998
Revenues
<S> <C> <C> <C> <C>
Software licenses........................ $ 525 $ 178 $ 1,078 $ 313
Maintenance.............................. 30 25 83 86
-------- -------- -------- --------
Total revenues........................ 555 203 1,161 399
-------- -------- -------- --------
Cost of revenues
Software licenses........................ 20 4 42 5
Maintenance.............................. 19 16 57 62
-------- -------- -------- --------
Total cost of revenues................ 39 20 99 67
-------- -------- -------- --------
Gross profit................................. 516 183 1,062 332
-------- -------- -------- --------
Operating expenses
Sales and marketing...................... 878 975 2,728 3,444
Research and development................. 508 597 1,747 1,778
General and administrative............... 326 367 1,019 1,218
-------- -------- -------- --------
Total operating expenses.............. 1,712 1,939 5,494 6,440
-------- -------- -------- --------
Loss from operations......................... (1,196) (1,756) (4,432) (6,108)
Interest income............................ 14 12 25 113
Interest expense........................... (8) (32) (35) (109)
Other expense.............................. -- -- (1) --
-------- -------- -------- --------
Net loss................................... $ (1,190) $ (1,776) $ (4,443) $ (6,104)
======== ======== ======== ========
</TABLE>
REVENUES
The Company's license revenues have been generated from sales of
QueryObject System. Maintenance revenues consist of ongoing support and products
updates and are recognized ratably over the term of the contract, which is
typically twelve months.
Total revenues increased by $352,000, or 173%, from $203,000 in the
third quarter of 1998 to $555,000 in the third quarter of 1999. For the first
nine months, total revenues increased by $762,000, or 191% from $399,000 in 1998
to $1,161,000 in 1999. These increases were primarily due to an increase in
license revenues in the 1999 periods as compared to 1998. The Company recorded
license revenue from the sale of five (5) licenses in the third quarter of 1999
as compared to the sale of three (3) licenses in the third quarter of 1998. The
Company recorded license revenue from the sale of 11 licenses for the first nine
months of 1999 as compared to the sale of five (5) licenses for the first nine
months of 1998. Maintenance revenue increased by $5,000, or 20%, from
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$25,000 in the third quarter of 1998 to $30,000 in the third quarter of 1999.
For the first nine months, maintenance revenue decreased by $3,000, or 3% from
$86,000 in 1998 to $83,000 in 1999. Maintenance revenue is expected to increase
as the Company continues to sell additional licenses.
COST OF REVENUES
Cost of software license revenues consists primarily of royalties,
product packaging, documentation and production costs. Cost of software license
revenues as a percentage of software license revenues was 3.8% in the third
quarter of 1999 as compared to 2.2% for the third quarter of 1998. Cost of
software license revenues as a percentage of software license revenues was 3.9%
for the first nine months of 1999 as compared to 1.6% for the first nine months
of 1998. These increases resulted from royalty payments made to third parties in
the 1999 periods.
Cost of maintenance revenues consists primarily of personnel costs in
providing customer support. Cost of maintenance revenues as a percentage of
maintenance revenues were 63.3% and 68.7%, respectively, for the three and nine
month periods ended September 30, 1999. Cost of maintenance revenues as a
percentage of maintenance revenues were 64.0% and 72.1%, respectively, for the
three and nine month periods ended September 30, 1998. These decreases in the
1999 periods were primarily due to a reduced requirement for customer support.
OPERATING EXPENSES
Sales and Marketing. Sales and marketing expenses consist primarily of
personnel costs, including sales commissions and incentives of all personnel
involved in the sales and marketing process, as well as related recruiting
costs, public relations, consulting expense, advertising related costs,
collateral material and trade shows. Sales and marketing expenses decreased by
$97,000, or 10%, from $975,000 in the third quarter of 1998 to $878,000 in the
third quarter of 1999. For the first nine months, sales and marketing expenses
decreased by $716,000, or 21%, from $3,444,000 in 1998 to $2,728,000 in 1999.
These decreases in the 1999 periods were primarily due to reduced sales
personnel related costs as a result of fewer employees and decreased marketing
expenses. The Company believes that its sales and marketing expenses will
increase in absolute dollars as the Company increases promotion and other
marketing expenses.
Research and Development. Research and development expenses consist
primarily of salaries and other personnel related expenses, recruiting costs
associated with the hiring of software engineers and quality assurance
personnel, consultant costs and depreciation of development equipment. Research
and development expenses decreased by $89,000, or 15%, from $597,000 in the
third quarter of 1998 to $508,000 in the third quarter of 1999. For the first
nine months, research and development expenses decreased by $31,000, or 2%, from
$1,778,000 in 1998 to $1,747,000 in 1999. These decreases in the 1999 periods
were primarily due to decreased personnel related costs. The Company believes
that a significant level of investment for product research and development is
required to remain competitive and, accordingly, the Company anticipates that it
will continue to devote substantial resources to product research and
development and that these costs will increase in absolute dollars. To date, all
research and development costs have been expensed as incurred.
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General and Administrative. General and administrative expenses consist
primarily of personnel costs for finance, MIS, human resources and general
management, as well as insurance, consulting and professional expenses. General
and administrative expenses decreased by $41,000, or 11%, from $367,000 in the
third quarter of 1998 to $326,000 in the third quarter of 1999. For the first
nine months, general and administrative expenses decreased by $199,000, or 16%,
from $1,218,000 in 1998 to $1,019,000 in 1999. These decreases in the 1999
periods were primarily due to a reduction in personnel related costs as a result
of fewer employees. The Company believes that its general and administrative
expenses will increase in absolute dollars.
INTEREST INCOME AND INTEREST EXPENSE
Interest income represents income earned on the Company's cash and cash
equivalents. Interest income increased by $2,000, or 17%, from $12,000 in the
third quarter of 1998 to $14,000 in the third quarter of 1999. For the first
nine months, interest income decreased by $88,000, or 78%, from $113,000 in 1998
to $25,000 in 1999. This increase and decrease in the respective 1999 periods
were primarily related to the level of cash and cash equivalents on deposit
during such periods.
Interest expense generally represents interest on capital equipment
leases, and for the 1998 periods, charges relating to the H.C.C. Financial
Services Loan Agreement (the "Loan Agreement"). Interest expense decreased by
$24,000, or 75%, from $32,000 in the third quarter of 1998 to $8,000 in the
third quarter of 1999. For the first nine months, interest expense decreased by
$74,000, or 68%, from $109,000 in 1998 to $35,000 in 1999. These decreases in
the 1999 periods were primarily due to payments made to reduce the outstanding
balance under the Loan Agreement during the 1998 periods. The remaining balance
under the Loan Agreement was repaid in full during October 1998.
PROVISION FOR INCOME TAXES
The Company accounts for income taxes in accordance with Statement of
Financial Accounting Standards No. 109, "Accounting for Income Taxes." The
Company incurred net operating losses in 1998 and 1997 and consequently paid no
federal or state income taxes. At December 31, 1998, the Company had net
operating losses and research and experimental tax credit carryforwards of
$29,660,000 and $207,000, respectively, available to offset future federal
taxable income and tax. These net operating loss carryforwards expire at various
dates through 2018. Although the determination of whether an ownership change
has occurred is subject to factual and legal uncertainties, the Company believes
that an ownership change occurred upon the completion of previous financings and
such "ownership change" will materially limit the Company's ability to utilize
its NOL carryforward. Moreover, while such loss carryforwards are available to
offset future taxable income of the Company, the Company does not expect to
generate sufficient taxable income so as to utilize all or a substantial portion
of such loss carryforwards prior to their expiration.
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LIQUIDITY AND CAPITAL RESOURCES
In October and November 1998, the Company had the initial closing of
two private placements -- the Series A Private Placement and the Series B
Private Placement. The Series A Private Placement consisted of 1,750,000 Units
(the 'series A Units") with a gross sales price of $3,500,000. The Series B
Private Placement consisted of 10 Units (the 'series B Units") with a gross
sales price of $1,000,000. Each Series A Unit consisted of one share of Series A
Preferred Stock and a warrant to purchase 2.5 shares of Common Stock at a per
share exercise price equal to $.50. Each Series B Unit consisted of 10,000
shares of Series B Preferred Stock and warrants to purchase an aggregate of
125,000 shares of Common Stock at a per share exercise price equal to $.50. The
Series A Units were sold at a purchase price of $2.00 per Unit and each share of
Series A Preferred Stock is convertible into four shares of Common Stock. The
Series B Units were sold at a purchase price of $100,000 per Unit and each share
of Series B Preferred Stock is convertible into twenty shares of Common Stock.
The effective purchase price, on a Common Stock equivalent basis was $.50 per
common share, which represented a discount from the fair market value of the
Company's Common Stock on the various dates of issuance. The Company consummated
the final closing on each of the Series A Private Placement and the Series B
Private Placement in February 1999 and received an aggregate of (1) $3,181,000
from the Series A Private Placement (after deduction of commissions and expenses
payable to the placement agent) and (ii) $814,000 from the Series B Private
Placement (after deduction of commissions and expenses payable to the placement
agent). Through October 31, 1999, the Company has also received $1,055,156 from
the exercise of warrants granted in the Series A Private Placement and Series B
Private Placement. In addition, certain holders of Series A and Series B
Preferred Stock have converted their respective preferred shares into 562,000
shares of the Company's Common Stock.
During May and June 1999, the Company borrowed $400,000 from
stockholders of the Company in exchange for promissory notes (the "Notes
Payable"). The Notes Payable bear interest at 12% per annum and were due at the
earlier of June 30, 1999 or the successful consummation of the Series C Private
Placement. Upon the initial closing of the Series C Private Placement on June
28, 1999, the Notes Payable were repaid.
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<PAGE>
During June, July and August 1999, the Company consummated the Series C
Private Placement, pursuant to which the Company received net proceeds of
$4,089,791. See Note 6. to the Condensed Consolidated Financial Statements for a
further description of the Series C Private Placement. The net proceeds of the
Series C Private Placement is being used for sales and marketing, research and
development, and general working capital purposes.
As of September 30, 1999, the Company had $1,740,000 in cash and cash
equivalents and working capital of $1,505,000. During the nine months ended
September 30, 1999, the Company received $1,396,000 in working capital from the
proceeds of the Series A Private Placement and Series B Private Placement,
$4,089,791 from the closing of the Series C Private Placement and $719,331 from
the exercise of warrants granted in the Series A Private Placement and Series B
Private Placement. The Company has incurred operating losses since inception,
has incurred negative cash flows from operating activities and had an
accumulated deficit of $39,855,516 as of September 30, 1999. The Company has had
a limited operating history as a software product company and has not made
significant sales of its products. Therefore, revenues are difficult to predict.
The Company anticipates that its cash and cash equivalent balances, may be
insufficient to satisfy its operating cash flow requirements in the foreseeable
future. Given the Company's continued operating losses, the Company may need
additional financing to continue operations. However, there can be no assurances
that the Company will be successful in raising additional funds. See "Risk
Factors That May Affect Future Results" included elsewhere herein. The sale of
additional equity securities will result in additional dilution to the Company's
stockholders.
Net cash used in operating activities was $4,720,000 and $5,476,000 for
the nine month period ended in 1999 and 1998, respectively. For 1999, net cash
used in operating activities was primarily attributable to a net loss of
$4,443,000 and an increase in net accounts receivable of $616,000, reduced by
depreciation and amortization of $320,000. For 1998, net cash used in operating
activities was primarily attributable to a net loss of $6,104,000, less
depreciation and amortization of $310,000 and a decrease in net accounts
receivable of $240,000. Net cash provided by financing activities was $5,775,000
in 1999, primarily as a result of the collection of stock subscription
receivables, the closing of the Series C Private Placement and the exercise of
common stock purchase warrants.
The Company does not currently have a line of credit with a commercial
bank. As of September 30, 1999, the Company's principal commitments consisted of
obligations under operating and capital leases and employment agreements. At
that date, the Company had approximately $347,000 in liabilities under capital
leases, which are payable through 2001. Pursuant to employment agreements with
executive officers of the Company as of September 30, 1999, the Company's
remaining obligation is to pay $98,000 and $390,000 in salaries for the years
ended December 31, 1999 and 2000, respectively.
14
<PAGE>
YEAR 2000 COMPLIANCE
We have assessed the readiness of our internal business information
systems for handling the Year 2000 and the Year 2000 compliance of our products.
We expect that we will successfully address Year 2000 issues relating to our
internal business information systems by the end of fiscal 1999.
We believe that our current products are Year 2000 compliant. However,
it is possible that current or future customers will assert claims against us
with respect to Year 2000 issues and, in the event such claims are asserted and
adjudicated in favor of these customers, our liability could be material. We
have taken steps to identify affected customers and assist them in assessing
risks that may be associated with our products. We may incur increasing costs
regarding customer service related to these actions over the next few years. As
our customer service programs are currently ongoing, we are unsure of the scope
of any resulting Year 2000 issues and potential liability resulting from such
issues. We do not know the potential impact on our business, operating results
and financial condition with respect to these matters.
We have had discussions with our significant vendors, service providers
and large customers to evaluate Year 2000 issues, if any, relating to the
interaction of their systems with our internal systems. We have received limited
information from these third parties and we do not believe we will receive all
of this information. Thus, despite the initiation of these discussions, we lack
the information necessary to estimate the potential impact of Year 2000
compliance issues relating to these third parties and their interaction with us
and are unsure of when we will receive such information.
We have not incurred any material expenditures in connection with
identifying or evaluating Year 2000 compliance issues. Most of our expenses have
related to the opportunity cost of time spent by our employees evaluating our
internal business information systems, our products and the interaction of our
internal business information systems with the internal systems of third
parties. Although we are unaware of any material operational issues or costs
associated with preparing our internal business information systems and products
for the Year 2000, we are unsure that we will avoid serious unanticipated
negative consequences and/or material costs caused by undetected errors or
defects in our technology. Such unanticipated negative consequences and/or
material costs, if incurred, could have a material adverse effect on our
business, operating results or financial condition.
Because we are unaware of any material Year 2000 compliance issues, we
lack a Year 2000-specific contingency plan. If Year 2000 compliance issues are
discovered, we will evaluate the need for one or more contingency plans relating
to such issues. If we are unable to develop and implement appropriate
contingency plans, as needed, in a timely manner, we may experience delays in,
or increased costs associated with, implementation of changes to address any
such issues, which could have a material adverse effect on our business,
operating results or financial condition.
15
<PAGE>
RISK FACTORS THAT MAY AFFECT FUTURE RESULTS
The Company operates in a rapidly changing environment that involves a
number of risks, some of which are beyond the Company's control. The following
discussion highlights the most material of the risks.
ALTHOUGH WE RECENTLY RECEIVED ADDITIONAL FINANCING, WE MAY NEED FURTHER
FINANCING TO CONTINUE OUR OPERATIONS.
During June, July and August 1999, we received net proceeds of
$4,089,791 from the sale of 45 units of Series C Preferred Stock. We have had a
limited operating history as a software product company, have not made
significant sales of our products and our revenues are difficult to predict.
Given our continued operating losses, we may need additional financing to
continue operations. Our current projections indicate that if our forecasts are
achieved, we may have enough cash to continue operations until May 2000;
however, we are unable to predict how long we will be able to continue our
operations. We have no commitments, agreements or understandings regarding
additional financings and we may be unable to obtain additional financing on
satisfactory terms or at all.
WE HAVE HAD A HISTORY OF OPERATING LOSSES AND PROJECT FUTURE LOSSES;
THEREFORE WE HAVE DOUBT ABOUT OUR ABILITY TO CONTINUE AS A GOING CONCERN.
At September 30, 1999, our accumulated deficit was $39,855,516. For the
nine months ended September 30, 1999 and the fiscal years ended December 31,
1998 and 1997, we incurred net losses of $4,443,060, $7,294,032 and $10,563,484,
respectively. We have incurred a net loss in each year of our existence, and
have financed our operations primarily through sales of equity and debt
securities. Our expense levels are high and our revenues are difficult to
predict. The independent accountants' report on our financial statements for the
year ended December 31, 1998 states that our recurring losses from operations,
our deficiencies in working capital and stockholders equity, and negative cash
flow from operating activities raise substantial doubt about our ability to
continue as a going concern.
We expect to incur net losses for the foreseeable future. We may never
achieve or sustain significant revenues or profitability on a quarterly or
annual basis in the future. Our future operating results will depend on many
factors, including:
16
<PAGE>
o product demand
o product and price competition in our industry
o our success in expanding our direct sales force and
establishing indirect channel partners
o our ability to develop and market products and control costs
o the percentage of our revenues that is derived from indirect
channel partners
WE HAVE HAD A LIMITED OPERATING HISTORY AS A SOFTWARE PRODUCT COMPANY
AND LACK ANY SUBSTANTIAL REVENUE.
We have a limited operating history as a software product company and
have made only limited sales of our products. Our total revenues for the year
ended December 31, 1998 and for the nine months ended September 30, 1999 were
$928,505 and $1,160,859, respectively. Prior to 1997, our revenues were derived
primarily from contract data analysis services, which we no longer provide.
OUR REVENUES DEPEND ON SALES OF QUERYOBJECT SYSTEM AND WE ARE UNCERTAIN
WHETHER THERE WILL BE BROAD MARKET ACCEPTANCE OF THIS PRODUCT.
Substantially all of our revenues for the foreseeable future are
expected to be derived from sales of QueryObject System. Between January 1, 1995
and September 30, 1999, we had software product revenue from only 26 QueryObject
System installations, including those sold pursuant to reseller agreements for
the resellers' own use. Our future financial performance will depend upon the
successful introduction and customer acceptance of QueryObject System and the
development of new and enhanced versions of the product. If we fail to achieve
broad market acceptance of QueryObject System, it would have a material adverse
effect on our business, operating results and financial condition.
OUR COMMON STOCK WAS DELISTED FROM THE NASDAQ SMALLCAP MARKET AND THERE
MAY BE A LIMITED TRADING MARKET FOR OUR STOCK.
Effective with the close of business on May 6, 1999, our common stock
was delisted from the Nasdaq SmallCap Market because of our inability to comply
with certain maintenance standards required for continued listing on the Nasdaq
SmallCap Market, including the net tangible asset requirement. We fell out of
compliance primarily as a result of continued losses during 1998.
Now that our common stock has been delisted from the Nasdaq SmallCap
Market, trading in our common stock is conducted on the OTC Bulletin Board and
the Boston Stock Exchange. The Boston Stock Exchange has notified us that while
we currently meet its continuing listing requirements, the exchange will monitor
whether continued operating losses will jeopardize our ability to comply with
its requirement that we have at least $500,000 in net tangible assets.
If our common stock is delisted from the Boston Stock Exchange, our
common stock could be considered a penny stock. Securities and Exchange
Commission regulations generally define a penny stock to be an equity security
that is not listed on Nasdaq or a national securities exchange and that has a
market price of less than $5.00 per share, subject to certain exceptions. The
regulations of the Securities and Exchange Commission would require
broker-dealers to deliver to a purchaser of our common stock a disclosure
schedule explaining the penny stock market and the risks associated with it.
Various sales practice requirements are also imposed on
17
<PAGE>
broker-dealers who sell penny stocks to persons other than established customers
and accredited investors (generally institutions). In addition, broker-dealers
must provide the customer with current bid and offer quotations for the penny
stock, the compensation of the broker-dealer and its salesperson in the
transaction and monthly account statements showing the market value of each
penny stock held in the customer's account. If our common stock is traded only
on the OTC Bulletin Board and becomes subject to the regulations applicable to
penny stocks, investors may find it more difficult to obtain timely and accurate
quotes and execute trades in our common stock.
WE ARE SEEKING TO DEVELOP STRATEGIC RELATIONSHIPS WITH INDIRECT CHANNEL
PARTNERS TO INCREASE SALES, BUT WE MAY BE UNABLE TO ATTRACT EFFECTIVE PARTNERS
AND WE WILL HAVE LOWER GROSS MARGINS FOR SALES THROUGH INDIRECT CHANNEL
PARTNERS.
As part of our sales and marketing efforts we are seeking to develop
strategic relationships with indirect channel partners, such as original
equipment manufacturers and value-added resellers, to increase the number of our
customers. We currently are investing, and intend to continue to invest,
significant resources to develop indirect channel partners. Our results of
operations will be adversely affected if we are unable to attract indirect
channel partners to market our products effectively and provide timely and cost
effective customer support and service. If we successfully sell products through
these sales channels, the lower unit prices we expect to receive for such sales
will result in our gross margins being lower than if we had sold those products
through our direct sales force.
WE ARE DEPENDENT ON A FEW SIGNIFICANT CUSTOMERS AND THE LOSS OF A
SINGLE CUSTOMER COULD ADVERSELY AFFECT OUR BUSINESS.
For the nine months ended September 30, 1999, four customers accounted
for 86%, and for the fiscal year ended December 31, 1998, four customers
accounted for 80%, of our total revenues. We are unsure if we will realize
significant future revenues from any of these customers. We also expect that for
the foreseeable future a relatively small number of customers and value added
resellers will account for a significant percentage of our revenues. The loss of
any such customer would have a material adverse effect on our operating results
and financial condition.
WE ARE DEPENDENT ON A FEW KEY PERSONNEL AND WE NEED TO ATTRACT AND
RETAIN HIGHLY QUALIFIED TECHNICAL, SALES, MARKETING, DEVELOPMENT AND MANAGEMENT
PERSONNEL.
Our future performance depends in significant part upon the continued
service of key technical, sales and senior management personnel. The loss of the
services of one or more of our key employees, in particular, Robert Thompson,
our President and Chief Executive Officer, or Daniel M. Pess, our Chief
Operating and Financial Officer, could have a material adverse effect on our
business, operating results and financial condition. We have employment
agreements with Mr. Thompson and Mr. Pess that expire in December 2001.
Our future success also depends on our continuing ability to attract,
train and retain highly qualified technical, sales, marketing, development and
managerial personnel. Competition for such personnel is intense, and we may be
unable to retain key technical, sales, development and managerial employees or
attract, assimilate or retain other highly qualified technical, sales,
18
<PAGE>
development and managerial personnel in the future. If we are unable to hire
such personnel on a timely basis, our business, operating results and financial
condition could be materially adversely affected.
WE LACK PROPRIETARY TECHNOLOGY PROTECTION OF OUR PRODUCTS AND MAY RISK
INFRINGEMENT UPON TECHNOLOGY DEVELOPED BY OTHERS.
We rely primarily on a combination of trade secrets, confidentiality
agreements and contractual provisions to protect our proprietary technology. We
license rather than sell our software and require licensees to enter into
license agreements that impose certain restrictions on their ability to utilize
the software. In addition, we seek to avoid disclosure of our trade secrets,
including but not limited to requiring those persons with access to our
proprietary information to execute confidentiality agreements and restricting
access to our source code. These steps afford only limited protection. We have
no patents or patent applications pending. Despite our efforts to protect our
proprietary rights, unauthorized parties may attempt to copy aspects of our
products or obtain and use information that we regard as proprietary. Policing
unauthorized use of our products may be difficult and costly, and software
piracy may become a persistent problem. In addition, the laws of some foreign
countries do not protect our proprietary rights to as great an extent as do the
laws of the United States. We are unable to predict whether our means of
protecting our proprietary rights will be adequate or whether competitors will
independently develop the same technology.
From time to time, third parties may assert patent, copyright and other
intellectual property claims against us. If we are unable to license protected
technology that may be used in our products, we could be prohibited from
manufacturing and marketing such products. We also could incur substantial costs
to redesign our products, to defend any legal action taken against us or to pay
damages to any infringed party. Litigation, which could result in substantial
cost to and diversion of our resources, may be necessary to enforce our other
intellectual property rights or to defend us against claimed infringement of the
rights of others.
WE INTEND TO EXPAND OUR INTERNATIONAL SALES, BUT THERE ARE SUBSTANTIAL
RISKS INVOLVED, INCLUDING EFFECTIVELY ESTABLISHING ADDITIONAL FOREIGN OPERATIONS
AND FOREIGN REGULATORY CONCERNS.
Our international sales for the nine months ended September 30, 1999
and for the fiscal year ended in 1998, were approximately 61% and 17% of our
total revenue, respectively. We intend to expand our international operations
and to enter additional international markets, which will require significant
management attention and financial resources and could adversely affect our
business, operating results or financial condition. To expand international
sales successfully, we must establish additional foreign operations, hire
additional personnel and recruit additional international resellers and
distributors. If we are unable to do so in a timely manner, our growth, if any,
in international sales will be limited, and our business, operating results and
financial condition could be materially adversely affected. We anticipate that
our international sales, if any, will be denominated in U.S. dollars. An
increase in the value of the U.S. dollar relative to foreign currencies could
make our products more expensive and, therefore, potentially less competitive in
those markets. Additional risks inherent in our future international business
activities generally include:
19
<PAGE>
o unexpected changes in regulatory requirements
o tariffs and other trade barriers
o costs of localizing products for foreign countries
o longer accounts receivable payment cycles
THE MARKET PRICE OF OUR COMMON STOCK IS VOLATILE.
The market price of our common stock has in the past been, and may in
the future continue to be, volatile. For instance, between January 1, 1998 and
October 15, 1999, the closing price of our common stock has ranged between $.47
and $5.50. The volatility of the market price of our common stock may further
increase now that our common stock has been delisted from the Nasdaq SmallCap
Market. A variety of events may cause the market price of our common stock to
fluctuate significantly, including:
o quarter to quarter variations in operating results
o adverse news announcements
o the introduction of new products
o market conditions in the industry
In addition, the stock market in recent years has experienced
significant price and volume fluctuations that have particularly affected the
market prices of equity securities of many companies that service the software
industry and that often have been unrelated to the operating performance of such
companies. These market fluctuations may adversely affect the price of our
common stock.
WE HAVE A SIGNIFICANT AMOUNT OF AUTHORIZED BUT UNISSUED PREFERRED
STOCK, WHICH MAY AFFECT THE LIKELIHOOD OF A CHANGE OF CONTROL IN OUR COMPANY.
As of October 15, 1999, our Board of Directors has the authority,
without further action by the stockholders, to issue 2,275,625 shares of
preferred stock on such terms and with such rights, preferences and
designations, including, without limitation restricting dividends on our common
stock, dilution of the voting power of our common stock and impairing the
liquidation rights of the holders of our common stock, as the Board may
determine without any vote of the stockholders. Issuance of such preferred
stock, depending upon the rights, preferences and designations thereof may have
the effect of delaying, deterring or preventing a change in control. In
addition, certain "anti-takeover" provisions of the Delaware General Corporation
Law, among other things, may restrict the ability of our stockholders to
authorize a merger, business combination or change of control.
WE CAN GIVE NO ASSURANCES THAT OUR FORWARD LOOKING STATEMENTS WILL BE
CORRECT.
Certain forward-looking statements, including statements regarding our
expected financial position, business and financing plans are contained in this
prospectus or are incorporated in documents annexed as exhibits to this
prospectus. These forward-looking statements reflect our views with respect to
future events and financial performance. The words, "believe," "expect," "plans"
and "anticipate" and similar expressions identify forward-looking statements.
Although we believe that the expectations reflected in such forward-looking
statements are reasonable, we can give no assurance that such expectations will
prove to have been correct. Important factors
20
<PAGE>
that could cause actual results to differ materially from such expectations are
disclosed in this prospectus. All subsequent written and oral forward-looking
statements attributable to us are expressly qualified in their entirety by the
cautionary statements. We caution readers not to place undue reliance on these
forward-looking statements, which speak only as of their dates. We undertake no
obligations to publicly update or revise any forward-looking statements, whether
as a result of new information, future events or otherwise.
Part II. OTHER INFORMATION
ITEM 2. CHANGES IN SECURITIES AND USE OF PROCEEDS
As described under "Management's Discussion and Analysis or Plan of
Operation -Liquidity and Capital Resources," the Company has closed on the
Series C Private Placement. The sale of the securities in the Series C Private
Placement was made pursuant to the exemption contained in Section 4(2) of the
Securities Act of 1933, as amended. Seaboard Securities, Inc. acted as the
placement agent of the Series C Private Placement. For more information relating
to the Series C Private Placement (including the conversion or exercise terms of
the securities issued in the Private Placement), please see "Note 6. - Notes to
the Condensed Consolidated Financial Statement."
During the three months ended September 30, 1999, the Company issued an
aggregate of 119,500 shares of Common Stock pursuant to the conversion of Series
A Preferred Stock and Series B Preferred Stock. The Company also issued an
aggregate of 168,150, shares of Common Stock pursuant to the exercise of
warrants granted in the Series A Private Placement and the Series B Private
Placement. The warrants had an exercise price of $.50 per share of Common Stock.
The issuance of the shares of Common Stock upon the conversion of the Series A
Preferred Stock and the Series B Preferred Stock and the exercise of the
Warrants was made pursuant to the exemption contained in Section 4(2) of the
Securities Act of 1933, as amended.
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K
(a) Exhibits
Statement of Computation of Net Loss Per Share (Exhibit 11.1)
Financial Data Schedule (Exhibit 27.1)
Employment Agreement, dated January 1, 1999, by and between Robert
Thompson and QueryObject Systems Corporation (Exhibit 99.1)
Employment Agreement, dated January 1, 1999, by and between Daniel
Pess and QueryObject Systems Corporation (Exhibit 99.2)
Agreement of Sublease, dated as of October 6, 1999, between
QueryObject Systems Corporation and Progressive Casualty Insurance
Company (Exhibit 99.3)
Agreement of Lease, dated as of August 13, 1999, between LKM
Expressway Plaza Limited Partnership and QueryObject Systems
Corporation - Expressway Plaza One, Suite 208 (Exhibit 99.4)
(b) Reports of Form 8-K
No Reports on Form 8-K were filed during the quarter ended
September 30, 1999.
21
<PAGE>
SIGNATURES
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.
Dated: November 12, 1999 QUERYOBJECT SYSTEMS CORPORATION
By: /s/ Daniel M. Pess
--------------------------------------------
Executive Vice President, Chief Operating
Officer and Chief Financial Officer
(Principal Financial Officer and Principal
Accounting Officer)
<TABLE>
<CAPTION>
QUERYOBJECT SYSTEMS CORPORATION EXHIBIT 11.1
Computation of Net Loss Per Share
- ------------------------------------------------------------------------------------------------------------------------------------
Three months ended September 30, 1998 Nine months ended September 30, 1998
------------------------------------- --------------------------------------------
Number of Weighted Number of Weighted
Common Days Average Common Days Average
Shares Outstanding Shares Shares Outstanding Shares
---------------------------------- --------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
Common stock outstanding at January 1, 1998 5,110,605 92 5,110,605 5,110,605 273 5,110,605
Exercise of common stock options 1,875 92 1,875 1,875 259 1,779
Exercise of common stock options 2,118 92 2,118 2,118 258 2,002
Exercise of common stock options 4,584 92 4,584 4,584 230 3,862
Exercise of common stock options 625 92 625 625 215 492
Exercise of common stock options 365 92 365 365 196 262
Exercise of common stock options 1,250 92 1,250 1,250 117 536
Weighted average shares used in per share computation 5,121,422 5,119,538
------------ -------------
Net loss for the period (1,776,120) (6,104,114)
Net loss per common share $ (0.35) $ (1.19)
============= ==============
Three months ended September 30, 1999 Nine months ended September 30, 1999
-----------------------------------------------------------------------------------
Number of Weighted Number of Weighted
Common Days Average Common Days Average
Shares Outstanding Shares Shares Outstanding Shares
------------------------------------------------------------------------------------
Common stock outstanding at January 1, 1999 5,122,985 92 5,122,985 5,122,985 273 5,122,985
Conversion of preferred stock into common 40,000 92 40,000 40,000 226 33,114
Warrant exercise 480,000 92 480,000 480,000 219 385,055
Conversion of preferred stock into common 198,000 92 198,000 198,000 218 158,110
Warrant exercise 15,000 92 15,000 15,000 218 11,978
" 67,500 92 67,500 67,500 217 53,654
" 22,500 92 22,500 22,500 214 17,637
" 10,000 92 10,000 10,000 213 7,802
Conversion of preferred stock into common 25,000 92 25,000 25,000 212 19,414
Warrant exercise 25,000 92 25,000 25,000 210 19,231
" 31,250 92 31,250 31,250 207 23,695
" 31,250 92 31,250 31,250 203 23,237
Conversion of preferred stock into common 12,500 92 12,500 12,500 176 8,059
Warrant exercise 20,000 92 20,000 20,000 160 11,722
Conversion of preferred stock into common 10,000 92 10,000 10,000 157 5,751
Warrant exercise 155,000 92 155,000 155,000 156 88,571
Conversion of preferred stock into common 25,000 92 25,000 25,000 156 14,286
Warrant exercise 30,000 92 30,000 30,000 155 17,033
Conversion of preferred stock into common 102,000 92 102,000 102,000 154 57,538
Warrant exercise 30,000 92 30,000 30,000 153 16,813
" 86,000 92 86,000 86,000 150 47,253
" 20,000 92 20,000 20,000 142 10,403
" 10,000 92 10,000 10,000 140 5,128
" 4,600 92 4,600 4,600 136 2,292
" 27,400 92 27,400 27,400 128 12,847
" 32,312 92 32,312 32,312 127 15,032
" 43,200 92 43,200 43,200 126 19,938
" 30,000 92 30,000 30,000 121 13,297
" 2,500 92 2,500 2,500 118 1,081
" 5,000 92 5,000 5,000 114 2,088
" 27,000 92 27,000 27,000 104 10,286
" 25,000 92 25,000 25,000 94 8,608
Conversion of preferred stock into common 50,000 90 48,913 50,000 90 16,484
" 25,000 86 23,370 25,000 86 7,875
" 10,000 86 9,348 10,000 86 3,150
Warrant exercise 100,000 86 93,478 100,000 86 31,502
" 20,000 76 16,522 20,000 76 5,568
" 30,000 71 23,152 30,000 71 7,802
Conversion of preferred stock into common 14,500 69 10,875 14,500 69 3,665
Warrant exercise 18,150 65 12,823 18,150 65 4,321
Conversion of preferred stock into common 10,000 28 3,043 10,000 28 1,026
" 5,000 14 761 5,000 14 256
" 5,000 2 109 5,000 2 37
Weighted average shares used in per share computation 7,008,391 6,325,624
----------- -----------
Net loss for the period (1,190,203) (4,443,060)
Net loss per common share $ (0.17) $ (0.70)
=========== ===========
</TABLE>
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM THE
COMPANY'S FORM 10-QSB FOR THE PERIOD ENDED SEPTEMBER 30, 1999 AND IS QUALIFIED
IN ITS ENTIRETY BY REFERENCE TO SUCH FINANCIAL STATEMENTS.
</LEGEND>
<S> <C>
<PERIOD-TYPE> 9-MOS
<FISCAL-YEAR-END> SEP-30-1999
<PERIOD-START> JAN-01-1999
<PERIOD-END> SEP-30-1999
<CASH> 1,789,870
<SECURITIES> 0
<RECEIVABLES> 996,332
<ALLOWANCES> 103,900
<INVENTORY> 0
<CURRENT-ASSETS> 2,952,274
<PP&E> 2,278,075
<DEPRECIATION> 1,453,770
<TOTAL-ASSETS> 3,881,067
<CURRENT-LIABILITIES> 1,447,058
<BONDS> 0
0
1,731
<COMMON> 7,093
<OTHER-SE> 2,120,681
<TOTAL-LIABILITY-AND-EQUITY> 2,129,505
<SALES> 1,160,859
<TOTAL-REVENUES> 1,160,859
<CGS> 98,989
<TOTAL-COSTS> 5,593,190
<OTHER-EXPENSES> 0
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 34,918
<INCOME-PRETAX> (4,443,060)
<INCOME-TAX> 0
<INCOME-CONTINUING> (4,443,060)
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> (4,443,060)
<EPS-BASIC> (0.70)
<EPS-DILUTED> (0.70)
</TABLE>
QUERYOBJECT SYSTEMS CORPORATION
EMPLOYMENT AGREEMENT
This Employment Agreement (the "Agreement") is made and entered into
effective as of January 1, 1999 (the "Effective Date"), by and between Robert
Thompson (the "Executive") and QueryObject Systems Corporation, a Delaware
company (the "Company").
R E C I T A L S
The Company and the Executive desire to enter into this Agreement in
order to provide additional financial security and benefits to the Executive, to
encourage the Executive to continue employment with the Company and to enhance
the motivation and incentive of the Executive to increase the profitability of
the Company.
In consideration of the mutual covenants herein contained, and in
consideration of the continuing employment of Executive with the Company, the
parties agree as follows:
1. Duties and Scope of Employment.
(a) Position. The Company shall employ the Executive in the
position of Chief Executive Officer and President, with such duties,
responsibilities and compensation as in effect as of the Effective Date;
provided, however, that the Board of Directors of the Company (the "Board")
shall have the right to revise such responsibilities and compensation from time
to time as the Board may deem necessary or appropriate. Such duties and
responsibilities shall be commensurate with the Executive's past practices and
consistent with his position as Chief Executive Officer and President of the
Company. If any such revision constitutes "Involuntary Termination" as defined
in Section 7(d) of this Agreement, the Executive shall be entitled to benefits
upon such Involuntary Termination as provided under this Agreement.
(b) Obligations. The Executive shall devote his full business
efforts and time to the Company and its subsidiaries. The foregoing, however,
shall not preclude the Executive from engaging in such activities and services
as do not interfere or conflict with his responsibilities to the Company.
2. Termination. This Agreement shall continue in force and effect until
the earliest of: (i) December 31, 2001 or (ii) until such time as notice of
non-renewal or termination of this Agreement is given in writing by either the
Company or the Executive to the other (the "Termination Event"). The Company and
the Executive agree to meet to negotiate in good faith the renewal of this
Agreement two (2) months prior to the expiration date of this Agreement. This
Agreement may be extended for an additional period or periods by mutual written
agreement of the Company and the Executive. A termination of
<PAGE>
the terms of this Agreement where the parties are unable to agree to renewal
terms shall not affect the payment or provision of compensation or benefits on
account of a termination of employment occurring prior to the termination of the
terms of this Agreement, nor affect Executive's right to twelve (12) months of
Base Compensation as severance pay after the termination.
3. Compensation and Benefits.
(a) Base Compensation. The Company shall pay the Executive as
compensation for services a base salary at the annualized rate of $200,000. Such
salary shall be reviewed at least annually and may be increased from time to
time. Such salary shall be paid periodically in accordance with normal Company
payroll practice. The annual compensation specified in this Section, as adjusted
from time to time, before any salary reduction under Section 401(k) of the
Internal Revenue Code, deferred compensation plan or agreement or any other
benefit or plan requiring reduction of salary, is referred to in this Agreement
as "Base Compensation".
(b) Bonus. The Executive shall be entitled to an annual bonus
("Targeted Incentives") of not less than $100,000 per year, based on the
successful completion of certain objectives designated by the Board of the
Company. 1999 Targeted Incentives are outlined in Exhibit A, attached hereto.
(c) Vacation. The Executive shall be entitled to four (4) weeks
of paid vacation per year or such additional vacation as may be permitted from
time to time by Company policy.
(d) Executive Benefits. The Executive shall be eligible to
participate in the employee benefit plans and executive compensation programs
maintained by the Company of general applicability to other key executives of
the Company, including (without limitation) retirement plans, savings or
profit-sharing plans, deferred compensation plans, supplemental retirement or
excess-benefit plans, stock option and incentive plans and life, disability,
health, accident and other insurance programs, paid vacations, and similar plans
or programs, subject in each case to the generally applicable terms and
conditions of the plan or program in question and to the determination of the
Board or any committee administering such plan or program. Participation shall
be consistent with the Executive's position as Chief Executive Officer and
President of the Company. The Company shall reimburse the Executive for all
reasonable business and travel expenses actually incurred or paid by the
Executive in the performance of services on behalf of the Company, in accordance
with the Company's expense reimbursement policy as in effect from time to time.
4. Severance Benefits.
(a) Termination of Employment During Term of Agreement. If the
Executive's employment with the Company terminates during the term of this
Agreement, then the Executive shall be entitled to receive severance benefits as
follows:
(i) Involuntary Termination. If, at any time during the term
of this Agreement, the Executive's employment terminates as a result of
Involuntary Termination other than for Cause, Disability or death, or the
Company breaches any of the material terms of this Agreement
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(either of the foregoing, an "Event"), the Company shall pay the Executive
severance in the amount of one-twelfth (1/12) of the Base Compensation of the
Executive at the time of such termination (without giving effect to any
reduction in Base Compensation that resulted in such Involuntary Termination)
per month, for a period of twelve (12) months.
(ii) Voluntary Resignation; Termination for Cause. If the
Executive's employment terminates by reason of the Executive's voluntary
resignation (and is not an Involuntary Termination), or if the Executive is
terminated for Cause, then the Executive shall not be entitled to receive
severance or other benefits except for those (if any) as may then be established
(and applicable) under the Company's then-existing severance and benefits plans
and policies at the time of such termination.
(iii) Disability; Death. If the Company terminates the
Executive's employment as a result of the Executive's Disability, or such
Executive's employment is terminated due to the death of the Executive, then the
Executive shall not be entitled to receive severance or other benefits except
(i) those (if any) as may then be established (and applicable) under the
Company's then-existing severance and other benefits plans and policies at the
time of such Disability or death, (ii) benefits required by applicable laws, and
(iii) in the case of death, the Executive's salary for twenty six (26) weeks
payable to the Executive's surviving spouse, or if the Executive has no spouse,
to the Executive's estate. In the event of termination as a result of Disability
under this Agreement, the Executive shall be entitled to the benefits provided
under the Company's then-existing disability or extended sick pay plan, for so
long as such Executive continues to be disabled under this Agreement or benefits
otherwise terminate under such plan, whether or not the Executive is deemed to
be disabled under such plan.
(b) Continuing Benefits. In the event the Executive is entitled
to severance benefits pursuant to subsection 4(a)(i), then in addition to such
severance benefits, the Executive shall receive Company-paid health, dental,
vision, disability and life insurance coverage as provided to such Executive
immediately prior to the Executive's termination, upon the terms and conditions,
including deductibles and co-payments, provided in the Company's then-existing
plans, policies and programs, for a period of twelve (12) months.
(c) Accrued Salary, Benefits and Expenses. In addition, (i) the
Company shall pay the Executive any unpaid base salary for periods prior to the
Termination Date; (ii) the Company shall pay the Executive all of the
Executive's accrued and unused vacation through the Termination Date; (iii)
unless the Executive has voluntarily resigned his employment (other than an
Involuntary Termination) or unless the Company has terminated Executive's
employment for Cause, Company shall pay the proforma amount of any Targeted
Incentives from the beginning of the fiscal year to the date to the Termination
Date, based on percentage of Target Incentives achieved, and (iv) following
submission of proper expense reports by the Executive, the Company shall
reimburse the Executive for all expenses reasonably and necessarily incurred by
the Executive in connection with the business of the Company prior to
termination. These payments shall be made promptly upon termination and within
the period of time mandated by law.
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(d) Retirement Plans. In addition to any other retirement rights
to which the Executive may be legally entitled by contract or pursuant to any
plan or program, the Company shall pay the Executive regularly scheduled
payments which shall commence on Executive's normal retirement age or earlier if
Executive elects early retirement and shall be payable in accordance with the
Company's then-existing retirement plan, if any, determined as though the
Executive continued his employment with the Company for an additional twelve
(12) months following the Termination Date or until Executive has attained
normal retirement age under such Plan, whichever occurs earlier. For purposes of
determining the amount the Executive is to receive the Company shall utilize the
greater of the Executive's compensation as defined under any such retirement
plan in effect on the date of this Agreement for the year including the
Termination Date.
(e) Options. In the event the Executive is entitled to severance
benefits pursuant to subsection 4(a)(i), the Executive's stock options and other
exercise rights shall remain exercisable in accordance with the provisions of
the Stock Option Plan, and, in accordance with Section 4 (f) below.
(f) Vesting of Benefits. If the Executive's employment terminates
as a result of Involuntary Termination other than Cause, Disability, or death,
or if a Change-of-Control occurs as defined herein, then any unvested benefits
on the date of termination or the date of Change-of-Control, including stock
options, restricted stock, stock appreciation rights, growth units, or other
incentive compensation, shall immediately accelerate and one hundred percent
(100%) of such unvested benefits shall become fully vested and exercisable. The
Executive shall thereupon have fully vested rights to such benefits in
accordance with the terms of the applicable plan or agreement and will have a
period of twelve (12) months from the date of termination or the date of the
Change-in-Control to exercise such stock options, stock appreciation rights,
growth units or restricted stock.
(g) Deferred Compensation. Any compensation deferred by the
Executive shall be subject to the terms and conditions of any applicable plan or
agreement, and shall not be affected or altered by this Agreement.
5. Limitation on Payments. In the event that any payment or benefit
received or to be received by the Executive pursuant to this Agreement or
otherwise (collectively the "Payments") would be subject to the Excise Tax
imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the
"Code"), or any similar or successor provision (the "Excise Tax"), the Company
shall pay to the Executive within ninety (90) days of the Termination Date (or,
if earlier, within ninety (90) days of the date the Executive becomes subject to
the Excise Tax), an additional amount (the "Gross-Up Payment") such that the net
amount retained by the Executive, after deduction of any Excise Tax and any
federal (and state and local) income tax on the Payments, shall be equal to the
Payments minus all applicable taxes on the Payments. For purposes of determining
whether any of the Payments will be subject to the Excise Tax and the amount of
Excise Tax, (i) any other payments or benefits received or to be received in
connection with a Change of Control of the Company or the Executive's
termination of employment (whether pursuant to the terms of this Agreement or
any other plan, arrangement or agreement with the Company), shall be treated as
"parachute payments" within the meaning of Section
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280G(b)(2) of the Code or any similar or successor provision, and all "excess
parachute payments" within meaning of Section 280G(b)(1) or any similar or
successor provision shall be treated as subject to the Excise Tax, unless in the
opinion of tax counsel selected by the Company such other payments or benefits
(in whole or in part) do not constitute parachute payments, or such excess
parachute payments (in whole or in part) represent reasonable compensation for
services within the meaning of Section 280G(b) or any similar or successor
provision of the Code in excess of the base amount within the meaning of Section
280G(b)(3) or any similar or successor provision of the Code, or are otherwise
not subject to Excise Tax; (ii) the amount of the Payments which shall be
treated as subject to the Excise Tax shall be equal to the lesser of (A) the
total amount of the Payments or (B) the amount of the excess parachute payments
within the meaning of Section 280G(b)(1) (after applying clause (i) above), and
(iii) the value of any non-cash benefits or an deferred payment or benefit shall
be determined by the Company's independent auditors in accordance with the
principles of Section 280G(d)(3) and (4) of the Code. For purposes of
determining the amount of the Gross-Up Payment, the Executive shall be deemed to
pay federal income taxes at the highest nominal marginal rate of federal income
taxation in the calendar year in which the Gross-Up Payment is to be made and
state and local income taxes at the highest nominal marginal rate of taxation in
the state and locality of the Executive's residence on the Termination Date, net
of the maximum reduction in federal income taxes which could be obtained from
deducting of such state and local taxes. In the event that the Excise Tax is
subsequently determined to be less than the amount taken into account hereunder
at the time of termination of the Executive's employment, the Executive shall
repay to the Company at the time that the amount of such reduction in Excise Tax
is finally determined the portion of the Gross-Up Payment attributable to such
reduction (plus the portion of the Gross-Up Payment attributable to the Excise
Tax and federal (and state and local) income tax imposed on the Gross-Up Payment
being repaid by the Executive if such repayment results in a reduction in Excise
Tax and/or a federal (and state and local) income tax deduction) plus interest
on the amount of such repayment at the rate provided in Section 1274(b)(2)(B) of
the Code. In the event that the Excise Tax is determined to exceed the amount
taken into account hereunder at the time of the termination of the Executive's
employment (including by reason of a payment the existence or amount of which
cannot be determined at the time of the Gross-Up Payment), the Company shall
make an additional Gross-Up Payment in respect of such excess (plus any interest
payable with respect to such excess) at the time that the amount of such excess
is finally determined.
6. Noncompete; Confidentiality
(a) If the Executive's employment terminates by reason of
voluntary resignation (including an Involuntary Termination) or for Cause,
Executive for a period of one (1) year after such termination, will not (i)
solicit, accept or perform directly or indirectly any work with, nor will
Executive, directly or indirectly, engage in, undertake planning for or
organization of, or have any interest in (whether as an employee, officer,
director, agent, security holder, consultant, investor or similar position) any
individual, entity or organization that is engaged in the design, development,
provision or sales and marketing of any products or services which directly
compete with the Company's business, including, without limitation, any product
for the creation, compression, storage, retrieval or analysis of relational
databases or any other data warehousing, data mining and business intelligence
products, or any products that the Executive was directly engaged in with the
Company (collectively "Restricted Business"), or (ii) (A)
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solicit for employment or other engagement any person who is employed by the
Company or (B) induce or influence, any person who is employed by the Company or
may be so employed by the Company during the one year period following your
termination, to terminate his or her employment with the Company, without prior
written agreement of the Company.
(b) The Executive agrees that during his employment with the
Company, he shall not engage in, own, manage or control, or participate in the
ownership, management or control, directly or indirectly, of any person, firm,
corporation or other entity engaged in a Restricted Business anywhere in the
United States of America (the "Restricted Area"). Notwithstanding the foregoing,
the Executive may acquire shares representing not more than 5% of the
outstanding securities of any publicly traded company engaged in the Restricted
Business. The covenant not to compete contained in this Section 6 shall be
construed as a series of separate covenant, one for each state. If, in any
judicial proceeding, a court shall refuse to enforce any of such separate
covenants, such unenforceable covenant shall be deemed deleted from this
Agreement to the extent necessary to permit the remaining separate covenants not
to compete included in this Section 6 to be enforced.
(c) Any inventions, processes, methods, formulas, discoveries,
concepts or ideas or expressions thereof ("Inventions"), whether or not subject
to patent, copyright, trademark or service mark protection, and whether or not
reduced to practice, conceived or developed by Executive, either solely or
jointly, while employed by Company or within one (1) year following termination
of such employment which relate to or result from the actual or anticipated
business, research or investigation of Company or which are suggested by or
result from any task assigned to or performed by Executive for Company shall be
the sole and exclusive property of Company. Executive hereby assigns to Company
and its assignees the entire right, title and interest in and to any Inventions.
Executive without any additional consideration from Company shall sign such
other documents as may be prepared by Company and provide other reasonable
assistance to effect the foregoing.
(d) Executive agrees to protect all of the Company's Confidential
Information as provided in this Agreement.
(i) Confidential Information shall mean compensation data,
employee lists, financial and legal information,
marketing plans and strategies, pending projects and
proposals, methods, concepts, skills, techniques,
writings, cases, exercises, program outlines, business
problems or issues, organizational charts or other
information of possible use by a competitor; research
and development, technological data, all proprietary
and trade secret information, actual and potential
customer and vendor lists, documentation, software,
know-how and information relating to the past, present
or future business of Company or any plans relating to
the foregoing and the confidential and proprietary
information of third parties that do business with
Company and learned during Executive's employment and
shall include the physical or electronic embodiment of
such information, including but not limited to written,
computer or video materials, audio-visual aids,
customer lists, contracts, reports, formats, manuals,
memoranda and correspondence. This Agreement shall not
apply to any Confidential
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Information after it becomes publicly available through
no fault of Executive.
(ii) Executive shall not use or disclose any of the
Company's Confidential Information without the
Company's prior written permission, except for publicly
available information. Executive agrees to hold in
confidence and not disclose to third parties, including
the Company, and not use for Executive's own or other's
benefit, Confidential Information received from or
about third parties under an obligation of
confidentiality. To the extent that Executive lawfully
receives Confidential Information of third parties in
the course of Executive's employment with the Company
Executive may use such third party Confidential
Information for the benefit of the Company. Executive
agrees that he will not, without the written permission
of the Company, use the Company's Confidential
Information for any purpose other than in the course of
his employment.
(iii) Executive represents that he has no obligations or
commitments inconsistent with this Agreement.
(iv) Executive agrees to limit disclosure of the Company's
Confidential Information only to those other employees,
agents, contractors and representatives of the Company
who reasonably require such information in the ordinary
course of employment. Executive shall not disclose the
Company's Confidential Information to any third party
and shall use all reasonable safeguards to prevent the
unauthorized disclosure of such Confidential
Information.
(v) Upon termination of Employee's association with the
Company, Executive agrees to promptly return all
materials containing the Company's Confidential
Information including all extracts and copies thereof,
to the Company and all personal property of the Company
in his possession.
(vi) Executive agrees that the remedy at law of the Company
would be inadequate as to any unauthorized use or
disclosure of the Company's Confidential Information by
Executive and agrees that the Company shall be entitled
to preliminary and permanent injunctions in any court
of competent jurisdiction to prevent such unauthorized
use or disclosure by Executive.
7. Definition of Terms. The following terms referred to in this
Agreement shall have the following meanings:
(a) Cause. "Cause" shall mean:
(i) Executive's failure to begin to substantially perform his
duties or responsibilities hereunder for a period of fifteen (15) days after
written notice thereof from the Board to Executive setting forth in reasonable
detail the respects in which the Company believes Executive has not
substantially performed his duties or responsibilities hereunder or continued
failure to begin to substantially perform such duties or responsibilities for a
period of thirty (30) days after such written notice;
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(ii) Executive personally engaging in knowing and intentional
illegal conduct which is seriously injurious to the Company or its affiliates;
(iii) Executive being convicted of a felony, or committing an
act of dishonesty or fraud against, or the misappropriation of property
belonging to, the Company or its affiliates;
(iv) Executive knowingly and intentionally breaches in any
material respect the terms of Section 6, above, or any confidentiality agreement
or invention or proprietary information agreement with the Company;
(v) Executive's commencement of employment with another
employer while he is an Executive of the Company, without the Company's written
consent; or
(vi) any material breach by Executive of any material
provision of this Agreement for which a cure is not initiated within fifteen
(15) days of notice thereof from the Board to Executive or which remains uncured
for thirty (30) days following such notice.
(b) Change of Control. "Change of Control" shall mean the
occurrence of any of the following events:
(i) Any "person" or "group" (as such term is used in Sections
13(d) and 14(d) of the Securities Exchange Act of 1934, as amended) is or
becomes the "beneficial owner" (as defined in Rule 13d-3 under said Act),
directly or indirectly, of securities of the Company representing 50% or more of
the total voting power represented by the Company's then outstanding voting
securities; or
(ii) The Company affects a merger or consolidation of the
Company with any other corporation, other than a merger or consolidation which
would result in the voting securities of the Company outstanding immediately
prior thereto continuing to represent (either by remaining outstanding or by
being converted into voting securities of the surviving entity) more than fifty
percent (50%) of the total voting power represented by the voting securities of
the Company or such surviving entity outstanding immediately after such merger
or consolidation, or the Company approves a plan of complete liquidation of the
Company or an agreement for the sale or disposition by the Company of all or
substantially all the Company's assets (other than to a subsidiary or
subsidiaries).
(c) Disability. "Disability" shall mean that the Executive has
been unable to perform his duties under this Agreement for a period of three or
more consecutive months due to illness, ccident or other physical or mental
incapacity.
(d) Involuntary Termination. "Involuntary Termination" shall
include, but not be limited to,
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(i) the continued assignment to Executive of any duties or
the continued material reduction of Executive's duties, either of which is
substantially inconsistent with the level of Executive's position with the
Company, for a period of thirty (30) days after notice thereof from Executive to
the Board of Directors setting forth in reasonable detail the respects in which
Executive believes such assignments or duties are substantially inconsistent
with the level of Executive's position;
(ii) a reduction in Executive's salary (other than any such
reduction applicable to officers of the Company generally);
(iii) a reduction by the Company in the kind or level of
Executive benefits (other than salary and bonus) to which Executive is entitled
immediately prior to such reduction with the result that Executive's overall
benefits package (other than salary and bonus) is materially reduced (other than
any such reduction applicable to officers of the Company generally);
(iv) any purported termination of the Executive's employment
by the Company other than for Cause or as a result of the Executive's
Disability;
(v) the failure of the Company to obtain the assumption of
this Agreement by any successors contemplated in Section 8 below; or
(vi) any material breach by the Company of any material
provision of this Agreement which continues uncured for thirty (30) days
following notice thereof; provided that none of the foregoing shall constitute
Involuntary Termination to the extent Executive has agreed thereto.
(e) Termination Date. "Termination Date" shall mean (i) if the
Executive's employment is terminated by the Company for Disability, thirty (30)
days after notice of termination is given to the Executive (provided that the
Executive shall not have returned to the performance of the Executive's duties
on a full-time basis during such thirty (30) day period), (ii) if the
Executive's employment is terminated by the Company for any other reason, 30
days from the date on which a notice of termination is given, or (iii) if the
Agreement is terminated by the Executive, 30 days from the date on which the
Executive delivers the notice of termination to the Company.
8. Successors.
(a) Company's Successors. Any successor to the Company (whether
direct or indirect and whether by purchase, lease, merger, consolidation,
liquidation or otherwise) to all or substantially all of the Company's business
and/or assets shall assume the obligations under this Agreement and agree
expressly to perform the obligations under this Agreement in the same manner and
to the same extent as the Company would be required to perform such obligations
in the absence of a succession. For all purposes under this Agreement, the term
"Company" shall include any successor to the Company's business and/or assets
which executes and delivers the assumption agreement described in this
subsection (a) or which becomes bound by the terms of this Agreement by
operation of law.
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(b) Executive's Successors. The terms of this Agreement and all
rights of the Executive hereunder shall inure to the benefit of, and be
enforceable by, the Executive's personal or legal representatives, executors,
administrators, successors, heirs, distributees, devisees and legatees.
9. Notice.
(a) General. Notices and all other communications contemplated by
this Agreement shall be in writing and shall be deemed to have been duly given
when personally delivered or when mailed by U.S. registered or certified mail,
return receipt requested and postage prepaid. In the case of the Executive,
mailed notices shall be addressed to him at the home address that he most
recently communicated to the Company in writing. In the case of the Company,
mailed notices shall be addressed to its corporate headquarters, and all notices
shall be directed to the attention of its Corporate Secretary.
(b) Notice of Termination. Any termination by the Company for
Cause or by the Executive as an Involuntary Termination shall be communicated by
a notice of termination to the other party hereto given in accordance with this
Agreement. Such notice shall indicate the specific termination provision in this
Agreement relied upon, shall set forth in reasonable detail the facts and
circumstances claimed to provide a basis for termination under the provision so
indicated, and shall specify the termination date (which shall be not more than
30 days after the giving of such notice). The failure by the Executive to
include in the notice any fact or circumstance which contributes to a showing of
Involuntary Termination shall not waive any right of the Executive hereunder or
preclude the Executive from asserting such fact or circumstance in enforcing his
rights hereunder.
10. Confidentiality. Except as required by applicable laws, neither
party shall disclose the contents of this Agreement without first obtaining the
prior written consent of the other party, provided, however, that the Executive
may disclose this Agreement to his attorney, financial planner and tax advisor
if such persons agree to keep the terms hereof confidential.
11. Miscellaneous Provisions.
(a) Waiver. No provision of this Agreement shall be modified,
waived or discharged unless the modification, waiver or discharge is agreed to
in writing and signed by the Executive and by an authorized officer of the
Company (other than the Executive). No waiver by either party of any breach of,
or of compliance with, any condition or provision of this Agreement by the other
party shall be considered a waiver of any other condition or provision or of the
same condition or provision at another time.
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(b) Whole Agreement; Integration. This Agreement and any written
agreements or other documents evidencing matters referred to herein and any
written Company existing plans that are referenced herein represent the entire
agreement and understanding between the parties as to the subject matter hereof.
No waiver, alteration, or modification, if any, of the provisions of this
Agreement shall be binding unless in writing and signed by duly authorized
representatives of the parties hereto.
(c) Choice of Law. The validity, interpretation, construction and
performance of this Agreement shall be governed by the laws of the State of New
York. The parties hereto irrevocably consent to the exclusive personal
jurisdiction of the state and federal courts of the County of Nassau, State of
New York.
(e) Severability. The invalidity or unenforceability of any
provision or provisions of this Agreement shall not affect the validity or
enforceability of any other provision hereof, which shall remain in full force
and effect.
(f) No Assignment of Benefits. The rights of any person to
payments or benefits under this Agreement shall not be made subject to option or
assignment, either by voluntary or involuntary assignment or by operation of
law, including (without limitation) bankruptcy, garnishment, attachment or other
creditor's process, and any action in violation of this subsection (f) shall be
void.
(g) Employment Taxes. All payments made pursuant to this
Agreement will be subject to withholding of applicable income and employment
taxes.
(h) Assignment by Company. The Company may assign its rights
under this Agreement to an affiliate, and an affiliate may assign its rights
under this Agreement to another affiliate of the Company or to the Company;
provided, however, that the Company shall remain jointly and severally liable
under this Agreement, and provided further, that no assignment shall be made if
the net worth of the assignee is less than the net worth of the Company at the
time of assignment. In the case of any such assignment, the term "Company" when
used in a section of this Agreement shall mean the corporation that actually
employs the Executive.
(i) Counterparts. This Agreement may be executed in counterparts,
each of which shall be deemed an original, but all of which together will
constitute one and the same instrument.
(j) Legal Fees. In the event that, after a Change of Control, the
Executive is required to enforce this Agreement or to procure the benefits
hereunder through arbitration or litigation, the Executive shall be entitled to
reasonable legal fees and all out-of-pocket expenses.
(k) Interest. In the event that the Company fails to make any
payment hereunder or afford any benefit when due, the Company shall pay interest
at the rate of the publicly-announced prime rate of interest of Chase Manhattan
Bank or its successor in effect from time to time plus 3%, or the maximum amount
permitted by law, whichever is less.
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IN WITNESS WHEREOF, each of the parties has executed this
Agreement, in the case of the Company by its duly authorized officer, as of the
day and year first above written.
"COMPANY" QUERYOBJECT SYSTEMS CORPORATION
/s/
----------------------------------------
Daniel M. Pess, Executive Vice President
"EXECUTIVE" ROBERT THOMPSON
/s/
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<PAGE>
EXHIBIT A
For fiscal 1999, the Targeted Incentives will include the following components:
Base
Amount
------
Related to Stock Price $50,000*
Related to Sales $50,000**
$100,000
* If the closing stock price of QueryObject for twenty days out of 30
consecutive trading days through April 30, 2000 (the "Closing Price") is at
least $1.50, then a $25,000 incentive will be earned. If the Closing Price is at
least $2.50, then a $50,000 incentive will be earned. If the Closing Price is at
least $3.25, then a $75,000 incentive will be earned. If the Closing Price is at
least $4.00, then a $100,000 incentive will be earned. The Closing Price must
not decrease by more than 25% from these levels for a period of 30 calendar days
after the measurement point for the incentive to be earned.
** If the consolidated sales of QueryObject for 1999 is less than 85% of Plan
(Plan is $3,000,000; 85% is $2,550,000) then no incentive is earned. At
$2,550,000 to $3,000,000 the incentive rate is 2%. At $3,000,000 to $4,000,000
the incentive rate is 2.5%. Sales of over $4,000,000 carry an incentive rate of
3%. The following illustrates the incentive;
Sales Levels Rate Incentive Amount
------------ ---- ----------------
Below $2,550,000 0 0
$2,550,000 to $2,999,999 2% Up to $60,000
$3,000,000 to $3,999,999 2.5% Up to $100,000
$4,000,000 and over 3% $120,000 and over
NOTE - If sales are $2,550,000 and the stock price is $2.50, the total incentive
will be $101,000. If sales are $3,000,000 and the stock price is $4.00, the
total incentive will be $175,000.
QUERYOBJECT SYSTEMS CORPORATION
EMPLOYMENT AGREEMENT
This Employment Agreement (the "Agreement") is made and entered into
effective as of January 1, 1999 (the "Effective Date"), by and between Daniel
Pess (the "Executive") and QueryObject Systems Corporation, a Delaware company
(the "Company").
R E C I T A L S
The Company and the Executive desire to enter into this Agreement in
order to provide additional financial security and benefits to the Executive, to
encourage the Executive to continue employment with the Company and to enhance
the motivation and incentive of the Executive to increase the profitability of
the Company.
In consideration of the mutual covenants herein contained, and in
consideration of the continuing employment of Executive with the Company, the
parties agree as follows:
1. Duties and Scope of Employment.
(a) Position. The Company shall employ the Executive in the
position of Chief Operating and Financial Officer, with such duties,
responsibilities and compensation as in effect as of the Effective Date;
provided, however, that the Board of Directors of the Company (the "Board")
shall have the right to revise such responsibilities and compensation from time
to time as the Board may deem necessary or appropriate. Such duties and
responsibilities shall be commensurate with the Executive's past practices and
consistent with his position as Chief Operating and Financial Officer of the
Company. If any such revision constitutes "Involuntary Termination" as defined
in Section 7(d) of this Agreement, the Executive shall be entitled to benefits
upon such Involuntary Termination as provided under this Agreement.
(b) Obligations. The Executive shall devote his full business
efforts and time to the Company and its subsidiaries. The foregoing, however,
shall not preclude the Executive from engaging in such activities and services
as do not interfere or conflict with his responsibilities to the Company.
2. Termination. This Agreement shall continue in force and effect until
the earliest of: (i) December 31, 2001 or (ii) until such time as notice of
non-renewal or termination of this Agreement is given in writing by either the
Company or the Executive to the other (the "Termination Event"). The Company and
the Executive agree to meet to negotiate in good faith the renewal of this
Agreement two (2) months prior to the expiration date of this Agreement. This
Agreement may be extended for an additional period or periods by mutual written
agreement of the Company and the Executive. A termination of
<PAGE>
the terms of this Agreement where the parties are unable to agree to renewal
terms shall not affect the payment or provision of compensation or benefits on
account of a termination of employment occurring prior to the termination of the
terms of this Agreement, nor affect Executive's right to twelve (12) months of
Base Compensation as severance pay after the termination.
3. Compensation and Benefits.
(a) Base Compensation. The Company shall pay the Executive as
compensation for services a base salary at the annualized rate of $190,000. Such
salary shall be reviewed at least annually and may be increased from time to
time. Such salary shall be paid periodically in accordance with normal Company
payroll practice. The annual compensation specified in this Section, as adjusted
from time to time, before any salary reduction under Section 401(k) of the
Internal Revenue Code, deferred compensation plan or agreement or any other
benefit or plan requiring reduction of salary, is referred to in this Agreement
as "Base Compensation".
(b) Bonus. The Executive shall be entitled to an annual bonus
("Targeted Incentives") of not less than $80,000 per year, based on the
successful completion of certain objectives designated by the Board of the
Company. 1999 Targeted Incentives are outlined in Exhibit A, attached hereto.
(c) Vacation. The Executive shall be entitled to four (4) weeks
of paid vacation per year or such additional vacation as may be permitted from
time to time by Company policy.
(d) Executive Benefits. The Executive shall be eligible to
participate in the employee benefit plans and executive compensation programs
maintained by the Company of general applicability to other key executives of
the Company, including (without limitation) retirement plans, savings or
profit-sharing plans, deferred compensation plans, supplemental retirement or
excess-benefit plans, stock option and incentive plans and life, disability,
health, accident and other insurance programs, paid vacations, and similar plans
or programs, subject in each case to the generally applicable terms and
conditions of the plan or program in question and to the determination of the
Board or any committee administering such plan or program. Participation shall
be consistent with the Executive's position as Chief Executive Officer and
President of the Company. The Company shall reimburse the Executive for all
reasonable business and travel expenses actually incurred or paid by the
Executive in the performance of services on behalf of the Company, in accordance
with the Company's expense reimbursement policy as in effect from time to time.
4. Severance Benefits.
(a) Termination of Employment During Term of Agreement. If the
Executive's employment with the Company terminates during the term of this
Agreement, then the Executive shall be entitled to receive severance benefits as
follows:
(i) Involuntary Termination. If, at any time during the term
of this Agreement, the Executive's employment terminates as a result of
Involuntary Termination other than for Cause, Disability or death, or the
Company breaches any of the material terms of this Agreement
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(either of the foregoing, an "Event"), the Company shall pay the Executive
severance in the amount of one-twelfth (1/12) of the Base Compensation of the
Executive at the time of such termination (without giving effect to any
reduction in Base Compensation that resulted in such Involuntary Termination)
per month, for a period of twelve (12) months.
(ii) Voluntary Resignation; Termination for Cause. If the
Executive's employment terminates by reason of the Executive's voluntary
resignation (and is not an Involuntary Termination), or if the Executive is
terminated for Cause, then the Executive shall not be entitled to receive
severance or other benefits except for those (if any) as may then be established
(and applicable) under the Company's then-existing severance and benefits plans
and policies at the time of such termination.
(iii) Disability; Death. If the Company terminates the
Executive's employment as a result of the Executive's Disability, or such
Executive's employment is terminated due to the death of the Executive, then the
Executive shall not be entitled to receive severance or other benefits except
(i) those (if any) as may then be established (and applicable) under the
Company's then-existing severance and other benefits plans and policies at the
time of such Disability or death, (ii) benefits required by applicable laws, and
(iii) in the case of death, the Executive's salary for twenty six (26) weeks
payable to the Executive's surviving spouse, or if the Executive has no spouse,
to the Executive's estate. In the event of termination as a result of Disability
under this Agreement, the Executive shall be entitled to the benefits provided
under the Company's then-existing disability or extended sick pay plan, for so
long as such Executive continues to be disabled under this Agreement or benefits
otherwise terminate under such plan, whether or not the Executive is deemed to
be disabled under such plan.
(b) Continuing Benefits. In the event the Executive is entitled
to severance benefits pursuant to subsection 4(a)(i), then in addition to such
severance benefits, the Executive shall receive Company-paid health, dental,
vision, disability and life insurance coverage as provided to such Executive
immediately prior to the Executive's termination, upon the terms and conditions,
including deductibles and co-payments, provided in the Company's then-existing
plans, policies and programs, for a period of twelve (12) months.
(c) Accrued Salary, Benefits and Expenses. In addition, (i) the
Company shall pay the Executive any unpaid base salary for periods prior to the
Termination Date; (ii) the Company shall pay the Executive all of the
Executive's accrued and unused vacation through the Termination Date; (iii)
unless the Executive has voluntarily resigned his employment (other than an
Involuntary Termination) or unless the Company has terminated Executive's
employment for Cause, Company shall pay the proforma amount of any Targeted
Incentives from the beginning of the fiscal year to the date to the Termination
Date, based on percentage of Target Incentives achieved, and (iv) following
submission of proper expense reports by the Executive, the Company shall
reimburse the Executive for all expenses reasonably and necessarily incurred by
the Executive in connection with the business of the Company prior to
termination. These payments shall be made promptly upon termination and within
the period of time mandated by law.
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(d) Retirement Plans. In addition to any other retirement rights
to which the Executive may be legally entitled by contract or pursuant to any
plan or program, the Company shall pay the Executive regularly scheduled
payments which shall commence on Executive's normal retirement age or earlier if
Executive elects early retirement and shall be payable in accordance with the
Company's then-existing retirement plan, if any, determined as though the
Executive continued his employment with the Company for an additional twelve
(12) months following the Termination Date or until Executive has attained
normal retirement age under such Plan, whichever occurs earlier. For purposes of
determining the amount the Executive is to receive the Company shall utilize the
greater of the Executive's compensation as defined under any such retirement
plan in effect on the date of this Agreement for the year including the
Termination Date.
(e) Options. In the event the Executive is entitled to severance
benefits pursuant to subsection 4(a)(i), the Executive's stock options and other
exercise rights shall remain exercisable in accordance with the provisions of
the Stock Option Plan, and, in accordance with Section 4 (f) below.
(f) Vesting of Benefits. If the Executive's employment terminates
as a result of Involuntary Termination other than Cause, Disability, or death,
or if a Change-of-Control occurs as defined herein, then any unvested benefits
on the date of termination or the date of Change-of-Control, including stock
options, restricted stock, stock appreciation rights, growth units, or other
incentive compensation, shall immediately accelerate and one hundred percent
(100%) of such unvested benefits shall become fully vested and exercisable. The
Executive shall thereupon have fully vested rights to such benefits in
accordance with the terms of the applicable plan or agreement and will have a
period of twelve (12) months from the date of termination or the date of the
Change-in-Control to exercise such stock options, stock appreciation rights,
growth units or restricted stock.
(g) Deferred Compensation. Any compensation deferred by the
Executive shall be subject to the terms and conditions of any applicable plan or
agreement, and shall not be affected or altered by this Agreement.
5. Limitation on Payments. In the event that any payment or benefit
received or to be received by the Executive pursuant to this Agreement or
otherwise (collectively the "Payments") would be subject to the Excise Tax
imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the
"Code"), or any similar or successor provision (the "Excise Tax"), the Company
shall pay to the Executive within ninety (90) days of the Termination Date (or,
if earlier, within ninety (90) days of the date the Executive becomes subject to
the Excise Tax), an additional amount (the "Gross-Up Payment") such that the net
amount retained by the Executive, after deduction of any Excise Tax and any
federal (and state and local) income tax on the Payments, shall be equal to the
Payments minus all applicable taxes on the Payments. For purposes of determining
whether any of the Payments will be subject to the Excise Tax and the amount of
Excise Tax, (i) any other payments or benefits received or to be received in
connection with a Change of Control of the Company or the Executive's
termination of employment (whether pursuant to the terms of this Agreement or
any other plan, arrangement or agreement with the Company), shall be treated as
"parachute payments" within the meaning of Section
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280G(b)(2) of the Code or any similar or successor provision, and all "excess
parachute payments" within meaning of Section 280G(b)(1) or any similar or
successor provision shall be treated as subject to the Excise Tax, unless in the
opinion of tax counsel selected by the Company such other payments or benefits
(in whole or in part) do not constitute parachute payments, or such excess
parachute payments (in whole or in part) represent reasonable compensation for
services within the meaning of Section 280G(b) or any similar or successor
provision of the Code in excess of the base amount within the meaning of Section
280G(b)(3) or any similar or successor provision of the Code, or are otherwise
not subject to Excise Tax; (ii) the amount of the Payments which shall be
treated as subject to the Excise Tax shall be equal to the lesser of (A) the
total amount of the Payments or (B) the amount of the excess parachute payments
within the meaning of Section 280G(b)(1) (after applying clause (i) above), and
(iii) the value of any non-cash benefits or an deferred payment or benefit shall
be determined by the Company's independent auditors in accordance with the
principles of Section 280G(d)(3) and (4) of the Code. For purposes of
determining the amount of the Gross-Up Payment, the Executive shall be deemed to
pay federal income taxes at the highest nominal marginal rate of federal income
taxation in the calendar year in which the Gross-Up Payment is to be made and
state and local income taxes at the highest nominal marginal rate of taxation in
the state and locality of the Executive's residence on the Termination Date, net
of the maximum reduction in federal income taxes which could be obtained from
deducting of such state and local taxes. In the event that the Excise Tax is
subsequently determined to be less than the amount taken into account hereunder
at the time of termination of the Executive's employment, the Executive shall
repay to the Company at the time that the amount of such reduction in Excise Tax
is finally determined the portion of the Gross-Up Payment attributable to such
reduction (plus the portion of the Gross-Up Payment attributable to the Excise
Tax and federal (and state and local) income tax imposed on the Gross-Up Payment
being repaid by the Executive if such repayment results in a reduction in Excise
Tax and/or a federal (and state and local) income tax deduction) plus interest
on the amount of such repayment at the rate provided in Section 1274(b)(2)(B) of
the Code. In the event that the Excise Tax is determined to exceed the amount
taken into account hereunder at the time of the termination of the Executive's
employment (including by reason of a payment the existence or amount of which
cannot be determined at the time of the Gross-Up Payment), the Company shall
make an additional Gross-Up Payment in respect of such excess (plus any interest
payable with respect to such excess) at the time that the amount of such excess
is finally determined.
6. compete; Confidentiality
(a) If the Executive's employment terminates by reason of
voluntary resignation (including an Involuntary Termination) or for Cause,
Executive for a period of one (1) year after such termination, will not (i)
solicit, accept or perform directly or indirectly any work with, nor will
Executive, directly or indirectly, engage in, undertake planning for or
organization of, or have any interest in (whether as an employee, officer,
director, agent, security holder, consultant, investor or similar position) any
individual, entity or organization that is engaged in the design, development,
provision or sales and marketing of any products or services which directly
compete with the Company's business, including, without limitation, any product
for the creation, compression, storage, retrieval or analysis of relational
databases or any other data warehousing, data mining and business intelligence
products, or any products that the Executive was directly engaged in with the
Company (collectively "Restricted Business"), or (ii) (A)
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<PAGE>
solicit for employment or other engagement any person who is employed by the
Company or (B) induce or influence, any person who is employed by the Company or
may be so employed by the Company during the one year period following your
termination, to terminate his or her employment with the Company, without prior
written agreement of the Company.
(b) The Executive agrees that during his employment with the
Company, he shall not engage in, own, manage or control, or participate in the
ownership, management or control, directly or indirectly, of any person, firm,
corporation or other entity engaged in a Restricted Business anywhere in the
United States of America (the "Restricted Area"). Notwithstanding the foregoing,
the Executive may acquire shares representing not more than 5% of the
outstanding securities of any publicly traded company engaged in the Restricted
Business. The covenant not to compete contained in this Section 6 shall be
construed as a series of separate covenant, one for each state. If, in any
judicial proceeding, a court shall refuse to enforce any of such separate
covenants, such unenforceable covenant shall be deemed deleted from this
Agreement to the extent necessary to permit the remaining separate covenants not
to compete included in this Section 6 to be enforced.
(c) Any inventions, processes, methods, formulas, discoveries,
concepts or ideas or expressions thereof ("Inventions"), whether or not subject
to patent, copyright, trademark or service mark protection, and whether or not
reduced to practice, conceived or developed by Executive, either solely or
jointly, while employed by Company or within one (1) year following termination
of such employment which relate to or result from the actual or anticipated
business, research or investigation of Company or which are suggested by or
result from any task assigned to or performed by Executive for Company shall be
the sole and exclusive property of Company. Executive hereby assigns to Company
and its assignees the entire right, title and interest in and to any Inventions.
Executive without any additional consideration from Company shall sign such
other documents as may be prepared by Company and provide other reasonable
assistance to effect the foregoing.
(d) Executive agrees to protect all of the Company's Confidential
Information as provided in this Agreement.
(i) Confidential Information shall mean compensation data,
employee lists, financial and legal information,
marketing plans and strategies, pending projects and
proposals, methods, concepts, skills, techniques,
writings, cases, exercises, program outlines, business
problems or issues, organizational charts or other
information of possible use by a competitor; research
and development, technological data, all proprietary
and trade secret information, actual and potential
customer and vendor lists, documentation, software,
know-how and information relating to the past, present
or future business of Company or any plans relating to
the foregoing and the confidential and proprietary
information of third parties that do business with
Company and learned during Executive's employment and
shall include the physical or electronic embodiment of
such information, including but not limited to
written, computer or video materials, audio-visual
aids, customer lists, contracts, reports, formats,
manuals, memoranda and correspondence. This Agreement
shall not apply to any Confidential
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<PAGE>
Information after it becomes publicly available
through no fault of Executive.
(ii) Executive shall not use or disclose any of the
Company's Confidential Information without the
Company's prior written permission, except for
publicly available information. Executive agrees to
hold in confidence and not disclose to third parties,
including the Company, and not use for Executive's own
or other's benefit, Confidential Information received
from or about third parties under an obligation of
confidentiality. To the extent that Executive lawfully
receives Confidential Information of third parties in
the course of Executive's employment with the Company
Executive may use such third party Confidential
Information for the benefit of the Company. Executive
agrees that he will not, without the written
permission of the Company, use the Company's
Confidential Information for any purpose other than in
the course of his employment.
(iii) Executive represents that he has no obligations or
commitments inconsistent with this Agreement.
(iv) Executive agrees to limit disclosure of the Company's
Confidential Information only to those other
employees, agents, contractors and representatives of
the Company who reasonably require such information in
the ordinary course of employment. Executive shall not
disclose the Company's Confidential Information to any
third party and shall use all reasonable safeguards to
prevent the unauthorized disclosure of such
Confidential Information.
(v) Upon termination of Employee's association with the
Company, Executive agrees to promptly return all
materials containing the Company's Confidential
Information including all extracts and copies thereof,
to the Company and all personal property of the
Company in his possession.
(vi) Executive agrees that the remedy at law of the Company
would be inadequate as to any unauthorized use or
disclosure of the Company's Confidential Information
by Executive and agrees that the Company shall be
entitled to preliminary and permanent injunctions in
any court of competent jurisdiction to prevent such
unauthorized use or disclosure by Executive.
7. Definition of Terms. The following terms referred to in this
Agreement shall have the following meanings:
(a) Cause. "Cause" shall mean:
(i) Executive's failure to begin to substantially perform
his duties or responsibilities hereunder for a period of fifteen (15) days after
written notice thereof from the Board to Executive setting forth in reasonable
detail the respects in which the Company believes Executive has not
substantially performed his duties or responsibilities hereunder or continued
failure to begin to substantially perform such duties or responsibilities for a
period of thirty (30) days after such written notice;
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(ii) Executive personally engaging in knowing and
intentional illegal conduct which is seriously injurious to the Company or its
affiliates;
(iii) Executive being convicted of a felony, or committing
an act of dishonesty or fraud against, or the misappropriation of property
belonging to, the Company or its affiliates;
(iv) Executive knowingly and intentionally breaches in any
material respect the terms of Section 6, above, or any confidentiality agreement
or invention or proprietary information agreement with the Company;
(v) Executive's commencement of employment with another
employer while he is an Executive of the Company, without the Company's written
consent; or
(vi) any material breach by Executive of any material
provision of this Agreement for which a cure is not initiated within fifteen
(15) days of notice thereof from the Board to Executive or which remains uncured
for thirty (30) days following such notice.
(b) Change of Control. "Change of Control" shall mean the
occurrence of any of the following events:
(i) Any "person" or "group" (as such term is used in
Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as amended) is
or becomes the "beneficial owner" (as defined in Rule 13d-3 under said Act),
directly or indirectly, of securities of the Company representing 50% or more of
the total voting power represented by the Company's then outstanding voting
securities; or
(ii) The Company affects a merger or consolidation of the
Company with any other corporation, other than a merger or consolidation which
would result in the voting securities of the Company outstanding immediately
prior thereto continuing to represent (either by remaining outstanding or by
being converted into voting securities of the surviving entity) more than fifty
percent (50%) of the total voting power represented by the voting securities of
the Company or such surviving entity outstanding immediately after such merger
or consolidation, or the Company approves a plan of complete liquidation of the
Company or an agreement for the sale or disposition by the Company of all or
substantially all the Company's assets (other than to a subsidiary or
subsidiaries).
(c) Disability. "Disability" shall mean that the Executive has
been unable to perform his duties under this Agreement for a period of three or
more consecutive months due to illness, accident or other physical or mental
incapacity.
(d) Involuntary Termination. "Involuntary Termination" shall
include, but not be limited to,
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(i) the continued assignment to Executive of any duties or
the continued material reduction of Executive's duties, either of which is
substantially inconsistent with the level of Executive's position with the
Company, for a period of thirty (30) days after notice thereof from Executive to
the Board of Directors setting forth in reasonable detail the respects in which
Executive believes such assignments or duties are substantially inconsistent
with the level of Executive's position;
(ii) a reduction in Executive's salary (other than any such
reduction applicable to officers of the Company generally);
(iii) a reduction by the Company in the kind or level of
Executive benefits (other than salary and bonus) to which Executive is entitled
immediately prior to such reduction with the result that Executive's overall
benefits package (other than salary and bonus) is materially reduced (other than
any such reduction applicable to officers of the Company generally);
(iv) any purported termination of the Executive's employment
by the Company other than for Cause or as a result of the Executive's
Disability;
(v) the failure of the Company to obtain the assumption of
this Agreement by any successors contemplated in Section 8 below; or
(vi) any material breach by the Company of any material
provision of this Agreement which continues uncured for thirty (30) days
following notice thereof; provided that none of the foregoing shall constitute
Involuntary Termination to the extent Executive has agreed thereto.
(e) Termination Date. "Termination Date" shall mean (i) if the
Executive's employment is terminated by the Company for Disability, thirty (30)
days after notice of termination is given to the Executive (provided that the
Executive shall not have returned to the performance of the Executive's duties
on a full-time basis during such thirty (30) day period), (ii) if the
Executive's employment is terminated by the Company for any other reason, 30
days from the date on which a notice of termination is given, or (iii) if the
Agreement is terminated by the Executive, 30 days from the date on which the
Executive delivers the notice of termination to the Company.
8. Successors.
(a) Company's Successors. Any successor to the Company (whether
direct or indirect and whether by purchase, lease, merger, consolidation,
liquidation or otherwise) to all or substantially all of the Company's business
and/or assets shall assume the obligations under this Agreement and agree
expressly to perform the obligations under this Agreement in the same manner and
to the same extent as the Company would be required to perform such obligations
in the absence of a succession. For all purposes under this Agreement, the term
"Company" shall include any successor to the Company's business and/or assets
which executes and delivers the assumption agreement described in this
subsection (a) or which becomes bound by the terms of this Agreement by
operation of law.
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(b) Executive's Successors. The terms of this Agreement and all
rights of the Executive hereunder shall inure to the benefit of, and be
enforceable by, the Executive's personal or legal representatives, executors,
administrators, successors, heirs, distributees, devisees and legatees.
9. Notice.
(a) General. Notices and all other communications contemplated by
this Agreement shall be in writing and shall be deemed to have been duly given
when personally delivered or when mailed by U.S. registered or certified mail,
return receipt requested and postage prepaid. In the case of the Executive,
mailed notices shall be addressed to him at the home address that he most
recently communicated to the Company in writing. In the case of the Company,
mailed notices shall be addressed to its corporate headquarters, and all notices
shall be directed to the attention of its Corporate Secretary.
(b) Notice of Termination. Any termination by the Company for
Cause or by the Executive as an Involuntary Termination shall be communicated by
a notice of termination to the other party hereto given in accordance with this
Agreement. Such notice shall indicate the specific termination provision in this
Agreement relied upon, shall set forth in reasonable detail the facts and
circumstances claimed to provide a basis for termination under the provision so
indicated, and shall specify the termination date (which shall be not more than
30 days after the giving of such notice). The failure by the Executive to
include in the notice any fact or circumstance which contributes to a showing of
Involuntary Termination shall not waive any right of the Executive hereunder or
preclude the Executive from asserting such fact or circumstance in enforcing his
rights hereunder.
10. Confidentiality. Except as required by applicable laws, neither
party shall disclose the contents of this Agreement without first obtaining the
prior written consent of the other party, provided, however, that the Executive
may disclose this Agreement to his attorney, financial planner and tax advisor
if such persons agree to keep the terms hereof confidential.
11. Miscellaneous Provisions.
(a) Waiver. No provision of this Agreement shall be modified,
waived or discharged unless the modification, waiver or discharge is agreed to
in writing and signed by the Executive and by an authorized officer of the
Company (other than the Executive). No waiver by either party of any breach of,
or of compliance with, any condition or provision of this Agreement by the other
party shall be considered a waiver of any other condition or provision or of the
same condition or provision at another time.
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(b) Whole Agreement; Integration. This Agreement and any written
agreements or other documents evidencing matters referred to herein and any
written Company existing plans that are referenced herein represent the entire
agreement and understanding between the parties as to the subject matter hereof.
No waiver, alteration, or modification, if any, of the provisions of this
Agreement shall be binding unless in writing and signed by duly authorized
representatives of the parties hereto.
(c) Choice of Law. The validity, interpretation, construction and
performance of this Agreement shall be governed by the laws of the State of New
York. The parties hereto irrevocably consent to the exclusive personal
jurisdiction of the state and federal courts of the County of Nassau, State of
New York.
(e) Severability. The invalidity or unenforceability of any
provision or provisions of this Agreement shall not affect the validity or
enforceability of any other provision hereof, which shall remain in full force
and effect.
(f) No Assignment of Benefits. The rights of any person to
payments or benefits under this Agreement shall not be made subject to option or
assignment, either by voluntary or involuntary assignment or by operation of
law, including (without limitation) bankruptcy, garnishment, attachment or other
creditor's process, and any action in violation of this subsection (f) shall be
void.
(g) Employment Taxes. All payments made pursuant to this
Agreement will be subject to withholding of applicable income and employment
taxes.
(h) Assignment by Company. The Company may assign its rights
under this Agreement to an affiliate, and an affiliate may assign its rights
under this Agreement to another affiliate of the Company or to the Company;
provided, however, that the Company shall remain jointly and severally liable
under this Agreement, and provided further, that no assignment shall be made if
the net worth of the assignee is less than the net worth of the Company at the
time of assignment. In the case of any such assignment, the term "Company" when
used in a section of this Agreement shall mean the corporation that actually
employs the Executive.
(i) Counterparts. This Agreement may be executed in counterparts,
each of which shall be deemed an original, but all of which together will
constitute one and the same instrument.
(j) Legal Fees. In the event that, after a Change of Control, the
Executive is required to enforce this Agreement or to procure the benefits
hereunder through arbitration or litigation, the Executive shall be entitled to
reasonable legal fees and all out-of-pocket expenses.
(k) Interest. In the event that the Company fails to make any
payment hereunder or afford any benefit when due, the Company shall pay interest
at the rate of the publicly-announced prime rate of interest of Chase Manhattan
Bank or its successor in effect from time to time plus 3%, or the maximum amount
permitted by law, whichever is less.
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IN WITNESS WHEREOF, each of the parties has executed this
Agreement, in the case of the Company by its duly authorized officer, as of the
day and year first above written.
"COMPANY" QUERYOBJECT SYSTEMS CORPORATION
/s/
----------------------------------------------------
Robert Thompson, President & Chief Executive Officer
"EXECUTIVE" DANIEL PESS
/s/
----------------------------------------------------
<PAGE>
EXHIBIT A
For fiscal 1999, the Targeted Incentives will include the following components:
Base
Amount
------
Related to Stock Price $40,000*
Related to Sales $40,000**
$80,000
* If the closing stock price of QueryObject for twenty days out of 30
consecutive trading days through April 30, 2000 (the "Closing Price") is at
least $1.50, then a $20,000 incentive will be earned. If the Closing Price is at
least $2.50, then a $40,000 incentive will be earned. If the Closing Price is at
least $3.25, then a $60,000 incentive will be earned. If the Closing Price is at
least $4.00, then a $80,000 incentive will be earned. The Closing Price must not
decrease by more than 25% from these levels for a period of 30 calendar days
after the measurement point for the incentive to be earned.
** If the consolidated sales of QueryObject for 1999 is less than 85% of Plan
(Plan is $3,000,000; 85% is $2,550,000) then no incentive is earned. At
$2,550,000 to $3,000,000 the incentive rate is 1.6%. At $3,000,000 to $4,000,000
the incentive rate is 2%. Sales of over $4,000,000 carry an incentive rate of
2.4%. The following illustrates the incentive;
Sales Levels Rate Incentive Amount
------------ ---- ----------------
Below $2,550,000 0 0
$2,550,000 to $2,999,999 1.6% Up to $48,000
$3,000,000 to $3,999,999 2% Up to $80,000
$4,000,000 and over 2.4% $96,000 and over
NOTE - If sales are $2,550,000 and the stock price is $2.50, the total incentive
will be $80,800. If sales are $3,000,000 and the stock price is $4.00, the total
incentive will be $140,000.
SUBLEASE
AGREEMENT OF SUBLEASE ("Sublease"), made as of the 6th day of
October, 1999, by and between QueryObject Systems Corporation, formerly known as
CrossZ Software Corporation, a Delaware corporation (hereinafter referred to as
"Sublessor"), having an office at 60 Charles Lindbergh Blvd, Uniondale, NY 11553
and Progressive Casualty Insurance Company, an Ohio corporation (hereinafter
referred to as "Sublessee"), having an address at 300 North Commons Blvd.,
Mayfield Village, Ohio, 44143.
W I T N E S S E T H:
WHEREAS, pursuant to a certain lease dated as of October 27,
1994 ("Lease"), by and between Reckson Associates, as landlord ("Landlord"), and
Cross/Z International, Inc., as tenant, Landlord leased to Sublessor certain
space (the "Demised Premises") in the building ("Building") located at 60
Charles Lindbergh Boulevard, Uniondale, NY; and
WHEREAS, Sublessor desires to sublease to Sublessee and
Sublessee desires to sublet from Sublessor the Demised Premises which is more
particularly set forth on Exhibit A which is annexed hereto (the "Subleased
Premises"), and Sublessee desires to take and hire the Subleased Premises from
Sublessor;
NOW, THEREFORE, in consideration of the premises and of the
mutual covenants hereinafter set forth, the parties hereto agree as follows:
1. Lease. Sublessee hereby acknowledges receipt of a copy of
the Lease, a copy of which is annexed hereto as Exhibit B. The terms and
conditions of the Lease are incorporated by reference into this Sublease and
made a part hereof (except for sections 2, 3, 5, 10, 16, 17, 28, 29, 30, 31, 34,
40, Schedule A and Exhibit 2) as if herein set forth at length. Sublessor being
substituted for "Landlord" under the Lease, Sublessee being substituted for
"Tenant" under the Lease and Subleased Premises being substituted for the
"Demised Premises" or "Premises" under the Lease except that where the context
so requires references to Landlord shall be deemed to refer to Reckson
Associates, its successors and assigns. Notwithstanding the foregoing, any
inconsistencies between the terms of this Sublease and the Lease which shall
result from the foregoing incorporation shall be resolved in favor of this
Sublease; provided, however, that if such construction of terms would cause
Sublessor to be in default under the terms of the Lease, then such inconsistency
shall be resolved in favor of the Lease. To the extent that the definitions of
the Lease incorporated by reference herein differ from or are inconsistent with
the definitions contained in this Sublease, the definitions set forth in this
Sublease shall prevail.
2. Demise and Term. (A) Sublessor hereby leases to Sublessee
and Sublessee hereby takes and hires from Sublessor the Subleased Premises
containing a total of 16,385 rentable square feet, for the term and upon the
terms and conditions set forth herein, subject to the provisions of Article 20
of the Lease, including the written consent of the Landlord to this Sublease and
to the use of the Subleased Premises pursuant to the terms thereof hereof
("Consent to Sublease"), and subject to Sublessor's compliance with Article
20(B) of the Lease. (B) The term ("Term") of this Sublease shall commence on
October 15, 1999 or sooner upon
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the mutual agreement of the parties ("Commencement Date"), except as otherwise
provided herein, and end on December 30, 2004 ("Expiration Date"), unless sooner
terminated pursuant to the provisions of this Sublease or the Lease. Sublessor
warrants and represents that the term of the Lease extends beyond the Expiration
Date. Notwithstanding the foregoing, Sublessee shall not have the right to
possession of the Subleased Premises until (i) Landlord has signed the Consent
to Sublease, (ii) Sublessor has received the Security in the full amount
required under Section 24 of this Sublease and (iii) Sublessor has received the
first installment of monthly Fixed Rent payable pursuant to Article 3(A) of this
sublease.
3. Rent. The rents reserved under this Sublease for the Term,
shall be and consist of:
(A) "Fixed Rent" in the amount of
(i) three hundred fifteen thousand four hundred eight
($315,408) per annum, for the period beginning on November 1, 1999 through and
including October 31, 2000, payable in equal monthly installments of twenty-six
thousand two hundred eighty-four dollars ($26,284). Notwithstanding the
foregoing, provided that Sublessee is in compliance with the terms hereof,
Sublessor shall waive, and Sublessee shall not be required to pay, the first
three and one-half (3 1/2) installments of the Fixed Rent due as per the above.
(ii) three hundred twenty-eight thousand twenty dollars
($328,020) per annum, for the period beginning on November 1, 2000 through and
including October 31, 2001, payable in equal monthly installments of
twenty-seven thousand three hundred thirty-five dollars ($27,335).
(iii) three hundred forty-one thousand one hundred
thirty-six dollars ($341,136) per annum, for the period beginning on November 1,
2001 through and including October 31, 2002, payable in equal monthly
installments of twenty-eight thousand four hundred twenty-eight dollars
($28,428).
(iv) three hundred fifty-four thousand seven hundred
thirty-five dollars and 24/100 cents ($354,735.24) per annum, for the period
beginning on November 1, 2002 through and including October 31, 2003, payable in
equal monthly installments of twenty-nine thousand five hundred sixty-one
dollars and 27/100 cents ($29,561.27).
(v) three hundred sixty-eight thousand nine hundred
eighty-eight dollars ($368,988) per annum, for the period beginning on November
1, 2003 through and including October 31, 2004, payable in equal monthly
installments of thirty thousand seven hundred forty-nine dollars ($30,749).
(vi) Sixty-three thousand nine hundred fifty-six
dollars ($63,956), for the period beginning on November 1, 2004 through and
including December 30, 2004, payable in equal monthly installments of thirty-one
thousand nine hundred seventy-eight dollars ($31,978).
(B) "Additional Rent" consisting of all such other sums of
money as shall become due from, and payable by, Sublessee to Sublessor hereunder
including but not limited to
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sums payable by Sublessor to Landlord pursuant to Article 11 ("Taxes and Other
Charges"), of the Lease (for default in payment of which Sublessor shall have
the same remedies as for default in payment of Fixed Rent); all to be paid to
Sublessor at its address hereunder referred to, or such other place, or to such
agent and at such place, as Sublessor may designate by notice to Sublessee, in
lawful money of the United States of America. The term "rent", "rents" and
"rental," as used herein, shall include Fixed Rent and Additional Rent. For
purposes of this Sublease Sublessee's Base Year Taxes shall be 2000 for General
Taxes and 1999/2000 for School Taxes.
4. Payment of Additional Rent. Sublessee shall make all
payments of Additional Rent required to be made pursuant to this Sublease within
thirty (30) business days after Sublessor furnishes Sublessee with a statement
of the amount payable by Sublessee to Sublessor. Sublessee shall have the right
to reasonably request from Sublessor copies of any applicable Landlord's
statement received by Sublessor, and Sublessor shall furnish same upon request,
but same shall not affect Sublessee's obligations to make the required payments
hereunder. In the event that any items payable by Sublessor under the Lease, in
respect of which Sublessor shall have received payments from Sublessee
hereunder, are subject to adjustment by Landlord at the end of a year or other
period pursuant to the terms thereof, then (a) if there has been a corresponding
underpayment in the payments made by Sublessee, Sublessee shall pay to
Sublessor, no later than ten (10) days after Sublessor furnishes to Sublessee a
copy of the statement received by Sublessor from Landlord, an amount equal to
such underpayment; or (b) if there has been an overpayment in such payments made
by Sublessee, Sublessor shall credit against the next payment of Additional Rent
coming due hereunder an amount equal to such overpayment, except that if no
further payments of Additional Rent shall be due hereunder, then Sublessor shall
refund such amount to Sublessee within ten (10) days. The obligation to pay any
amount payable by Sublessee, or to Sublessee as provided for in the immediately
preceding sentence, shall survive the end of the term of this Sublease and shall
be payable by Sublessee, or to Sublessee, as the case may be, in the same manner
as if the Term of this Sublease had not expired or terminated.
5. Acceptance of Subleased Premises. Sublessee has inspected
the Subleased Premises and Sublessee agrees to accept the Subleased Premises on
the Commencement Date in the condition in which the Subleased Premises exists on
the Commencement Date, "as is", and further agrees that neither Sublessor nor
Landlord shall have any obligation to perform any work, supply any materials,
incur any expenses or make any installations, in order to prepare the Subleased
Premises for Sublessee's occupancy.
6. Performance of Covenants in the Lease. Except as expressly
set forth herein, during the Term of this Sublease, Sublessee shall observe and
perform all of the terms, covenants, conditions, and agreements contained in the
Lease to be performed and observed on the part of Sublessor, as the tenant
thereunder, insofar as same pertain to the Subleased Premises, and all of such
terms, covenants, conditions and agreements are imposed upon Sublessee, whether
or not specifically set forth or referred to herein, Sublessor being substituted
for "Landlord" under the Lease, Sublessee being substituted for "Tenant" under
the Lease and the Subleased Premises being substituted for the "Demised
Premises" or "Premises" under the Lease, provided, however, that Sublessor shall
not be liable for any defaults by the Landlord under the Lease nor shall
Sublessee be liable for any defaults of Sublessor as Tenant under the Lease.
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<PAGE>
Sublessee hereby agrees (i) to refrain from doing or causing to be done, or
suffering or permitting any thing or act to be done (except for any act or
omission of Sublessor, its officers, directors, employees, agents, guests and
invitees), which constitutes a default under the Lease or causes the Lease, to
be canceled, terminated, forfeited or surrendered, or which makes Sublessor, as
tenant under the Lease, liable for any damages, claims or penalty, and (ii)
except as to those due to the negligence or willful act or omission of
Sublessor, to indemnify and hold Sublessor harmless against any loss or expense
suffered by Sublessor by reason of Sublessee's failure to perform Sublessee's
obligation sunder this Sublease. Sublessor hereby agrees (i) that it will not
take, or omit to take, any action which will have the effect of causing a
default under the Lease, or of causing a substantial interruption in any of the
services provided by Landlord to the Subleased Premises under the Lease, and
(ii) to indemnify and hold Sublessee harmless against any loss or expense
suffered by Sublessee by reason of Sublessor's failure to perform its
obligations under this Sublease and under the Lease (except where such loss or
expense is due to a default caused by Sublessee under this Sublease). Provided
Sublessee is not in default under this Sublease beyond the giving of any
required notice and the expiration of any grace period, Sublessor agrees not to
cancel or surrender voluntarily the Lease as it affects the Subleased Premises,
without the prior written consent of Sublessee. If the Lease is terminated for
any reason whatsoever, whether by operation of law or otherwise, except where
due to default of Sublessor (other than a default of Sublessor under the Lease
caused by Sublessee under this Sublease), Sublessor shall not be liable in any
manner whatsoever for such termination. Sublessor shall promptly forward to
Sublessee any default or termination notice with respect to the Lease received
by Sublessor from Landlord and this Sublease shall terminate in the event of any
such termination of the Lease. This Sublease is subject and subordinate in all
respect to the Lease and to the matters to which the Lease is subject and
subordinate. This Sublease shall also be subject to any amendments,
modifications and supplements to the Lease hereafter made between Landlord and
Sublessor, provided that any such amendments, modifications or supplements to
the Lease hereafter made between Landlord and Sublessor will not prevent, limit,
restrict or adversely affect the use by Sublessee of the Subleased Premises or
increase in any material respect its duties, obligations, responsibilities and
liabilities under and in accordance with the terms of this Sublease; and further
provided that any such amendments, modifications or supplements are provided to
Sublessee prior to execution and that a copy of such executed documents is
provided to Sublessee.
7. Use. Sublessee hereby agrees that the Subleased Premises
will be occupied and used only for general office use and for no other purpose,
and in a manner consistent in all respects with the provisions of the Lease.
8. Services Under the Lease. Except as otherwise provided
either in this Paragraph 8 or elsewhere in this Sublease, Sublessee shall be
entitled, during the Term hereof, to receive all services, utilities, repairs
and facilities to be provided by Landlord under the Lease insofar as such
services, utilities, repairs and facilities pertain to the Subleased Premises.
Sublessee shall contract directly with LIPA for energy services to the Subleased
Premises and Sublessee shall pay the cost of such services to LIPA in a timely
fashion. Sublessor shall use its reasonable efforts to secure the performance by
Landlord of its obligations under the Lease with respect to the Subleased
Premises for the delivery, provision and/or performance of such services,
utilities, repairs and facilities as are required to be provided by Landlord
under the Lease, except for such services, utilities, repairs and facilities for
which Sublessor, Sublessee or any other tenant is
4
<PAGE>
responsible; provided, however, Sublessor shall in no event be required to
commence or maintain litigation to enforce such obligations of Landlord under
the Lease, or to incur any cost or expense whatsoever to secure such
performance. In the event that Sublessor fails or refuses to commence or
maintain any such litigation to enforce obligations of Landlord under the Lease,
then and in that event, Sublessee shall have the right to do so, at Sublessee's
sole cost and expense, as Sublessor's attorney-in-fact and/or assignee pursuant
hereto. Sublessee agrees that Sublessor shall have no liability of any nature
whatsoever to Sublessee as a consequence of Landlord's failure to delay in
performing its obligations under the Lease, including, without limitation,
Landlord's breach of the covenant of quiet enjoyment, provided that such
failure, delay or breach is not the result of any default by the Sublessor under
the Lease, and provided further, that Sublessor shall have had an opportunity to
cure such default. Sublessee's obligations hereunder shall not be impaired nor
shall the performance thereof be excused because of any failure or delay on
Landlord's part in performing its obligations under the Lease unless such
failure or delay results from Sublessor's being in default under the Lease and
Sublessor's default thereunder is not due to a default of Sublessee hereunder.
9. Alterations. Except as otherwise herein provided, Sublessee
shall make no alterations, installations, additions or improvements
(collectively, "Alterations") into or about the Sublease Premises except in
accordance with the applicable provisions of the Lease, including but not
limited to Article 14 thereof.
(B)
In the event that Sublessee shall fail to take out or continuously maintain in
force the insurance policies required hereunder, Sublessor may, at its option,
effect such insurance and charge the cost thereof to Sublessee, who shall pay,
as Additional Rent, such sums to Sublessor. (C) Each of the above described
policies shall contain the following endorsement, to the extent available, "It
is understood and agreed that the premiums for these policies are due and
payable from Sublessee only."
11. Full Force and Effect of the Lease. Sublessor represents
that the copy of the Lease delivered to Sublessee is a true and correct copy
thereof. Sublessor represents further that (a) there have been no further
amendments to nor modifications of the Lease, (b) to the best of Sublessor's
knowledge, neither Landlord nor Sublessor are in default under the Lease, (c)
Sublessor has not received any default notices from Landlord, and (d) Sublessor
has not sent any default notices to Landlord.
12. No Representations. Sublessor has made no representations,
agreements or promises with respect to the Building or the Subleased Premises or
the use thereof other than those expressly set forth in this Sublease and no
rights are to be deemed acquired by Sublessee, by implication or otherwise,
except those expressly granted herein. This Sublease contains the entire
agreement between Sublessor and Sublessee with respect to the Subleased Premises
5
<PAGE>
and all prior negotiations and agreements are merged in this Sublease. Any
executory agreement hereafter made between Sublessor and Sublessee shall be
ineffective to change, modify, waive, release, discharge, terminate or effect an
abandonment or surrender of this Sublease, in whole or in part, unless such
agreement is in writing and signed by the party against whom enforcement thereof
is sought.
13. Default. (A) This Sublease and the term and estate herein
granted are subject to the limitations that:
(i) if, Sublessee shall default in the observance
or performance of any term, covenant or condition of the Lease on Sublessee's
part to be observed or performed, which default results in a notice of default
by Landlord to Sublessor and such default shall continue for a period of five
(5) days after delivery to Sublessee of a true and complete copy of Landlord's
notice of default, or if such default is of a nature that it cannot be
completely remedied within said five (5) day period if Sublessee fails to
commence to cures such default within said five (5) day period and thereafter
diligently prosecute to completion all steps necessary to remedy such default;
or
(ii) if, Sublessee shall default in the payment
when due of any installment of Fixed Rent or in the payment when due of any
Additional Rent, and such default shall continue for a period of three (3) days
after notice by Sublessor to Sublessee of such default; or
(iii) if, Sublessee shall default in the observance
or performance of any term, covenant or condition of this Sublease on
Sublessee's part to be observed or performed (other than the covenants for the
payment of Fixed Rent and Additional Rent) and Sublessee shall fail to remedy
such default within ten (10) days after notice by Sublessor to Sublessee of such
default, or if such default is of a nature that it cannot be completely remedied
within said ten (10) day period, if Sublessee shall not commence within said ten
(10) day period and thereafter diligently prosecute to completion all steps
necessary to remedy such default; or
(iv) if, the Subleased Premises shall become
vacant, deserted or abandoned without payment of Rent; or
(v) if, Sublessee's interest in this Sublease shall
devolve upon or pass to any person, whether by operation of law or otherwise,
except as may be expressly permitted under Paragraph 19 hereof; or
(vi) if, Sublessee shall file a voluntary petition
in bankruptcy or insolvency, or shall be adjudicated a bankrupt or 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 act or any 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
Sublessee or of all or any part of Sublessee's property; or
(vii) if, within sixty (60) days after the
commencement of any proceeding against Sublessee, whether by the filing of a
petition or otherwise, seeking any
6
<PAGE>
reorganization, arrangement, composition, readjustment, liquidation, dissolution
or similar relief under the present or future applicable federal, state or other
statute or law, such proceeding shall not have been dismissed, or if, within
sixty (60) days after the appointment of any trustee, receiver or liquidator of
Sublessee, or of all or any part of Sublessee's property, without the consent or
acquiescence of Sublessee, such appointment shall not have been vacated or
otherwise discharged, or if any lien, execution or attachment shall be filed or
issued against Sublessee or all or any part of Sublessee's property pursuant to
which the Subleased Premises shall be taken or occupied or attempted to be taken
or occupied by someone other than Sublessee (except as provided in Paragraph
then, upon the occurrence, at any time prior to or during
the Term, of any one or more or such events, Sublessor may, at any time
thereafter, at Sublessor's sole option, give to Sublessee a five (5) days"
notice of cancellation of this Sublease and, in such event, this Sublease and
the Term shall come to an end and expire (whether or not the Term shall have
commenced) upon the expiration of said five (5) day period with the same force
and effect as if the date were the Expiration Date stated herein and Sublessee
shall then quit and surrender the Subleased Premises to Sublessor, but Sublessee
shall remain liable for damages as provided in Paragraph 25 hereof. Sublessor
shall have with respect to any such default any and all of such rights and
remedies as are given to Landlord under the Lease with respect to defaults by
the tenant thereunder, all with the same force and effect as though the
provisions of the Lease with respect to defaults and the rights and remedies of
Landlord were set forth as length herein. If Sublessee shall default in the
performance of any of Sublessee's obligations hereunder or under the provisions
of the Lease, after the giving of notice and opportunity to cure as provided
above, Sublessor, without thereby waiving such default, may, at Sublessor's
option, perform the same for the account and at the expense of Sublessee. If
Sublessor makes any expenditures or incurs any obligations for the payment of
money, including, without limitation, reasonable attorneys' fees and expenses in
instituting, prosecuting or defending any action or proceeding, by reason of any
default of Sublessee hereunder after giving of notice and opportunity to cure as
provided above, such sums paid or obligations incurred, with interest at the
rate of 12% per annum, shall be deemed to be Additional Rent and shall be paid
by Sublessee to Sublessor on demand.
(B) If Sublessor shall default in the observance or
performance of any term, covenant or condition of this Sublease on Sublessor's
part, to be observed or performed, and Sublessor shall fail to remedy such
default with ten (10) days after notice by Sublessee to Sublessor of such
default, or if such default is of a nature that it cannot be completely remedied
within said ten (10) day period and thereafter diligently prosecute to
completion all steps necessary to remedy such default, then if Sublessee makes
any expenditures or incurs any obligations for the payment of money, including
without limitation, reasonable attorneys" fees and expenses instituting,
prosecuting or defending any action or proceeding, by reason of any default of
Sublessor hereunder, after giving of notice and opportunity to cure as provided
above, Sublessee shall reimburse to Sublessee on demand all such sums paid by
Sublessee, with interest at the rate of 12% per annum.
14. Indemnity and Hold Harmless. (A) Neither Sublessor nor its
agents shall be liable to Sublessee, its employees, agents, contractors,
licensees, servants, invitees or visitors and Sublessee shall save Sublessor and
its agents harmless from and against any and all liabilities, obligations,
penalties, fines, suits, claims, demands, actions, costs and expenses of any
kind or
7
<PAGE>
nature (including, without limitation, reasonable attorneys' fees and expenses),
incurred in connection with or arising from any injury to Sublessee, its
employees, agents, contractors, licensees, servants, invitees or visitors or to
any other person in or about the Subleased Premises, or from any injury or
damage to or loss (by theft or otherwise) or, any of Sublessee's property and/or
of the property of any other person irrespective of the cause of such injury,
damage or loss, other than injury, damage or loss caused by Sublessor's willful
acts or omissions or negligence. Sublessee agrees to indemnify and save
Sublessor and its agents harmless from and against any and all liabilities,
obligations, penalties, fines, suits, claims, demands, actions, costs and
expenses of any kind or nature by anyone whomsoever (including, without
limitation, reasonable attorneys' fees and expenses), incurred in connection
with or arising from (i) any default by Sublessee in the observance or
performance of any of the terms, covenants, conditions or agreements of this
Sublease on Sublessee's part to be observed or performed, beyond the expiration
of any applicable grace period, or (ii) the use or occupancy or manner of use or
occupancy of the Subleased Premises by Sublessee or any person claiming through
or under Sublessee, other than as permitted under the is Sublease, unless such
is due to the negligence of Sublessor, its agents or employees, (iii) the
condition of the Subleased Premises (ordinary wear and tear excepted), except if
created by Sublessor, or (iv) any acts, omissions or negligence of Sublessee, or
the employees, agents, contractors, licensees, servants invitees or visitors of
Sublessee, in or about the Subleased Premises or the Building, during the Term.
If any action or proceeding shall be brought against Sublessor by reason of any
such claim, Sublessee, upon notice from Sublessor, agrees to resist or defend
such action or proceeding and to employ counsel therefor reasonably satisfactory
to Sublessor. Sublessee shall pay to Sublessor on demand, as Additional Rent,
all sums which may be owing to Sublessor by reason of the provisions of this
Paragraph 14. Sublessee's obligations under this Paragraph 14 shall survive the
Expiration Date or sooner termination of the Term.
(B) Sublessor agrees to indemnify and save Sublessee and its agents
harmless from and against any and all liabilities, obligations, penalties fines,
suits, claims, demands, actions, costs and expenses of any kind or nature by
anyone whomsoever (including, without limitation, reasonable attorneys' fees and
expenses), incurred in connection with or arising from any default by Sublessor
in the observance or performance of any of the terms, covenants, conditions or
agreements of this Sublease on Sublessor's part to be observed or performed,
beyond the expiration of any applicable grace period, or (ii) any acts,
omissions or negligence of Sublessor, or the employees, agents, contractors,
licensees, servants, invitees or visitors of Sublessor in or about the Demised
Premises or the Building during the Term.
15. Notices. Any notice, demand, request or other document which,
under the terms of this Sublease or under any statute, must or may be given or
made by the parties hereto, must be in writing, and shall be either personally
delivered (provided a written receipt therefor is obtained), or sent by
registered or certified mail, postage prepaid, return receipt requested, or
overnight carrier, addressed to the party for whom intended at its address as
set forth on page 1 hereof, and, if to Sublessor, with a copy to Attention: Ken
Schlesinger, Esq., Olshan Grundman, 505 Park Ave., NY, NY 10022 or if to
Sublessee, with a copy to 300 North Commons Blvd., Mayfield Village, Ohio 44143,
Attention: Amanda M. Seewald, Esq. (provided, however, the failure to forward a
copy of any notice to counsel shall not be deemed to make such notice
defective). Either party, however, may designate a new or other address by
written notice given in accordance with this Paragraph 15. Any notice personally
delivered shall be deemed given upon the signing of a receipt therefor, and any
notice so addressed and mailed shall be deemed to be given either when
delivered, or, if delivery is refused, five (5) business days after the date
mailed, as the case may be. Any notice, demand or request given or made by
counsel for a party shall be deemed given or made by such party.
16. Counterclaim. Sublessee hereby waives the right to interpose
a counterclaim (other than mandatory counterclaims) in any summary proceeding
initiated by Sublessor to remove Sublessee from the Subleased Premises.
17. End of Term. On the Expiration Date, or upon any earlier
termination of this Sublease, Sublessee shall quit and surrender the Subleased
Premises to Sublessor broom-clean and in as good order, condition and repair as
the Subleased Premises existed upon the Commitment Date except for ordinary wear
and tear, any restoration of the Subleased Premises not required pursuant
hereto, damage or destruction by fire and other casualty and such other damage
the repair of which is not Sublessee's obligation hereunder (provided no such
damage shall be due to Sublessee's or misconduct), and otherwise in accordance
with the applicable provisions of the Lease. Sublessee recognizes that Sublessor
may suffer substantial damage if Sublessee fails to surrender and vacate the
Subleased Premises on the Expiration Date. Sublessee, therefore, agrees that if
Sublessee shall hold-over or remain in possession beyond the Expiration Date of
this Sublease, Sublessee shall in addition to the provision of Paragraph 31
below, be liable for all compensatory damages directly related thereto and
arising therefrom, including any damages arising out of any lost opportunities
(and/or new lease) in connection with such holding over. All damages to
Sublessor by reason of such holding-over by Sublessee may be the subject of a
separate action and need not be asserted by Sublessor in any summary proceeding
against Sublessee. Sublessee further agrees to indemnify Sublessor against and
from any and all losses, liabilities, damages, costs and expenses (including
reasonable attorney's fees) Sublessor incurs to dispossess Sublease, or
otherwise, resulting from Sublessee's failure to vacate the Subleased Premises
on the Expiration Date. Sublessee's obligations under this Paragraph 17 shall
survive the termination of this Sublease.
18. Quiet Enjoyment. Sublessor covenants with Sublessee that as
long as Sublessee shall pay the Fixed Rent and Additional Rent and shall duly
perform all of the terms, covenants, conditions and agreements of this Sublease
on its part to be performed, Sublessee shall, subject to the terms hereof and of
the Lease, peaceably have, hold and enjoy the Subleased Premises during the Term
provided herein without hindrance or molestation by Sublessor or any party
claiming by, through or under Sublessor.
19. Assignment and Subletting. Sublessee, for itself, and its
successors and assigns, expressly covenants that it shall not assign this
Sublease, nor underlet, nor suffer, nor permit the Subleased Premises or any
part thereof to be used or occupied by others, except upon the prior written
consent of both (i) Sublessor, which consent shall not be unreasonably withheld
or delayed, and (ii) Landlord; as provided further that any such attempted
assignment, subletting, use or occupancy shall be subject to compliance with all
of the terms and conditions contained in Article 20 of the Lease and to the
rights of Landlord thereunder.
20. Effect of Termination of the Lease. Notwithstanding the
provisions of Paragraph 2 hereof, the Term of this Sublease shall end one day
prior to the Term of the Lease if
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Landlord shall terminate the Lease in accordance with its terms. Upon receipt of
written notice from Landlord terminating the Lease, Sublessor shall notify
Sublessee of Landlord's intention to terminate the Lease and the date such
termination shall be effective. In the event of such early termination by
Landlord ("Early Termination"), Sublessor shall return to Sublessee any prepaid
Fixed Rent, any prepaid Additional Rent or Additional Rent covering any period
following Early Termination, and thereafter this Sublease shall terminate as
finally and completely as if the date set forth in the Early Termination notice
shall be the Expiration Date set forth herein for the termination of the
Sublease Term.
21. Effect of Termination of this Sublease. Reference in this
Sublease to "termination" of this Sublease include expiration or earlier
termination of the Term hereof or cancellation of this Sublease pursuant to any
of the provisions of this Sublease, the Lease or pursuant to law. Upon the
termination of this Sublease, the term and estate granted by this Sublease shall
end at noon on the date of termination as if such date were the Expiration Date
hereof, and neither party shall have any further obligation or liability to the
other after such termination except as shall be expressly provided in this
Sublease, any liability for a payment which shall have accrued with respect to
any period ending prior to or at the time of termination shall survive the
termination of this Sublease.
22. Remedies Cumulative. Each right and remedy of Sublessor
and Sublessee provided for in this Sublease shall be cumulative and shall be in
addition to every other right and remedy provided for in this Sublease now or
hereafter existing at law or in equity or by statute or otherwise.
23. Binding Effect. The terms, covenants, conditions and
agreements contained in this Sublease shall bind and inure to the benefit of
Sublessor and Sublessee and their respective successors and assigns, except that
no violation of the provisions of Paragraph 19 hereof shall operate to vest any
rights in any successor or assignee of Sublessee. It is understood and agreed
that the obligations of Sublessor under this Sublease shall not be binding upon
Sublessor with respect t any period subsequent to the transfer of its interest
in the Lease, and that in the event of such transfer said obligations shall
thereafter be binding upon the transferee of the Sublessor's interest as tenant
under the Lease.
24. Intentionally Omitted.
25. Re-entry by Sublessor; Remedies. (A)(i) If this Sublease
and the Term shall expire and come to an end as provided in Paragraph 13 hereof:
(a) Sublessor and its agents may immediately, or at any
time thereafter, re-enter the Subleased Premises or any part thereof, either by
summary proceedings, or by any other applicable court action or judicial
proceeding (without being liable to indictment, prosecution or damages
therefor), and any repossess the Subleased Premises and the Furniture and remove
any and all of their property and effects from the Subleased Premises; and
(b) Sublessor, at its option, may relet the whole or any
part or parts of the Subleased Premises, at any time or from time to time,
either in the name of Sublessor or otherwise, to such subtenant or subtenants,
for such term or terms ending before, on or after the Expiration Date, at such
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rental or rentals and upon such conditions, which may include concessions and
free rent periods, as Sublessor, in its reasonable discretion, may determine.
Sublessor shall have no obligation to relet the Subleased Premises or any part
thereof and shall in no event be liable for refusal or failure to relet the
Subleased Premises or any part thereof, or, in the event of any such reletting,
for refusal or failure to collect any rent due upon any such reletting, and no
such refusal or failure shall operate to relieve Sublessee of any liability
under this Sublease or otherwise to affect any such liability. Sublessor, at its
option, may take such repairs, replacements, alterations, additions,
improvements, decorations and other physical changes in and to the Subleased
Premises as Sublessor, in its reasonable discretion, considers advisable or
necessary in connection with any such reletting or proposed reletting, without
relieving Sublessee of any liability under this Sublease or otherwise affecting
any such liability.
(ii) Sublessee, on its own behalf and on behalf of all
persons claiming through or under Sublessee, including all creditors, does
further hereby waive any and all rights which Sublessee and all such persons
might otherwise have under any present or future law to (a) redeem the Subleased
Premises, or re-enter or repossess the Subleased Premises, or (b) restore the
operation of this Sublease, after (1) Sublessee shall have been dispossessed by
a judgment or by warrant of any court or judge, (2) any re-entry by Sublessor,
or (3) any expiration or termination of this Sublease and the Term, whether such
dispossess, re-entry, expiration or termination shall be by operation of law or
pursuant to the provisions of this Sublease. The words "re-enter", "re-entry"
and "re-entered" as used herein shall not be deemed to be restricted to their
technical legal meanings. The right to invoke the remedies hereinbefore set
forth are cumulative and shall not preclude Sublessor from invoking any other
remedy allowed at law or in equity.
(B) In the event of any breach or threatened breach by
Sublessee or any person claiming through or under Sublessee, of any of the terms
of this Sublease (whether or not the Term shall have commenced), Sublessor shall
be entitled to enjoin such breach or threatened breach and shall have the right
to invoke any other remedy allowed at law or in equity, by statute or otherwise,
as if re-entry, summary proceedings or other specific remedies were not provided
for in this Sublease.
(C) (i) If this Sublease and the Term shall expire and come to
an end as provided in Paragraph 13 hereof, or by or under any summary proceeding
or any other action or proceeding, or if Sublessor shall re-enter the Subleased
Premises as provided in this Paragraph 25 and elsewhere in this Sublease, or by
or under any summary proceeding or any other action or proceeding, then, in any
of said events:
(a) Sublessee shall pay to Sublessor all Fixed Rent,
Additional Rent and other charges payable under this Sublease by Sublessee to
Sublessor to the date upon which this Sublease and the Term shall have expired
and come to an end or to the date of re-entry upon the Subleased Premises by
Sublessor, as the case may be.
(b) All monies, if any, therefore paid by Sublessee to
Sublessor, whether as advanced Fixed Rent, Additional Rent, Security, or
otherwise, shall be credited by Sublessor against any damages payable by
Sublessee to Sublessor, and any surplus, if any, shall be refunded to Sublessee;
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(c) Sublessee also shall be liable for and shall pay to
Sublessor as damages, any deficiency (hereafter referred to as "Deficiency")
between the Fixed Rent and Additional Rent served in this Sublease for the
period which otherwise would have constituted the unexpired portion of the Term
(conclusively presuming the Additional Rent to be the same as was payable for
the year immediately preceding such termination or re-entry) and the net amount,
if any, of rents and collected under any reletting for any part of such period
(first deducting from the rents collected under any such reletting all of
Sublessor's reasonable expenses in connection with the termination of this
Sublease, and Sublessor's re-entry upon the Subleased Premises and with such
reletting, including, but not limited to, all repossession costs, brokerage
commissions, legal expenses, attorney's fees and disbursements, alteration costs
and other expenses of preparing the Subleased Premises for such reletting). Any
such Deficiency shall be paid in monthly installments by Sublessee on the days
specified in this Sublease for payment of installments of Fixed Rent. Sublessor
shall be entitled to recover from Sublessee each monthly Deficiency as the same
shall arise, an no suite to collect the amount of the Deficiency for any month
shall prejudice Sublessor's right to collect the Deficiency for any subsequent
month by a similar proceeding;
(ii) If the Subleased Premises, or any part thereof, shall be
relet together with other space in the Demised Premises, rents collected or
reserved under any such reletting and the expenses of any such reletting shall
be equitably apportioned for the purposes of Section C.(i) hereof. In no event
whatsoever shall Sublessee be entitled to any rents collected or payable under
any reletting, whether or not such rents shall exceed the Fixed Rent and
Additional Rent reserved in this Sublease. Nothing contained in Paragraph 13
hereof or this Paragraph 25 shall be deemed to limit or preclude the recovery by
Sublessor from Sublessee 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 Sublessor may
be entitled in addition to the damages set forth in Section C.(i) hereof.
26. Certificates. Sublessor and Sublessee shall, without charge,
at reasonable intervals, and from time to time, within ten (10) business days
after requests by the other, deliver a written instrument to any person, firm or
corporation specified by them, duly executed and acknowledged, certifying:
(a) that this Sublease is unmodified and in full force and
effect, if there have been any modifications, that the same are in full force
and effect as modified and stating any such modifications and if the Sublease is
not then in full force and effect, so stating and setting forth in reasonable
detail the nature of any default, deficiency or changed circumstances;
(b) whether or not there are then existing set-offs or
defenses against the enforcement of any of the agreements, terms, covenants or
conditions of this Sublease and any modifications thereof on the part of
Sublessee to be performed or complied with, and, if so, specifying the same;
(c) whether the term of this Sublease has commenced and
rent is payable thereunder and whether Sublessee has accepted possession of the
Subleased Premises;
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27. Execution of Sublease. Submission by Sublessor of the within
Sublease for execution by Sublessee shall confer no rights nor impose any
obligations on either party unless and until both Sublessor and Sublessee shall
have executed this Sublease, duplicate originals thereof shall have been
delivered to the respective parties and Landlord shall have delivered to
Sublessor the Consent to Sublease and Sublessor shall have promptly notified
Sublessee of its receipt of Landlord's Consent to Sublease.
28. Holding Over. If Sublessee holds over in possession after the
expiration or sooner termination of the original Term or of any extended term of
this Sublease, such holding over shall not be deemed to extend the Term or renew
the Sublease, but such holding over thereafter shall continue upon the covenants
and conditions herein set forth, except that the charge for use and occupancy of
such holding over for each calendar month or part thereof (even if such part
shall be a small fraction of a calendar month) shall be the sum of
(a) 1/12 of the annual Fixed Rent set forth in this
sublease, times 1.5, plus
(b) 1/12 of all other items of annual Additional Rent
which would have been payable pursuant to this Sublease had this Sublease not
expired, plus
(c) those other items of Additional Rent (not annual
Additional Rent) which would have been payable pursuant to this Sublease, had
this Sublease not expired, which total sum Sublessee agrees to pay to Sublessor
promptly upon demand, in full, without set-off or deduction. Neither the billing
nor the collection of use and occupancy in the above amount shall be deemed a
waiver of any right of Sublessor to collect damages for Sublessee's failure to
vacate the Subleased Premises after the expiration or sooner termination of this
Sublease. The aforesaid provisions of this Section shall survive the expiration
or sooner termination of this Sublease.
29. Late Charges. If Sublessor does not receive payment of any
Fixed Rent or Additional Rent within five (5) days after any such Fixed Rent or
Additional Rent is due, then Sublessee shall pay to Sublessor, as a "late
charge", interest at the lesser of (i) two percent (2%) per annum above the then
current prime rate charged by Citibank, N.A. or its successor, or (ii) the
maximum rate permitted by applicable law on the amount of Fixed Rent and/or
Additional Rent so overdue and such "late charge" shall be collectible as
Additional Rent by Sublessor.
30. Attorneys' Fees. (a) In case it shall be necessary for
Sublessor to institute any action or proceeding against Sublessee for the
nonpayment of rent or for the violation of any of the covenants or provisions of
this Sublease or for the recovery of possession of the Subleased Premises or
should Sublessor be compelled to intervene in any action or proceeding wherein
Sublessee is a party in order to enforce Sublessor's interest or rights
hereunder, then and in any of such events, if Sublessor shall obtain a judgment
or order in its favor on the merits, sustained on appeal if one is taken, in
such action or proceeding, Sublessee shall be obligated to pay to Sublessor
reasonable attorneys" fees, costs and disbursements incurred for the institution
and prosecution of any such action, proceeding or intervention.
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(b) In case it shall be necessary for Sublessee to institute
any action or proceeding against Sublessor for the violation of any of the
covenants or provisions of this Sublease or should Sublessee be compelled to
intervene in any action or proceeding wherein Sublessor is a party in order to
enforce Sublessee's interest or rights hereunder, then and in any of such
events, if Sublessee shall obtain a judgment or order in its favor on the
merits, sustained on appeal if one is taken, in such action or proceeding,
Sublessor shall be obligated to pay to Sublessee reasonable attorneys' fees,
costs and disbursements incurred for the institution and prosecution of any such
action, proceeding or intervention.
31. No Broker. Sublessor and Sublessee represent and warrant that
they have dealt with no broker or finder in connection with this Sublease other
than Sutton & Edwards. Sublessor shall pay a commission to Sutton & Edwards
pursuant to a separate written agreement. Sublessor and Sublessee each shall
indemnify, defend and save harmless the other from and against all claims
arising from any breach by such party of the foregoing representation, warranty
or covenant. The indemnity set forth herein shall survive the expiration or
earlier termination of this Sublease.
32. Parking. In addition to the parking rights set forth in the
Lease, Sublessor acknowledges to Sublessee that Sublessee shall on occasion, for
duration's that do not extend beyond business work hours park vehicles known as
"SUV's" in Sublessee reserved parking as set forth in the Lease.
(b) In the event that Sublessee leases, uses or licenses from
Nassau County in the adjoining property known as the "Rifle Range" , additional
parking in an amount equal to or in excess of ten vehicles, Sublessor will
credit Sublessee in an amount of $3.00 per day, for each of the ten (10)
vehicles only ($90.00 per month for each vehicle; $900.00 per month for ten (10)
vehicles). The amount of credit shall not exceed $900.00 per month. The parking
charge shall be a credit against the rent on a monthly basis starting with the
first month Sublessee actually leases such parking spaces (Sublessee shall
provide Sublessor with a copy of said Parking Agreement) provided, however,
Sublessee shall be entitled to a double credit for months 4, 5, and 6 of this
Sublease.
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IN WITNESS WHEREOF, Sublessor and Sublessee have duly executed
this Sublease as of the day and year first above written.
SUBLESSOR:
QueryObject Systems Corporation
By:
-------------------------------------
Name:_______________________________
Title: ____________________________
SUBLESSEE:
Progressive Insurance, Inc.
By:
--------------------------------------
Name:_______________________________
Title:______________________________
By and through its signature contained
below, Landlord hereby consents to
this Sublease and agrees to be bound
by the terms, conditions and covenants
contained herein as such relate to the
Landlord
LANDLORD:
Reckson Associates
By:_________________________________
Name:_______________________________
Title:______________________________
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<PAGE>
EXHIBITS TO SUBLEASE
Subleased Premises Exhibit A
Lease Exhibit B
<PAGE>
EXHIBIT A
SUBLEASED PREMISES
<PAGE>
EXHIBIT B
LEASE
Agreement of Lease, made as of this 13th day of August,1999 between LKM
EXPRESSWAY PLAZA LIMITED PARTNERSHIP, with offices at 277 Northern Boulevard,
Great Neck, New York 11021 ("Landlord"), and QUERYOBJECT SYSTEMS CORPORATION, a
Delaware corporation, having its principal office at 60 Charles Lindbergh Blvd.,
Uniondale, New York 11553 ("Tenant").
1. Definitions. The following terms shall have the meanings set forth
opposite each of them, provided that if the term "None" is set forth opposite
any term then the provisions of the lease applicable to such term shall be
considered deleted and of no force and effect.
"Term" The period beginning on the Commencement Date
and ending at noon on the Expiration Date.
"Commencement Date" September 1, 1999
"Expiration Date" October 31, 2004 or the last day of the
sixty-second (62nd) calendar month following
the Commencement Date as defined herein,
whichever is later, or ending on an earlier
date on which this Lease may expire or be
cancelled or terminated pursuant to the terms
of this Lease.
"Electric Factor" $2.25 per square foot per annum.
"Fixed Rent" The following amounts shall be inclusive of
the Electrical Energy Charge:
For the first Lease Year, $202,050.00, payable
in advance monthly installments of $16,837.50
per month.
For the second Lease Year, $210,132.00,
payable in advance monthly installments of
$17,511.00 per month.
For the third Lease Year, $218,537.28, payable
in advance monthly installments of $18,211.44
per month.
For the fourth Lease Year, $227,265.84,
payable in advance monthly installments of
$18,938.82 per month.
For the fifth Lease Year, $236,317.68, payable
in advance monthly installments of $19,693.14
per month.
For the sixth Lease Year, $245,773.62, payable
in advance monthly installments of $20,481.14
<PAGE>
per month for the months of September &
October.
"Additional Rent" All sums of money (other than Fixed Rent) as
shall become due and payable from Tenant to
Landlord hereunder, for default in payment of
which Landlord shall have the same remedies as
for a default in payment of Fixed Rent.
"Building" The building erected in the County of Nassau,
State of New York and known as: Expressway
Plaza at Roslyn, Building One, Roslyn Heights,
New York.
"Demised Premises" That portion of the second floor of the
building delineated on the floor plan(s)
attached hereto as Exhibit A, known as Suite
208.
"Rentable Floor Area of
the Demised Premises" The total number of rentable square feet of
space in the Demised Premises, which, for
purposes of this Lease, the parties agree is
8,082 square feet.
"Lease Year
Anniversary Date" September 1, 2000 ("First Lease Year
Anniversary Date") and the first day of each
successive November during the Term of this
Lease.
"Lease Year" The period commencing on the first day of the
Term and ending with the day preceding the
First Lease Year Anniversary Date, and each
twelve (12) month period thereafter measured
from each Lease Year Anniversary Date, except
that if the period between the last such Lease
Year Anniversary Date and the Expiration Date
is less than twelve (12) months, then the last
Lease Year shall be such lesser period.
"Rentable Floor Area
of the Building" The total number of square feet of space in
the Building, which, for purposes of this
Lease, the parties agree is 50,000.
"Tenant's
Proportionate Share" The percentage resulting from dividing the
Rentable Floor Area of the Demised Premises by
the Rentable Floor Area of the Building,
which, for the purposes of this Lease, the
parties agree is 16.16%.
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"Security Deposit" $36,422.88 deposited pursuant to Article 32
hereof.
"Rent Prepayment" $16,837.50 to be applied toward the first full
month's installment of Fixed Rent, including
the Electric Energy Charge, due under this
Lease.
"Guarantor" Queryobject Systems
"Permitted Use" For general office use only and for no other
purpose.
"Broker" Sutton & Edwards, Inc. and Bagnato Realty
Service, LLC.
"Regular Business
Hours" 8:00 a.m. to 6:00 p.m. on business days, i.e.,
every day except Saturday, Sunday, and the
days observed by the Federal or the New York
State government as legal holidays. See
Exhibit E.
"Tenant's Common
Parking Spaces" Forty (40) of which four (4) will be reserved
"Base Operation Year" 1999
"Real Estate" The Building, the land on which the Building
and other improvements appurtenant thereto are
located, (including without limitation the
land on which any parking spaces are located),
and the land forming part of the same tax lot
or lots as the land on which the Building is
located.
"Wage Rate Multiple" NONE
"Tenant's Real Estate
Tax Base" See Article 8 contained herein.
2. Demise and Premises.
2.01 Landlord hereby leases to Tenant, and Tenant hereby hires from
Landlord, the Demised Premises for the Term, for the rent hereinafter reserved
and upon and subject to the conditions (including limitations, restrictions, and
reservations) and covenants hereinafter provided. Each party hereto agrees to
observe and perform all of the conditions and covenants herein contained on its
part to be observed and performed.
2.02 The general location, size, and layout of the Demised Premises
are outlined on Exhibit A, but in the event that the Demised Premises and the
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Building are not completed as of the date of this Lease, Exhibit A shall not be
deemed to be a warranty, representation, or agreement on the part of Landlord
that the Demised Premises and the Building will be exactly as indicated on
Exhibit A.
3. Rent.
3.01 Tenant shall pay to Landlord without notice or demand and
without abatement, deduction, or setoff, in lawful money of the United States of
America, at the office of the Landlord as specified on Page 1 hereof or at such
other place as Landlord may designate, the Fixed Rent reserved under this Lease
for each year of the Term, payable in equal monthly installments in advance due
on the first day of each and every calendar month during the Term; and
Additional Rent consisting of all such other sums of money as shall become due
from and payable by Tenant to Landlord hereunder (for default in payment of
which Landlord shall have the same remedies as for a default in payment of Fixed
Rent).
3.02 If the Commencement Date shall occur on a day other than the
first day of a calendar month, the Fixed Rent and Additional Rent shall be
prorated for the period from the Commencement Date to the last day of the said
calendar month and shall be due and payable on the Commencement Date.
Notwithstanding the provisions of this Article 3, Tenant shall pay on the
execution of this Lease, on account of the first full calendar monthly
installments of Fixed Rent, the Rent Prepayment specified in Article 1 hereof.
3.03 If Tenant shall fail to pay any installment or payment of Fixed
Rent, including the Electric Energy Charge, within ten (10) days after same
shall become due and payable or shall fail to pay any payment of Additional Rent
or other charge within ten (10) days after same shall be due and payable, then
Tenant shall be required to pay a late charge of $.05 for each $1.00 which
remains so unpaid. Such late charge is intended to compensate Landlord for
additional expenses incurred by Landlord in processing such late payments.
Nothing herein shall be intended to violate any applicable law, code, or
regulation, and in all instances all such charges shall be automatically reduced
to any maximum applicable legal rate or charge. Such charge shall be imposed
monthly for each late payment. This late charge is in addition to all other
remedies available to Landlord and shall not be considered as limiting other
remedies Landlord may have under this Lease or under law.
3.04 It is hereby mutually agreed, that notwithstanding anything to
the contrary herein contained, the said premises are demised for a Fixed Rent of
One Million One Hundred Thirty-five Thousand Two Hundred Sixty-five Dollars &
08/100 ($1,135,265.08) for the entire said term payable at the time of the
making of this Lease, together with Additional Rent consisting of all such other
sums of money that shall become due from and payable by Tenant to Landlord, and
4
<PAGE>
that the provisions herein contained for the payment of said Fixed Rent in
installments are for the convenience of Tenant only, and that, upon default in
payment of the Fixed Rent and/or Additional Rent in installments as herein
allowed, and if such default shall continue for five (5) days after written
notice thereof by Landlord to Tenant, then the whole of the Fixed Rent hereby
reserved for the whole of the said entire term and then remaining unpaid shall
at once become due and payable, without further notice or demand. In the event
Tenant shall be required to pay the Fixed Rent reserved for the balance of the
term of this Lease in advance as specified herein, the Tenant shall,
nevertheless, still be obligated to pay all Additional Rent consisting of all
such other sums of money that shall be due from and payable by Tenant to
Landlord herein when due as provided for herein.
3.05 If Landlord shall fail to submit any statement or other notice
to Tenant or omit to demand the payment of any Fixed Rent, Additional Rent, or
other sums required to be paid by Tenant to Landlord provided for in this Lease
prior to the expiration of the Lease term, such failure or omission shall not
constitute a waiver of Tenant's obligation to pay any such sums to Landlord.
3.06 Notwithstanding anything to the contrary contained herein and
provided that Tenant is not then in default hereunder, the Fixed Rent, exclusive
of the Electric Energy Charge and any Additional Rent payable hereunder, shall
be abated for the second and third months of the Lease.
4. Preparation of the Demised Premises.
4.01 In the event this Lease pertains to the initial occupancy by
any tenant of the Demised Premises, Landlord will substantially perform the
building standard work in the Demised Premises as set forth in Exhibit C annexed
hereto and hereby made a part hereof (the "Work Letter") and upon the terms and
conditions specified in the Work Letter.
4.02 Landlord's agreement to do the work in the Demised Premises as
set forth herein shall not require it to incur overtime costs and expenses and
shall be subject to any delays due to acts of God, governmental restrictions or
guidelines, strikes, labor disturbances, shortages of materials and supplies and
for any other causes or events whatsoever beyond Landlord's reasonable control
("Unavoidable Delays"). Landlord has made, and makes, no representations as to
the date when the Demised Premises will be ready for Tenant's occupancy, and
notwithstanding any date specified in Article 1 or elsewhere in this Lease as
the Commencement Date it is understood that the same is merely an estimate.
4.03 In the event Landlord is to perform any work in the Demised
Premises pursuant to Exhibit C, unless Tenant's final plans, specifications, and
drawings covering all such work are attached hereto as Exhibit B, Tenant shall
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<PAGE>
furnish to Landlord such final plans, specifications, and drawings in adequate
time to allow Landlord to acknowledge receipt of the same not later than five
(5) days from the date of this Lease. In the event that Tenant's final plans,
specifications, and drawings are not furnished to Landlord within the time
period set forth in this Paragraph 4.03, Landlord shall be entitled to exercise
any and all remedies which it is entitled to exercise under this Lease,
including, without limitations, the right to terminate this Lease.
5. When Demised Premises Ready for Occupancy
and Commencement Date.
5.01 In the event that this Lease does not pertain to the initial
occupancy by any Tenant of the Demised Premises, the Demised Premises shall be
deemed ready for occupancy on the following date: (a) if the Demised Premises
are to be delivered "as is", on the day following the day on which the prior
Tenant vacates the Demised Premises, provided that Landlord shall have given
Tenant at least five (5) days prior written notice estimating when such vacation
will occur and provided such vacation does occur by such estimated vacation
date, or in the event Landlord's estimate was inaccurate, on the date when such
vacation actually occurs; or (b) if the Demised Premises are not to be delivered
"as is", when the work described in Exhibit C to be performed by Landlord shall
have been substantially completed. It is agreed that the Commencement Date shall
be deemed to be the date specified in a written notice to Tenant that the
Demised Premises are ready for occupancy.
5.02 Notwithstanding anything to the contrary contained in this
Lease, in the event that Tenant does perform any work prior to the Commencement
Date, substantial completion under this Article shall be deemed to have been
achieved if incomplete work to be performed by Landlord has not been completed
because, under good construction scheduling practices such work should be done
after still incomplete work to be done by or on behalf of Tenant is completed.
5.03 If the occurrence of any of the conditions listed in Article 4
(including, without limitation, furnishing of plans, specifications, and
drawings referred to in Paragraph 4.03 hereof) or in Paragraphs 5.01 or 5.02 and
thereby the making of the Demised Premises ready for occupancy, shall be delayed
due to any act or omission of Tenant or any of its employees, agents, or
contractors, including but not limited to failure by Tenant to act promptly when
any consent or approval may be requested by Landlord, or to plan or execute work
to be performed by Tenant diligently and expeditiously, or due to any special
requirements of Tenant in connection with the preparation of the Demised
Premises for occupancy over and above the quantity of building standard work
specified in Exhibit C, then the Demised Premises shall be deemed ready but for
such delays whether or not a certificate of occupancy or other permission to
occupy shall have been issued.
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5.04 On the Commencement Date or at such time as Tenant shall take
actual possession of the whole or part of the Demised Premises, whichever shall
be earlier, it shall be primafacie presumed that the Demised Premises were as of
the Commencement Date or the date or dates of such taking of possession, in the
condition in which Landlord was required to deliver the Demised Premises under
this Lease, unless within thirty (30) days after such date Tenant shall have
given Landlord notice specifying in which respects the Demised Premises were not
in satisfactory condition.
5.05 Notwithstanding any date, Tenant expressly waives any right to
recover any damages which may result from Landlord's failure to deliver
possession of the Demised Premises on such date or at any time thereafter.
5.06 Notwithstanding anything in this Lease contained to the
contrary, in the event that Tenant shall enter upon the Demised Premises prior
to the Commencement Date of this Lease, for the purpose of performing Tenant's
Changes or for performing work in the Demised Premises pursuant to any provision
of this Lease, Tenant shall be obligated to perform all terms and conditions of
this Lease from and after the date it enters upon the Demised Premises, other
than Tenant's obligations to pay Fixed Rent, Real Estate Taxes, and Utility Cost
Escalation, which obligations shall begin on the Commencement Date.
6. Use.
6.01 Tenant shall use and occupy the Demised Premises for the
Permitted Use only and for no other purpose.
6.02 Tenant shall not suffer or permit the Demised Premises or any
part thereof to be used in any manner, or anything to be done therein, or suffer
or permit anything to be brought into or kept therein, which would in any way:
(i) violate any of the provisions of any grant, lease, or mortgage to which this
Lease is subordinate, (ii) cause or in Landlord's reasonable opinion be likely
to cause physical damage to the Building or any part thereof, (iii) constitute a
public or private nuisance or disturb the quiet enjoyment of other tenants in
the Building, (iv) impair in the reasonable opinion of the Landlord the
appearance, character or reputation of the Building or constitute waste of the
Demised Premises, (v) discharge objectionable fumes, vapors or odors into the
Building air conditioning system or into Building flues or vents not designed to
receive them or otherwise in such manner as may reasonably offend other
occupants, (vi) impair or interfere with any of the Building services or the
proper servicing of the Building or the Demised Premises or impair or interfere
with or tend to impair or interfere with the use of any of the other areas of
the Building by, or occasion discomfort, annoyance or inconvenience to, Landlord
or any of the other tenants or occupants of the Building, (vii) violate any
other provision of this Lease, or (viii) violate the Certificate of Occupancy
issued for the Building.
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7. Electric Current.
7.01 Landlord will redistribute or furnish to Tenant electric energy
through the transmission facilities presently installed in the Demised Premises
or to be installed in the Demised Premises pursuant to Exhibit C of this Lease.
Landlord shall furnish the electric energy Tenant for normal business office
purposes. In the absence of Landlord's written consent to a greater load, the
electric energy supplied by Landlord under this Article shall be limited to a
total electrical connected load of 3 watts per square foot of the Rentable Floor
Area of the Demised Premises for use by Tenant for its ordinary electric office
equipment, and no individual piece of equipment or any type of fixture requiring
electric power in excess of 1800 watts shall be installed, maintained or
operated by Tenant without Landlord's prior written consent. Landlord shall not
be liable or responsible to Tenant in any way for any loss, damage or expense,
including consequential damages which Tenant may sustain or incur by reason of
any failure, inadequacy, defect or change in the character, quantity or supply
of electrical energy furnished to the Demised Premises or any interruption in
providing electric energy to the Demised Premises for any reason whatsoever.
7.02 Tenant shall pay to Landlord a charge (the "Electric Energy
Charge") for the distribution by Landlord to Tenant of electric energy which
charge is included in the Fixed Rent payable under this Lease and shall not be
based on any measurement by meter. On the execution of this Lease the Electric
Energy Charge is an amount equal to the Electric Factor multiplied by the
Rentable Floor Area of the Demised Premises and from after said execution the
Electric Energy Charge may be increased pursuant to the provisions of this
Article. The Electric Factor was based upon (i) normal use of the Demised
Premises between the hours of 8:00 a.m. to 6:00 p.m. Monday through Friday,
except holidays, for normal lighting and for the operation of small appliances
and equipment normally used in business offices and (ii) commercial
redistribution rate (the "Commercial Redistribution Rate") charged by the public
utility company for electric energy on execution of this Lease.
7.03 The Electric Energy Charge shall be subject to adjustments at
any time in the event that the occurrence of any of the following after the
execution date of this Lease shall have a material effect on the cost of
providing said electric service to the Demised Premises:
(i) An increase in the Commercial Redistribution Rate charged
by the public utility company for electric energy;
(ii) An increase in any sales, excise, or similar taxes, fuel
or transfer adjustment, or the addition of or increase in any other charges
levied on the purchase of electric energy;
(iii) An increase in Tenant's consumption of electric energy;
(iv) An increase in the electric service being furnished to the Demised
Premises;
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(v) The amount included in the Fixed Rent, in the Landlord's
opinion does not appropriately represent the value of the electric service
furnished to the Demised Premises at the Commencement Date or thereafter. The
Electric Energy Charge shall at no time be less than the Electric Factor
multiplied by the Rentable Floor Area of the Demised Premises.
7.04 Any adjustment in the Electric Energy Charge pursuant to
subparagraphs 7.03(i) or 7.03(ii) hereof shall at Landlord's option be computed
based on the percentage of increase in Landlord's cost to purchase electricity
for the Building from the public utility company. Such adjustment shall be made
retroactive to the date of such rate increase and shall at Landlord's option be
computed by an independent electrical consultant selected by Landlord and paid
for by Tenant. The finding of said consultant shall be presumptive on both
parties.
7.05 Any determination of the value of electrical energy consumed by
Tenant made pursuant to subparagraphs 7.03 (iii), (iv), or (v) hereof shall be
computed, at Landlord's option, at the Commercial Redistribution Rate charged by
the public utility company for the Building as if Tenant purchased electrical
energy directly from the public utility company at said Commercial
Redistribution Rate or at a rate equivalent to Landlord's average cost for such
electrical energy. Any such determination shall be made by Landlord; however,
Landlord, at Landlord's option, may designate an independent electrical
consultant, paid for by Tenant to make said determination. Any adjustment in the
Electric Energy Charge required under this Article shall be retroactive. The
findings of said consultant shall be presumptive on both parties unless Tenant
shall exercise its rights pursuant to and in accordance with Paragraph 7.07.
7.06 An unpaid amount of any adjustment in the Electric Energy
Charge pursuant to Paragraph 7.03 hereof for any period prior to Landlord's
rendition of a statement therefor shall be paid within fifteen (15) days after
Landlord furnishes Tenant with said statement, and Tenant shall pay thereafter
the amount of any such adjustment in monthly installments, together with its
monthly installment of Fixed Rent.
7.07 Landlord reserves the right to discontinue the redistribution
of electric energy to Tenant at any time upon sixty (60) days' prior written
notice to Tenant and, from and after the effective date of any such termination,
Landlord shall no longer be obligated to furnish electric energy to Tenant. If
Landlord exercises said right of termination, this Lease shall remain unaffected
thereby and shall continue in full force and effect and, thereafter, Tenant
shall arrange to obtain electric service directly from the public utility
company servicing the Building. Such electrical service shall be furnished to
Tenant by means of the then existing Building system feeders, risers, and wiring
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to the extent that same are available, suitable, and safe for such purposes,
which shall be determined by Landlord, and in the event Landlord deems it
necessary, an electrical engineer designated by Landlord and paid for equally by
Landlord and Tenant may be employed to assist Landlord in making the aforesaid
determination. All new or existing meters, additional panel boards, feeders,
risers, wiring, and other conductors or equipment which may be required or
utilized to obtain electric energy directly from such public utility company
shall be installed and maintained by a licensed electrician, approved by
Landlord and paid for by Tenant. Landlord may, at its option, before commencing
any such work or at any time thereafter, require Tenant to furnish to Landlord
such security, in form (including, without limitation, a bond issued by a
corporate surety licensed to do business in New York) and amount, as Landlord
shall deem necessary to assure the payment for such work by Tenant. Any and all
installations made pursuant to the foregoing shall be and at all times remain
the property of Landlord. Commencing with the date Landlord discontinues
electrical service as provided herein, and only as long as Tenant continues to
receive electrical service directly from the public utility company, Tenant
shall only be obligated to pay one-half of the Electric Energy Charge.
7.08 In the event that it becomes legally and otherwise permissible
to do so, Landlord may, at its option, permit or require the submetering of
electric service to the Demised Premises at rates to be determined by Landlord.
All costs incurred in connection with the foregoing, including, but not limited
to, the purchase, installation, and maintenance of all required components shall
be at Landlord's expense. Any and all installations made pursuant to the
foregoing shall be and at all times remain the property of Landlord. Commencing
with the date upon which Landlord elects to redistribute electric energy to the
Demised Premises on a submetered basis and the prior method of redistribution is
discontinued, and only for as long as Tenant continues to receive electrical
service on a submetered basis and further provided that Tenant is paying the
utility company directly for the provision of electrical service, Tenant shall
only be obligated to pay one-half of the Electric Energy Charge.
7.09 Tenant shall make no alterations or additions to the electrical
distribution system, electrical equipment, and/or appliances without the prior
written consent of Landlord in each instance.
7.10 At Landlord's option, Tenant shall purchase from Landlord all
lamps, bulbs, starters, and ballasts used in the Demised Premises. In the event
Landlord so elects, Landlord shall install the foregoing and Tenant shall also
pay for the installation thereof as Additional Rent without set off or deduction
upon rendition of bills therefor.
7.11 If any taxes or charges are or shall be imposed upon Landlord
or its agent in connection with the sale or resale of electrical energy to
Tenant, Tenant covenants and agrees that, where permitted by law, Tenant's pro
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rata share of such taxes or charges shall be passed on to Tenant and paid by
Tenant to Landlord upon demand, as Additional Rent, without setoff or deduction.
7.12 Tenant covenants and agrees that at no time will the connected
electrical load for the Demised Premises including installations furnished with
current on a "rent inclusion" basis pursuant to this Article 7, exceed the
connected load on the commencement of Tenant's regular business at the Demised
Premises unless the Fixed Rent has been increased pursuant to this Article to
reflect the additional load.
8. Real Estate Taxes.
8.01 For the purpose of this Article the following terms shall have
the following meanings:
(1) "Real Estate Taxes" shall mean the real estate taxes,
assessments, sewer rentals, levies, impositions, charges and special
assessments, or payments in lieu thereof, imposed on the Real Estate including
without limitation, town, village, county and school taxes. If, at any time
during the term of this Lease, the methods of taxation prevailing on the
Commencement Date shall be altered, modified or changed, in whole or in part, so
that in lieu of, or as an addition to, or as a substitute for the whole or any
part of the taxes, assessments, levies, impositions, charges, special
assessments, or payments in lieu thereof, now levied, assessed or imposed on the
Real Estate, there shall be levied, assessed or imposed on the Real Estate any
taxes, assessments, levies, impositions, charges or special assessments not now
levied, assessed or imposed on the Real Estate including, without limitations:
(i) a tax assessment, levy, imposition or charge wholly or partially as a
capital levy or otherwise on the rents received therefrom, (ii) a tax
assessment, levy, imposition, or charge measured by, or based in whole or in
part, upon the Real Estate and imposed upon Landlord, (iii) a license fee
measured by the rents payable by Tenant to Landlord, (iv) an income, gross
receipts, capital stock or any other tax levied against Landlord or the Real
Estate which otherwise would constitute a Real Estate tax, or (v) any other
governmental charges whether federal, state, city, county, or municipal, whether
general or special, ordinary or extraordinary, foreseen or unforeseen, levied
upon the Real Estate, then all such taxes, assessments, levies, impositions
charges or special assessments, or the part thereof so measured or based, shall
be deemed to be included within the term Real Estate Taxes for the purposes
hereof.
(2) "Taxing Authority" shall mean each of the Town of North
Hempstead, the County of Nassau, and the Roslyn School District and any other
taxing authority which shall impose a Real Estate Tax on the Real Estate.
(3) "Tax Year" shall mean the fiscal period for each Real
Estate Tax affecting the Real Estate.
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(4) "Base Tax Year" shall mean the real estate fiscal tax year
of the Roslyn School District ending on June 30, 2000, and the real estate
fiscal tax year of Nassau County, and the Town of North Hempstead ending on
December 31, 1999.
(5) "Tenant's Real Estate Tax Base" shall mean the taxes
calculated on a per square foot basis for the Base Tax Year after and as a
result of any current or tax certiorari proceeding or otherwise.
8.02 In the event that at any time subsequent to the Commencement
Date, Real Estate Taxes levied against the Real Estate shall exceed an amount
equal to Tenant's Real Estate Tax Base times the Rentable Floor Area of the
Building, Tenant shall pay as Additional Rent Tenant's Proportionate Share of an
amount equal to the increase in the dollar amount of Real Estate Taxes levied
against the Real Estate by a Taxing Authority for a Tax Year over and above the
sum of the Tenant's Real Estate Tax Base times the Rentable Floor Area of the
Building.
8.03 After receipt from a Taxing Authority of tax bills for Real
Estate Taxes for any Tax Year falling in whole or in part during the term of
this Lease, Landlord shall submit a statement to Tenant indicating the amount,
if any, required to be paid by Tenant as Additional Rent pursuant to this
Article. Within fifteen (15) days after issuance of the statement, Tenant shall
pay such Additional Rent, if any, set forth on such statement. Any payment due
for a period of less than a full Tax Year at the commencement or end of the term
shall be equitably prorated.
8.04 If a Tax Year for Real Estate Taxes shall hereafter be fixed at
other than the period in use at the execution of this Lease, an appropriate
adjustment shall be made in the computation of any Additional Rent due to
Landlord or any credit due to Tenant, as the case may be, under this Article, in
accordance with sound accounting principals to effectuate the changeover to the
new tax year adopted by the taxing authorities. Tenant agrees that it will
promptly execute an agreement deemed necessary and appropriate by Landlord to
modify this article to accurately reflect and incorporate such changes into the
provisions of this Article.
9. THIS PARAGRAPH INTENTIONALLY LEFT BLANK
10. THIS PARAGRAPH INTENTIONALLY LEFT BLANK
11. Services Provided by Landlord.
11.01 As long as Tenant is not in default under any of the covenants
of this Lease, Landlord shall provide: (a) necessary elevator facilities during
Regular Business Hours (from 8:00 a.m. to 6:00 p.m. on business days) and have
one (1) elevator subject to call at all other times; (b) heat to the Demised
Premises when and as required by law, during Regular Business Hours; (c)
cleaning in accordance with the provisions of Exhibit F attached hereto; (d)
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water for ordinary lavatory purposes, but if Tenant uses or consumes water for
any other purposes, or in unusually large quantities, Landlord, at Tenant's
expense, may install a water meter, and Tenant shall pay for all water consumed.
11.02 Tenant shall pay Landlord the cost of removal of any unusual
or extraordinary amounts of Tenant's refuse and rubbish from the Building.
11.03 Landlord shall furnish air conditioning/cooling from May 15
through September 30 during Regular Business Hours, and ventilation will be
furnished during Regular Business Hours in accordance with the provisions of
Exhibit C. Upon at least two (2) business days' notice, Landlord shall provide
such services other than during Regular Business Hours, and Tenant shall pay, as
Additional Rent, as per Exhibit H.
11.04 Landlord shall have no liability for failure to supply the
services agreed to herein. Landlord reserves the right to stop services of
heating, elevators, plumbing, air conditioning, power systems or cleaning or
other services, if any, when necessary by reason of accident or for repairs,
alterations, replacements, or improvements necessary or desirable in the
judgment of Landlord for as long as may be reasonably required by reason thereof
or by reason of strikes, accidents, laws, order or regulations or any other
reason beyond the control of Landlord.
11.05 Landlord hereby permits Tenant to use Tenant's Common Parking
Spaces to park automobiles on an unreserved basis. Unauthorized parking by other
tenants of the Building shall not affect this Lease, and Landlord shall not be
responsible to curtail or prevent any unauthorized parking. Landlord may, but
shall not be obligated, to undertake reasonable measure, and adopt appropriate
rules and regulations to discourage or curtail unauthorized parking. Landlord
reserves the right to designate reserved spaces for Tenant's Common Parking
Spaces at any time and from time to time. All parking spaces shall be utilized
at the sole risk of the user, and Landlord shall not be liable for any injury to
person or property or for any loss or damage caused by theft of any vehicle or
its contents while parked.
12. Subordination; Attornment.
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12.01 This Lease is subject and subordinate to all ground or
underlying leases (the "superior leases") and to all mortgages (the "superior
mortgages") which may now or hereafter affect such leases or the Real Estate and
to all renewals, modifications, consolidations, replacements and extensions of
any such superior leases and superior mortgages. This clause shall be
self-operative and no further instrument of subordination shall be required by
any ground or underlying lessee or by any mortgagee, affecting any lease or the
Real Estate. In confirmation of such subordination, Tenant shall, at its sole
cost and expense, execute promptly any certificate that Landlord may request,
and hereby appoints Landlord its attorney-in-fact to execute any such instrument
on behalf of Tenant.
12.02 Tenant agrees without further instruments of attornment in
each case to attorn to lessor under any superior lease, or the holder of any
superior mortgage, as the case may be, to waive the provisions of any statute or
rule or law now or hereafter in effect which may give or propose to give Tenant
any right of election to terminate this Lease or to surrender possession of the
Demised Premises in the event a superior lease is terminated or a superior
mortgage is foreclosed, and that unless and until said lessor, or holder, as the
case may be, shall elect to terminate this lease, this Lease shall not be
affected in any way whatsoever by any such proceeding or termination, and Tenant
shall take no steps to terminate this Lease without giving written notice to
said lessor under the superior lease, or holder of a superior mortgage, and a
reasonable opportunity to cure (without such lessor or holder being obligated to
cure), any default on the part of the Landlord under this Lease.
13. Tenant's Changes.
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13.01 Tenant may, at any time and from time to time prior to the
Commencement Date of this Lease and during the Term of this Lease, at its sole
expense, subject to Landlord's prior written approval in each instance, make
such alterations, additions, installations, substitutions, improvements, or
decorations (hereinafter collectively called "changes" and, as applied to
changes provided for in this Article, "Tenant's Changes") in and to the Demised
Premises, excluding structural changes, changes affecting the mechanical,
plumbing, electric, heating, ventilating, and air conditioning systems and
changes resulting in a violation of or which require a change in the Certificate
of Occupancy applicable to the Building unless same shall have been specifically
authorized by Landlord, on the following terms and conditions: (i) the character
or use of the Building shall not be affected; (ii) the structural strength of
the Building shall not be weakened or impaired nor, in the opinion of Landlord,
shall the value of the Building be lessened; (iii) no part of the Building
outside of the Demised Premises shall be physically affected except as to
Tenant's Changes specifically authorized by Landlord pursuant to this Lease;
(iv) the proper functioning of any of the utility, plumbing, mechanical,
electrical, sanitary and other service systems of the Building shall not be
adversely affected; (v) in performing the work involved in making such changes,
Tenant shall be bound by and observe all of the conditions and covenants
contained in this Article; (vi) before proceeding with such installation, Tenant
shall submit to Landlord plans and specifications for the work to be done, for
Landlord's approval in writing, and, if such change requires approval by or
notice to the lessor of a superior lease, the holder of a superior mortgage, the
building department having jurisdiction thereof, or any entity from whom
Landlord is required to seek approval, Tenant shall not proceed with the change
until such approval has been received, or such notice has been given, as the
case may be, and all applicable conditions and provisions of said superior
lease, superior mortgage or building department having jurisdiction thereof,
with respect to the proposed change or alteration have been met or complied with
at Tenant's expense; Landlord, if it approves such change, will request such
approval or given such notice, as the case may be; (vii) any change for which
approval has been received shall be performed strictly in accordance with the
approved plans and specifications, and no amendments or additions or deletions
to such plans or specifications shall be made without the prior written consent
of Landlord; (viii) Tenant shall not be permitted to install or make part of the
Demised Premises any materials, fixtures, or articles which are subject to
liens, conditional sales contracts, security agreements, or chattel mortgages;
(ix) before proceeding with such installation, Tenant shall submit to Landlord
for its written approval which shall not be unreasonably withheld the identities
of the contractors and mechanics Tenant shall use; and (x) Tenant shall comply
with all other terms and conditions of this Lease in connection with Tenant's
Changes.
13.02 All Tenant's Changes shall at all times comply with laws,
orders and regulations of governmental authorities having jurisdiction thereof,
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and all rules and regulations of Landlord, and Tenant, at its expense, shall
obtain all necessary permits, approvals, and certificates required by any
governmental or quasi governmental body prior to the commencement and
prosecution of Tenant's Changes and for final approval thereof upon completion
and shall promptly deliver duplicates thereof to Landlord and shall cause
Tenant's Changes to be performed in compliance therewith and with all applicable
requirements of insurance carriers, and in good and first-class workmanlike
manner, using materials and equipment at least equal in quality and class to the
original installations of the Building. Tenant's Changes shall be performed in
such manner as not to interfere with the occupancy of any other tenant in the
Building nor delay, or impose any additional expense upon Landlord in the
construction, maintenance, or operation of the Building, and shall be performed
by contractors or mechanics reasonably approved by Landlord. Throughout the
performance of Tenant's Changes, Tenant, at its expense, shall carry, and cause
Tenant's contractors and subcontractors to carry worker's compensation insurance
in statutory limits, and general liability, personal and property damage
insurance for any occurrence on, in or about the Building, of which Landlord
shall be named, as party insured, in such limits as Landlord may reasonably
prescribe (but not less than those specified in Article 16) with insurers
reasonably satisfactory to Landlord. Tenant shall furnish Landlord with
reasonably satisfactory evidence that such insurance is in effect at or before
the commencement of Tenant's Changes and, on request, at reasonable intervals
thereafter during the continuance of Tenant's Changes. With respect to any such
general liability insurance Tenant shall comply with the requirement of Article
16 hereof. No Tenant's Changes shall involve the removal of any fixtures,
equipment or other property in the Demised Premises unless Landlord's prior
written consent is first obtained and unless such fixtures, equipment or other
property shall be promptly replaced, at Tenant's expense and free of superior
title, liens, and claims, with fixtures, equipment, or other property (as the
case may be) of like utility and at least equal value (which replaced fixtures,
equipment or other property shall thereupon become the property of Landlord),
unless Landlord shall otherwise expressly consent in writing.
13.03 Tenant, at its expense, and with diligence and dispatch, shall
procure the cancellation or discharge of all notices of violation arising from
or otherwise connected with Tenant's Changes which shall be issued by any Nassau
County or Town of North Hempstead agency or any other public authority having or
asserting jurisdiction arising from Tenant's specific use. Tenant shall defend,
indemnify, and save harmless Landlord against any and all mechanics and other
liens in connection with Tenant's Changes, repairs or installations, including,
but not limited to, the liens of any conditional sales of, or chattel mortgages
upon, any materials, fixtures, or articles so installed in or constituting part
of the Demised Premises and against all costs, attorneys' fees, fines, expenses,
and liabilities reasonably incurred in connection with any such lien,
conditional sale, or chattel mortgage or any action or proceeding brought
thereof. Tenant, at its expense, shall procure the satisfaction of all such
liens or the discharge by filing the bond required by law within thirty (30)
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days of the filing of such lien against the Demised Premises or the Building. If
Tenant shall fail to cause such lien to be satisfied or discharged as aforesaid
within the period aforesaid, then, in addition to any other right or remedy,
Landlord may, after ten (10) days' notice to Tenant, 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 lesser of the maximum permitted by law or two percent (2%) per month or
portion thereof from the respective dates of Landlord's making of the payment or
incurring the cost and expense shall constitute additional rent payable by
Tenant under this Lease and shall be paid by Tenant on demand. If Tenant makes
any such payment, it shall not be entitled to any setoff against rent due
hereunder.
13.04 Tenant agrees that it will not at any time prior to or during
the Term of this Lease use or permit the use of any contractors, labor, or
materials in the Demised Premises, if the use of such contractors, labor, or
materials would, in the Landlord's reasonable opinion, create any difficulty
with other contractors or labor engaged by Tenant or Landlord or others or would
in any way disturb harmonious labor relations in the construction, maintenance,
or operation of the Building or any part thereof or any other building owned or
operated by Landlord or any affiliate of Landlord.
13.05 Notwithstanding anything to the contrary contained herein,
Tenant shall not make any structural alterations, changes, changes affecting the
mechanical, plumbing, electric, heating, ventilating, and air conditioning
systems, and changes resulting the violation of or which requires a change in
the Certificate of Occupancy applicable to the Building and/or to the Demised
Premises without Landlord's prior written approval, which approval can be
withheld for any or no reason.
14. Repairs.
14.01 Landlord shall maintain and repair the public portions of the
Building, both exterior and interior except as otherwise provided herein. Tenant
shall, throughout the Term of this Lease, take good care of the Demised Premises
and the fixtures and appurtenances therein and at Tenant's sole cost and
expense, make all non-structural repairs thereto as and when needed to preserve
them in good working order and condition, reasonable wear and tear, obsolescence
and damage from the elements, fire, or other casualty excepted.
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14.02 Notwithstanding the foregoing provisions of Paragraph 14.01,
all damage or injury to the Demised Premises or to any other part of the
Building, or to its fixtures, equipment and appurtenances, whether requiring
structural or non-structural repairs, caused by or resulting from: (i)
carelessness, omission, neglect, or improper conduct of Tenant, Tenant's
servants, agents, employees, invitees, or licensees, (ii) the performance of
work by Tenant necessary to suit the Demised Premises to Tenant's initial
occupancy or in connection with Tenant's Changes, (iii) the installation, use or
operation of Tenant's property in the Demised Premises, or (iv) the moving of
Tenant's property in or out of the Building shall be repaired promptly by Tenant
at its sole cost and expense, to the satisfaction of Landlord reasonably
exercised. Tenant shall also repair all damage to the Building and the Demised
Premises caused by the moving of Tenant's fixtures, furniture or equipment. All
of the aforesaid repairs shall be of quality or class equal to the original work
or construction. If Tenant fails after ten (10) days' notice to proceed with due
diligence to make repairs required to be made by Tenant, the same may be made by
the Landlord at the expense of Tenant, and the expenses thereof incurred by
Landlord shall be collectible as Additional Rent after rendition of a bill or
statement therefor.
14.03 Tenant shall give Landlord prompt notice of any defective
condition in any plumbing, heating system, or electrical lines located in,
servicing, or passing through the Demised Premises, and following such notice,
Landlord shall remedy the condition with due diligence but at the expense of
Tenant if repairs are necessitated by damage or injury attributable to Tenant,
Tenant's servants, agents, employees, invitees, or licensees as aforesaid.
14.04 Except as specifically provided in Article 14 or elsewhere 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 inconvenience,
annoyance, or injury to business arising from Landlord, Tenant, or others making
or failing to make any repairs, alterations, additions, or improvements in or to
any portion of the Building or the Demised Premises or in and to the fixtures,
appurtenances, or equipment thereof whether or not Landlord is required or
permitted by this Lease or law to perform such work. The provisions of this
Article with respect to the making of repairs shall not apply in the case of
fire or other casualty which are dealt with in Article 19 hereof. Landlord shall
perform the work required to be performed by it under this Article at times
reasonably convenient to Tenant except in case of an emergency and otherwise in
such manner and to the extent practical as will not unreasonably interfere with
Tenant's use of the Demised Premises.
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15. Requirements of Law; Fire Insurance; Floor Loads and Equipment.
15.01 Prior to the Commencement Date, if Tenant is then in
possession, and at all times thereafter, Tenant, at Tenant's sole cost and
expense, shall promptly comply with all present and future laws, orders and
regulations of all state, federal, municipal, and local governments, departments
commissions and boards and any direction of any public officer pursuant to law,
and all orders, rules and regulations of the New York Board of Fire Underwriters
or any similar body which shall impose any violation, order, or duty upon Tenant
with respect to the Demised Premises only if arising out of Tenant's use or
manner of use thereof, or with respect to the Building if arising out of
Tenant's use or manner of use of the Demised Premises or the Building (including
the use permitted under the Lease). Nothing herein shall require Tenant to make
structural repairs or alterations unless Tenant has by its manner of use of the
Demised Premises or method of operation therein, violated any such laws,
ordinances, orders, rules, regulations or requirements with respect thereto.
Tenant may, after securing Landlord to Landlord's satisfaction against all
damages, interest, penalties and expenses, including, but not limited to,
reasonable attorneys' fees, by cash deposit or by surety bond in an amount and
in a company satisfactory to Landlord, contest and appeal any such laws,
ordinances, orders, rules, regulations, or requirements provided same is done
with all reasonable promptness and provided such appeal shall not subject
Landlord to prosecution for a criminal offense or constitute a default under any
or mortgage under which Landlord may be obligated, or cause the Demised Premises
or any part thereof to be condemned or vacated.
15.02 Tenant shall not do or permit any act or thing to be done in
or to the Demised Premises which is contrary to law, or which will invalidate or
be in conflict with public liability, fire, or other policies of insurance at
any time carried by or for the benefit of Landlord with respect to the Demised
Premises or the Building, or which shall or might subject Landlord to any
liability or responsibility to any person or for property damage, nor shall
Tenant keep anything in the Demised Premises except as now or hereafter
permitted by the Fire Department, Board of Fire Underwriters, Fire Insurance
Rating Organization or other authority having jurisdiction, and then only in
such manner and such quantity so as not to increase the rate for fire insurance
applicable to the Building, nor use the Demised Premises in a manner which will
increase the insurance rate for the Building or any property located therein
over that in effect prior to the commencement of Tenant's occupancy. Tenant
shall pay all costs, expenses, fines, penalties, or damages, which may be
imposed upon Landlord by reason of Tenant, its agents, contractors, employees,
invitees, licenses, subtenant, successors or assigns' failure to comply with the
provisions of this article and if by reason of such failure the fire insurance
rate shall, at the beginning of this Lease or at any time thereafter, be higher
than it otherwise would be, then Tenant shall reimburse Landlord, as additional
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rent hereunder, for that portion of all fire insurance premiums thereafter paid
by Landlord which shall have been charged because of any of the foregoing, and
shall make such reimbursement upon the first day of the month following such
outlay by Landlord. In any action or proceeding wherein Landlord or Tenant are
parties a schedule or "make-up" of rate for the Building or Demised Premises
issued by the New York Fire Insurance Exchange, or other body making fire
insurance rates then applicable to the Demised Premises shall be presumptive
evidence of the facts therein stated and of the several items and charges in the
fire insurance rate then applicable to said premises.
15.03 Tenant shall not place a load upon any floor of the Demised
Premises exceeding the floor load per square foot area which it was designed to
carry and which is allowed by law. Landlord reserves the right to prescribe the
weight and position of all safes, business machines and mechanical equipment.
Such installations shall be placed and maintained by Tenant, at Tenant's
expense, in settings sufficient, in Landlord's judgment, to absorb and prevent
vibration, noise and annoyance. Tenant shall not move any safe, heavy machinery,
heavy equipment, bulky matter, or fixtures into or out of the building without
Landlord's prior written consent. If such safe, machinery, equipment, bulky
matter or fixtures requires special handling, all work in connection therewith
shall comply with all other laws and regulations applicable thereto and shall be
done during such hours as Landlord may designate.
15.04 Tenant will, at Tenant's own cost and expense, install and
maintain such equipment and devices that may be required by any governmental
authority having jurisdiction for the elimination of offensive noises, odors, or
discharge of waste materials in the operation of the business conducted in the
Demised Premises. Tenant expressly covenants and agrees that it will conduct its
business in the Demised Premises in full compliance with all requirements of law
applicable thereto and in such a manner that it shall not make any, or permit to
be made on or from the Demised Premises, loud or objectionable noises which may
disturb, interfere with, or annoy Landlord or other occupants of the Building or
others.
15.05 If, at any time during the Term of this Lease, Landlord
expends any sums for alterations or improvements in the Building which are
required to be made pursuant to any law, ordinance of governmental regulation,
or any portion of such law, ordinance or governmental regulation, which becomes
effective after the date hereof, Tenant shall pay to Landlord, as Additional
Rent, the same percentage of such costs as is set forth in the provision of this
Lease which requires Tenant to pay increases in real estate taxes, within thirty
(30) days after demand therefor. If, however, the costs of such alteration or
improvement is one which is required to be amortized over a period of time
pursuant to applicable governmental regulations, Tenant shall pay to Landlord as
Additional Rent, during each year in which occurs any part of the leased term,
the above-stated percentage of the reasonable annual amortization of the costs
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of the alteration or improvements made. For the purposes of this Article, the
costs of any alteration or improvements made shall be deemed to include the
costs of preparing any necessary plans and the fees for filing such plan.
16. Insurance.
16.01 Tenant, at its sole cost and expense, shall procure and
maintain in full force and effect throughout the Term of this Lease the
following insurance: (i) comprehensive general public liability insurance
against claims for bodily injury, death and/or property damage occurring upon,
in, about or adjacent to the Demised Premises or on, in or about any easement or
appurtenances therewith belonging, or any part thereof, including, without
limitation, coverage against so-called "occurrences", i.e., an accident,
including continuance, or repeated exposure to conditions, which results in
bodily injury or property damage neither expected nor intended from the
standpoint of the insured, such insurance to afford protection at the limit of
not less than $3,000,000 Combined Single Limit applying to Bodily Injury and
Property Damage (said Property Damage to include Water Damage Legal Liability
coverage; (ii) loss of rental insurance (business interruption insurance) in an
amount sufficient to prevent Landlord and Tenant from becoming co-insurers and
in any event in an amount not less than 110% of the Fixed Rent then payable
hereunder.
16.02 All insurance policies shall name as the insureds Landlord and
Tenant, and upon request of Landlord the holders of any mortgages and the
lessors under any ground or underlying leases affecting the Real Estate; shall
provide that the policy will not be cancelled or modified without at least
thirty (30) days' prior written notice to Landlord; and shall be valid and
enforceable policies issued by carriers licensed to do business in the State of
New York. Tenant shall deliver to Landlord duplicate original policies of said
insurance and proof of full payment of the premiums therefor within ten (10)
days after the Commencement Date. At all times during the term of this Lease,
Tenant shall deliver to Landlord duplicate original policies of all insurance
required hereunder and proof that same have been fully paid for and are in full
force and effect. No such policy or policies shall be changed or cancelled by
Tenant without at least ten (10) days' prior written notice to each insured. On
any default by Tenant in obtaining or delivering any such policy or policies or
failure to pay the charges therefor, Landlord in addition to its other rights
and remedies may secure or pay the charges for any such policy or policies, and
Tenant shall pay to Landlord as Additional Rent all sums expensed by Landlord
therefor.
16.03 Whether the loss or damage is due to the negligence of either
Landlord or Tenant, their agents or employees, or any other cause, Landlord and
Tenant do each herewith and hereby release and relieve the other, their agents
or employees, from responsibility for, and waive their entire claim of recovery
for (i) any loss or damage to the real or personal property of either located
anywhere in the Building, including the Building itself, arising out of or
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incident to the occurrence of any of the perils which may be covered by their
respective fire insurance policies, with extended coverage endorsements, or (ii)
loss resulting from business interruption at the Demised Premises or loss of
rental income from the Building, arising out of or incident to the occurrence of
any of the perils which may be covered by the business interruption insurance
policy and by the loss of rental income insurance policy held by Landlord or
Tenant. Notwithstanding the foregoing, no such release shall be effective unless
the aforesaid insurance policy or policies shall expressly permit such release
or contain a waiver of the carrier's right to be subrogated.
17. Indemnity.
17.01 Tenant shall defend and indemnify Landlord and save it
harmless from and against any and all liability, damages, costs, or expenses,
including attorneys' fees, arising from any act, omission, or negligence of
Tenant or its officers, contractors, licensees, agents, servants, employees,
guests, invitees, or visitors in or about the Building or Demised Premises or
arising from any accident, injury, or damage to any person or property,
occurring in or about the Building or Demised Premises as a result of any act,
omission, or negligence of Tenant, or its officers, contractors, licensees,
agents, servants, employees, guests, or visitors, or arising from any breach or
default under this Lease by Tenant, its officers, agents, or employees. Tenant's
liability under this Lease extends to the acts and omissions of any subtenant,
and any agent, contractor, employee, invitee, or licensee of any subtenant. In
case any action or proceeding is brought against Landlord by reason of any such
claim, Tenant, upon written notice from Landlord, will, at Tenant's expense,
resist or defend such action or proceeding by counsel approved by Landlord in
writing, such approval not to be unreasonably withheld. The foregoing provisions
shall not be construed to make Tenant responsible for loss, damage, liability,
or expense resulting from injuries to third parties caused by the negligence of
Landlord or its partners, contractors, licensees, agents, employees, servants,
visitors, guests or invitees, provided, however, that in no event shall Landlord
be liable to Tenant, and Tenant hereby waives any claim against Landlord either
directly or derivatively, for any damage to the Demised Premises or for any
loss, damage or injury to any property of Tenant therein or thereon occasioned
by bursting, rupture, leakage or overflow of any plumbing or other pipes
(including, without limitation, water, drainage and/or refrigerant lines),
sprinklers, tanks, drains, drinking fountains, washstands, or other similar
causes in, above, upon, or about the Demised Premises or the Building unless
caused by the negligence of Landlord or its partners, contractors, servants,
guests, visitors, licensees, agents, employees, or invitees. Tenant, however,
agrees to insure its property against such perils.
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18. Property Loss; Damage; Reimbursement.
18.01 Landlord or its agents shall not be liable for, and Tenant
shall hold Landlord harmless from, any damage to property of Tenant or of others
entrusted to employees of the Building, loss of or damage to any property of
Tenant by theft or otherwise, any injury or damage to persons or property
resulting from any cause of whatsoever nature, nor shall Landlord or its agents
be liable for any such damage caused by other tenants or persons in, upon or
about the Building or caused by operations in construction of any private,
public or quasi public work. If at any time any windows of the Demised Premises
are temporarily closed, darkened, or bricked up (or permanently closed,
darkened, or bricked up, if required by law) for any reason whatsoever
including, but not limited to, Landlord's own acts, Landlord shall not be liable
for any damage Tenant may sustain thereby, and Tenant shall not be entitled to
any compensation therefor nor abatement or diminution of rent nor shall the same
release Tenant from its obligations hereunder nor constitute an eviction.
19. Destruction, Fire, and Other Casualty.
19.01 If the Demised Premises or any part thereof shall be damaged
by fire or other casualty, Tenant shall give immediate notice thereof to
Landlord and this Lease shall continue in full force and effect as hereinafter
set forth. If the Demised Premises are partially damaged or rendered partially
unusable by fire or other casualty, the damages thereto shall be repaired by and
at the expense of Landlord and the rent, until such repair shall be
substantially completed, shall be apportioned from the day following the
casualty according to the part of the Demised Premises which is usable. If the
Demised Premises are totally damaged or rendered wholly unusable by fire or
other casualty not attributable to the fault, negligence or misuse of the
Demised Premises by the Tenant, its agents or employees under the provisions of
this Lease, then the rent shall be proportionately paid up to the time of the
casualty and thenceforth shall cease until the date when the Demised Premises
shall have been repaired and restored by Landlord, subject to Landlord's right
to elect not to restore the same hereinafter provided.
19.02 If the Demised Premises are rendered wholly unusable or
(whether or not the Demised Premises are damaged in whole or in part) if the
Building shall be so damaged that Landlord shall decide to demolish it or to
rebuild it, then, in any of such events, Landlord may elect to terminate this
Lease by written notice to Tenant given within ninety (90) days after such fire
or casualty specifying a date for the expiration of the Lease, which date shall
not be more than sixty (60) days after the giving of such notice and upon the
date specified in such notice the term of this Lease shall expire as fully and
completely as if such date were the date set forth above for the termination of
this Lease and Tenant shall forthwith quit, surrender and vacate the Demised
Premises without prejudice however to Landlord's rights and remedies against
Tenant under the Lease provisions in effect prior to such termination, and any
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rent owing shall be paid up to such date and any payments of rent made by Tenant
which were on account of any period subsequent to such date shall be returned to
Tenant. Unless Landlord shall serve a termination notice as provided for herein,
Landlord shall make the repairs and restorations under the conditions of this
Article, with all reasonable expedition subject to delays due to adjustment of
insurance claims, labor troubles and causes beyond Landlord's control. After any
such casualty, Tenant shall cooperate with Landlord's restoration by removing
from the Demised Premises as promptly as reasonably possible, all of Tenant's
salvageable inventory and movable equipment, furniture, and other property.
Tenant's liability for rent shall resume five (5) days after written notice from
Landlord that the Demised Premises are substantially ready for Tenant's
occupancy.
19.03 Nothing contained hereinabove shall relieve Tenant from
liability that may exist as a result of damage from fire or other casualty.
Notwithstanding the foregoing, each party shall look first to any insurance in
its favor before making any claim against the other party for recovery for loss
or damage resulting from fire or other casualty, and to the extent permitted by
law, Landlord and Tenant each hereby releases and waives all right of recovery
against the other or any one claiming through or under each of them by way of
subrogation or otherwise. The foregoing release and waiver shall be in force
only if both releasors' insurance policies contain a clause providing that such
a release or waiver shall not invalidate the insurance and also, provided that
such a policy can be obtained without additional premiums. Tenant acknowledges
that Landlord will not carry insurance on Tenant's furniture and/or furnishings
or any fixtures or equipment, improvements, or appurtenances removable by Tenant
and agrees that Landlord will not be obligated to repair any damage thereto or
replace the same.
19.04 No damages, compensation or claim shall be payable by Landlord
for inconvenience, loss of business or annoyance arising from any repair or
restoration of any portion of the Demised Premises or of the Building pursuant
to this Article. Landlord shall use its best efforts to effect such repair or
restoration promptly and in such manner as not reasonably to interfere with
Tenant's use and occupancy.
19.05 The provisions of this Article shall be considered an express
agreement governing any case of damage or destruction of the Demised Premises 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 absence of an express
agreement, and any other law of like import, now or hereafter in force, shall
have no application in such case.
19.06 Notwithstanding any of the foregoing provisions of this
Article, if Landlord or the lessor of any superior lease or the holder of any
superior mortgage shall be unable to collect all of the insurance proceeds
(including rent insurance proceeds) applicable to damage or destruction of the
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Demised Premises or the Building by fire or other cause, by reason of some
action or inaction on the part of Tenant or any of its employees, then, without
prejudice to any other remedies which may be available against Tenant the
abatement of Tenant's rents provided for in this Article shall not be effective
to the extent of the uncollected insurance proceeds.
20. Eminent Domain.
20.01 If the whole of the Building or the Demised Premises or the
Real Estate shall be taken by condemnation or in any other manner for any public
or quasi-public use or purpose, this Lease and the Term and estate hereby
granted shall terminate as of the date of vesting of title on such taking
(herein called "Date of the Taking"), and the Fixed Rent and Additional Rent
shall be prorated and adjusted as of such date.
20.02 If any part of the Building, the Demised Premises or the Real
Estate shall be taken, this Lease shall be unaffected by such taking, except
that (a) Landlord may, at its option, terminate this Lease by giving Tenant
notice to that effect within thirty (30) days after the Date of the Taking and
(b) if twenty-five percent (25%) or more of the Demised Premises shall be so
taken and the remaining area of the Demised Premises shall not be reasonably
sufficient for Tenant to continue feasible operation of its business, Tenant may
terminate this Lease by giving Landlord notice to that effect within thirty (30)
days after the Date of the Taking. This Lease shall terminate on the date that
such notice from Landlord or Tenant to the other is given and shall be prorated
and adjusted as of such termination date. Upon such partial taking and this
Lease continuing in force as to any part of the Demised Premises, the Fixed Rent
and Additional Rent shall be adjusted according to the Rentable Floor Area of
the Building remaining.
20.03 Landlord shall be entitled to receive the entire award or
payment in connection with any taking without deduction therefrom for any estate
vested in Tenant by this Lease and Tenant shall receive no part of such award
except as hereinafter expressly provided in this Article. Tenant hereby
expressly assigns to Landlord all of its right, title and interest in and to
every such award or payment.
20.04 If the temporary use or occupancy of all or any part of the
Demised Premises shall be taken by condemnation or in any other manner for any
public or quasi-public use or purpose during the Term of this Lease, Tenant
shall be entitled, except as hereinafter set forth, to receive that portion of
the award or payment for such taking which represents compensation for the use
and occupancy of the Demised Premises, for the taking of Tenant's leasehold
improvements, and Landlord shall be entitled to receive that portion which
represents reimbursement for the cost of restoration of the Demised Premises.
This Lease shall be and remain unaffected by such taking and Tenant shall
continue to be responsible for all of its obligations hereunder insofar as such
obligations are not affected by such taking and shall continue to pay in full
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the Fixed Rent and Additional Rent when due. If the period of temporary use or
occupancy shall extend beyond the expiration date of this Lease, that part of
the award which represents compensation for the use and occupancy of the Demised
Premises (or a part thereof) shall be divided between Landlord and Tenant so
that Tenant shall receive so much thereof as represents the period up to and
including such expiration date and Landlord shall receive so much thereof as
represents the period after such expiration date. All monies paid as, or as part
of, and award for temporary use and occupancy for a period beyond the date to
which the Fixed Rent and Additional Rent have been paid shall be received, held
and applied by Landlord as a trust fund for payment for the Fixed Rent and
Additional Rent becoming due hereunder.
20.05 In the event of any taking of less than the whole of the
Demised Premises and/or Building and/or Real Estate which does not result in
termination of this Lease, or in the event of a taking for a temporary use or
occupancy of all or any part of the Demised Premises which does not result in a
termination of this Lease, Landlord, at its expense, shall proceed with
reasonable diligence to repair the remaining parts of the Building and the
Demised Premises (other than those parts of the Demised Premises which are
Tenant's Property) to substantially their former condition to the extent that
the same may be feasible (subject to reasonable changes which Landlord shall
deem desirable) and so as to constitute a complete and Tenantable Building and
Demised Premises, provided that Landlord's liability under this Paragraph and
Article shall be limited to the amount received by Landlord as an award out of
such taking.
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21. Assignment and Subletting.
21.01 Tenant, for itself, its heirs, distributees, executors,
administrators, legal representatives, successors, and assigns, expressly
covenants that it shall not assign, mortgage, or encumber this agreement, nor
underlet, or suffer or permit the Demised Premises or any part thereof to be
used by others without the prior written consent of Landlord in each instance.
In the event Tenant is a corporation, any transfer or assignment of the shares
of stock of the corporate Tenant shall be deemed an assignment of this agreement
and shall not be accomplished without the prior written consent of Landlord in
each instance. Upon any such assignment or transfer without Landlords' prior
written consent, Tenant shall be deemed in default of this Lease, and Landlord
shall be entitled to its full rights and remedies hereunder, including, but not
limited to, the termination of this Lease by Landlord. If this Lease is 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, under-tenant, or occupant and apply the net amount collected
to the rent herein reserved, but no such assignment, underletting, acceptance of
the assignee, under-tenant, or occupant as tenant, shall operate as a release of
Tenant from the further performance by Tenant of covenants on the part of Tenant
herein contained. The consent by Landlord to an assignment or underletting shall
not in any way be construed to relieve Tenant from obtaining the express consent
in writing of Landlord to any further assignment or underletting.
21.02 If Tenant at any time during the Term hereof shall desire to
assign this Lease or to sublet all or part of the Demised Premises by an
assignment or sublease, Tenant shall give notice thereof to Landlord. If Tenant
desires to assign the Lease, the notice shall be deemed an offer to assign the
Lease to Landlord or a designee of Landlord upon the terms and conditions
specified in Tenant's notice (provided that the effective date of the assignment
shall not be earlier than thirty (30) days after the date of the giving of the
notice). If Tenant desires to sublet the entire Demised Premises, the notice
shall be deemed an offer to sublet the entire Demised Premises to Landlord or a
designee of Landlord at the current rent payable hereunder and for the term
specified in Tenant's notice (provided that the commencement of the proposed
sublease shall not be earlier than thirty (30) days after the date of the giving
of the notice) and upon such other terms and conditions as shall be provided in
Tenant's notice or in this Article. Landlord (or Landlord's designee) may, at
Landlord's option: (i) accept Tenant's offer to assign this Lease or sublet the
Demised Premises or the applicable portion thereof to Landlord upon the terms
and conditions of Tenant's notice except as otherwise herein provided; or (ii)
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in the case of an offer of assignment, terminate this Lease; or (iii) in the
case of an offer to sublease the Demised Premises, terminate the Lease. Said
options may be exercised by Landlord by notice to Tenant at any time within
thirty (30) days after such notice has been given by Tenant to Landlord, and
during such thirty (30) day period Tenant shall not assign this Lease or sublet
such space to any person.
21.03 If Landlord exercises its option to terminate this Lease in
the case where Tenant desires either to assign this Lease or sublet all of the
Demised Premises, then this Lease shall end and expire on the date that such
assignment or sublet was to be effective or commence as the case may be, and the
Fixed Rent and Additional Rent shall be paid and apportioned to such date.
21.04 If Landlord exercises its option to sublet the Demised
Premises, such sublease to Landlord or its designee (as subtenant) shall be at
the lower of (i) the rental rate per rentable square foot of Fixed Rent and
Additional Rent then payable pursuant to this Lease or (ii) the rentals set
forth in the proposed sublease, and shall be for the same term as that of the
proposed subletting, and:
(a) The sublease shall be expressly subject to all of the covenants,
agreements, terms, provisions, and conditions of this Lease except such as are
irrelevant or inapplicable, and except as otherwise expressly set forth to the
contrary in this Article;
(b) Such sublease shall be upon the same terms and conditions as
those contained in the proposed sublease, except such as are irrelevant or
inapplicable and except as otherwise expressly set forth to the contrary in this
Article;
(c) Such sublease shall give the sublessee the unqualified and
unrestricted right, without Tenant's permission, to assign such sublease or any
interest therein and/or to sublet the space covered by such sublease or any part
or parts of such space and to make any and all changes, alterations, and
improvements in the space covered by such sublease;
(d) Such sublease shall provide that any assignee or further
subtenant of Landlord or its designee may, at the election of Landlord or its
designee, be permitted to make alterations, decorations, and installations in
such space or any part thereof and shall also provide in substance that any such
alterations, decorations, and installations in such space may be removed, in
whole or in part, by such assignee or subtenant, at its option, prior to or upon
the expiration or other termination of such sublease provided that such assignee
or subtenant, at its expense, shall repair any damage and injury to such space
so sublet caused by such removal; and
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(e) Such sublease shall also provide that: (i) the parties to such
sublease expressly negate any intention that any estate created under such
sublease be merged with any other estate held by either of said parties; (ii)
any assignment or subletting by Landlord or its designee (as the subtenant) may
be for any purpose or purposes that Landlord, in Landlord's uncontrolled
discretion, shall deem suitable or appropriate; (iii) Tenant, at Tenant's
expense, shall and will at all times provide and permit reasonably appropriate
means of ingress to and egress from such space so sublet by Tenant to Landlord
or its designee; (iv) Landlord or its designee, at Tenant's expense, may make
such alterations as may be required or deemed necessary by Landlord to
physically separate the subleased space from the balance of the Demised Premises
and to comply with any laws and requirements of public authorities relating to
such separation; and (v) that at the expiration of the term of such sublease,
Tenant will accept the space covered by such sublease in its then existing
condition, subject to the obligations of the subtenant to make such repairs
thereto as may be necessary to preserve the premises demised by such sublease in
good order and condition.
21.05 In the event Landlord does not exercise its options as
provided above to so sublet the Demised Premises or terminate this Lease in
whole or in part and providing that Tenant is not in default of any of Tenant's
obligations under this lease, Landlord's consent (which must be in writing and
in form satisfactory to Landlord) to the proposed assignment or sublease shall
not be unreasonably withheld, provided and upon condition that:
(a) Tenant shall have complied with the provisions of Paragraph
21.02 and Landlord shall not have exercised any of its options under said
paragraph within the time permitted therefor;
(b) In Landlord's judgment the proposed assignee or subtenant is
engaged in a business and the Demised Premises will be used in a manner which
(i) is in keeping with the then standards of the Building, (ii) is limited to
the Permitted Use, and (iii) will not violate any negative covenant as to use
contained in any other lease of space in the Building;
(c) The proposed assignee or subtenant is a reputable person of good
character and with sufficient financial worth considering the responsibility
involved, and Landlord has been furnished with reasonable proof thereof;
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(d) Neither (i) the proposed assignee or subtenant nor (ii) any
person which, directly or indirectly controls, is controlled by, or is under
common control with, the proposed assignee or subtenant or any person who
controls the proposed assignee or subtenant, is then an occupant of any part of
the Building or any other building in Nassau County owned or operated under a
ground or underlying lease by Landlord or any person which, directly or
indirectly, controls, is controlled by, or is under common control with Landlord
or any person who controls Landlord;
(e) The proposed assignee or subtenant is not a person with whom
Landlord is then negotiating to lease space in the Building;
(f) The form of the proposed lease shall be in form satisfactory to
Landlord and shall comply with the applicable provisions of this Article;
(g) There shall not be more than one (1) subtenant of the Demised
Premises;
(h) The amount of the aggregate rent to be paid by the proposed
subtenant is not less than the then current market rent per rentable square foot
for the Demised Premises as though the demised premises were vacant, and the
rental and other terms and conditions of the sublease are the same as those
contained in the proposed sublease furnished to Landlord pursuant to Paragraph
21.02 above;
(i) Tenant shall reimburse Landlord on demand for any costs that may
be incurred by Landlord in connection with said assignment or sublease,
including, without limitation, the costs of making investigations as the
acceptability of the proposed assignee or subtenant, and legal costs incurred in
connection with the granting of any requested consent; and
(j) Tenant shall not have (i) advertised or publicized in any way
the availability of the Demised Premises without prior notice or approval by
Landlord, nor shall any advertisements state the name (as distinguished from the
address) of the Building or the proposed rental, (ii) listed the Demised
Premises for subletting, whether through a broker, agent, representative, or
otherwise at a rental rate less than the greater of (1) the Fixed Rent and
Additional Rent then payable hereunder for such space, or (2) the Fixed Rent and
Additional Rent at which Landlord is then offering to lease other space in the
Building.
21.06 Except for any subletting by Tenant to Landlord or its
designee pursuant to the provisions of this Article, each subletting pursuant to
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this Article shall be subject to all of the covenants, agreements, terms,
provisions, and conditions contained in this Lease. Notwithstanding any such
subletting to Landlord or any such subletting or assignment to any other
subtenant or assignee and/or acceptance of fixed rent or additional rent by
Landlord from any subtenant, or assignee, Tenant shall and will remain fully
liable for the payment of the Fixed Rent and Additional Rent due and to become
due hereunder and for the performance of all the covenants, agreements, terms,
provisions and conditions contained in this Lease on the part of Tenant to be
performed and all acts and omissions of any licensee or subtenant or anyone
claiming under or through any subtenant which shall be in violation of any of
the obligations of this Lease, and any such violation shall be deemed to be a
violation by Tenant. Tenant further agrees that notwithstanding any such
subletting, no other and further subletting of the Demised Premises by Tenant or
any person claiming through or under Tenant (except as provided above) shall or
will be made except upon compliance with and subject to the provisions of this
Article. If Landlord shall decline to give its consent to any proposed
assignment or sublease, or if Landlord shall exercise any of its options set
forth above, Tenant shall indemnify, defend and hold harmless Landlord against
and from any and all loss, liability, damages, costs and expenses (including
reasonable counsel fees) resulting from any claims that may be made against
Landlord by the proposed assignee or sublessee or by any brokers or other
persons claiming a commission or similar compensation in connection with the
proposed assignment or sublease.
21.07 In the event that (a) Landlord fails to exercise any of its
options above and consents to a proposed assignment or sublease, and (b) Tenant
fails to execute and deliver the assignment or sublease to which Landlord
consented within thirty (30) days after the giving of such consent, then, Tenant
shall again comply with all of the provisions and conditions of Paragraph 21.02
above before assigning this Lease or subletting all of the Demised Premises.
21.08 With respect to each and every sublease or subletting
authorized by Landlord under the provisions of this Lease, it is further agreed:
(a) No subletting shall be for a term ending later than fifteen (15)
days prior to the expiration date of this Lease.
(b) No assignment or sublease shall be valid, and no assignee or
subtenant shall take possession of the Demised Premises or any part thereof,
until an executed counterpart of such assignment or sublease has been delivered
to Landlord.
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(c) Each sublease shall provide that it is subject and subordinate
to this Lease and to the matters to which this Lease is or shall be subordinate,
and that in the event of termination, re-entry or dispossess by Landlord under
this Lease Landlord may, at its option, take over all of the right, title and
interest of Tenant, as sublessor, under such sublease, and such subtenant shall,
at Landlord's option, attorn to Landlord pursuant to the then executory
provisions of such sublease, except that Landlord shall not: (i) be liable for
any previous act or omission of Tenant under such sublease; (ii) be subject to
any offset, not expressly provided in such sublease, which theretofore accrued
to such subtenant against Tenant; or (iii) be bound by any previous modification
of such sublease or by any previous prepayment of more than one (1) month's
rent.
(d) In the case of an assignment, the assignee shall deliver to
Landlord an agreement, in form and substance satisfactory to Landlord, wherein
the assignee agrees to assume and be bound by each and every covenant,
agreement, term, provision, and condition of this Lease on the part of the
tenant hereunder to be kept and performed.
21.09 If the Landlord shall give its consent to any assignment of
this Lease or to any sublease, Tenant shall in consideration therefor, pay to
Landlord, as Additional Rent:
(a) In the case of an assignment, an amount equal to all sums and
other consideration paid to Tenant by the assignee for or by reason of such
assignment (including, but not limited to, sums paid for the sale or rental of
Tenant's fixtures, leasehold improvements, equipment, furniture, furnishings, or
other personal property less, in the case of a sale thereof, the then net
unamortized or undepreciated cost thereof determined on the basis of Tenant's
federal income tax returns); and
(b) In the case of a sublease, any rents, additional charge or other
consideration payable under the sublease to Tenant by the subtenant which is in
excess of the Fixed Rent and Additional Rent accruing during the term of the
sublease in respect of the subleased space (at the rate per square foot payable
by Tenant hereunder) pursuant to the terms hereof (including, but not limited
to, sums paid for the sale or rental of Tenant's fixtures, leasehold
improvements, equipment, furniture, or other personal property less, in the case
of the sale thereof, the then net unamortized or undepreciated cost thereof
determined on the basis of Tenant's federal income tax returns). The sums
payable under this subparagraph shall be paid to Landlord as and when paid by
the subtenant to Tenant.
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21.10 In the event Landlord shall withhold its consent to any
proposed assignment or subletting by Tenant, Tenant's sole and exclusive remedy
and recourse shall be an action for specific performance against Landlord
attempting to compel the granting of consent. Landlord shall not be liable to
Tenant or anyone else for any damages of any nature or description.
22. Access to Premises.
22.01 Landlord or Landlord's agent shall have the right (but shall
not be obligated) to enter the Demised Premises in any emergency at any time,
and, at other reasonable times, to examine the same and to make such repairs,
replacements and improvements as Landlord may deem necessary and reasonably
desirable to the Demised Premises or to any other portion of the Building or
which Landlord may elect to perform following Tenant's failure to make repairs
or perform any work which Tenant is obligated to perform under this Lease, or
for the purpose of complying with laws, regulations and other directions of
governmental authorities. Tenant shall permit Landlord to use and maintain and
replace pipes and conduits in and through the Demised Premises or through the
walls, columns, and ceilings therein, and to erect new pipes and conduits
therein. Landlord may, during the progress of any work in the Demised Premises,
take all necessary materials and equipment into said premises without the same
constituting an eviction nor shall the Tenant be entitled to an abatement of
rent while such work is in progress nor to any damages by reason of loss or
interruption of business or otherwise. Landlord shall use reasonable efforts so
as to not unreasonably interfere with Tenant's use of the Demised Premises while
performing work pursuant to this Article.
22.02 Throughout the Term hereof, Landlord shall have the right to
enter the Demised Premises at reasonable hours for the purpose of showing the
same to prospective tenants or mortgagees of the Building and during the last
six (6) months of the term for the purpose of showing the same to prospective
tenants and may, during said six (6) month period, place upon the Demised
Premises the usual notices "To Let" and "For Sale" which notices Tenant shall
permit to remain thereon without molestation.
22.03 If Tenant is not present to open and permit an entry into the
Demised Premises, Landlord or Landlord's agents may enter the same whenever such
entry may be necessary or permissible by master key or forcibly and provided
reasonable care is exercised to safeguard Tenant's property and such entry shall
not render Landlord or its agents liable therefor, nor in any event shall the
obligations of Tenant hereunder be affected. If during the last month of the
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term Tenant shall have removed all or substantially all of Tenant's property
therefrom, Landlord may immediately enter, alter, renovate or redecorate the
Demised Premises without limitation or abatement of rent, or incurring liability
to Tenant for any compensation and such act shall have no effect on this lease
or Tenant's obligations hereunder.
22.04 Landlord shall have the right at any time, without the same
constituting an eviction and without incurring liability to Tenant therefor to
change the arrangement and/or location of public entrances, passageways, doors,
doorways, corridors, elevators, stairs, toilets, or other public part of the
Building, fixtures, or equipment and to change the name, number, or designation
by which the Building may be known.
23. Bankruptcy.
23.01 Anything elsewhere in this Lease to the contrary
notwithstanding, this Lease may be cancelled by Landlord by the sending of a
written notice to Tenant within a reasonable time after the happening of any one
or more of the following events: (i) the commencement of a case in bankruptcy or
under the laws of any state naming Tenant as the debtor; (ii) the making by
Tenant of an assignment or any other arrangement for the benefit of creditors
under any state statute; (iii) Tenant shall seek or consent or acquiesce in the
appointment of any trustee, receiver or liquidator of Tenant on all or any
substantial part of its properties; (iv) a permanent or temporary receiver of
Tenant or of, or for, the property of Tenant shall be appointed; or (v) Tenant
shall plead bankruptcy as a defense. Notwithstanding the foregoing, if any such
event occurs without the acquiescence of Tenant, Landlord shall not terminate
this Lease unless such event continues for sixty (60) days at which time
Landlord may give Tenant a notice of intention to end the Term at the expiration
of five (5) days from the service of such notice of intention, and upon the
expiration of said five (5) day period, this Lease and the Term and estate
hereby granted shall terminate. After termination of this Lease pursuant to this
Article, neither Tenant nor any person claiming through or under Tenant, or by
reason of any statute or order of court, shall be entitled to possession of the
Demised Premises but shall forthwith quit and surrender premises. If this Lease
shall be assigned in accordance with its terms, the provisions of this Article
23 shall be applicable only to the party then owing Tenant's interest in this
Lease.
23.02 It is stipulated and agreed that in the event of termination
of this Lease pursuant to Paragraph 23.01 hereof, Landlord shall forthwith,
notwithstanding any other provisions of this Lease to the contrary, be entitled
to recover from Tenant as and for liquidated damages an amount equal to the
difference between the rent, reserved hereunder for the unexpired portion of the
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Term and the fair and reasonable rental value of the Demised Premises for the
same period. In the computation of such damages the difference between any
installment of rent becoming due hereunder after the date of termination and the
fair and reasonable rental value of the Demised Premises for the same period. In
the computation of such damages the difference between any installment of rent
becoming due hereunder after the date of termination and the fair and reasonable
rental value of the Demised Premises for the period for which such installment
was payable shall be discounted to the date of termination at the rate of four
percent (4%) per annum. If such premises or any part thereof be let by the
Landlord for the unexpired term of this Lease, or any part thereof, before
presentation of proof of such liquidated damages to any court, commission or
tribunal, the amount of rent reserved upon such re-letting shall be deemed to be
the fair and reasonable rental value for the part or the whole of the premises
so re-let during the term of the re-letting. Nothing herein contained shall
limit or prejudice the right of Landlord to prove for and obtain as liquidated
damages by reason of such termination, an amount equal to the maximum allowed by
any statute or rule of law in effect at the time when, and governing the
proceedings in which, such damages are to be proved, whether or not such amount
be greater, equal to, or less than the amount of the difference referred to
above.
23.03 If pursuant to the Bankruptcy Code, Tenant is permitted to
assign this Lease in disregard of the restrictions contained herein, Tenant
agrees that adequate assurance of future performance by the assignee permitted
under such Code shall mean the deposit of cash security with Landlord in an
amount equal to the sum of one (1) year's Fixed Rent then reserved hereunder
plus an amount equal to all Additional Rent payable under the provisions of this
Lease for the calendar year preceding the year in which such assignment is
extended to become effective, which deposit shall be held by Landlord, without
interest, for the balance of the term as security for the full and faithful
performance of all of the obligations under this Lease on the part of Tenant yet
to be performed. If Tenant receives or is to receive any valuable consideration
for such assignment of this Lease, such consideration, including, but not
limited to, any portion of such consideration paid for the purchase of Tenant's
property in the Demised Premises after deducting therefrom the brokerage
commissions, if any, and any other expenses reasonably incurred by Tenant for
such assignment, shall be and become the sole and exclusive property of the
Landlord and shall be paid over to the Landlord directly by such assignee. In
addition, adequate assurance shall mean that any such assignee of this Lease
shall have a net worth, exclusive of good will, equal to at least fifteen (15)
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times the aggregate of the Fixed Rent reserved hereunder plus all Additional
Rent for the preceding calendar year as aforesaid.
23.04 If this Lease is assigned to any person or entity pursuant to
the provisions of the Bankruptcy Code, 11 U.S.C. Sec. 101 et seq. (the
"Bankruptcy Code") any and all monies or other considerations payable or
otherwise shall be and remain the exclusive property of the Landlord and shall
not constitute property of the Tenant or of the estate of the Tenant within the
meaning of the Bankruptcy Code. Any and all monies or other considerations
constituting Tenant's property under the preceding sentence not paid or
delivered to Landlord shall be held in trust for the benefit of the Landlord and
be promptly paid or delivered to the Landlord.
23.05 Notwithstanding anything in this Lease to the contrary, all
amounts payable by Tenant to or on behalf of Landlord under this Lease, whether
or not expressly denominated as rent, shall constitute rent for the purpose of
Section 502(b)(7) of the Bankruptcy Code, 11 U.S.C. Sec. 502(b)(7).
23.06 Any person or entity to which this Lease is assigned pursuant
to the provisions of the Bankruptcy Code, 11 U.S.C. Sec. 101 et seq. shall be
deemed without further act or deed to have assumed all of the obligations
arising under this Lease on and after the date of such assignment. Any such
assignee shall upon demand execute and deliver to the Landlord an instrument
confirming such assumption.
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24. Default.
24.01 If Tenant defaults in fulfilling any of the covenants of this
Lease other than the covenants for the payment of Fixed Rent or Additional Rent;
or if the Demised Premises become deserted; or if the Demised Premises are
damaged by reason of negligence or carelessness of Tenant, its agents, employees
or invitees; or if any execution or attachment shall be issued against Tenant or
any of Tenant's property whereupon the Demised Premises shall be taken or
occupied by someone other than Tenant; or if Tenant shall make default with
respect to any other lease between Landlord and Tenant; or if Tenant shall fail
to take possession of the Demised Premises within fifteen (15) days after the
commencement of the Term, of which fact Landlord shall be the sole judge; then,
in any one or more of such events, upon Landlord serving a written five (5)
days' notice upon Tenant specifying the nature of said default and upon the
expiration of said five (5) days, if Tenant shall have failed to comply with or
remedy such default, or if the said default or omission complained of shall be
of a nature that the same cannot be completely cured or remedied within said
five (5) day period if Tenant shall not have diligently commenced curing such
default within such five (5) day period, and shall not thereafter with
reasonable diligence and in good faith proceed to remedy or cure such default
and the continuance of which will not subject Landlord to criminal penalties or
termination of a superior lease or foreclosure of a superior mortgage, then
Landlord may serve a written five (5) day notice of cancellation of this Lease
upon Tenant, and upon the expiration of said five (5) day period, this Lease and
the Term thereof shall end and expire as fully and completely as if the
expiration of such five (5) day period were the date herein definitely fixed for
the end and expiration of this Lease and the Term thereof, and Tenant shall then
quit and surrender the Demised Premises to Landlord, but Tenant shall remain
liable as hereinafter provided.
24.02 If the Tenant defaults in fulfilling the covenants for the
payment of Fixed Rent or Additional Rent as provided for in Article 3 and such
failure continues for a period of five (5) days after notice thereof by Landlord
to Tenant, then Landlord may serve a written five (5) day notice of cancellation
of this Lease upon Tenant, and upon the expiration of said five (5) days, this
Lease and the Term thereof shall end and expire as fully and completely as if
the expiration of such five (5) day period were the day herein definitely fixed
for the end and expiration of this Lease and the Term thereof, and Tenant shall
then quit and surrender the Demised Premises to Landlord, but Tenant shall
remain liable as hereinafter provided.
24.03 If the notice provided for in this Article hereof shall have
been given and the Term shall expire as aforesaid; or if Tenant shall make
default in the payment of the Fixed Rent reserved herein or any item of
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Additional Rent herein mentioned or any part of either or in making any other
payment herein required; then and in any of such events Landlord may without
notice, re-enter the Demised Premises either by force or otherwise, and
dispossess Tenant by summary proceedings or otherwise, and the legal
representative of Tenant or other occupant of the Demised Premises and remove
their effects and hold the Demised Premises as if this Lease had not been made,
and Tenant for itself and on behalf of any and all persons claiming through and
under Tenant hereby waives all right under or by reason of any present or future
law the service of notice of intention to re-enter or to institute legal
proceedings to that end including, without limitation, the thirty (30) day
notice which he would be entitled to as a holdover after the expiration of the
Term of this Lease. If Tenant shall make default hereunder prior to the date
fixed as the commencement of any renewal or extension of this Lease, Landlord
may cancel and terminate such renewal or extension agreement by written notice.
25. Remedies of Landlord and Waiver of Redemption.
25.01 In case of any such default, re-entry, expiration and/or
dispossess by summary proceedings or otherwise: (a) the rent shall become due
thereupon and be paid up to the time of such re-entry, dispossess and/or
expiration, together with such expenses as Landlord may incur for legal
expenses, attorneys' fees, brokerage and/or putting the Demised Premises in good
order, or for preparing the same for re-rental; (b) Landlord may re-let the
Demised Premises or any part or parts thereof, either in the name of Landlord or
otherwise, for a term or terms, which may at Landlord's option be less than or
exceed the period which would otherwise have constituted the balance of the term
of this Lease and may grant concessions or free rent or charge a higher rental
than that in this Lease; and/or (c) Tenant or the legal representatives of
Tenant shall also pay Landlord as liquidated damages for the failure of Tenant
to observe and perform said Tenant's covenants herein contained, any deficiency
between the rent, including Fixed Rent and Additional Rent, hereby reserved
and/or covenanted to be paid and the net amount, if any, of the rents collected
on account of the lease or leases of the Demised Premises for each month of the
period which would otherwise have constituted the balance of the term of this
Lease.
25.02 The failure of Landlord to re-let the Demised Premises or any
part or parts thereof shall not release or affect Tenant's liability for
damages. In computing such liquidated damages there shall be added to the said
deficiency such reasonable expenses as Landlord may incur in connection with
re-letting, such as reasonable legal expenses, attorney's fees, brokerage,
advertising and for keeping the Demised Premises in good order or for preparing
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the same for re-letting. Any such liquidated damages shall be paid in monthly
installments by Tenant on the rent date specified in this Lease and any suit
brought to collect the amount of the deficiency for any month shall not
prejudice in any way the rights of Landlord to collect the deficiency for any
subsequent month by a similar proceeding. Landlord, in putting the Demised
Premises in good order or preparing the same for re-rental may, at Landlord's
option, make such alterations, repairs, replacements, and/or decorations in the
Demised Premises as Landlord, in Landlord's reasonable judgment, considers
advisable and necessary for the purpose of re-letting the Demised Premises, and
the making of such alterations, repairs, replacements, and/or decorations shall
not operate or be construed to release Tenant from liability hereunder as
aforesaid. Landlord shall in no event be liable in any way whatsoever for
failure to re-let the Demised Premises, or in the event that the Demised
Premises are re-let, for failure to collect the rent thereof under such
re-letting, and in no event shall Tenant be entitled to receive any excess, if
any, of such net rent collecting over the sums payable by Tenant to Landlord
hereunder, but Landlord shall use best efforts to relet.
25.03 In the event of a breach or by Tenant of any of the covenants
or provisions hereof, Landlord shall have the right of injunction and the right
to invoke any remedy allowed at law or in equity as if re-entry, summary
proceedings and other remedies were not herein provided for. Mention in this
lease of any particular remedy, shall not preclude Landlord from any other
remedy, in law or in equity or by statute or otherwise.
25.04 Tenant hereby expressly waives any and all rights of re-entry
or redemption or possession 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 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.
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26. Fees and Expenses.
26.01 If Tenant shall default in the observance or performance of
any term or covenant on Tenant's part to be observed or performed under or by
virtue of any of the terms or provisions in any article of this Lease, then,
unless otherwise provided elsewhere in this Lease, Landlord may immediately or
at any time thereafter, on ten (10) days' notice, except in an emergency where
no notice is required, perform the obligation of Tenant thereunder, and if
Landlord, in connection therewith or in connection with any default by Tenant in
the covenant to pay rent, including Fixed Rent and Additional Rent, hereunder,
makes any expenditures or incurs any obligations for the payment of money,
including, but not limited to, attorneys' fees, in instituting, prosecuting, or
defending any action or proceeding, such sums so paid or obligations incurred
with interest and costs shall be deemed to be Additional Rent hereunder and
shall be paid by Tenant to Landlord within five (5) days of rendition of any
bill or statement to Tenant therefor, and if Tenant's Lease Term shall have
expired at the time of making of such expenditures or incurring of such
obligations, such sums shall be recoverable by Landlord as damages.
27. Nonrecourse.
27.01 Tenant shall look solely to the estate and interest of
Landlord, its successors and assigns in the land and Building of which the
Demised Premises form a part for the collection of a judgment or other judicial
process requiring the payment of damages or money by Landlord or in the event of
any default by Landlord hereunder and no other property or assets of Landlord
(or, if Landlord is a partnership, of any partner of Landlord) shall be subject
to levy, execution or other enforcement procedure for the satisfaction of
Tenant's remedies under and with respect to either this Lease, the relationship
of Landlord and Tenant hereunder or Tenant's use and occupancy of the Demised
Premises.
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28. No Representations by Landlord; Possession of Premises;
Agreement in Writing.
28.01 Tenant expressly acknowledges and agrees that neither Landlord
nor Landlord's agents have made any representations, warranties, or promises
with respect to the physical condition of the Building, the land upon which it
is erected, or the Demised Premises, the rents, leases, expenses of operation,
or any other matter or thing affecting or related to the Demised Premises except
as herein expressly set forth and no rights, easements, or licenses are acquired
by Tenant by implication or otherwise except as expressly set forth in the
provisions of this Lease.
28.02 All understandings and agreements heretofore made between the
parties hereto are merged in this contract, which alone fully and completely
expresses the agreement between Landlord and Tenant and any executory agreement
hereafter made shall be ineffective to change, modify, discharge, or effect an
abandonment of it in whole or in part, unless such executory agreement is in
writing and signed by the party against whom enforcement of the change,
modification, discharge, or abandonment is sought.
29. End of Term.
29.01 Upon the expiration or other termination of the Term, Tenant
shall quit and surrender to Landlord the Demised Premises, broom clean, in good
order and condition, ordinary wear excepted, and Tenant shall remove all its
property. Tenant's obligation to observe or perform this covenant shall survive
the expiration or other termination of this Lease. If the last day of the Term
of this Lease or any renewal thereof, falls on Sunday, this Lease shall expire
at noon on the preceding Saturday unless it be a legal holiday, in which case it
shall expire at noon on the preceding business day.
29.02 All fixtures, partitions, railings, excluding workstations
installed in the Demised Premises either by Tenant or Landlord shall, upon
installation, become the property of Landlord and shall not be removed from the
Demised Premises, or at Landlord's option and direction, all or designated
fixtures, partitions, railings, and like installations shall be removed by
Tenant at Tenant's sole cost and expense, and Tenant shall repair and restore
the Demised Premises to the condition existing prior to the installation of any
such fixtures, etc. and repair any damage to the Demised Premises or Building
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due to such removal. Upon Tenant's removal of any trade fixtures, furniture, or
equipment, Tenant shall repair and restore the Demised Premises to the condition
existing prior to the installation of any such fixture or equipment and repair
any damage to the Demised Premises or Building due to such removal. Any and all
property remaining in the Demised Premises after Tenant's removal shall be
deemed abandoned and shall become the property of Landlord.
30. Holdover.
30.01 If Tenant shall, with the prior written consent of Landlord,
hold over after the expiration of the Term of this Lease, such tenant shall be
deemed a month-to-month tenancy, which tenancy may be terminated pursuant to
applicable state law. During such tenancy, Tenant agrees to pay to Landlord the
fair market value for the Demised Premises, as reasonably determined by
Landlord, and to be bound by all of the terms, covenants and conditions herein
specified, so far as applicable. If Landlord shall not give written consent to
such hold over by Tenant, such tenancy may be terminated pursuant to applicable
state law, and until Tenant has vacated the Demised Premises Tenant agrees that
such holding over shall not be deemed to extend the Term or renew the Lease, but
such holding over thereafter shall continue upon the covenants and conditions
herein set forth except that the charge for use and occupancy of such holding
over for each calendar month or part hereof (even if such part shall be a small
fraction of a calendar month) shall be the sum of 1/12th of the highest annual
rent rate set forth in this Lease multiplied by 2.5 plus all of the Additional
Rent required to be paid by the Tenant under this Lease, which total sum Tenant
agrees to pay to the Landlord promptly upon demand, in full, without set-off or
deduction. Neither the billing nor the collection of use and occupancy in the
above shall be deemed a waiver of any right of Landlord to collect damages for
Tenant's failure to vacate the Demised Premises after the expiration or sooner
termination of this Lease shall be in addition to all other remedies available
to Landlord. The aforesaid provision shall survive the expiration or sooner
termination of this Lease.
31. Quiet Enjoyment.
31.01 Landlord covenants and agrees with Tenant that upon Tenant
paying the Fixed 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, subject,
nevertheless, to the terms and conditions of this Lease including, but not
limited to, Article 41 hereof and to the ground leases, underlying leases and
mortgages hereinbefore mentioned.
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32. Security.
32.01 Tenant has deposited with Landlord the Security Deposit as
security for the faithful performance and observance by Tenant of the terms,
provisions and conditions of this Lease. Such security Deposit shall be held by
Landlord in a proper interest bearing security account with interest accruing to
the benefit of the party entitled to same. Landlord shall be entitled to
withdraw one (1%) percent per annum for administrative charges. It is agreed
that in the event Tenant defaults in respect of any of the terms, provisions and
conditions of this Lease, including, but not limited to, the payment of Fixed
Rent and Additional Rent, Landlord may use, apply or retain the whole or any
part of the security so deposited to the extent required for the payment of any
Fixed Rent and Additional Rent or any other sum as to which Tenant is in default
or for any sum which Landlord may expend or may be required to expend by reason
of Tenant's default in respect of any of the terms, covenants, and conditions of
this Lease, including, but not limited to, any damages or deficiency in the
re-letting of the Demised Premises or a part thereof, whether such damages or
deficiency accrued before or after summary proceedings or other re-entry by
Landlord. In the event that Tenant shall fully and faithfully comply with all of
the terms, provisions, covenants, and conditions of this Lease, the security
shall be returned to Tenant after the date fixed as the end of the Lease and
after delivery of entire possession of the Demised Premises to Landlord. In the
event of a sale of the land and Building or leasing of the Building, Landlord
shall have the right to transfer the security to the vendee or lessee and
Landlord shall thereupon be released by Tenant from all liability for the return
of such security; and Tenant agrees to look to the new Landlord solely for the
return of said security; and it is agreed that the provisions hereof shall apply
to every transfer or assignment made of the security to a new Landlord. Tenant
further covenants that it will not assign or encumber or attempt to assign or
encumber the monies deposited herein as security and that neither Landlord nor
its successors or assigns shall be bound by any such assignment, encumbrance,
attempted assignment or attempted encumbrance.
33. No Brokers.
33.01 Tenant represents and warrants to Landlord that it has not
engaged any broker, finder, or other person who would be entitled to any
commission or fees in respect to the negotiation, execution, or delivery of this
Lease other than Broker and shall indemnify and hold harmless Landlord against
any claim, including reimbursement of Landlord legal fees, costs, and expenses
in connection with any claims, asserted by any other broker or person arising
out of the acts of Tenant. Landlord shall pay commission to Broker on account of
this Lease pursuant to separate agreement.
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34. Inability to Perform.
34.01 This Lease and the obligation of Tenant to pay Fixed Rent and
Additional Rent hereunder and perform all of the other covenants and agreements
hereunder on part of Tenant to be performed shall in no way be affected,
impaired, or excused because Landlord is unable to fulfill any of its
obligations unless due to Tenant negligence under this Lease or to supply or is
delayed in supplying any service expressly or impliedly to be supplied or is
unable to make, or is delayed in making any repair, additions, alterations, or
decorations or is unable to supply or is delayed in supplying any equipment or
fixtures if Landlord is prevented or delayed from so doing by reason of strike
or labor troubles or any cause whatsoever including, but not limited to,
government preemption in connection with a National Emergency or by reason of
any rule, order, or regulation of any department or subdivision thereof of any
government agency or by reason of the conditions of supply and demand which have
been or are affected by war or other emergency.
35. Notices.
35.01 All notices, demands, and requests which may be or are
required to be given by either party to the other shall be in writing. All
notices, demands, and requests by Landlord to Tenant or by Tenant to Landlord
shall be deemed to have been properly given if served personally or if sent by
United States registered or certified mail, postage prepaid, addressed to
Landlord at the address first hereinabove given or Tenant at the address first
hereinabove given if prior to the Commencement Date and at the Demised Premises
from and after the Commencement Date, or such other address as may be designated
in a written notice to the other party similarly given.
35.02 Notices, demands, and requests which are served by registered
or certified mail upon Landlord or Tenant in the manner aforesaid, shall be
deemed sufficiently served or given for all purposes hereunder upon deposit in
the United States mail, registered or certified mail, return receipt requested.
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36. No Waiver.
36.01 The failure of Landlord to seek redress of violation of, or to
insist upon the strict performance of any covenant or condition of this Lease or
of any of the Rules or Regulations set forth or hereafter adopted by 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 waiver of such breach and no provision of this Lease
shall be deemed to have been waived by Landlord unless such waiver be in writing
signed by Landlord. No payment by Tenant or receipt by Landlord of a lesser
amount than the monthly Fixed Rent and Additional Rent herein stipulated shall
be deemed to be other than on account of the earliest stipulated Fixed Rent and
Additional Rent, nor shall any endorsement or statement of any check or any
letter accompanying any check or payment as rent be deemed an accord and
satisfaction and 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. No act or thing done by Landlord or Landlord's agents
during the Term shall be deemed an acceptance of a surrender of the Demised
Premises and no agreement to accept such surrender shall be valid unless in
writing signed by Landlord. No employee of Landlord or Landlord's agent shall
have any power to accept the keys of the Demised Premises prior to the
termination of the Lease and the delivery of keys to any such agent or employee
shall not operate as a termination of the Lease or a surrender of the Demised
premises.
37. Waiver of Trial by Jury; Counterclaims,
Consent to Jurisdiction.
37.01 It is mutually agreed by and between Landlord and Tenant that
the respective parties hereto shall and they hereby do waive trial by jury in
any action, proceeding, or counterclaim brought by either of the parties hereto
against the other (except for personal injury or property damage) on any matters
whatsoever arising out of or in any way connected with this Lease, the
relationship of Landlord and Tenant, Tenant's use of or occupancy of the Demised
Premises, and any emergency statutory or any other statutory remedy.
37.02 Regardless of the nature or ground of any summary proceeding
brought by Landlord to recover possession of the Demised Premises, Tenant will
not interpose any counterclaim of whatever nature or description in any such
proceeding. Nothing herein shall be deemed to prohibit Tenant from bringing a
separate action against Landlord on account of any claim which Tenant may have
against Landlord, provided however, that Tenant agrees that Tenant, in the
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prosecution of any such claim shall make no motion or otherwise request any
court in which such claim is sought to be asserted, to join any such claim and
any proceeding instituted by Landlord to recover possession of the Demised
Premises in any trial, or make any motion to otherwise seek to have any such
proceeding instituted by Landlord and any action or proceeding commenced by
Tenant by reason of such claim of Tenant tried simultaneously in any court.
37.03 This Lease shall be deemed to have been made in Nassau County,
New York, and shall be construed in accordance with the Laws of the State of New
York. All actions or proceedings relating, directly or indirectly to this Lease
shall be litigated only in courts located within the County of Nassau. Tenant
and its successors and assigns hereby subject themselves to the personal
jurisdiction of any state or federal court located within said county, waive the
personal service of any process upon them in any action or proceeding therein
and consent that such process be served by certified or registered mail, return
receipt requested, directed to Tenant and any successor at Tenant's address
herein set forth, and to any assignee at the address set forth in an instrument
of assignment. Such service shall be deemed made two (2) days after such process
is so mailed. It is agreed that service by mail as provided herein shall
constitute personal service over Tenant and/or its assigns and Tenant and/or its
assigns so served by mail hereby consent to the personal jurisdiction of the
Court or Tribunal over them in such action or proceedings sufficient to enable
the Court or Tribunal to render a money judgment against them.
38. Estoppel Certificate.
38.01 Tenant agrees, at any time and from time to time, as requested
by Landlord, upon not less than ten (10) days' prior notice, to execute and
deliver without cost or expense to the Landlord a statement 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 modifications), certifying the dates to which the Fixed Rent and Additional
Rent have been paid, and stating whether or not, to the best knowledge of
Tenant, Landlord is in default in performance of any of its obligations under
this Lease, and, if so, specifying each such default of which Tenant may have
knowledge, it being intended that any such statement delivered pursuant thereto
may be relied upon by any other person with whom the Landlord may be dealing.
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39. Certain Terms.
39.01 The term "Landlord" as used in this Lease means only the
owner, or the mortgagee in possession, for the time being of the land and
Building (or the owner of a lease of the Building or of the land and Building),
so that in the event of any sale or sales of said land and Building or of said
lease, or in the event of a lease of said Building, or of the land and Building,
Landlord shall be and hereby is entirely freed and relieved of all covenants and
obligations of Landlord hereunder, and it shall be deemed and construed without
further agreement between the parties or their successors in interest, or
between the parties and the purchaser, at any such sale, or the said lessee of
the Building, or of the land and Building, that the purchaser or the lessee of
the Building has assumed and agreed to carry out any and all covenants and
obligations of Landlord, hereunder. The words "re-enter" and "re-entry" as used
in the Lease are not restricted to their technical legal meaning.
40. Rules and Regulations.
40.01 Tenant and Tenant's servants, employees, agents, visitors, and
licensees shall observe faithfully, and comply strictly with, the Rules and
Regulations set forth in Exhibit D and such other and further reasonable Rules
and Regulations as Landlord or Landlord's agents may from time to time adopt.
Notice of any additional rules or regulations shall be given in such manner as
Landlord may elect. In case Tenant disputes the reasonableness of any additional
Rule or Regulation hereafter made or adopted by Landlord or Landlord's agents,
the parties hereto agree to submit the question of reasonableness of such Rule
or Regulation for decision to the New York office of the American Arbitration
Association, whose determination shall be final and conclusive upon the parties
hereto. The right to dispute the reasonableness of any additional Rule or
Regulation upon Tenant's part shall be deemed waived unless the same shall be
asserted by service of a notice, in writing upon Landlord within ten (10) days
after the giving of notice thereof. Nothing in this Lease contained shall be
construed to impose upon Landlord any duty or obligation to enforce the Rules
and Regulations or terms, covenants, or conditions in any other lease, or
against any other tenant and Landlord shall not be liable to Tenant for
violation of the same by any other tenant, its servants, employees, agents,
visitors, or licensees.
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41. Landlord's Expense.
41.01 Whenever Tenant shall submit to Landlord any plan, agreement,
or other document for Landlord's consent or approval, and Landlord shall require
the expert opinion of Landlord's counsel or architect as to the form or
substance thereof, Tenant agrees to pay the reasonable fee of such architect
and/or such counsel for reviewing the said plan, agreement, or document.
42. Window Cleaning.
42.01 Tenant will not clean, nor require, permit, suffer, or allow
any window in the Demised Premises to be cleaned from the inside or outside in
violation of Section 202 of the Labor Law or any other applicable law or of the
rules of the Board of Standards and Appeals, or of any other board or body
having or asserting jurisdiction.
43. Doors; Locks.
43.01 Landlord shall, at its sole cost and expense, provide to
Tenant a lock and one (1) set of keys to the front door of the Demised Premises.
Tenant may not change either the lock cylinder or any other lock or key
apparatus on said front door or add any additional locks or hardware devices. In
the event that at any time during the Term hereof Tenant requests a change in
the lock cylinder, Tenant must request same in writing from Landlord, and
Landlord will install a new cylinder, at the sole cost and expense of Tenant.
Tenant shall not install any alarm system without the prior written consent of
Landlord. Tenant must furnish Landlord with all necessary keys and/or access
codes to any alarm system.
43.02 Tenant shall not install or place any object, or permit same
to be installed or placed, in any of the public areas of the Building or on
Tenant's front door including, but not limited to, objects such as signs,
hardware, and advertisements. Landlord will furnish and install one (1) front
door sign in accordance with Landlord's design specifications.
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44. Relocation.
44.01 Landlord may, at its option, before or after the Commencement
Date, elect by notice to Tenant to substitute for the Demised Premises other
office space in the Building or The Expressway Plaza at Roslyn, designated by
Landlord (hereinafter called "Substitute Premises"), provided that the rentable
square foot area of the Substitute Premises is not less than one hundred percent
(100%), nor larger than one hundred fifteen percent (115%) of the rentable
square foot area of the Demised Premises. Landlord's notice shall set forth the
date which Tenant shall vacate and surrender the Demised Premises and occupy the
Substitute Premises (herein called the "Relocation Date"). The Relocation Date
designated by Landlord shall be no earlier than thirty (30) days after the date
of Landlord's notice. Landlord shall, at Landlord's expense, (i) furnish and
install in the Substitute Premises fixtures and improvements substantially
similar to those contained in the Demised Premises; (ii) provide to Tenant at
Landlord's sole expense, moving personnel to perform the moving of Tenant's
property and equipment from the Demised Premises to the Substitute Premises; and
(iii) reimburse Tenant for Tenant's actual reasonable out-of-pocket costs
incurred by Tenant in connection with the relocation of any telephone or other
communications equipment from the Demised Premises to the Substitute Premises.
If Landlord elects to substitute other premises prior to the Commencement Date,
Landlord, at Landlord's expense, shall improve the Substitute Premises
substantially in accordance with the Work Letter attached hereto as Exhibit C.
Tenant agrees to execute such documents, as in Landlord's sole opinion, are
necessary, appropriate or desirable in order to reflect the substitution of the
Substitution Premises for the Demised Premises, which documents shall set forth
any adjustment in the Fixed Rent and Tenant's Proportionate Share as may be
required by reason of such substitution as well as any other changes or
modifications to this Lease made necessary by, and attributable to such
substitution. From and after the earlier of: (a) the date on which Tenant shall
actually vacate and surrender the Demised Premises to Landlord or (b) the
Relocation Date, this Lease: (i) shall no longer apply to the Demised Premises,
except with respect to all obligations to pay Fixed Rent and Additional Rent and
all other obligations which accrued on or prior to such date, including without
limitation the liabilities and obligations imposed upon Tenant as a holdover
Tenant if the Tenant fails to vacate and surrender the Demised Premises on or
before the Relocation Date; and (ii) shall apply to the Substitute Premises as
if the Substitute Premises had been the space originally demised under this
Lease. In the event Tenant without Landlord's prior written consent, fails to
vacate and surrender the Demised Premises on or before the Surrender Date, then
Tenant agrees to reimburse Landlord for all of the damages, costs and expenses
incurred by Landlord by reason of such failure including lost rent, and all
legal fees incurred by Landlord, and Tenant shall be liable to Landlord and
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reimburse Landlord, as Additional Rent, all of such costs, expenses and damages
including without limitation, fair value, use and occupancy for the Demised
Premises in the amount equal to two hundred percent (200%) of the Fixed Rent and
Additional Rent which would have been due for the Demised Premises (which shall
be in addition to the Fixed Rent and Additional Rent for the Substitute
Premises) and any lost rent from any lease agreement or prospective lease
agreement for the Demised Premises which Landlord had executed or was then
negotiating, which leasing (and/or tenant or prospective tenant) Landlord lost,
by reason in whole or part of Tenant's holding over beyond the Relocation Date.
45. Miscellany.
45.01 The 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 assigns.
45.02 If any term or provision of this Lease or the application
thereof to any person or circumstance shall, to any extent, be invalid or
unenforceable, the remainder of the Lease, or the application of such term or
provision to persons or circumstances other than those as to which it is held
invalid or unenforceable, shall not be affected thereby, and each term and
provision of this Lease shall be valid and be enforced to the fullest extent
permitted by law.
45.03 The Article headings in this Lease are inserted only as a
matter of convenience or reference, and are not to be given any effect
whatsoever in construing this Lease.
45.04 This Lease shall not be filed of record; upon request of
Landlord, a memorandum of this Lease in compliance with law shall be executed by
Landlord and Tenant and recorded.
45.05 All checks tendered to Landlord as and for the Fixed Rent and
Additional Rent of the Demised Premises shall be deemed payments for the account
of Tenant. Acceptance by Landlord of rent from anyone other than Tenant shall
not be deemed to operate as an attornment to Landlord by the payor of such rent
or as a consent by Landlord to an assignment or subletting by Tenant of the
Demised Premises to such payor, or as a modification of the provisions of this
Lease. Notwithstanding the prepayment, Landlord may refuse payment of Fixed Rent
and Additional Rent from any party other than Tenant herein. Any check remitted
to Landlord that is dishonored for any reason and/or fails to "clear" in the
banking process for any reason whatsoever, will cause, and Tenant hereby agrees
to pay, a $25.00 service charge to be added to Tenant's account as Additional
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Rent, and Tenant agrees to immediate payment thereon. It is specifically agreed
and understood and acknowledged by Tenant that Landlord's entitlement to a
service charge as an addition to any and all other remedies Landlord shall be
entitled to under this Lease and under law and shall not limit any remedies in
any such manner or respect. It is further agreed that in the event any check
made by or on behalf of Tenant in the payment of any sums due hereunder
including the payment of Fixed Rent and Additional Rent or otherwise, is
returned to the Landlord by its bank for insufficient funds, uncollectible
funds, or for any other reason whatsoever, Tenant hereby covenants and agrees
that it shall replace such check with either cash or certified funds or a bank
check made payable to the direct order of Landlord made payable on a New York
bank which is a member of the New York Clearing House Association. It is further
agreed and understood that Landlord's acceptance of such certified or bank check
or its election to redeposit the dishonored check, shall not be deemed to be, or
constitute, a waiver of Landlord's remedies under this Lease or under law and
shall not be deemed a waiver of this Paragraph or the default by Tenant herein.
45.06 Tenant represents that it is qualified to do business in the
State of New York.
45.07 This Lease shall be governed by the laws of the State of New
York.
45.08 The foregoing shall not constitute an offer to lease the
Demised Premises, and nothing contained in this Lease shall be deemed binding
against Landlord unless and until it is duly executed by Landlord.
45.09 The submission of this Lease to Tenant is not an offer to
lease the Demised Premises or an agreement by Landlord to reserve the Demised
Premises for Tenant. Landlord will not be bound to Tenant until Tenant has duly
executed and delivered duplicate original Leases to Landlord and Landlord has
duly executed and delivered one of those duplicate original Leases to Tenant.
45.10 Suit or suits for the recovery of the rents and other amounts
and damages set forth in this Lease may be brought by Landlord, from time to
time, at Landlord's election, and nothing in this Lease will be deemed to
require Landlord to await the date on which the Term of this Lease expires. Each
right and remedy in this Lease will be cumulative and will be in addition to
every other right or remedy in this Lease or existing at law or in equity or by
statute or otherwise, including, without limitation, suits for injunctive relief
and specific performance. The exercise or beginning of the exercise by Landlord
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of any such rights or remedies will not preclude the simultaneous or later
exercise by Landlord of any other such rights or remedies. All such rights and
remedies are cumulative and nonexclusive.
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46. Tenant's Option to Extend Term.
46.01 Provided Tenant is not and has not at any time been in default
of any of the terms, covenants and conditions of this Lease, Tenant shall have
the option, exercisable by giving written notice, by Certified Mail, Return
Receipt Requested, to Landlord no later than January 1, 2004, TIME BEING OF THE
ESSENCE, to extend the Term of this Lease for a period of fifty-eight (58)
months (hereinafter referred to as the "Extended Term"). In the event Tenant
shall exercise such option, the Term of the Lease shall be deemed extended for
the Extended Term upon all of the covenants, agreements, terms, provisions and
conditions of this Lease then in effect (including, but not limited to, the Base
Operation Year) except that Tenant shall have no further right to extend the
Term and, during the Extended Term, Tenant shall pay to Landlord Fixed Rent:
For the period September 1, 2004 through June
30, 2005, $184,330.25 Dollars per annum
payable in advance monthly installments of
$20,481.14 per month.
For the period July 1, 2005 through June 30,
2206 $255,604.56 Dollars per annum payable in
advance monthly installments of $21,300.38 per
month.
For the period July 1, 2006 through June 30,
2007 $265,828.74 Dollars per annum payable in
advance monthly installments of $22,152.40 per
month.
For the period July 1, 2007 through June 30,
2008,$276,461.88 Dollars per annum payable in
advance monthly installments of $23,038.49 per
month.
For the period July 1, 2008 through June 30,
2009,$287,520.35 Dollars per annum payable in
advance monthly installments of $23,960.03 per
month.
It is further understood and agreed by Tenant that the premises to be
demised by Landlord to Tenant during the Extended Term shall include the Demised
Premises originally demised hereunder, and in no event shall Tenant be permitted
to extend the Term with respect to a portion of such premises only unless
otherwise agreed to by Landlord in writing. In the event no such timely written
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notice is given by Tenant to Landlord on or before January 1, 2004, TIME BEING
OF THE ESSENCE, then this Lease shall expire in accordance with its terms.
IN WITNESS WHEREOF, Landlord and Tenant have respectively signed this
Lease.
Witness for Landlord: LKM EXPRESSWAY PLAZA LIMITED
PARTNERSHIP (Landlord)
/S/ /S/
- ------------------------------- ----------------------------------
BY: Expressway Inc., General Partner
Michael S. Puntillo, President
Witness for Tenant: QUERYOBJECT SYSTEMS CORPORATION
(Tenant)
/S/ /S/
- ------------------------------- ----------------------------------
BY: Daniel M. Pess,
Sr. Vice President and Chief
Financial Officer
ACKNOWLEDGMENTS
Landlord
STATE OF NEW YORK, COUNTY OF NASSAU ss.:
On this day of August, 1999, before me personally came Michael S.
Puntillo, to me known, and known to me to be the individual described in and who
executed the foregoing on behalf of Expressway Inc., and duly acknowledged to me
that he executed the same.
------------------------------
Notary Public
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Tenant
STATE OF NEW YORK, COUNTY OF NASSAU ss:
On this day of August, 1999, before me personally came Daniel M. Pess,
to me known, who, being by me duly sworn, did depose and say that he resides at
_________________________, _________; that he is the Senior Vice
President-Finance & CFO of Queryobject Systems Corporation, the corporation
mentioned herein and which executed the foregoing instrument; that he knows the
seal of said corporation; that the seal affixed to said instrument is such
corporate seal; that is 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
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EXHIBIT A
FLOOR PLAN OF
DEMISED PREMISES
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EXHIBIT B
TENANT PLANS
AND SPECIFICATIONS
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EXHIBIT C
WORK LETTER
If this Lease pertains to the initial occupancy by any tenant of the
Demised Premises, Landlord agrees at its sole expense, except as noted, to do
the following described work as shown on Tenant's Plans and Specifications in
connection with the Demised Premises, which work and materials shall be of
material, manufacture, design, capacity, finish, and color of the building
standard adopted by Landlord for the Building.
1. PARTITIONING
Furnish building standard drywall partitioning with metal studs and
gypsum board per Exhibit B. All partitions to terminate at window mullions or
exterior columns without offsets. In addition, Landlord will provide demising
wall partitions between tenant spaces and public corridor.
2. DOORS, DOOR FRAME, AND HARDWARE
Furnish existing, where designated by Tenant, single swing 6'-8" x
3'-0" x 1-3/4" door frames and hollow core wood doors complete with passage sets
per Exhibit B. Landlord will supply one (1) pair and one (1) single swing 7'-10"
x 3'-0" x 1-3/4" entrance door with closer and lock set.
3. CLOTHES CLOSET
Furnish existing closets where designated by Tenant; closets shall be
equipped with one (1) coat rod and one (1) closet shelf. No more than 5 feet of
closet space shall be constructed for every 2000 square feet of the Usable Floor
Area of the Demised Premises.
4. ACOUSTIC TILE CEILING
Furnish existing mechanically suspended acoustic tile or equivalent on
exposed spline construction in a 2' x 4' pattern except where field conditions
do not permit, in which event a smaller pattern will be used.
5. FLUORESCENT FIXTURES
Furnish existing and connect one (1) 2' x 4' recessed fluorescent
lighting fixture with acrylic plastic lens individually mounted and designed to
contain three (3) 40 watt lamps in the Demised Premises, except where field
conditions do not permit, in which event a differently sized or surface mounted
fixture will be used. Landlord shall supply and install the initial lamps.
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6. ELECTRICAL WALL OUTLETS, SWITCHES, CIRCUITS
Furnish existing duplex electric wall outlets in the Demised Premises.
The aforesaid electric wall outlets are to be located only in the ceiling high
partitions at standard mounting height. Circuits containing wall and/or floor
outlets are rated at a total of 16 amperes per circuit, with a maximum of 10
amperes at only one (1) duplex outlet. Furnish and install toggle switches for
lighting fixtures based on one (1) toggle switch per each ten (10) fixtures but
no less than one (1) switch per room. The building proper will contain wires,
risers, conduits, feeders, and panel equipment necessary to furnish the premises
with electrical energy and a combined lighting and standard electric load of not
more than 3 watts per square foot of the Usable Floor Area of the Demised
Premises.
7. CARPET AND BASE
Install wall-to-wall carpeting and four-inch high vinyl cove base.
Tenant will select from Building Standard selection to be supplied by Landlord.
Landlord to furnish and install new Vinyl Composite Tile flooring in the Lunch
Room as designated on Exhibit B. Tenant will select from selection supplied by
Landlord.
8. PAINTING
Paint all sheet rock walls as provided herein to consist of one (1)
prime and one (1) finish coat in Building Standard flat, waterbase paint in
Building Standard colors selected by Tenant. All doors and trim shall be stained
or painted. Dark colors and premium colors shall be charged at Tenant's expense.
9. AIR CONDITIONING
Furnish and install air conditioning. Interior space shall be served by
central system complete with ducts, registers, and thermostats as required to
serve the system properly. The design of the air conditioning system in the
Demised Premises shall be based upon an occupancy of one (1) person per 100
square feet of the Usable Floor Area of the Demised Premises and upon a combined
lighting and standard load 3 watts per square foot.
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10. VENETIAN BLINDS
Landlord will install narrow blade venetian blinds in color to
complement window mullion frames.
11. TENANT IDENTIFICATION
(a) Landlord shall furnish and install a Building directory for
Tenant's listing in the ground floor lobby. Tenant shall submit its Building
directory listings with its final plans, which listings shall be limited to two
(2) per 1000 square feet of the Usable Floor Area of the Demised Premises.
(b) Landlord shall furnish and install all such initial listings at its
sole cost and expense. Any changes or additional listings shall be furnished and
installed at Tenant's cost and/or expense.
(c) Landlord, at its sole cost and expense, shall furnish and install a
single sign for Tenant's identification on Tenant's entrance door. The design of
such identification must conform to the building standard. No additional
identification may be installed on Tenant's door.
12. BUILDING STANDARD
In the event that after the date of execution of this Lease any
building codes or standards change and thereby impose additional or more
extensive requirements in completing the Building or related improvements, or,
after completion of the Building require changes in the Building then the cost
of complying with such requirements shall be amortized over the useful lives
thereof, and Tenant shall pay Tenant's Proportionate Share of such cost
applicable to that portion (or all, as the case may be) of the useful lives
falling within the Term of the Lease.
13. DAMAGE
Tenant shall be responsible for all damage caused by trades employed by
Tenant.
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14. DELAYS
If by reason of (i) Tenant's failure to submit Tenant's Plans on their
due date, (ii) any special or extra materials or work in Tenant's Plans or
otherwise requested by Tenant, (iii) any changes in the material or work on
Tenant's Plans or otherwise requested by Tenant, which are not ultimately
incorporated into the work, (iv) the occurrence of any delays for which Tenant
is responsible under the terms of the Lease, including, without limitation,
Articles 4 and 5 thereof ("Delay Conditions"), Landlord is delayed in supplying
the materials or completing the work to be performed by Landlord in accordance
with the provisions of this Work Letter, then the Commencement Date of the Lease
and the obligations of Tenant to pay Fixed and Additional Rent shall be
accelerated by the number of days equal to the length of the applicable Delay
Conditions, whether or not Landlord has completed such work at the time of such
accelerated date, and the Term of this Lease shall commence as though none of
such Delay Conditions has occurred. Landlord's time to complete the work to be
performed by Landlord shall be extended by the number of days necessary for
Landlord to complete such work as a result of the occurrence of any of the Delay
Conditions.
15. HOURS OF WORK
Notwithstanding the commencement of rent as aforesaid, work on the
Demised Premises whether performed by Landlord or by Tenant shall be performed
only during regular time union working hours. If Tenant requires Landlord to
perform work during other hours, or if Tenant desires to perform work through
its contractors, agents, or employees, Tenant shall pay as Additional Rent, the
cost of employing such additional union help as shall be required under the
rules and regulations of the unions employed in connection with the construction
of the Building. Payment shall be made by Tenant to Landlord within ten (10)
days after being billed therefor.
16. ADDITIONAL WORK
(a) Tenant's Plans may also require or include special or extra
materials or work in addition to the materials and work to be supplied by
Landlord as part of Landlord's building standard tenant improvement package
included in the unmodified form of this Work Letter, and Landlord may, at its
option, supply such extra materials and perform such extra work and supply and
perform any other materials and work not set forth herein or in Tenant's Plans
(all of which special or extra materials and work shall be considered and
sometimes called "extra materials and work") which Tenant may want completed for
Tenant's account at cost plus fifteen percent (15%) for General Conditions
(indirect job costs), which shall mean the amount charged for on-the-job
services performed by Landlord's employees or contractors for the Tenant, his
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employees or contractors (such as cleanup, removal of waste and debris,
protection of work in progress or completed, temporary maintenance and services,
utilities, and use of elevators and hoists); to this total amount shall be added
ten percent (10%) for Landlord's overhead and five percent (5%) for profit. Said
percentages shall also apply to specific unit prices quoted or referred to
elsewhere in the Work Letter. Where Tenant asks Landlord to supply such extra
materials and perform such extra work, which is in substitution of like building
standard materials and work, Tenant shall receive a credit for omission of such
like building standard materials and work at Landlord's cost (with no addition
of 15% and 5%). Before proceeding with any such extra work or supplying any such
extra materials, Landlord shall notify Tenant in writing as to the respective
costs of each extra item involved, and unless Landlord is notified otherwise by
Tenant within two (2) business days of such notification by Landlord, except
during the course of construction Tenant must notify Landlord within one (1)
business day of such notification, it shall be deemed approved by Tenant for
Landlord to proceed with the extras so itemized.
(b) All of Tenant's Plans are subject to the Landlord's approval, but
no approval shall be deemed an agreement by Landlord that the work included
therein is in compliance with any legal requirements.
(c) Any items set forth in this Work Letter which are not provided in
Tenant's Plans or which at Tenant's request are not included in connection with
the construction hereunder, shall be deemed abandoned by Tenant unless Tenant's
Plans include special or extra work in substitution of such like items and
Landlord performs such work, in which event Tenant shall be entitled to the
credit provided in Paragraph 16 hereof.
(d) All charges for extra materials and work as provided in Paragraph
16 hereof or elsewhere in this Work Letter shall be deemed Additional Rent and
shall be paid by Tenant to Landlord within five (5) days after being billed
therefor.
TENANT WORK ORDER NO. 001:
TENANT TO FURNISH AND INSTALL THE FOLLOWING ADDITIONAL WORK AT TENANT'S SOLE
COST AND EXPENSE:
WINDOWS
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To furnish and install five (5) 5' x 5' by 1/4" clear safety glass windows with
brushed aluminum U-channel at top and bottom. To be installed in existing
sheetrock walls.
Three (3) 18" x 84" 1/4" clear safety glass side lights.
TOTAL $3,672.31
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CABINETS
To furnish and install 10 lineal feet of base cabinets and hanger above, style
Avia, Color White TOTAL $3,059.00
PLUMBING
To furnish and install one (1) 22 x 25 stainless seel LK sink with a Delta
chrome faucet.
To furnish and install 1 1/2" copper condensate line from tenants air
conditioning unit to common corridor slop sink, maximum of 50 lineal feet with
check valve. TOTAL $3,763.90
FLOORING
To furnish and install new VCT in computer room
TOTAL $1,596.00
HVAC
To furnish and install one (1) exhaust fan in computer room ceiling ducted to
roof. TOTAL $2,195.00
LOCKS
Up-graded charge to furnish and install building standard locksets on all
interior doors on a master keyed system TOTAL $4,125.00
These items total $18,411.21, without the electrical estimates. Upon approval,
we will proceed with preparing a tenant work order.
TERMS:
$18,411.21 ON THE EXECUTION OF THIS AGREEMENT BY GOOD CHECK OR MONEY ORDER
PAYABLE TO LKM EXPRESSWAY PLAZA LIMITED PARTNERSHIP.
IT IS AGREED THAT THE $18,411.21 SHALL BE DEEMED ADDITIONAL RENT AND SHALL BE
COLLECTIBLE AS PROVIDED FOR HEREIN WHETHER OR NOT THE TERM OF THE LEASE SHALL
HAVE COMMENCED, AND IN DEFAULT OF PAYMENT THEREOF, LANDLORD SHALL (IN ADDITION
TO ALL OTHER REMEDIES) HAVE THE SAME RIGHTS AS IN THE EVENT OF DEFAULT OF
PAYMENT OF FIXED RENT.
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EXHIBIT D
RULES AND REGULATIONS
A. GENERAL RULES AND REGULATIONS
The following Rules and Regulations shall be applicable to the Building
and the Demised Premises as said terms are defined in the Lease of which these
Rules and Regulations are a part (hereinafter the "Lease"). Unless otherwise
provided in these Rules and Regulations, all references to "tenant" or "tenants"
shall be deemed to include "Tenant" as defined in the Lease. In the event of a
conflict between these Rules and Regulations and the provisions of the Lease,
the provisions of the Lease shall control:
1. The sidewalks, entrances, passages, courts, elevators, vestibules,
stairways, corridors and halls in the Building and Demised Premises shall not be
obstructed or used for any purpose other than ingress or egress.
2. No projection shall be attached to the outside walls of the Building.
All electric ceiling fixtures hung in offices or space along the perimeter of
the Building must be florescent, and of a quality, type, design and bulb color
approved by Landlord. Neither the interior nor exterior of any windows shall be
coated or otherwise sunscreened without written consent of Landlord.
3. Except as may be specifically provided in the Lease, no sign,
advertisement, notice or handbill shall be exhibited, distributed, painted or
affixed by a tenant on any part of the Building without the prior written
consent of the Landlord. In the event of the violation of the foregoing by any
tenant, Landlord may remove said sign, advertisement, notice or handbill without
incurring any liability therefor, and may charge the expense incurred in such
removal to the tenant violating this rule. Except as may be specifically
provided in the Lease, the directory tablet or tablets will be provided
exclusively for the display of the name and location of tenants only and
Landlord reserves the right to exclude any other names therefrom. Nothing may be
placed on the exterior of corridor walls or corridor doors without Landlord's
prior written consent.
4. The sashes, sash doors, skylights, windows, and doors that reflect or
admit light and air into public places in the Building shall not be covered or
obstructed by any tenant, nor shall any articles be placed on any windowsills,
window heating units or in front of any air conditioning vents.
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5. The water and wash closets and other plumbing fixtures shall not be
used for any purpose other than those for which they were constructed, and no
sweepings, rubbish, therein. All damage resulting from any misuse of such
closets and fixtures shall be the responsibility of the tenant which, or whose
servants, employees, agents, visitors or licensees shall have caused the same.
6. No tenant shall mar, paint, drill into, or in any way deface any part
of the Building except as expressly provided in the Lease.
7. No bicycles, vehicles, birds or animals of any kind shall be brought
into or kept in or about the Building, except those bicycles which shall be
parked in any areas which may be specifically designated by Landlord for such
purpose. Landlord assumes no responsibility for any bicycles so parked. Except
as may be specifically provided in the Lease, no cooking shall be done or
permitted by any tenant in the Building, except that the preparation of coffee,
tea, hot chocolate and similar items for tenants and their employees and
invitees shall be permitted provided the electric power therefor shall not
exceed that amount which can be provided by a 30-ampere circuit. Except as may
be provided in the Lease, no tenant shall cause or permit any unusual or
objectionable odors to be produced or to permeate outside the premises demised
to it.
8. No tenant shall utilize the premises occupied by it for the sole or
major purpose of interviewing or address of the Building as the location for
such interviewing or hiring. No premises shall be used for lodging or sleeping
or for any immoral or illegal purposes.
9. No tenant shall make, or permit to be made any unseemly or disturbing
noises or disturb or interfere with (a) occupants of the Building or neighboring
buildings or (b) those persons having business with said occupants, whether by
use of any musical instrument, television, radio, phonograph, unusual noise, or
in any other way. No tenant shall throw anything out of the Building or into the
passageways therein.
10. No tenant or any of its servants, employees, agents, visitors or
licensees, shall at any time bring or keep within the Building any inflammable,
combustible or explosive fluid, chemical or substance.
11. Except as may be provided in the Lease, no additional locks or bolts
of any kind shall be placed upon any of the doors or windows by any tenant, nor
shall any changes be made in existing locks or the mechanism thereof. Landlord,
at its expense, shall, at or prior to initial occupancy by any tenant, supply
one set of keys to the front door of the Demised Premises. All keys issued
thereafter shall be issued by Landlord at tenant's expense. Each tenant must
upon the termination of its tenancy restore to the Landlord all keys of stores,
offices, and toilet rooms, either furnished to, or otherwise procured by, such
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tenant. In the event of the loss of any keys so furnished, such tenant shall pay
to the Landlord the cost of replacing the same or of changing the lock or locks
opened by such lost key of Landlord shall deem it necessary to make such
changes. No top locks will be allowed unless they are masterkeyed to the entire
Building.
12. All removals, or the carrying in or out of any safes, freight,
furniture or bulky matter of any description must take place during the hours
which the Landlord may determine and be undertaken pursuant to written consent
of the Landlord. No removal of said items may take place at times other than
during normal business hours as defined in the Lease. The moving of safes or
other fixtures or bulky matter of any kind must be done up to twenty-four (24)
hours' previous written notice to the Managing Agent of the Building and be
under its supervision, and the persons employed by any tenant for such work must
be acceptable to the Landlord. Except as may be provided in the Lease, Landlord
reserves the right to inspect all articles to be brought into the Building and
to exclude from the Building all articles which violate any of these Rules and
Regulations or any provisions of the Lease. Except as may be provided in the
Lease, Landlord reserves the right to prescribe the height and position of all
safes.
13. Except as may be provided in the Lease, no tenant shall purchase
spring water, ice, towel, janitorial, maintenance, or other like services from
any person not approved by the Landlord.
14. Landlord reserves the right to exclude from the Building between the
hours of 6:00 p.m. and 8:00 a.m. and at all hours on Saturday, Sunday, and legal
holidays all persons who do not present a pass to the Building signed by the
Landlord. Landlord will furnish passes to persons for whom any tenant requests
the same in writing. Each tenant shall be responsible for all persons for whom
it requests passes and shall be liable to the Landlord for all acts of such
persons. Landlord shall in no case be liable for damages for any error with
regard to the admission to or exclusion from the Building of any person. In case
of a riot, public excitement or other circumstances rendering such action
advisable in Landlord's opinion, Landlord reserves the right to prevent access
to the Building during the continuance of the same by closing the doors or
otherwise, all for the safety of the Tenants and the protection of the Building.
15. Any persons employed by any tenant to do janitorial work, while in
the Building and outside of the premises demised pursuant to the provisions of
any lease, shall be subject to and under the control and direction of the
Landlord of the Building (but not as an agent or servant of said Landlord or of
the Landlord), and tenant shall be responsible for all acts of such persons.
16. All doors opening onto public corridors in the Building shall be
kept closed, except when in use for ingress and egress.
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17. Any requests, notices or demands of any tenant to or upon the
Landlord shall be in writing and addressed to the Landlord at the Building.
18. Canvassing, soliciting and peddling in the Building are prohibited
and each tenant shall cooperate to prevent the same.
19. Except as may be provided in the Lease, no supplementary air
conditioning unit or other similar apparatus shall be installed or used by any
tenant without the written consent of the Landlord.
20. There shall not be used in any space, or in the public areas of the
Building, either by any tenant or others, any hand trucks except those equipped
with rubber tires and rubber side guards.
21. Except as may be provided in the Lease, Landlord shall have the
right, exercisable without notice and without liability to any Tenant, to change
the name and address of the Building.
22. No vending machine or machines of any description shall be
installed, maintained or operated in the Building except as decided by the
Landlord.
B. PARKING AREA RULES AND REGULATIONS
The following Parking Area Rules and Regulations shall apply to all
parking areas and the parking structure serving the Building and the Demised
Premises.
1. All cars must be parked entirely within the stall lines.
2. All directional signs and arrows must be observed.
3. The speed limit shall be five (5) miles per hour.
4. Parking is prohibited:
(a) in areas not striped for parking;
(b) in aisles;
(c) where "no parking" signs are posted;
(d) on ramps in cross hatched areas; and
(e) in such other areas as may be designated by Landlord or
Landlord's designee.
5. Parking stickers or any other device or form of identification
supplied by Landlord shall remain the property of Landlord. Such parking
identification device must be displayed as requested by Landlord and may not be
mutilated in any manner. The serial number of any parking identification device
may not be obliterated. Parking identification devices shall not be transferable
and any device in the possession of any unauthorized holder will be void.
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Landlord will not be liable for damage that may occur when affixing a
"No Parking" sign to the windshield of a car incorrectly parked in a reserved
spot.
6. Parking managers or attendants are not authorized to make or allow
any exceptions to these Parking Area Rules and Regulations.
7. Every parker is required to park and lock his own car. All
responsibility for damage to cars is assumed by the parker.
8. Loss or theft of parking identification devices from automobiles must
be reported to the landlord immediately, and a lost or stolen report must be
filed by the parker at that time. Any parking identification devices reported
lost or stolen and found on any unauthorized car will be confiscated and the
illegal holder will be subject to prosecution. Lost or stolen devices which are
subsequently recovered must be returned to the parking manager immediately.
9. Washing, waxing, cleaning, or servicing of any vehicle while in the
parking areas by any person is prohibited.
10. The Landlord or its designee reserves the right to refuse the
issuance of stickers or other parking identification devices to any tenant or
person and/or his agents or representatives who willfully refuses to comply with
the above Parking Area Rules and Regulations and with all applicable municipal,
state or federal ordinances, laws, regulations or agreements (whether or not
posted).
11. Landlord shall have no obligation to remove or ticket any improperly
parked vehicles from any parking space, whether or not said space is designated
for the use of any particular tenant.
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EXHIBIT E
HOLIDAYS
The following days constitute Legal Holidays which are excluded from
"Regular Business Hours" as defined in this Lease:
(1) New Year's Day
(2) Martin Luther King's Birthday
(3) Presidents' Day
(4) Memorial Day
(5) Independence Day
(6) Labor Day
(7) Election Day (Presidential)
(8) Thanksgiving Day
(9) Christmas Day
The date in any given Lease Year upon which any of the above holidays
will be observed shall be that date as shall be published annually by the New
York State Banking Department.
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EXHIBIT F
CLEANING SPECIFICATIONS
The following is to be performed Monday through Friday, on days when the
Building observes Regular Business Hours:
A. Empty and wipe clean all ashtrays.
B. Empty all waste paper baskets and receptacles.
C. Sweep all hard surface flooring.
D. Dust mop all resilient tile or other composition flooring with a
chemically treated mop to preserve sheen and appearance of such
flooring.
E. Dust all areas within hand high reach, including chairs, chair rails,
desks, desk appliances, furniture, cabinets, sills, pictures,
baseboards, and trim.
F. Damp clean all tops of water fountains and coolers, desks and tables.
G. Machine vacuum all carpeting in the office area.
H. Upon completion of work, all lights are to be turned out and the
premises to be secured.
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EXHIBIT G
SCHEDULE OF LIGHTING COSTS
(Subject to Annual Increases)
1. Fluorescent Tube $10.00
2. U-shaped Fluorescent Tube $20.00
3. Flood Lamp $12.00
4. Ballast $60.00
No fees during first six (6) months of Lease year.
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EXHIBIT H
OVERTIME HVAC COSTS
Upon a minimum of two (2) business days' written notice to Landlord,
Landlord will provide Tenant with Heating and/or Air Conditioning during hours
other than Regular Business Hours, which service will be provided at a current
rate of $20.00 per hour per zone and shall be subject to increases when and to
the extent Landlord's public utility charges increase.
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