<PAGE>
U.S. Securities and Exchange Commission
Washington, D.C. 20549
Form 10-Q
(X) QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15 (d) OF THE
SECURITIES EXCHANGE ACT OF 1934
FOR THE QUARTERLY PERIOD ENDED November 30, 1998
OR
( ) TRANSITION REPORT PURSUANT TO SECTION 13 OR 15 (d)
OF THE SECURITIES EXCHANGE ACT OF 1934
For the transition period from ______________ to _____________
Commission File Number 1-10751
STAR MULTI CARE SERVICES, INC.
(Exact Name of Registrant as specified in its charter)
New York 11-1975534
-------- ----------
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
99 Railroad Station Plaza, Hicksville, New York 11801
-----------------------------------------------------
(Address of principal executive offices)
Registrant's telephone number, including area code: (516) 423-6688
---------------
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 requirement for the past 90 days.
Yes X No
--- ---
Indicate the number of shares outstanding of each of the issuer's classes of
common stock as of January 15, 1999:
Class Number of Shares
----- ----------------
Common Stock, $0.001 par value 5,246,516
<PAGE>
STAR MULTI CARE SERVICES, INC.
INDEX
<TABLE>
<CAPTION>
Page
<S> <C>
Part I - Financial Information
Item 1
Consolidated Balance Sheets as of November 30, 1998 and May 31, 1998 ................................ 3
Consolidated Statements of Operations for the three months and six months
ended November 30, 1998 and 1997.................................................................. 4
Consolidated Statements of Cash Flows
for the six months ended November 30, 1998 and 1997............................................... 5
Notes to Consolidated Financial Statements .......................................................... 6-7
Item 2
Management's Discussion and Analysis of Financial
Condition and Results of Operations............................................................... 8-11
Part II - Other Information
Item 1
Legal Proceedings.................................................................................... 11
Item 6
Exhibits and Reports on Form 8-K .................................................................... 12
Index of Exhibits ................................................................................... 13
Signatures........................................................................................... 14
</TABLE>
<PAGE>
STAR MULTI CARE SERVICES, INC.
CONSOLIDATED BALANCE SHEETS
<TABLE>
<CAPTION>
November 30, May 31,
1998 1998
------------ -------
ASSETS: Unaudited Audited
<S> <C> <C>
Current Assets:
Cash and Cash equivalents $ 2,165,329 $ 1,867,286
Accounts receivable, less allowance for doubtful accounts of
$1,775,000 and $1,872,000 at November 30,1998 and May 31,
1998, respectively 11,229,307 10,108,879
Prepaid expenses and other current assets 414,428 382,899
Income taxes receivable - 1,225,946
Deferred income taxes 1,773,160 1,537,000
------------ ------------
Total current assets $ 15,582,224 $ 15,122,010
------------ ------------
Property and equipment, net of accumulated depreciation and
amortization of $1,535,000 and $1,304,000 at November 30,
1998 and May 31,1998, respectively 1,989,316 1,999,924
Notes receivable from officer 80,410 86,260
Intangible assets, net of accumulated amortization 11,806,742 11,857,698
Deferred income taxes 619,000 619,000
Other assets 198,172 185,715
------------ ------------
$ 30,275,864 $ 29,870,607
============ ============
LIABILITIES AND SHAREHOLDER'S EQUITY
Current Liabilities:
Revolving credit line $ 7,076,186 $ 6,207,852
Accrued payroll and related expenses 2,427,058 3,214,207
Accounts payable 1,176,185 1,018,322
Accrued expenses 564,334 339,142
Deferred revenues 1,533,226 1,017,287
Accrued regulatory costs 2,075,000 2,450,000
Current maturities of long-term debt 62,500 125,000
------------ ------------
Total current liabilities 14,914,489 14,371,810
------------ ------------
Long -Term Liabilities:
Other long-term liabilities 858,216 1,065,770
------------ ------------
Total long-term liabilities 858,216 1,065,770
------------ ------------
Shareholder's equity:
Preferred stock, $1.00 par value per share, 5,000,000 shares
authorized Common stock, $.001 par value per share, 10,000,000
shares
authorized; 5,384,016 and 5,362,780 shares issued, respectively 5,384 5,363
Additional paid-in capital 20,990,888 20,951,899
Subscription receivable (397,782) (397,782)
Deficit (5,816,409) (5,847,531)
Treasury stock, 137,500 common shares at November 30,
1998 and May 31,1998 (278,922) (278,922)
------------ ------------
Total Shareholder's equity 14,503,159 14,433,027
------------ ------------
$ 30,275,864 $ 29,870,607
============ ============
</TABLE>
See accompanying notes to consolidated financial statements
Page 3
<PAGE>
STAR MULTI CARE SERVICES, INC.
CONSOLIDATED STATEMENTS OF OPERATIONS
(Unaudited)
<TABLE>
<CAPTION>
Three Months Ended Six Months Ended
November 30, November 30,
------------------------------- ---------------------------------
1998 1997 1998 1997
---- ---- ---- ----
<S> <C> <C> <C> <C>
Net revenues $ 12,762,735 $ 15,179,857 $ 26,856,128 $ 28,181,782
------------ ------------ ------------ ------------
Operating Costs and expenses:
Costs of revenue 8,789,631 9,866,454 18,651,962 18,372,736
Selling, general and administrative 3,378,125 3,997,801 6,763,118 7,493,525
Depreciation and amortization 357,371 268,761 555,102 449,297
Provision for doubtful accounts 127,457 88,735 384,923 133,735
Regulatory costs and related expenses (375,000) - (375,000) -
Restructuring and termination expense 476,346 - 476,346 -
------------ ------------ ------------ ------------
Income from operations 8,805 958,106 399,677 1,732,489
Interest expense, net (200,004) (117,066) (340,955) (194,193)
------------ ------------ ------------ ------------
Income before income taxes (191,199) 841,040 58,722 1,538,296
(Provision) Benefit for income taxes 89,863 (344,826) (27,600) (630,701)
------------ ------------ ------------ ------------
Net Income (Loss) $ (101,336) $ 496,214 $ 31,122 $ 907,595
------------ ------------ ------------ ------------
Net income per common share
Basic $ (0.02) $ 0.10 $ 0.01 $ 0.19
============ ============ ============ ============
Diluted $ (0.02) $ 0.10 $ 0.01 $ 0.19
============ ============ ============ ============
Weighted average number of common shares:
Basic 5,246,516 5,204,241 5,241,990 4,761,497
============ ============ ============ ============
Diluted 5,246,516 5,207,476 5,243,992 4,763,115
============ ============ ============ ============
</TABLE>
See accompanying notes to consolidated financial statements
Page 4
<PAGE>
STAR MULTI CARE SERVICES, INC.
CONSOLIDATED STATEMENTS OF CASH FLOWS
(Unaudited)
<TABLE>
<CAPTION>
Six Months
Ended November 30,
---------------------------
1998 1997
---- ----
<S> <C> <C>
Cash flow from operating activities:
Net income $ 31,122 $ 907,595
----------- ---------
Adjustments to reconcile net income to net cash (used in) provided by
operating activities:
Provision for doubtful accounts 384,923 133,735
Depreciation and amortization of property and equipment 231,803 162,981
Amortization of intangible assets 323,301 260,940
Deferred income taxes (236,160) -
Changes in operating assets and liabilities:
(Increase) decrease in assets:
Account receivable (1,505,351) 561,144
Prepaid expenses and other current assets (31,529) 572,558
Income taxes receivable 1,225,946 73,738
Other assets (12,458) (4,432)
Increase (decrease) in liabilities:
Accrued payroll and related expenses (787,150) (1,094,572)
Accounts payable and other accrued expenses 8,055 (856,054)
Deferred revenue 515,939 -
Income taxes payable - 675,903
Other liabilities (207,554) -
----------- ---------
Total adjustments (90,235) 564,335
----------- ---------
Net Cash (used in) provided by operating activities $ (59,113) $ 1,471,930
----------- ---------
Cash flows from investing activities:
Acquisition of a business, net of cash acquired - (2,940,462)
Purchase of property and equipment (221,194) (591,446)
Repayment of note receivable from officer 5,850 3,744
Purchase of intangibles (272,345) -
----------- ---------
Net cash used in investing activities (487,689) (3,528,164)
----------- ---------
Cash flows from financing activities:
Proceeds from revolving credit line (Daiwa) 7,076,186 2,840,000
Repayment of revolving credit line (Chase) (6,207,852) -
Repayment of long term debt (62,500) (62,500)
Repayment of capital lease obligations - (47,502)
Proceeds from issuance of common stock 39,011 110,421
----------- ---------
Net cash provided by financing activities 844,845 2,840,419
----------- ---------
Net increase in cash and cash equivalents 298,043 784,185
Cash and cash equivalents at beginning of period 1,867,286 139,400
----------- ---------
Cash and cash equivalents at end of period $ 2,165,329 $ 923,585
=========== =========
Supplemental disclosures:
Income taxes paid 28,749 326,781
=========== =========
Interest paid 288,228 172,055
=========== =========
</TABLE>
See accompanying notes to consolidated financial statements
Page 5
<PAGE>
STAR MULTI CARE SERVICES, INC.
NOTES TO INTERIM CONSOLIDATED FINANCIAL STATEMENTS
(UNAUDITED)
In the opinion of management, the accompanying unaudited interim
consolidated financial statements of Star Multi Care Services, Inc. and its
subsidiaries (the "Company") contain all adjustments necessary to present
fairly the Company's financial position as of November 30, 1998, results of its
operations for the three and six months periods ended November 30,1998 and 1997
and cash flows for the six month period ended November 30, 1998.
The accounting policies followed by the Company are set forth in Note
1 to the Company's consolidated financial statements included in its Annual
Report on Form 10-K for the fiscal year ended May 31, 1998, which is
incorporated herein by reference. Specific reference is made to this report for
the notes to consolidated financial statements included therein.
The results of operations for the three and six months periods ended
November 30, 1998 is not necessarily indicative of the results to be expected
for the full year.
Note 1 - Net Income Per Common Share
Net income per common share and per common and common equivalent share
is based upon weighted average common and common equivalent shares outstanding
during each period. Common equivalent shares include the dilutive effect of
stock options if any.
Note 2: Reclassifications and use of Accounting Estimates
The preparation of financial statements in conformity with generally
accepted accounting principles requires management to make assumptions that
affect the amounts reported in the financial statements and accompanying notes.
Such amounts include, among others, the allowance for doubtful accounts,
workers compensation and medical benefit reserves for its self funded plans,
other asset valuation allowances and certain liabilities. Management
periodically re-evaluates the estimates inherent in certain financial statement
amounts and may adjust accordingly.
Note 3: Regulatory Costs and Contractual Adjustments
a. In May 1997, the Company was advised that an audit of American
Healthcare Services, the Company=s Medicare agency, by the Office of Audit
Services, Office of Inspector General of the United States Department of Health
and Human Services which had been forwarded to the Medicare intermediary
assigned to administer Medicare payments in Florida had been referred to the
Civil Division of the United States Attorney for the Southern District of
Florida. In February 1998, The Audit was relinquished by the United States
Attorney to the Medicare intermediary for recovery of an administrative
overpayment in the amount of $1,248,747. The Company has appealed the
assessment, which could result in the elimination or reduction of the
assessment. The Company had previously accrued $1,250,000 in connection with
this matter. As a result of this appeal, based upon preliminary indications
from the Medicare intermediary and the recommendation of Broad and Cassel
("Regulatory Counsel"), during the second quarter ended November 30, 1998, the
Company reduced this liability by $375,000, (or 30%), and as of November 30,
1998 has accrued $875,000.
b. On July 16, 1998, Star was advised that an audit of American Health
Services, Star=s Medicare agency, was being commenced by the Office of Audit
Services, Office of Inspector General of the United States Department of Health
and Human Services. This audit was being conducted in conjunction with the
United States Attorney=s Office for the Southern District of Florida and
involved a review of claims for home health
6
<PAGE>
services submitted by American Health Care Services during 1995 and 1996. A
similar audit commenced during May of 1997 for its submitted claims during
1993. Star has been advised by Regulatory Counsel that they have been in
contact with the Office of Inspector General and the Assistant United States
Attorney assigned to this matter, and there is no way to determine at this time
the extent of Star=s liability. Regulatory Counsel has advised Star that it may
litigate or appeal any determination of liability and pursue claims against
third parties (e.g., subcontractors and licensed home health agencies) for a
portion of any liability of Star. Management anticipates that this matter
should be satisfactorily resolved. This is grounded upon the advice of
Regulatory Counsel to the Company as to the (1) the resolution of similar types
of audits or claims based upon their experience in the health care industry,
handling appeals of these determinations and dealing with similar matters
before the Office of Inspector General and the Department of Justice, even
though there has not been a final determination of liability, and there can be
no assurance as to the ultimate liability; and (2) the fact that Star will have
the right, whether or not this audit or claim is resolved in whole or in part
in Star=s favor, to appeal or litigate any liability, determination and pursue
a claim against third-party independent contractors and other parties that may
have rendered services to Star, even though there is no assurance that any such
claims would ultimately be collectible. Management anticipates that the matters
will be satisfactorily resolved.
Note 4: Credit Facility
On November 9, 1998 the Company replaced its existing $8 million
revolving credit agreement with a new $10 million revolving credit facility
with Daiwa Securities America, Inc (the "Credit Facility"). This Credit
Facility permits the Company to borrow up to 80% of eligible accounts
receivables that are aged less than 180 days at LIBOR +3, (approximately 8.24%
at November 30, 1998) and the remaining eligible receivables at LIBOR +6. The
Credit Facility requires the Company to meet certain financial ratios and
covenants, including current ratio, minimum tangible net worth, debt service
coverage and interest coverage. All loans under the Credit Facility are
collateralized by all assets of the Company. As of November 30, 1998, the
borrowing base equaled approximately $6,927,000, and the outstanding balance of
the funds advanced to the Company pursuant to the Credit Facility, as of such
date, was $7,076,000. A payment of approximately $186,000 was paid on December
17, 1998, subsequent to the quarter ended November 30, 1998. As of January 18,
1999, the outstanding loan balance of the Credit Facility was $6,890,000. The
Credit Facility matures on November 9, 2000. The Company is not in violation of
any of the covenants of the facility as of November 30, 1998.
Note 5: Stock Option Plan
On December 9, 1998, subsequent to the quarter ended November 30,
1998, the Shareholders of the Company approved an amendment to the Company's
1992 Stock Option Plan that increased the total number of shares authorized to
be issued therein by 300,000 shares. Additionally, stock option grants were
approved for certain executives and employees for 83,500 shares exercisable at
price ranges of $1.25 to $1.375 per share and vesting between immediate to over
five years.
7
<PAGE>
Item 2. Management's Discussion and Analysis of Financial Condition and
Results of Operations.
The following discussion and analysis provides information which the
Company=s management believes is relevant to an assessment and understanding of
the Company=s results of operations and financial condition. This discussion
should be read in conjunction with the attached consolidated financial
statements and notes thereto, and with the Company's audited financial
statements and notes thereto for the fiscal year ended May 31, 1998.
This discussion contains forward-looking statements that are subject
to a number of known and unknown risks that, in addition to general economic,
competitive and other business conditions, could cause actual results,
performance and achievements to differ materially from those described or
implied in the forward-looking statements. [See Forward Looking Statements]
The Company is subject to significant external factors which could
significantly impact its business, including changes in Medicare reimbursement,
government fraud and abuse initiatives and other such factors which are beyond
the control of the Company. These factors, as well as, future changes in
reimbursement and changes in interpretations of regulations, could cause future
results to differ materially from historical trends.
In recent years, an increasing number of legislative proposals have
been introduced or proposed to Congress and in some state legislatures that
would significantly affect the health care systems in the Company's markets.
The cost of certain proposals would be funded in significant part by reductions
in payments by government programs, including Medicare and Medicaid, to health
care providers (similar to the reductions incurred as part of the Balanced
Budget Act of 1997 as previously discussed). While the Company is unable to
predict which, if any, proposals for health care reform will be adopted, there
can be no assurance that proposals adverse to the business of the Company will
not be adopted.
During the three months ended November 30, 1998, the Company initiated
a restructuring plan primarily to aggressively respond to the new reductions in
Medicare reimbursement for Star Multi Care Services of Florida, Inc. d/b/a
American Healthcare Services by fundamentally reshaping the Company for
long-term growth in the changing environment. Restructuring costs include an
accrual for the settlement of a lease at an abandoned facility of $300,000 and
severance pay and payroll related benefits of approximately $176,000 as of
November 30, 1998. After giving effect to these and prior restructuring
efforts, combined with service utilization adjustments projected for the
remainder of 1998, the Company expects to reduce costs to meet the
reimbursement shortfalls without any further material adverse effect to the
Company.
Year 2000 Compliance
Many currently installed computer systems and software products are
coded to accept only two digit entries to represent years. For example, the
"1998" would be represented by "98". These systems and products will need to be
able to accept four digit entries to distinguish years beginning with 2000 from
prior years. As a result, systems and products that do not accept four digit
year entries will need to be upgraded or replaced to comply with such "Year
2000" requirements. The Company believes that its internal systems are Year
2000 compliant or will be upgraded or replaced in connection with previously
planned changes to information systems prior to the need to comply with Year
2000 requirements without material cost or expense. The anticipated costs of
any Year 2000 modifications are based on management's best estimates, which
were derived utilizing numerous assumptions of future events, including the
continued availability of certain resources and other factors. However, there
can be no guarantee that these estimates will be achieved and actual results
could differ materially from those anticipated. Specific factors that might
cause such material differences include, but are not limited to the
availability or cost of personnel trained in this area, the ability to locate
and correct all relevant computer codes and similar uncertainties. In addition,
there can be no assurance that Year 2000 compliance problems will not be
revealed in the future which could have a material
8
<PAGE>
adverse affect on the Company's business, financial condition and results of
operations. Many of the Company's customers and suppliers may be affected by
the Year 2000 issues that may require them to expend significant resources to
modify or replace their existing systems. This may result in those customers
having reduced funds to purchase the Company's products or in those suppliers
experiencing difficulties in producing or shipping key components to the
Company on a timely basis at all.
Results of Operations.
Quarter ended November 30, 1998 compared to quarter ended November 30,
1997.
Net revenues for the quarter ended November 30, 1998 decreased
$2,417,122 or 15.9% to $12,762,735 from $15,179,857 for the quarter ended
November 30, 1997. The decrease in net revenue for the quarter ended November
30, 1998 from the quarter ended November 30, 1997 is primarily attributable to
a reduction in net revenues from American Healthcare Services, the Company's
Medicare agency in Florida, due to a restructuring plan initiated by the
Company due to, in part, a reduction in per beneficiary cost limits established
by Medicare effective for cost reporting periods beginning January 1, 1998 and,
additionally, the Company's decision to significantly reduce its market
presence in the Medicare program.
Gross profit margin decreased to 31.1% for the quarter ended November
30, 1998 from 35% for the quarter ended November 30, 1997. The decrease in the
gross profit margin is primarily attributable to an increase in the accrual
rate for the self funded workers compensation plan, a shift in allocating a
greater percentage of workers compensation expense to costs of revenue to
reflect the occurrence of workers compensation claims, increased health
insurance costs, and reductions in per beneficiary costs limits established by
Medicare for cost reporting periods beginning January 1, 1998 and visits
performed by the Company=s Medicare agency in Florida who=s gross profit
margins approximated 48% in the quarter ended November 30, 1997.
Selling, general and administrative costs decreased $619,676 (15.5%)
to $3,378,125 for the quarter ended November 30, 1998, down from $3,997,801 for
the quarter ended November 30, 1997. Selling, general and administrative costs
increased as a percentage of revenue from 26.3% for the same quarter last year
to 26.5% for the quarter ended November 30, 1998. The decrease in selling,
general, and administrative expenses is primarily attributable to the results
of the Company=s restructuring efforts undertaken during the quarter and the
past year. During this period the Company consolidated branches and eliminated
various positions resulting from the integration of the Company=s new computer
technology.
Provision for Doubtful Accounts increased $38,722 from $88,735 for the
quarter ended November 30, 1997 to $127,457 for the quarter ended November 30,
1998 and as a percentage of net revenues for the quarter ended November 30,
1998 was 1.0% compared to 0.6 % for the quarter ended November 30, 1997. (See
Liquidity and Capital Resources).
Income from operations decreased to $8,805 for the quarter ended
November 30, 1998 from $958,106 for the quarter ended November 30, 1997, a
decrease of $949,301 or 99.1%. This decrease in income is attributable to
restructuring and termination expenses of $476,346, a reduction in the gross
profit margin of 3.9%, increases in the provision for doubtful accounts and
selling, general and administrative expenses as a percentage of revenue,
partially offset by a reduction in regulatory costs and related expenses of
$375,000.
9
<PAGE>
Six Months ended November 30, 1998 compared to Six Months ended November 30,
1997.
Net revenues for the six months ended November 30, 1998 decreased
$1,326,000 or 4.7% to $26,856,000 from $28,182,000 for the six months ended
November 30, 1997. This decrease is primarily attributable to a reduction in
net revenues from American Healthcare Services, the certified home health
agency in Florida, due to a restructuring plan initiated by the Company due to,
in part, a reduction in per beneficiary cost limits established by Medicare
effective for cost reporting periods beginning January 1, 1998 and,
additionally, the Company's decision to significantly reduce its market
presence in the Medicare Program.
Gross profit margin decreased to 30.5% for the six months ended
November 30, 1998 from 34.8% for the six months ended November 30, 1997. The
decrease in the gross profit margin is primarily attributable to an increase in
the accrual rate for the self funded workers compensation plan, a shift in
allocating a greater percentage of workers compensation expense to costs of
revenue to reflect the occurrence of workers compensation claims, increased
health insurance costs, reductions in per beneficiary costs limits established
by Medicare for cost reporting periods beginning January 1, 1998 and in the
number of visits performed by the Company=s Medicare agency in Florida which
had a gross profit margin of approximately 48% in the six months ended November
30, 1997.
Selling, general and administrative costs decreased $730,000 (9.7%) to
$6,763,000 for the six months ended November 30, 1998, down from $7,494,000 for
the six months ended November 30, 1997. Selling, general and administrative
costs increased as a percentage of revenue from 26.6% for the same period last
year to 25.2% for the six months ended November 30, 1998. The decrease in
selling, general, and administrative expenses is primarily attributable to the
results of the Company=s restructuring efforts undertaken during the six months
and the past year. During this period the Company consolidated branches and
eliminated various positions resulting from the integration of the Company=s
new computer technology.
Provision for Doubtful Accounts increased $251,000 from $134,000 for
the six months ended November 30, 1997 to $385,000 for the six months ended
November 30, 1998 and as a percentage of net revenues for the six months ended
November 30, 1998 was 1.4% compared to 0.5 % for the six months ended November
30, 1997. The six month period in 1998 reflects an increase in the bad debt
provision rate for accounts receivable necessitated by billing and collection
difficulties that continued into 1998. (see Liquidity and Capital Resources).
Income from operations decreased to $400,000 for the six months ended
November 30, 1998 from $1,732,000 for the six months ended November 30, 1997, a
decrease of $1,333,000 or 76.9%. This decrease is attributable to restructuring
and termination expenses of $476,346, a reduction in the gross profit margin of
4.5%, increases in the provision for doubtful accounts, partially offset by
selling, general and administrative expenses as a percentage of revenue and a
reduction in regulatory costs and related expenses of $375,000.
Financial Condition, Liquidity and Capital Resources
As of November 30, 1998 cash and cash equivalents were $2,165,000 as
compared with $1,867,000 at May 31, 1998. The net increase of $298,000 resulted
primarily from the following events: overpayment by Medicare of approximately
$1,533,000 partially offset by payments to Medicare of approximately $1,135,000
from prior overpayments that resulted from changes associated with the
reimbursement structure of Medicare reflected by both changes in IPS and
regional cost limits; $7,076,000 of proceeds from a new $10 million revolving
Credit Facility partially offset by payments to the prior credit facility of
$6,208,000 and loan costs of $204,000; termination and related expenses of
$176,000, income tax refunds received of $976,000; and funding the costs
associated with an additional $1,468,000 of receivables.
10
<PAGE>
The nature of the Company's business requires weekly payments to its
personnel at the time they render services, while it receives payment for
services rendered over an extended period of time (60 to 180 days or longer),
particularly when the payor is an insurance company, medical institution or
governmental unit. Accounts receivable represents a substantial portion of
current and total assets at November 30, 1998 and 1997.
The Company currently has available a line of credit with a bank which
allows for borrowings of up to $10,000,000 (the ACredit Facility@). Pursuant to
the Credit Facility, the amount the Company may borrow is limited up to 80
percent of eligible accounts receivables that are aged less than 180 days at
LIBOR +3 and the remaining eligible receivables at LIBOR +6. The Credit
Facility provides for the lender to receive a security interest in all of the
assets of the Company and its subsidiaries. As of November 30, 1998, the
borrowing base equaled approximately $6,927,000, and the outstanding balance of
the funds advanced to the Company pursuant to the Credit Facility, as of such
date, was $7,076,000. A payment of approximately $186,000 was paid on December
17, 1998, subsequent to the quarter ended November 30, 1998. To date, total
borrowings under the Credit Facility equal approximately $7,076,000 and as of
January 18, 1999, the date of this filing, the outstanding loan balance is
$6,890,000. As of November 30, 1998 the Company was not in violation of any
financial covenants contained in the Credit Facility.
The Company intends to meet its long-term liquidity needs through
available cash, cash flow and the new Credit Facility. To the extent that such
sources are inadequate, the Company will be required to seek additional
financing. In such event, there can be no assurance that additional financing
will be available to the Company on satisfactory terms.
Other than the matters described above, the Company does not
anticipate any extraordinary material commitments for capital expenditures for
the Company's current fiscal year.
Forward Looking Statements
Certain statements in this report on Form 10-Q constitute"
forward-looking statements" within the meaning of the Private Securities
Litigation Reform Act of 1995. These statements are typically identified by
their inclusion of phrases such as "the Company anticipates", "the Company
believes" and other phrases of similar meaning. These forward looking
statements are based on the Company's current expectations. Such
forward-looking statements involve known and unknown risks, uncertainties, and
other factors that may cause the actual results, performance or achievements of
the Company to be materially different from any future results, performance or
achievements expressed or implied by such forward- looking statements. The
potential risks and uncertainties which could cause actual results to differ
materially from the Company's expectations include the impact of further
changes in the Medicare reimbursement system, including any changes to the
current IPS and/or the ultimate implementation of a prospective payment system;
government regulation; health care reform; pricing pressures from third-party
payors, including managed care organizations; retroactive Medicare audit
adjustments; and changes in laws and interpretations of laws or regulations
relating to the health care industry. This discussion should be read in
conjunction with the attached consolidated financial statements and notes
thereto, and with the Company's audited financial statements and notes thereto
for the fiscal year ended May 31, 1998.
PART II: OTHER INFORMATION
Item 1. Legal Proceedings
As part of the Company's restructuring program, the Company relocated
the offices of its Medicare agency and the Company's Florida operation center
to smaller and less costly facilities in Miramar, Florida from Miami Lakes,
Florida. Unfortunately, the Company was unable to find sub-tenants for the
vacated office space in Miami Lakes. Therefore, the landlord of the Miami Lakes
offices obtained a judgement against the
11
<PAGE>
Company's wholly owned subsidiary, Star Multi Care Services of Florida, Inc.
("Star of Florida") for the sum of $1,045, 342. Additionally, the landlord has
instituted a law suit against Star Multi Care Services, Inc. seeking to enforce
a guaranty that the landlord has alleged that the Company had previously
provided to the landlord at initial term of the Miami Lakes lease. The Company
and Star of Florida have entered into a settlement agreement with the landlord
covering both the judgement against Star of Florida and the pending suit for
the sum of $300,000.
Item 6. Exhibits and Reports on Form 8-K.
a. Exhibits:
10.1 Lease dated December 7, 1998 between Lighthouse Hicksville
Limited Partnership, a New York limited partnership, and Star
Multi Care Services, Inc., a Delaware corporation, for the
Company's office space in Hicksville.
27. Financial Data Schedule
b Reports on From 8-K.
None
12
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INDEX OF EXHIBITS
10.1 Lease dated December 7, 1998 between Lighthouse Hicksville Limited
Partnership, a New York limited partnership, and Star Multi Care
Services, Inc., a Delaware corporation, for the Company's office space
in Hicksville.
27 Financial Data Schedules
<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 hereunto duly authorized.
STAR MULTI CARE SERVICES, INC.
January 19, 1999 By: s/Eric B. Sargent
- ---------------- --------------------------------
Date Eric B. Sargent
Controller and Treasurer
(Principal Accounting Officer)
<PAGE>
OFFICE SPACE LEASE
THIS OFFICE SPACE LEASE ("Lease") is made as of December 7, 1998
between Lighthouse Hicksville Limited Partnership, a New York limited
partnership, as landlord ("Landlord"), and Star Multi Care Services, Inc., a
Delaware corporation, as tenant
("Tenant").
W I T N E S S E T H:
The parties hereto, for themselves, their successors and permitted
assigns, hereby covenant as follows:
ARTICLE I:
BASIC LEASE PROVISIONS:
SECTION 1.1 Basic Lease Provisions.
Address of Landlord:
Lighthouse Hicksville Limited
Partnership
c/o Lighthouse Real Estate Ventures Inc.
300 Merrick Road
Suite 303
Lynbrook, NY 11563
Address of Tenant: 33 Walt Whitman Road
Suite 302
Huntington Station, New York 11746
PREMISES: A portion of the fourth (4th) floor of the Building shown
cross-hatched on the floor plan attached hereto as Exhibit A consisting of
2,200 rentable square feet, which the parties acknowledge and agree is the
approximate total rentable area of the Premises as of the date of this Lease
notwithstanding any subsequent remeasurement of the Premises.
TERM: Five (5) years, beginning on the Commencement Date
and ending on the Expiration Date.
COMMENCEMENT DATE: The date on which (1) the Premises are ready for
occupancy (as such date may be adjusted to an earlier date by the total number
of days delay, if any, caused by Tenant's failure to comply with any of the
provisions of this Lease), and (2) Tenant shall take possession of and occupy
the Premises, or any portion thereof, whichever of said dates shall first
occur. The Premises shall be deemed ready for occupancy when the construction
of Landlord's Work is Substantially Completed. Landlord will give Tenant
written notice at least five (5) days in advance of the date when Landlord
expects the Premises to be ready for occupancy by Tenant. When the Commencement
Date has been so determined, the parties hereto shall execute a written
agreement to confirm the Commencement
<PAGE>
Date. Notwithstanding the foregoing, Landlord shall use commercially reasonable
efforts to obtain a certificate of completion upon Substantial Completion of
Landlord's Work.
EXPIRATION DATE: The first to occur of (a) the day immediately
preceding the first day of the sixty-first (61st) month following the
Commencement Date, or (b) such earlier date upon which the Term may expire or
be terminated pursuant to this Lease or pursuant to Law.
BASE RENT: From the Commencement Date until the Expiration
Date, Base Rent as follows:
Lease Year Annual Monthly
---------- ------ -------
First $47,850.00 $3,987.60
Second $49,566.00 $4,130.50
Third $51,350.64 $4,279.22
Fourth $53,206.67 $4,433.89
Fifth $55,136.93 $4,594.74
For purposes of Base Rent each Lease Year shall consist of twelve consecutive
months except that the First Lease Year shall end on the last day of the month
in which the first anniversary of the Commencement Date occurs. In the event
the Commencement Date is a day other than the first day of a calendar month,
the Tenant shall pay to the Landlord, on or before the Commencement Date, a pro
rata portion of the monthly installment of Rent, such pro rata portion to be
payable at the monthly rate for the first year and based on the number of days
remaining in such partial month after the Commencement Date.
BASE RENT COMMENCEMENT DATE: The Commencement Date.
PERMITTED USE: General office use, and related uses incident thereto
in accordance with those uses generally allowed in office buildings located
within Hicksville, New York but in no event for a Prohibited Use.
TENANT'S SHARE: 2.76 %.
SECURITY DEPOSIT: $7,975.00.
SECTION 1.2 Other Definitions. All capitalized terms used in this
Lease shall have the meanings given to them in either Section 1.1 or Exhibit B
attached hereto.
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ARTICLE II
PREMISES AND TERM
SECTION 2.1 Lease of Premises. Landlord hereby leases to Tenant, and
Tenant hereby hires from Landlord, the Premises for the duration of the Term,
for the rents herein reserved, and upon and subject to the covenants, terms and
conditions of this Lease.
SECTION 2.2 Term. The Term shall commence on the Commencement Date and
shall end at midnight of the Expiration Date.
SECTION 2.3 Tenant's Waiver. Tenant expressly waives (a) any right to
rescind this Lease under Section 223-a of the Real Property Law of the State of
New York (or any other law of like import, now or hereafter in force) and (b)
the right to recover any damages resulting from Landlord's failure to deliver
possession of the Premises on any fixed date for any reason whatsoever. No such
failure shall (i) affect the validity of this Lease or the obligations of
Tenant hereunder, (ii) be construed to extend the Term, or (iii) give rise to
any claim by Tenant for damages or for rescission of this Lease; provided,
however, that the Rent payable hereunder shall be abated (provided Tenant is
not responsible for Landlord's inability to deliver possession) until after
Landlord shall have given written notice to Tenant that the Premises are
available for Tenant's occupancy or until Tenant occupies any portion of the
Premises, whichever shall first occur. Notwithstanding the foregoing, in the
event Landlord's Work is not Substantially Completed on or before March 1,
1999, Tenant shall have the right to terminate this Lease upon written notice
to Landlord prior to occupancy of the Premises and any moneys paid by Tenant
hereunder to Landlord shall be returned to Tenant.
SECTION 2.4 Delivery of Premises. Tenant agrees that (a) Tenant is
leasing the Premises in its "AS IS" condition, (b) Landlord shall have no
obligation to perform any work whatsoever to prepare the Premises for Tenant's
occupancy other than Landlord's Work which shall be performed in accordance
with the Work Letter attached hereto as Exhibit E, and (c) Landlord and
Landlord's agents have made no representations, warranties or promises
whatsoever with respect to the Premises, the Building, the land underlying the
Building, the rents, leases, Taxes, or any other matter or thing, 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 this
Lease. The taking of occupancy of the whole or any part of the Premises by
Tenant shall be conclusive evidence as against Tenant that (i) the Premises
were substantially as shown on Exhibit A, (ii) Tenant accepts possession of
same, (iii) the Premises and the Building were in good and satisfactory
condition at the time
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such occupancy was so taken, and (iv) Landlord's Work has been performed in
accordance with Exhibit E.
ARTICLE III
RENTS
SECTION 3.1 Base Rent. Beginning on the Base Rent Commencement Date
and continuing thereafter during the Term, Tenant shall pay to Landlord as Base
Rent for the Premises the amounts stated in Section 1.1 under the definition of
"Base Rent". Tenant shall pay the Base Rent in equal monthly installments in
advance on the first day of each calendar month of the Term, except that the
first installment of Base Rent (for the month commencing on the Base Rent
Commencement Date) shall be paid upon the execution of this Lease.
SECTION 3.2 Additional Rent. All sums payable by Tenant under the
provisions of this Lease other than Base Rent, including, without limitation,
Tenant's Tax Payment, and all interest and penalties that may accrue thereon in
the event of Tenant's failure to pay such amounts when due, and all damages,
costs and expenses which Landlord may incur by reason of any default of Tenant
or failure on Tenant's part to comply with the terms of this Lease shall be
considered additional rent ("Additional Rent") hereunder, and shall be due and
payable within 10 days of demand therefor unless another time is expressly
provided for in this Lease. Landlord shall have the same remedies for failure
to pay Additional Rent as for non-payment of Base Rent.
SECTION 3.3 Payment of Base Rent and Additional Rent. Tenant shall
pay the Base Rent and Additional Rent (collectively, the "Rents") when due,
without notice or demand, and without any abatement, deduction or set-off,
except for any notices, demands, abatements, deductions or set-offs expressly
provided for elsewhere in this Lease. Tenant shall pay the Rents to Landlord's
Agent in lawful money of the United States at the address set forth in the
definition of Landlord's Agent or such other place as Landlord may designate by
notice to Tenant by check so that funds will be available to Landlord on or
prior to the due date of such Rents.
SECTION 3.4 Rent for a Partial A Month. The Rent for any portion of a
calendar month included in the Term shall be prorated in the ratio that the
number of days in such portion bears to the actual number of days in such
month.
SECTION 3.5 Interest. If any payment of Rent is not paid within five
(5) days of the due date thereof, interest shall commence to accrue on such
payment at a rate per annum (the "Interest Rate") equal to the lesser of (a)
the then current prime or base rate publicly announced from time to time by
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Citibank, N.A., or its successor, in New York, New York plus 7%, or (b) the
maximum rate of interest chargeable under Law, from and after the fifth (5th)
day following the due date thereof until fully paid.
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ARTICLE IV
TAX EXPENSE ADJUSTMENTS
SECTION 4.1 Tax Expense Definitions. For the purposes of this Lease,
the following terms shall have the indicated meanings:
4.1.1 "Tax Year" means any period of 12 consecutive calendar months,
commencing January 1 or such other period of twelve months as hereafter may be
duly adopted as the fiscal year for real estate tax purposes for the County of
Nassau, the Town of Oyster Bay, or any other taxing authority having
jurisdiction over the Building.
4.1.2 "Tax Base" means the product obtained by multiplying: (a) the
amount for which the Building is assessed for the purpose of establishing Taxes
to be paid by Landlord for the Tax Year commencing January 1, 1999 (with
respect to County Taxes) and fiscal year 1998/99, (with respect to School and
Village Taxes) by (b) the real estate tax rate for such Tax Year.
4.1.3 "Taxes" for any Tax Year, means the aggregate amount of all (a)
real property taxes imposed by the town and county in which the Taxable
Property is located and each and every installment thereof, which shall during
such Tax Year be levied, assessed, imposed, or become due and payable, or a
lien upon, or arise in connection with, the ownership, use, occupancy or
possession of the Taxable Property; (b) general or specific assessments
assessed against the Taxable Property by any governmental authority; (c) other
taxes, governmental impositions, duties, charges and levies of every kind,
character and nature whatsoever, extraordinary and ordinary, foreseen and
unforeseen, and each and every installment thereof, which shall during such Tax
Year be levied, assessed, imposed, or become due and payable, or a lien upon,
or arise in connection with, the ownership, use, occupancy or possession of the
Taxable Property; (d) water rent, water charges, sewer rent, sewer charges, and
any and all other charges of any kind whatsoever imposed and/or assessed upon
the land, building and/or other improvements of which the Premises form a part
including but not limited to vault charges and taxes, environmental control
board liens and notices, sidewalk violations and notices, emergency repair
liens and notices and any taxes or other charges in lieu of the foregoing
whether or not such taxes, assessments, government levies and charges are
general, special or ordinary and/or extraordinary, unforeseen as well as
foreseen, e) any expenses incurred by Landlord, including in each case,
attorneys' fees and disbursements, payments to appraisers and fees to experts
and other witnesses, in contesting any of the items referred to in clauses (a),
(b), (c) and (d) above or in contesting the assessed valuation of all or any
part of the Taxable Property in respect
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of such Tax Year, regardless of when such expenses are actually incurred;
provided, however, that Taxes shall exclude the following: (i) all penalties
and interest thereon (except interest on Taxes payable in installments); (ii)
any water rates and charges, sewer rental and utility taxes to the extent any
of the same are included in Operating Expenses; and (iii) any inheritance,
estate, succession, transfer, gains, mortgage recording, gift, franchise,
corporation, income or profit tax or capital levy that is imposed upon Landlord
so long as none of the foregoing exclusions are substitutes for real property
taxes otherwise imposed in connection with the ownership, use, occupancy or
possession of the Taxable Property. Notwithstanding the foregoing, for purposes
of this Lease, Taxes shall be deemed payable by Landlord in the smallest amounts
over the longest period of time permitted by law without the imposition of any
additional fees or charges.
4.1.4 "Tax Statement" means a statement which Landlord may render to
Tenant at any time during or after the Term showing the Tenant's Tax Payment.
4.1.5 "Taxable Property" means the Building and the Land and any other
interest of Landlord in the Building and the Land, and all rights, privileges
and interests appurtenant thereto.
SECTION 4.2 Payment of Tenant's Share of Taxes. (a) Tenant shall pay
to Landlord as Additional Rent for each Tax Year, all or any portion of which
shall be within the Term an amount ("Tenant's Tax Payment") equal to Tenant's
Share of the Taxes payable for such Tax Year in excess of the Taxes paid for
the Tax Base. Landlord acknowledges that Tenant shall not be required to make a
Tax Payment for the Base Year and that after the Base Year, Tenant's Tax
Payment shall be limited to Tenant's Share of Taxes in excess of Taxes for the
Base Year. In the event that only a portion of any Tax Year shall be within the
Term, Tenant's Tax Payment, if any, for such Tax Year shall be prorated, based
upon the number of calendar days of such Tax Year within the Term and a 365 day
year. Tenant hereby waives any rights that Tenant may have to be exempt from
the payment of Taxes or Tenant's Tax Payment by virtue of diplomatic status or
otherwise.
(b) Tenant's Share of tax increases and Tenant's monthly share of tax
increases are Additional Rent and shall be payable by Tenant as herein provided
regardless of the fact that Tenant may be exempt from the payment of any taxes
for any other reason whatsoever.
(c) Tenant's Tax Payment for each Tax Year during the Term (as
reflected on the latest Tax Statement or revised Tax Statement received by
Tenant) shall be due and payable by Tenant ten (10) days after Landlord's
demand therefor. In addition, Tenant shall pay to Landlord monthly,
simultaneously with the
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monthly installments of Base Rent, one-twelfth (1/12th) of Tenant's Tax Payment
as estimated by Landlord, so that Landlord shall have sufficient money to pay
such Taxes at least thirty (30) days prior to their due date. If at any time
when any such Taxes become due and payable, Tenant has deposited an
insufficient amount to pay Tenant's Tax Payment, Tenant shall immediately
deposit the amount of such deficiency with Landlord. If, on the other hand,
Tenant shall have deposited more than sufficient funds to pay the same, the
excess shall be retained (without interest) to be applied against such payments
thereafter required to be made for such Taxes. Upon the written direction of
Landlord Tenant shall immediately pay the monthly Tenant's Tax Payment and any
such deficiency to the holder of any mortgage which may now or hereafter affect
the Building of which the Premises form a part.
SECTION 4.3 Tax Statement; Adjustments and Revisions. (a) Landlord
shall deliver to Tenant a Tax Statement for each Tax Year, all or any portion
of which shall be within the Term. Tenant's Tax Payment shall be computed and
payable on the basis of the assessed valuation (and the Taxes) for the Taxable
Property in effect at the time the Tax Statement is delivered to Tenant,
regardless of any then pending proceeding for reduction of such assessed
valuation.
(b) At any time after the Commencement Date, Landlord may deliver a
revised Tax Statement for any particular Lease Year, if (i) any additional
Taxes are imposed or assessed with respect to such Lease Year, (ii) any Taxes
are refunded to Landlord relating to a Tax Year during the Term, or (iii) the
previous Tax Statement for such Lease Year was in error in any respect.
(c) Landlord's failure to render a Landlord's Statement during or with
respect to any Tax Year shall not prejudice Landlord's right to render a Tax
Statement during or with respect to any subsequent Tax Year, and shall not
eliminate or reduce Tenant's obligation to pay Additional Rent pursuant to this
Article IV for such Tax Year.
4.3.1 Substitution of Taxes. If at any time during the term hereof
under the laws of the State of New York, and/or any county, town, city,
village, hamlet or any other political subdivision whatsoever, which the
Premises are situate, a tax or excise on rents or any and all other taxes of
any kind whatsoever, and howsoever described is levied or assessed by said
state and/or any such county, town, city, village, hamlet or other political
subdivision as a substitute in whole or in part for taxes assessed or imposed
by said state and/or county, town, city, village, hamlet or other political
subdivision on land and buildings, Tenant hereby covenants and agrees to pay
and discharge any such other tax or excise before any fine, penalty, interest
or cost may be added thereto.
-8-
<PAGE>
SECTION 4.4 Reduction In Taxes. (a) Only Landlord shall be eligible to
institute tax reduction or other proceedings to contest or reduce the assessed
valuation of (or all or any portion of the Taxes applicable to) the Taxable
Property. In the event that, after a Tax Statement has been sent to Tenant, the
Tax Base is reduced (as a result of settlement, final determination of legal
proceedings or otherwise), and as a result thereof a refund of Taxes is
actually received by or on behalf of Landlord, then, promptly after receipt of
such refund, Landlord shall send Tenant a revised Tax Statement adjusting the
Tax Base and Tenant's Tax Payment for such Tax Year (taking into account the
expenses actually incurred in obtaining same and setting forth Tenant's Share
of such refund).
(b) The benefit of any discount for any early payment or prepayment of
Taxes shall accrue solely to the benefit of Landlord, and such discount shall
not be subtracted from the Additional Rent payable under this Article IV.
(c) In the event that, after a Tax Statement has been sent to Tenant,
the Tax Base which had been utilized in computing the Tax Base is reduced (as a
result of settlement, final determination of legal proceedings or otherwise)
then and in such event: (i) the Taxes and Tenant's Tax Payment shall be
retroactively adjusted to reflect such reduction, and (ii) all retroactive
Additional Rent resulting from such retroactive adjustment, if any, shall be
forthwith payable when billed by Landlord. Landlord promptly shall send to
Tenant a statement setting forth the basis for such retroactive adjustment and
additional rent payments.
SECTION 4.5 Tenant's Objection to Tax Statement. Each Tax Statement
shall be conclusively binding upon Tenant unless (a) Tenant shall send
Landlord's Agent a notice (an "Objection Notice") within 30 days of receipt
thereof stating that Tenant objects to Landlord's determination therein of
Tenant's Tax Payment, and specifying the reasons for such objection, and (b)
within 30 days after sending the Objection Notice, Tenant shall give Landlord's
Agent a subsequent notice that it still disputes Landlord's determination of
such Tenant's Tax Payment specifying to the extent possible the particular
respects in which such Tax Statement is claimed to be inaccurate and that it
requests that such dispute be determined by a declaratory judgment in a court
of competent jurisdiction, the legal fees, costs and expenses of such
proceeding shall be borne by the unsuccessful party (and if both Landlord and
Tenant are partially successful, such fees and expenses shall be apportioned
between Landlord and Tenant in inverse proportion to the amount by which such
decision is favorable to each party, e.g. if the Landlord is 70% successful,
Landlord shall bear 30% of such fees and expenses). No dispute or proceeding by
Tenant shall excuse or abate Tenant's obligation
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to make the payments required by this Article IV pending resolution of Tenant's
objection.
SECTION 4.6 Termination of Lease; Tenant's Failure to Pay Tax Payment.
The expiration or termination of this Lease during any Tax Year for any part or
all of which there is Additional Rent payable under this Article IV shall not
affect the rights or obligations of Tenant hereunder respecting such Additional
Rent and any Tax Statement relating to such Additional Rent may be sent to
Tenant subsequent thereto, and all such rights and obligations shall survive,
any such expiration or termination. Any payments due under such Tax Statement
shall be payable by Tenant within twenty (20) days after such statement is sent
to Tenant. The failure of Tenant to make payment of Additional Rent, as the
same is due hereunder, shall entitle Landlord to exercise all rights and
remedies provided herein for the non-payment of rent, and Landlord shall be
entitled to commence a proceeding for the non-payment of rent by reason of the
nonpayment of Additional Rent. The acceptance of the Base Rent due hereunder
shall not constitute nor be deemed a waiver of Landlord's rights with respect
to any Additional Rent due pursuant to the terms of this Lease.
SECTION 4.7 Landlord Payments. If Landlord shall receive a refund of
Taxes for any Tax Year, Landlord shall permit Tenant to credit against
subsequent payments due under this Article IV Tenant's Share of the refund for
overpayment of Tenant's Tax Payment, but not to exceed the amount of Tenant's
Tax Payment actually received by Landlord in respect of the Tax Year to which
such refund applies. Wherever in this Lease Landlord is obligated to refund any
excess payments of Additional Rent made to Landlord by Tenant, Landlord shall
have the option of paying such excess directly to Tenant or crediting the
amount of such excess to the next installments of Additional Rent payable under
this Lease; provided, however, that (a) if the Term shall have expired and no
Base Rents are due and owing from Tenant, Landlord shall refund such excess to
Tenant within 20 days of Tenant's demand therefor, and (b) if any Base Rents
are due and owing to Landlord under this Lease, Landlord may offset the amount
of any such Base Rents against such excess.
ARTICLE V
USE AND COMPLIANCE WITH LAW
SECTION 5.1 Use. Tenant shall use and occupy the Premises for the
Permitted Use and for no other purpose. Tenant shall not at any time use or
occupy or allow any Person to use or occupy the Premises, or do or permit
anything to be done or kept in or about the Premises or the Building that
constitutes a Prohibited Use. Tenant, at its expense, shall procure and at all
times comply with the terms and conditions of any license or permit
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required for the proper and lawful conduct of the Permitted Use in the
Premises. Landlord reserves the right to charge Tenant for any excess wear and
tear to the Premises or the Building caused by Tenant, its employees, agents or
invitees. Said amount shall be payable, as Additional Rent, within ten (10)
days of Landlord's submission of a bill therefor.
SECTION 5.2 Compliance with Law. Tenant shall, at Tenant's expense,
comply with all Laws now or hereafter existing, whether or not such compliance
requires work which is structural or non-structural, ordinary or extraordinary,
foreseen or unforeseen, that impose any obligation, order or duty on Landlord
or Tenant: (a) with respect to the Premises or any Improvement or Tenant's
Property (unless such obligation, order or duty arises from Tenant's mere use
of the Premises for the Permitted Use); or (b) with respect to the Building or
any part thereof (including the Premises) if such obligation, order or duty
arises from (i) the manner of conduct of Tenant's business or operation of its
equipment therein, unless such obligation, order or duty arises from Tenant's
mere use of the Premises for its Permitted Use; (ii) any cause or condition
created by or at the instigation of Tenant, including, without limitation, any
Improvement or Alteration; (iii) the breach of any of Tenant's obligations
hereunder; or (iv) any Hazardous Material brought into the Building by Tenant,
any subtenant of Tenant or any of their agents, contractors or invitees. Tenant
shall promptly forward to Landlord any notice it receives of the violation of
any Law involving the Premises. Tenant shall pay, within 20 days after demand
therefor, all the costs, expenses, fines, penalties and damages that may be
imposed upon Landlord by reason of or arising out of Tenant's failure to comply
with the provisions of this Section 5.2.
SECTION 5.3 Rules and Regulations. (a) Tenant shall observe and comply
with the Building Standards and the Building Rules and Regulations as set forth
in Exhibit C, attached hereto (collectively, the "Rules and Regulations"), and
any and all revisions, supplements, amendments, modifications or additions
thereto as may be adopted from time to time by Landlord. Landlord shall not be
responsible or liable to Tenant for violations of the Rules and Regulations by
other tenants and occupants of the Building.
(b) In the event of a conflict or inconsistency between the Building
Rules and Regulations and any other provision of this Lease, the terms of this
Lease shall be controlling.
SECTION 5.4 ADA Compliance. Tenant shall promptly comply with all
requirements relating to the Americans with Disabilities Act, 42 U.S.C. ss.
12,101 et seq., and the regulations promulgated thereunder as in effect from
time to time ("ADA Requirements"). Tenant shall have exclusive responsibility
for compliance with
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ADA Requirements pertaining to the interior of the Premises, including for the
design and construction of the access thereto and egress therefrom.
SECTION 5.5 Hazardous Materials. Tenant shall not cause or permit any
Hazardous Materials to be used, stored, transported, released, handled,
produced, or installed in, on or from the Premises or the Building. In the
event of a breach of the provisions of this Section 5.5, Landlord shall have
the right, in addition to all other rights and remedies of Landlord under this
Lease or at law, to require Tenant to remove any such Hazardous Materials from
the Premises in the manner prescribed by law for such removal. The provisions
of this Section 5.5 shall survive the expiration or termination of this Lease.
ARTICLE VI
SERVICES AND UTILITIES
SECTION 6.1 Electricity.
6.1.1 Electric Inclusion Amount. (a) On and after the Commencement
Date, electricity shall be supplied to the Premises on a rent inclusion basis,
and, accordingly, the Base Rent includes an amount (the Electric Inclusion
Amount") equal to $412.50 per month ($2.25 per rentable square foot of the
Premises per annum). From time to time during the Term, Landlord may cause
surveys of Tenant's electricity usage to be made by a reputable electrical
consultant selected by Landlord ("Landlord's Electrical Consultant") and, if
such survey shall determine that the then Electric Inclusion Amount does not
accurately reflect the amount and/or cost of electricity consumed in the
Premises, the then Electric Inclusion Amount shall be adjusted by Landlord's
Electrical Consultant in accordance with such survey to reflect the cost
(including all taxes and indirect costs) to Landlord of the electricity
consumed by Tenant based on Tenant's usage of electricity as indicated by such
survey. The costs of such survey shall be borne solely by Tenant unless said
survey does not result in an increase in the Electric Inclusion Amount.
Landlord may also cause the Electric Inclusion Amount to be adjusted without
survey from time to time in accordance with calculations by Landlord's
Electrical Consultant to reflect changes in the fuel adjustment component of
the utility charges or other changes in the charges by the utility company
supplying electricity to Landlord. Tenant shall pay the amount of any increase
in the Electric Inclusion Amount retroactively from the date of the survey of
Tenant's electricity usage and/or from the date when the increased charges to
Landlord from the utility company became effective, as the case may be, such
amount to be paid within 20 days upon billing therefor by Landlord. If any tax
is imposed upon the Electric Inclusion Amount or any other Additional Rent
received by Landlord from the sale or resale of electricity to Tenant, Tenant
agrees that to the extent permitted
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by Law, Tenant shall reimburse such taxes to Landlord as Additional Rent within
20 days after demand therefor.
(b) If, at any time during the Term, Landlord is prohibited by Law or
the requirements of the New York State Public Service Commission from supplying
and charging for electricity on a rent inclusion basis strictly in accordance
with the provisions of this Section 6.1.1., including by reason of the
imposition of any tax, tariff or other cost on Landlord which under applicable
Laws, Landlord is not permitted to pass through in full on the basis
contemplated by this Section 6.1.1, Landlord shall supply electricity to the
Premises and, at Landlord's election, may charge for the electricity on a
submetered basis or a direct supply basis, as selected by Landlord. During any
period in which electricity is to be supplied to the Premises on a direct
supply basis, Tenant shall obtain and pay for electricity directly from the
public utility company furnishing electricity to the Building and the Electric
Inclusion Amount shall be eliminated from Base Rent. Notwithstanding anything
contained in this Section 6.1 to the contrary, all meters and all additional
panel boards, feeders, risers, wiring and other conductors or equipment that
may be required for the Premises to receive electricity on a direct supply or
submetered basis shall be installed by Landlord at Tenant's expense.
6.1.2 Electrical Capacity. Tenant covenants that its use of
electricity will not exceed the basic capacity of the existing electrical
wires, risers, conduits, feeders and switchboards currently supplying
electricity to the Premises. Tenant shall not make or perform, or permit the
making or performing of, any alterations to wiring installations or other
electrical facilities in or serving the Premises without the prior consent of
Landlord in each instance which consent shall not be unreasonably withheld. If
Landlord shall grant its consent, all additional feeders, risers or other
equipment required therefor shall be installed by Landlord and the cost thereof
shall be paid by Tenant, as Additional Rent, upon demand.
SECTION 6.2 Elevators. Landlord shall provide necessary non-exclusive
passenger elevator service and freight elevator service on Business Days from
8:00 a.m. to 6:00 p.m. (collectively, "Business Hours") and have at least one
passenger elevator capable of servicing the Premises subject to call at all
other times. Landlord shall have the right to change the operation or manner of
operating any of the elevators in the Building and shall have the right to
discontinue, temporarily or permanently, the use of any one or more cars in any
of the banks of elevators.
SECTION 6.3 HVAC. Landlord shall provide air conditioning, ventilation
and heating during Business Days and at other hours as Tenant may request on a
submetered basis, provided that such
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request shall be made prior to 12:00 o'clock noon in the case of after-hours
service on Monday through Friday and prior to 12:00 o'clock noon on Friday for
service on weekends. Requests shall be made in writing and delivered to the
Building manager's office in the Building. Tenant shall pay to Landlord,
Landlord's cost for providing any after-hours service. Landlord will establish
the hourly cost of such service, from time to time, including reasonable
physical depreciation and administration costs based upon the anticipated
operating life of the equipment as of the Commencement Date, which cost may be
increased from time to time. Landlord will render to Tenant and Tenant shall
promptly pay monthly bills for such service.
SECTION 6.4 Access to Premises. Subject to the terms of this Lease,
Tenant shall be entitled to access to the Premises 365 days per year, 7 days
per week and 24 hours per day.
SECTION 6.5 Cleaning. As long as Tenant is not in default under any of
the covenants of this Lease, Landlord shall remove Tenant's ordinary office
refuse and rubbish and shall provide office and window cleaning services for
the Premises on Business Days at Landlord's expense provided that the Premises
are kept in order by Tenant. If, however, the Tenant elects to cause the
Premises to be kept clean by Tenant, it shall be done at Tenant's sole expense,
in a manner satisfactory to Landlord. No one other than persons approved by
Landlord shall be permitted to enter the Premises or the Building for such
purpose. Tenant covenants and agrees that Tenant shall pay to Landlord on
demand the costs incurred by Landlord for: (a) extra cleaning work in the
Premises required because of: (i) misuse or neglect on the part of Tenant or
its employees or visitors; (ii) use of portions of the Premises for special
purposes requiring greater or more difficult cleaning work than office areas;
(iii) unusual quantity of interior glass surfaces; (iv) non-building standard
materials or finishes installed by or at the request of Tenant; and (b) removal
from the Premises and the Building of so much of any refuse and rubbish of
Tenant as shall exceed that ordinarily accumulated daily in the routine of
business office occupancy.
SECTION 6.6 Service Interruption: Limitation of Liability.
6.6.1 Service Interruption. Notwithstanding any provision of this
Lease to the contrary, Landlord reserves the right, upon reasonable notice to
Tenant except in case of emergency, without liability to Tenant, to interrupt,
curtail, stop or suspend service or operation of any of the Building Service
Systems (a) when Landlord is required to do so by Law or to adhere to a
recognized energy, water or other resource conservation program, or by the
guidelines, laws or recommendations promulgated by any Federal, state,
municipal or other governmental or quasi-governmental agency, bureau, board,
commission, department, office or other sub-division thereof, or the American
Society of
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Heating, Refrigeration and Air Conditioning Engineers (or its successor) or
otherwise, or (b) when necessary, by reason of accident, or emergency, or for
repairs, alterations, replacements, improvements, maintenance or testing
desirable or necessary in the reasonable judgment of Landlord to be made, until
such repairs, alterations, replacements or improvements, maintenance or testing
shall have been completed. Any such repairs, alterations, replacements or
improvements shall, to the extent possible but without the occurrence of
overtime or premium pay labor rates, be made with a minimum amount of
inconvenience to Tenant, and Landlord shall diligently prosecute same to
completion.
6.6.2 Limitation of Liability. Landlord shall have no responsibility
or liability for (a) failure to supply any service provided by the Building
Service Systems during any period referred to in Section 6.6.1, or (b) any
loss, damage or expense that Tenant may sustain or incur by reason of any
failure, inadequacy or defect in the character, quantity, quality or supply of
services or utilities furnished to the Premises or the Building for any reason
except for actual damage suffered by Tenant by reason of any such failure,
inadequacy or defect but only to the extent caused by the gross negligence or
willful misconduct of Landlord or its agents, employees or contractors, and
then only after actual notice thereof to Landlord and Landlord's failure to
cure within a reasonable time.
ARTICLE VII
INSURANCE AND INDEMNIFICATION
SECTION 7.1 Use of Premises. Tenant shall not do or permit anything to
be done in or about the Premises that might: (a) result in insurance companies
of good standing refusing to insure the Premises or the Building in amounts
satisfactory to Landlord, (b) result in the assertion of any defense by the
insurer in whole or in part to claims under any of such policies, or (c) result
in the cancellation of any insurance policy covering or relating to the
Premises or the Building. If by reason of any default by Tenant under this
Lease, or any Improvement or Tenant's Property in the Premises, or the use or
occupancy of the Premises by Tenant for other than the Permitted Use, (i) any
such insurance shall be canceled by the insurance carrier, then, in addition to
any other rights or remedies that Landlord may have under this Lease, Tenant
shall indemnify, defend and hold harmless the Landlord Parties against any loss
that would have been covered by such insurance, and (ii) the premiums for any
insurance on or for the Building (including rent insurance) are higher than
they otherwise would be, Tenant shall reimburse Landlord therefor, within 20
days after demand, as Additional Rent.
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SECTION 7.2 Insurance Requirements. At all times during the Term,
Tenant shall comply, at Tenant's expense, with the Insurance Requirements
attached hereto as Exhibit D.
SECTION 7.3 Indemnity. Tenant shall defend, indemnify and hold
harmless the Landlord Parties from and against any and all claims, demands,
liability, loss, damage, costs and expenses (including reasonable attorneys'
fees and disbursements) arising from or in connection with: (a) any breach or
default by Tenant in the full and prompt payment and performance of Tenant's
obligations under this Lease; (b) the use or occupancy or manner of use or
occupancy of the Premises by Tenant or any Person claiming under Tenant in
violation of the provisions of this Lease; (c) any act, omission or gross
negligence of Tenant or any of its subtenants or licensees or its or their
partners, principals, directors, officers, agents, invitees, employees or
contractors either prior to, during or after the expiration of the Term; (d)
any accident, injury or damage whatsoever (unless caused by the negligent acts
or omissions or intentional misconduct of any of the Landlord Parties)
occurring in or about the Building (as a result of actions or omissions by or
through Tenant); or the Premises either prior to, during or after the
expiration of the Term; (e) the performance of any Alteration in the Premises
(by or through Tenant) including, without limitation, Tenant's failure to
obtain any permit, authorization or license or failure to pay in full any
contractor, subcontractor or materialmen performing work on such Alteration
(unless caused by the negligent acts or omissions or intentional misconduct of
any of the Landlord Parties); and (f) any Mechanics Lien filed, claimed or
asserted in connection with any Alteration or any other work, labor, services
or materials done for or supplied to Tenant, or any Person claiming through or
under Tenant. If any claim, action or proceeding is brought against any of the
Persons indemnified under this Section 7.3 for a matter covered by this
indemnity, Tenant, upon notice from the indemnified Person, shall defend such
claim, action or proceeding by counsel reasonably satisfactory to Landlord and
the indemnified Person.
ARTICLE VIII
ALTERATIONS, REPAIRS AND MAINTENANCE
SECTION 8.1 Alterations by Tenant. Tenant may not make Alterations in
and to the Premises unless (a) Tenant is not in default hereunder, (b) Tenant
receives Landlord's prior written consent, which consent may be withheld and/or
conditioned upon such requirements as Landlord may determine in its sole and
absolute discretion, including, without limitation, Landlord's approval of (i)
Tenant's contractors and (ii) all necessary architectural, mechanical,
electrical, sprinkler and structural plans and specifications prepared at
Tenant's expense by a
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licensed architect or engineer reasonably satisfactory to Landlord, and (c)
such Alterations are in compliance with the Building Standards. In addition to
the insurance required to be maintained by Tenant pursuant to Exhibit D,
throughout the performance of any Alteration, Tenant shall maintain builder's
risk insurance, with vandalism and malicious mischief endorsements, complete
value form covering all physical loss (including any loss of or damage to
supplies, machinery and equipment) in connection with the performance of such
Alteration. Notwithstanding the foregoing, Landlord's consent shall not be
required for non-structural Alterations costing $5,000 or less provided the
same do not affect the Building Systems.
SECTION 8.2 Tenant's Property. All office equipment and other
machinery, equipment and trade fixtures used in connection with Tenant's
business that is installed in the Premises by or for the account of Tenant
without expense to Landlord, whether or not attached to or built into the
Premises, and that may be removed without substantial damage to the Premises or
the Building, and all furniture, furnishings and other articles of movable
personal property owned by Tenant and located in the Premises shall remain the
property of Tenant ("Tenant's Property") and may be removed by Tenant at any
time during the Term so long as Tenant is not in default hereunder beyond the
expiration of any applicable cure period. Tenant shall repair, at its sole
expense, any damage to the Premises and shall reimburse Landlord for the costs
of repairing any damage to the Building resulting from the installation or
removal of Tenant's Property. Any item installed for Tenant's account in
replacement of an item that was not Tenant's Property, shall not be deemed
Tenant's Property and shall be the property of Landlord.
SECTION 8.3 Landlord's Repair and Maintenance Obligations. Subject to
the provisions of Article IX and Section 8.4, Landlord shall use reasonable
efforts to maintain in good condition, order and repair (a) the roof, exterior
and load bearing walls and other structural elements of the Building, (b) the
Building Service Systems serving the Premises, and (c) all public corridors,
lobbies and public areas of the Building available for use by Tenant (the
"Common Areas"). Landlord shall not be responsible for the maintenance or
repair of any portion, area, component or element of the Building or the
Premises other than as expressly provided in this Section 8.3. Landlord shall
have no obligation to make any repair or undertake any maintenance activity
described in this Section 8.3 until a reasonable period following receipt of
written notice from Tenant of the need for the same, unless Landlord was
otherwise aware, or should have been aware, of the need for such repair or the
same relates to the Common Areas of the Building in which case Landlord's
obligation shall arise upon Landlord's actual notice of the need for the same.
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SECTION 8.4 Tenant's Obligations. Subject to the provisions of Article
IX and Section 8.3, at all times during the Term, Tenant at its expense (a)
shall maintain in good order, condition and repair the Premises, the
Improvements and all fixtures or facilities contained therein which do not
constitute part of the Common Areas or the Building Service Systems and (b)
shall be responsible for all maintenance and repairs, interior and exterior,
structural and nonstructural, ordinary and extraordinary, of the Premises
(including all fixtures, installations and equipment therein), the Building and
the Building Service systems, made necessary, in whole or in part, by: (i) the
performance of any Alteration or the existence of any Improvement (by or
through Tenant); (ii) the installation or use of Tenant's Property in the
Premises; (iii) the moving of Tenant's Property into or out of the Building;
(iv) any act or omission of Tenant, any subtenant of Tenant or any officer,
partner, principal, employee, agent, contractor or invitee thereof; (v) the use
or removal by Tenant of any Improvement; or (vi) as applicable, Tenant's
installation or use of electrical and telecommunications wires, cables, and
conduits in the Building's risers and conduits and in other portions of the
Building or any alterations thereto; provided, however, that any repairs and
maintenance outside of the Premises or to the Common Areas for which Tenant is
responsible pursuant to the foregoing provisions of this Section 8.4 shall be
performed by Landlord at Tenant's cost and expense. Tenant, at its expense,
shall promptly replace all scratched, damaged or broken doors and interior
glass in the Premises if visible from any passenger elevator lobby. Tenant
shall be responsible for the cost of all repainting and all repairs,
maintenance and replacement of wall, ceiling and floor coverings in the
Premises other than as may be expressly set forth herein (reasonable wear and
tear excepted).
ARTICLE IX
DAMAGE OR DESTRUCTION
SECTION 9.1 Restoration. If the Building or the Premises is partially
or totally damaged by fire or other casualty, then so long as neither Landlord
nor Tenant has exercised any right to terminate this Lease under this Article
IX and subject to the rights of Senior Interest Holders (hereinafter defined),
if any, Landlord shall, following completion of Landlord's insurance
adjustment, repair the damage and restore or rebuild the Building or the
Premises (including the Improvements but excluding Tenant's Property and
Tenant's Improvements), as the case may be, with reasonable dispatch but
without the incurrence of overtime or premium pay labor rates, after the
occurrence of the fire or other casualty, provided however, Landlord
determines, in its sole and absolute discretion, that the insurance proceeds
paid or payable by virtue of the fire or other casualty is sufficient to
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repair such damage and/or restore or rebuild the Building or the Premises.
Tenant shall, at Tenant's sole cost and expense, restore any damage to Tenant's
Property with reasonable dispatch after such damage or destruction unless this
Lease is terminated in accordance with Section 9.4.
SECTION 9.2 Rent Abatement. Subject to the provisions of Section 9.3,
if fire or other casualty damages, destroys or renders the Premises or any
portion thereof untenantable or deprives Tenant of access to the Premises or
any portion thereof, then the Base Rent shall be abated (if all of the Premises
is untenantable) or reduced (if only a portion of the Premises is untenantable)
by the proportion that the Rentable Area of such portion of the Premises bears
to the Premises Area, for the period beginning on the date of the damage or
destruction and ending on the earlier of (a) the date on which any damage to
the Premises has, in Landlord's reasonable judgment, been substantially
repaired and Tenant has reasonable access to the Premises, or (b) the date on
which Tenant reoccupies such portion of the Premises.
SECTION 9.3 Exception to Abatement. Tenant shall not receive any
abatement or reduction of Base Rent if: (a) Landlord provides other space in
the Building reasonably suited for the temporary conduct of Tenant's business
and provided that Landlord pays all of Tenant's reasonable expenses incurred in
connection with moving Tenant into such temporary space and back to the
Premises (but Landlord shall have no obligation to provide such other space);
(b) the fire or other casualty was caused by reason of some act or omission on
the part of Tenant, its subtenant or assignee, or its or their partners,
directors, officers, employees, agents, invitees or contractors, and Landlord
is unable to collect substantially all of the insurance proceeds (including,
without limitation, rent insurance proceeds) for damage or destruction of the
Premises or the Building, as the case may be, arising out of such fire or other
casualty; or (c) by reason of some act or omission on the part of Tenant, its
subtenant or assignee, or its or their partners, directors, officers,
employees, agents, invitees or contractors, Landlord is unable to collect
substantially all of the insurance proceeds (including, without limitation,
rent insurance proceeds) for damage or destruction of the Premises or the
Building, as the case may be, arising out of such fire or other casualty.
SECTION 9.4 Termination Rights. Anything contained in this Article IX
to the contrary notwithstanding, if the Building or the Premises is damaged or
destroyed by fire or other casualty, and either (a) the Building is so damaged
(whether or not the Premises is damaged or destroyed) that the Landlord elects
not to restore the Building in its sole and absolute discretion subject to
Section 9. 1; (b) less than one year remains in the Term at the time of the
fire or other casualty and the time necessary to
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rebuild or repair the Building, in the opinion of a reputable contractor
selected by Landlord, would exceed 90 days; (c) Landlord, in its sole and
absolute discretion, determines that any insurance proceeds paid or payable by
virtue of the fire or other casualty is insufficient to restore the Building
and/or the Premises; or (d) in Landlord's opinion (confirmed by a reputable
contractor selected by Landlord), Landlord would be required under Section 9.2
to abate or reduce the Base Rent and Additional Rent for a period in excess of
12 months if rebuilding or repairs were undertaken, then, in any of such cases,
either Landlord or Tenant may terminate this Lease by giving the other party
notice to such effect within 90 Business Days after the date of the casualty.
This Lease shall terminate on the 30th day after the date that such termination
notice from Landlord or Tenant is given, and the Rents shall be prorated as of
such termination date.
SECTION 9.5 Business Interruption. Tenant shall not be entitled to
terminate this Lease, and 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 Premises or of the Building
pursuant to this Article IX other than Tenant's right to a rent abatement or
reduction pursuant to Section 9.2 or right to terminate under Section 9.4 (or
right to reimbursement under Section 9.3(a)). Landlord shall exert reasonable
efforts to make (or to cause to be made) such repair or restoration promptly
and in such manner as not to interfere unreasonably with Tenant's use and
occupancy of the Premises, but Landlord shall have no obligation to perform (or
cause to be performed) such work on an overtime or premium pay basis unless
paid for by Tenant.
SECTION 9.6 Waiver. This Article IX constitutes an express agreement
governing damage or destruction of the Premises or the Building by fire or
other casualty, and neither Section 227 of the Real Property Law of the State
of New York, which provides for such contingency in the absence of an express
agreement, nor any other Laws of similar import now or hereafter in effect
shall have any application in any such case.
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ARTICLE X
EMINENT DOMAIN
SECTION 10.1 Complete Taking. If all or substantially all of the
Building and/or the Premises is taken by condemnation, sale in lieu of
condemnation, or in any other manner for any public or quasi-public use or
purpose ("Eminent Domain"), this Lease and the Term and estate hereby granted
shall terminate as of the date of vesting of title on such taking or the date
that the condemning or purchasing authority takes possession, whichever is
earlier, and the Rents shall be prorated and adjusted as of such date.
SECTION 10.2 Partial Taking. If part of the Building or the Premises
is taken by Eminent Domain (but not substantially all of the Building and/or
the Premises), this Lease shall be unaffected by such taking, except that (a)
the Base Rent shall be reduced by an amount equal to the Base Rent attributable
to the portion of the Premises taken and Tenant's Share shall be adjusted to
equal the percentage that the Rentable Area of the portion of the Premises left
to Tenant bears to the Building Area after the taking, and (b) Landlord shall
repair or restore the remaining portions of the Premises or the Building, as
the case may be, with reasonable dispatch after collection of substantially all
of the award attributable to the taking by Eminent Domain; provided, however,
that Landlord shall not be required to expend on such repair or restoration
amounts in excess of the total awards (net of the costs of collection)
collected by it on account of the taking. Notwithstanding the foregoing, if the
portion of the Premises taken by Eminent Domain materially and adversely
affects Tenant's ability to conduct its business in the Premises, then Tenant
shall have the right to terminate this Lease by giving Landlord notice thereof
within thirty (30) days after the date of vesting of title on such taking.
SECTION 10.3 Award. Landlord shall be entitled to receive the entire
award or payment in connection with any taking of the Premises without
deduction for any estate vested in Tenant by this Lease. Tenant shall be
entitled to claim and receive any award or payment from the condemning
authority expressly granted for the taking of Tenant's Property, the
interruption of its business or moving expenses, but only if such award or
payment shall be made in addition to Landlord's award and if Tenant's claim
does not adversely affect or result in any reduction of Landlord's award or
interfere with the prosecution of a claim for the taking by Landlord.
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ARTICLE XI
SURRENDER OF PREMISES
SECTION 11.1 Surrender. On the last day of the Term, or upon any
earlier termination of this Lease, or upon any re-entry by Landlord upon the
Premises pursuant to Article XV, all of Tenant's right, title and interest, if
any, in the Premises, the Improvements or the Building, including any
possessory interest, shall cease, and Tenant shall (a) quit and surrender the
Premises to Landlord in broom clean and in good order, condition and
repair (ordinary wear and tear and damage by fire or other casualty not caused
by Tenant excepted), (b) remove all of Tenant's Property and repair, at its
expense, any damage to the Premises or the Building caused by such removal, and
(c) remove all Improvements (including, without limitation, any wires, cable
and conduits installed by Tenant in the Premises or other portions of the
Building, if applicable) and repair, at its expense, any damage to the Premises
or Building caused by such removal. Landlord may consider items of Tenant's
Property that remain in the Premises after the expiration or earlier
termination of the Term to have been abandoned. This provision shall survive
the termination or expiration of this Lease.
SECTION 11.2 No Holding Over. There shall be no holding over by Tenant
after the expiration or earlier termination of this Lease and the failure by
Tenant to deliver possession of the Premises to Landlord shall be an unlawful
holdover. During any period in which Tenant so holds over, at Landlord's
option, the rental value of the Premises, payable from the date immediately
following the date on which Tenant was to deliver the Premises to Landlord,
through and including the last day of the calendar month in which Tenant so
delivers the Premises, shall be deemed to be equal to 150% of the Rents payable
immediately preceding the expiration or earlier termination of this Lease.
Acceptance by Landlord of any such Rent during the period in which Tenant so
holds over shall not cure or waive Tenant's default, nor prevent Landlord from
exercising, before or after such acceptance, any of the remedies provided by
this Lease or at law or in equity. If the Premises are not surrendered upon the
expiration or earlier termination of this Lease with respect to all or any
portion of the Premises, Tenant hereby indemnifies Landlord against loss, cost,
injury, damage, claim, expense, or liability (including attorneys' fees and
disbursements) resulting from delay by Tenant in so surrendering the same,
including any claims made by any succeeding tenant or prospective tenant
founded upon such delay. Tenant waives any rights under Section 2201 of the
Civil Practice Law and Rules of the State of New York in connection with any
holdover proceedings that Landlord may institute against Tenant. This provision
shall survive the termination or expiration of this Lease.
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ARTICLE XII
EXCULPATION AND CERTAIN LANDLORD RIGHTS
SECTION 12.1 Exculpation. Notwithstanding anything to the contrary in
this Lease, none of the Landlord Parties shall be liable to Tenant or its
partners, principals, directors, officers, contractors, agents, employees,
invitees, sublessees, licensees or any other Person claiming through or under
Tenant, for any loss, injury or damage to Tenant or to any other Person, or to
its or their property, or for any inconvenience, annoyance, interruption or
injury to business arising from Landlord performing any maintenance, repairs,
alterations, additions or improvements in or to any portion of the Building or
the Premises or in or to the fixtures, equipment or appurtenances of the
Building or the Premises (nor shall Tenant or any other Person be entitled to
any abatement or suspension of its obligation to pay Rents or be construed to
be constructively or otherwise evicted on account of the foregoing),
irrespective of the cause of such loss, injury, damage, inconvenience,
annoyance, interruption or injury unless caused by or resulting from the gross
negligence or willful misconduct of Landlord or its agents or employees in the
operation or maintenance of the Premises or the Building.
SECTION 12.2 Transfers of Landlord's Interest. In the event of (a) a
sale or transfer of all or any part of the Building which includes the Premises
(by operation of law or otherwise), (b) the making of a lease of all or
substantially all of the Building, or (c) a sale or transfer (by operation of
law or otherwise) of the leasehold estate under any such lease, the seller,
transferor or lessor, as the case may be, shall be and hereby is (to the extent
of the interest or portion of the Building or leasehold estate sold,
transferred or leased) automatically and entirely released and discharged, from
and after the date of such sale, transfer or lease, of all liability in respect
of the performance of any of the terms of this Lease on the part of Landlord
thereafter to be performed.
SECTION 12.3 Recourse Limited to Building. Tenant shall look solely to
Landlord's estate and interest in the Building (including the proceeds of any
sale, casualty or condemnation) for the satisfaction of any right of Tenant for
the collection of a judgment or other judicial process or arbitration award
requiring the payment of money by Landlord, and no other property or assets of
Landlord, Landlord's agents, incorporators, subscribers, shareholders,
officers, directors, partners, principals (disclosed or undisclosed) or
affiliates, whether directly or through Landlord or through any receiver,
assignee, trustee in bankruptcy or through any other Person, or any Landlord
Parties, shall be subject to levy, lien, execution, attachment, or other
enforcement procedure for any liability of Landlord to Tenant under this Lease
or under law.
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SECTION 12.4 Withholding Consent. In no event shall any Landlord Party
be liable for any loss, injury or damage (including indirect, consequential or
punitive damages) claimed by Tenant or any Person claiming through or under
Tenant in connection with the failure or refusal by any Landlord Party to grant
its consent or approval with respect to any matter as to which any of them are
entitled to give their consent or approval pursuant to this Lease. If any
Landlord Party withholds or delays its consent or conditions its consent and
Tenant believes that any such party did so unreasonably, Tenant may prosecute
an action for declaratory relief to determine if such party properly withheld,
delayed or conditioned its consent, but Tenant waives and discharges any claims
it may have against such party for damages arising from such party's
withholding, delaying or conditioning its consent. In any such action, each
party shall bear its own attorneys' fees.
SECTION 12.5 Reservation of Certain Rights by Landlord. Landlord
reserves the right, and-Tenant shall permit Landlord, without any of the same
constituting an eviction and without incurring liability to Tenant therefor,
(a) to install, erect, use and maintain, repair and replace pipes, ducts and
conduits in and through the Premises; provided, however, that Landlord shall,
to the extent reasonably practicable under the circumstances, disguise, conceal
or camouflage the pipes, ducts and conduits; (b) to change the arrangement
and/or location of Common Areas of the Building; provided, however, that
Tenant's access to the Premises shall not be precluded; (c) to change the
Building name or address; and (d) to impose such controls as it deems
reasonably prudent with respect to access to the Building by Tenant's visitors.
SECTION 12.6 Entry by Landlord. Landlord and its respective agents and
contractors shall have the right to enter or pass through the Premises: (a) to
examine and show Premises to actual and prospective lenders, Senior Interest
Holders and purchasers and, during the last 6 months of the Term, prospective
lessees of the Premises, (b) to conduct such activities as are necessary or
desirable for the operation and maintenance of, and to make repairs,
alterations and improvements in, the Premises and/or the Building and their
respective systems, facilities and equipment, (c) to remove any violation of
Law noted or issued against the Building, the Premises or any part thereof, and
(d) to read and maintain utility meters located therein. Any entry by Landlord
shall be made on reasonable advance oral or written notice, except in emergency
situations. Landlord shall have a pass key (or similar entry device) to the
Premises and shall be allowed to bring materials and equipment into the
Premises as required in connection with maintenance, repairs and alterations of
the Premises and/or Building without any liability to Tenant and without any
reduction of Tenant's obligations. If, during the last month of the Term,
Tenant has removed all or
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substantially all of Tenant's Property from the Premises, Landlord, without
notice to Tenant, may immediately enter the Premises and alter, renovate and
decorate the same, without liability to Tenant and without reducing or
otherwise affecting Tenant's obligations hereunder. In exercising its rights
under this Section 12.6, Landlord shall use reasonable efforts to avoid
unreasonable interference with the normal conduct of Tenant's business in the
Premises.
ARTICLE XIII
SUBORDINATION
SECTION 13.1 Subordination. This Lease, and all rights of Tenant under
it, are subordinate and subject to all present and future ground, master or
operating leases of the Building and/or the Premises, and any and all present
and future mortgages, security interests or other security documents upon or
affecting the Building and/or the Premises, and to all advances thereunder and
all renewals, replacements, modifications, amendments, consolidations and
extensions thereof (all of the foregoing, collectively, the "Senior Interests,"
and holders of Senior Interests shall be referred to as "Senior Interest
Holders"), unless any Senior Interest Holder elects, by written notice to
Tenant, that this Lease shall be superior to its lease or mortgage. This
Section 13.1 shall be self-operative and no further instrument of subordination
shall be required. In confirmation of such subordination, Tenant shall within
20 days of demand therefor execute, acknowledge and deliver any instrument that
Landlord, any Senior Interest Holder or any of their respective successors in
interest may (in the form required by the Senior Interest Holder requesting the
same) request to evidence such subordination. Landlord represents and warrants
that as of the date hereof there are no Senior Interests affecting the
Building.
SECTION 13.2 Attornment. Any Senior Interest Holder who succeeds to
the rights of Landlord under this Lease, whether through exercise of remedies
or by operation of law, is sometimes referred to herein as a "Successor
Landlord". Upon a Successor Landlord's succession to the rights of Landlord
under this Lease, at the option of the Successor Landlord, Tenant shall attorn
to and recognize the Successor Landlord as Tenant's landlord under this Lease
and shall promptly execute and deliver any additional instrument that such
Successor Landlord may reasonably request to evidence the attornment. Upon
attornment, this Lease shall continue in full force and effect and as a direct
lease between the Successor Landlord and Tenant upon all of the terms,
conditions and covenants as are set forth in this Lease, except however, such
Successor Landlord shall not be (a) liable for any previous act or omission or
negligence of Landlord under this Lease; (b) subject to any counterclaim,
defense or offset, which theretofore shall have accrued to Tenant against
Landlord; (c)
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bound by any previous modification or amendment of this Lease or by any
previous prepayment of more than one month's rent, unless such modification or
prepayment shall have been approved in writing by the Senior Interest Holders
through or by reason of which the Successor Landlord shall have succeeded to
the rights of Landlord under this Lease; (d) liable for any security deposited
pursuant to this Lease unless such security has actually been delivered to
successor Landlord; (e) obligated to repair the Premises or the Building or any
part thereof, in the event of total or substantial total damage beyond such
repair as can reasonably be accomplished from the net proceeds of insurance
actually made available to Successor Landlord; or (f) obligated to repair the
Premises or the Building or any part thereof, in the event of partial
condemnation beyond such repair as can reasonably be accomplished from the net
proceeds of any award actually made available to Successor Landlord, as
consequential damages allocable to the part of the Premises or the Building not
taken. Nothing contained in this Section 13.2 shall be construed to impair any
right or remedy otherwise exercisable by any such owner, holder or lessee.
SECTION 13.3 Estoppel Statements. Tenant shall, within 10 days
following receipt of Landlord's request to do so, execute, acknowledge and
deliver to Landlord a statement in writing certifying to those facts for which
such certification has been requested by Landlord or any current purchaser or
Senior Interest Holder, including without limitation, that (a) 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 describing all such
modifications), (b) the dates to which Rent, Additional Rent and other charges
payable hereunder have been paid, if any, and (c) whether or not to the best
knowledge of Tenant, Landlord is in default in the performance of any covenant,
agreement, obligation or condition contained in this Lease and, if so,
specifying in reasonable detail each such default of which Tenant may have
knowledge. Any statement delivered by Tenant pursuant to this Section may be
relied upon by any current or prospective purchaser of the Building, any Senior
Interest Holder and any assignees thereof.
SECTION 13.4 Attorney-In-Fact. Tenant hereby constitutes and appoints
Landlord attorney-in-fact for Tenant to execute any deliver any instruments
and/or documents for or on behalf of Tenant which are provided under this
Article XIII or otherwise in this Lease, such appointment being coupled with an
interest.
ARTICLE XIV
ASSIGNMENTS AND SUBLEASES
SECTION 14.1 Prohibition. Tenant shall not mortgage, pledge, encumber
or otherwise hypothecate this Lease or the
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Premises or any part thereof in any manner whatsoever without complying with
the provisions of this Article XIV. Tenant shall not, whether voluntarily,
involuntarily, by operation of law or otherwise: (a) assign or otherwise
transfer this Lease, or (b) sublet the Premises or any part thereof or permit
the Premises to be used or occupied by one (1) or more Persons other than
Tenant, without in each instance strictly complying with the requirements of
this Article XIV.
SECTION 14.2 Corporate and Partnership Transactions. If Tenant is a
corporation, a dissolution of the corporation or a transfer (by one or more
transactions) of a majority of the voting stock of Tenant by one or more
Persons deemed insiders within the meaning of the Securities Exchange Act of
1934, as amended (other than any institutional investor holding less than 15%
of the voting stock of Tenant that exercises no control over the operations or
management of Tenant), shall be deemed an assignment of this Lease subject to
this Article XIV, except that notwithstanding the foregoing, the merger or
consolidation of Tenant with or into another corporation, shall not be deemed
an assignment of this Lease provided that a principal purpose of such
transaction is not the assignment of this Lease and the successor has a net
worth (computed in accordance with GAAP) at least equal to the greater of (a)
net worth of Tenant immediately prior to such transaction, or (b) the net worth
of Tenant as of the date hereof. Whether or not the consent of Landlord shall
be required hereunder, Tenant shall deliver notice of any of the transactions
described above together with proof reasonably satisfactory to Landlord that
the foregoing net worth test has been met at least thirty (30) days prior to
the effective date of any such transaction. If Tenant is a partnership, a
dissolution of the partnership or a transfer of the controlling interest in
Tenant (including the admission of new partners or withdrawal of existing
partners having a controlling interest) shall be deemed an assignment of this
Lease subject to the provisions of this Article XIV, regardless of whether the
transfer is made by one or more transactions, or whether one or more Persons
hold the controlling interest prior to the transfer or afterwards.
SECTION 14.3 Landlord's Recapture Rights. Whenever Tenant desires to
sublease all or any part of the Premises for any period of time, or to assign
this Lease, Tenant shall give notice thereof to Landlord, which notice shall
comply with the provisions of Section 14.4 and shall contain a statement of the
proposed commencement date of such sublease or assignment (the "Target Date").
The notice shall constitute an offer from Tenant (the "Offer") to Landlord, at
Landlord's option, exercisable in Landlord's sole discretion, to terminate this
Lease as to all of the Premises or such part thereof which Tenant desires to
sublease. Landlord may exercise this option by notice to Tenant at any time
within 30 Business Days after receipt of the Offer, and during this 30 Business
Day period, Tenant shall not sublet
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the Premises or assign the Lease to any Person. The Target Date shall be not
earlier than 60 days and not later than 365 days after the date of the Offer.
If Landlord exercises its option to terminate this Lease, then this Lease shall
terminate on the Target Date set forth in such Offer. The Rents shall be
prorated and paid through the termination date. If Landlord does not exercise
its option to terminate this Lease, Tenant may sublease the Premises or assign
the Lease; provided, however, that (a) Tenant must obtain Landlord's consent
pursuant to Section 14.4, (b) the commencement date of such sublease or
assignment shall not be earlier than the Target Date set forth in such Offer
and (c) Tenant must comply with the applicable provisions of this Article XIV.
SECTION 14.4 Consent by Landlord. Tenant may not enter into any
sublease or assignment without the prior written consent of Landlord, which
consent shall not be unreasonably withheld, delayed or conditioned. Whenever
Tenant seeks Landlord's consent under this Section 14.4, Tenant shall request
the consent of Landlord in writing; and such request shall be accompanied by,
in addition to those items required by Section 14.3, (a) an executed copy of
the proposed sublease or assignment as to which Landlord's consent is sought
and, in the case of an assignment, an executed copy of the assumption agreement
required by Section 14.5, (b) a statement setting forth in reasonable detail
the identity of the proposed sublessee or assignee, as the case may be, and the
nature of its business, (c) financial statements or other evidence, reasonably
satisfactory to Landlord, of the financial condition of the proposed sublessee
or assignee and all other current financial information with respect to the
proposed sublessee or assignee in Tenant's possession, and (d) any other
information reasonably requested by Landlord.
SECTION 14.5 Miscellaneous. No assignment of this Lease shall be valid
or binding on Landlord unless and until the assignee executes and delivers to
Landlord an agreement in form and substance satisfactory to Landlord, whereby
the assignee assumes and agrees to be bound by all of the provisions of this
Lease and to perform all of the obligations of Tenant hereunder.
Notwithstanding any assignment or sublease to any other Person, Tenant shall
remain fully liable for the payment of Rents and for the performance of all the
other obligations of Tenant contained in this Lease. Any act or omission of an
assignee or subtenant or any Person claiming under or through any of them that
violates this Lease shall be deemed a violation of this Lease by Tenant. The
consent by Landlord to any assignment or sublease shall not relieve Tenant or
any Person claiming through or under Tenant of the obligation to obtain the
consent of Landlord, pursuant to the provisions of this Article XIV, to any
future assignment or sublease. If Landlord declines to give its consent to any
proposed assignment or sublease under circumstances where Landlord is entitled
to do so under this Lease, or if Landlord
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exercises any of its options under Section 14.3. Tenant shall indemnify, defend
(with counsel reasonably satisfactory to Landlord) and hold Landlord harmless
against and from any and all loss, liability, damages, costs and expenses
(including reasonable attorneys' fees and disbursements) resulting from any
claims that may be made against Landlord by any Person that claims it was
damaged by Landlord's actions, including any proposed assignee or sublessee, or
any broker or other Person claiming a commission or similar compensation in
connection with the proposed assignment-or sublease.
SECTION 14.6 Additional Charges. If Landlord shall consent to any
assignment or subletting of this Lease, Tenant shall, in consideration
therefor, pay to Landlord, as Additional Rent, an amount equal to 100% of the
net profits of such transaction which amount shall be paid to Landlord within
10 days of Tenant's receipt thereof.
ARTICLE XV
DEFAULT
SECTION 15.1 Events of Default. The following shall be deemed events
of default ("Events of Default"):
(a) If Tenant shall fail to pay any portion of Base Rent or Additional
Rent when due and such failure shall continue for 5 days;
(b) If Tenant shall fail to observe and perform any provision of this
Lease (other than those specifically mentioned in this Section 15.1) to be
observed or performed by Tenant and such failure continues for 15 days after
notice thereof by Landlord to Tenant, unless, if the nature of such failure is
such that it cannot reasonably be cured within such 15 day period, (i) within
that aforesaid 15 day period Tenant notifies Landlord that it intends to cure
such failure and actually commences to cure such failure, and (ii) Tenant
thereafter diligently proceeds to complete such cure within a reasonable time
not to exceed 90 days;
(c) If, in violation of Article XIV, this Lease shall be hypothecated
or assigned or if the Premises shall be sublet, or if there shall be attempts
at such actions;
(d) If Tenant shall fail to execute, acknowledge and deliver to
Landlord any statements documents or instruments required under Article XIII
within the time periods specified therein;
(e) If, in the event Tenant's obligations hereunder have been
guaranteed, any guarantor shall breach any of its material obligations,
representations, warranties, covenants or agreements
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under any such guaranty of this Lease, or if any case, proceeding or other
action shall be commenced by or against such guarantor or Tenant under any Law
of any jurisdiction, domestic or foreign, relating to bankruptcy, insolvency,
reorganization or relief of debtors;
(f) If the Premises shall become deserted or abandoned for a period of
10 consecutive days or if Tenant fails to take occupancy of the Premises within
30 days of the Commencement Date, it being agreed that the fact that any of
Tenant's Property remains in the Premises shall not be evidence that Tenant has
not deserted or abandoned the Premises.
SECTION 15.2 Remedies and Damages.
15.2.1 Termination. If any of such Events of Default shall have
occurred, Landlord may, at any time thereafter, give notice to Tenant stating
that this Lease and the Term shall automatically expire and terminate on the
date specified in such notice, which date shall be 5 days after the giving of
such notice, and upon the expiration of such 5 day period, this Lease and the
Term and all rights of Tenant under this Lease shall automatically expire and
terminate as if the date on which such 5 day period expires were the Expiration
Date herein definitely fixed, and Tenant immediately shall quit and surrender
the Premises to Landlord.
15.2.2 Surrender and Re-Entry. If (a) Tenant shall fail to pay Base
Rent or Additional Rent when due and such failure shall continue for 5 days
after notice thereof from Landlord to Tenant, or (b) this Lease shall expire
and terminate as provided in Section 15.1, then, in either such case, Tenant
shall immediately quit and peacefully surrender the Premises to Landlord, and
Landlord and its agents may immediately, or at any time thereafter, without
further notice, reenter the Premises, either by summary proceedings or by any
other applicable action or proceeding or otherwise, and remove all Persons and
property from the Premises. The terms "reenter," "re-entry" or "re-entered" as
used in this Lease shall not be deemed to be restricted to their technical
legal meanings.
If (a) Landlord shall have re-entered the Premises as provided in this
Section 15.2.2, or (b) this Lease shall have terminated and expired as provided
in Section l 5. l, then, in either such case, Landlord may relet the Premises
from time to time, either in the name of Landlord or otherwise, to such tenant
or tenants, for such term or terms ending before, on or after the then next
succeeding Expiration Date, at such rental or rentals and upon such other
conditions (that may include concessions and free rent periods) as Landlord may
determine in its sole and absolute discretion; provided, however, that Landlord
shall not be liable for refusal or failure to relet the Premises, or, in
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the event of any such relenting or refusal or failure to collect any rent due
upon any such reletting, and no such refusal or failure shall operate to
relieve Tenant of any liability under this Lease or otherwise affect any such
liability. Landlord may make such repairs, replacements, alterations,
additions, improvements, decorations and other physical changes in and to the
Premises as Landlord, in its sole discretion, considers advisable or necessary
in connection with any such reletting or proposed reletting, without relieving
Tenant of any liability under this Lease or otherwise affecting any such
liability.
15.2.3 Waiver of Notice and Redemption. Tenant hereby waives (a)
the service of any notice of intention to reenter; and (b) all rights of Tenant
to redeem the Premises or to restore the operation of this Lease after Tenant
shall have been dispossessed or ejected therefrom by process of law or under
the terms of this Lease or after any expiration or termination of this Lease,
whether such dispossess, ejection, expiration or termination shall be by
operation of law or pursuant to the provisions of this Lease.
15.2.4 Damages. If this Lease and the Term shall terminate as provided
in Section 15.2, or if Landlord shall re-enter the Premises as provided in
Section 15.2.2 hereof, then, in either such event:
(a) Tenant shall pay to Landlord all Base Rent and Additional Rent to
the date upon which this Lease and the Term shall have expired or to the date
of re-entry upon the Premises by Landlord, as the case may be;
(b) Tenant also shall pay to Landlord, as damages, any deficiency
("Deficiency") between the Rents for the period that otherwise would have
constituted the unexpired portion of the Term and the net amount, if any, of
rents collected under any reletting effected pursuant to the provisions of
Section 15.2.2 for any part of such period (first deducting from the rents
collected under any such reletting all of Landlord's expenses in connection
with the termination of this Lease, Landlord's re-entry upon the Premises and
such reletting including all repossession costs, brokerage commissions,
attorneys' fees and disbursements, alteration costs and other expenses of
preparing the Premises for such reletting); any such Deficiency shall be paid
in monthly installments by Tenant on the days specified in this Lease for
payment of installments of Base Rent, and Landlord shall be entitled to recover
from Tenant each monthly Deficiency as the same shall arise, and no suit to
collect the amount of the Deficiency for any month shall prejudice Landlord's
right to collect the Deficiency for any subsequent month by a similar
proceeding; and
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(c) whether or not Landlord shall have collected any monthly
Deficiency as aforesaid, Landlord shall be entitled to recover from Tenant, and
Tenant shall pay to Landlord on demand in lieu of any further Deficiency as and
for liquidated damages, a sum equal to the amount by which the Rents for the
period that otherwise would have constituted the unexpired portion of the Term
exceeds the then fair market rental value of the Premises for the same period
(first deducting from such fair market rental value all of Landlord's expenses
in connection with the termination of this Lease, Landlord's re-entry upon the
Premises and reletting costs, if any, including all repossession costs,
brokerage commissions, attorney's fees and disbursements, alteration costs and
other expenses of preparing the Premises for reletting, but only to the extent
such expenses have not already been paid to Landlord through prior court
proceedings or otherwise), both discounted to present value at the rate of 6%
per annum, less the aggregate amount of Deficiencies theretofore collected by
Landlord for the same period; provided, however, that if, before presentation
of proof of such liquidated damages to any court, commission or tribunal, the
Premises, or any part thereof, shall have been relet by Landlord for the period
that otherwise would have constituted the unexpired portion of the Term, or any
part thereof, the amount of rent reserved upon such reletting shall be deemed,
prima facie, to be the fair market rental value for the part of the Premises so
relet during the term of the reletting.
(d) Monies Received. Any monies received by Landlord from or on behalf
of Tenant during the pendency of any proceedings between Landlord and Tenant
shall be deemed paid as compensation for the use and occupation of the
Premises, and the acceptance of any such compensation by Landlord shall not be
deemed an acceptance of Rents or a waiver on the part of Landlord of any rights
hereunder.
SECTION 15.3 Waiver of Trial by Jury and Counterclaims. Landlord and
Tenant each waive trial by jury in any action, proceeding or counterclaim
brought by either of them against the other on any matters arising out of or in
any way connected with this Lease, the relationship of Landlord and Tenant or
Tenant's use or occupancy of the Premises or the operation, maintenance or
control of the Building. Tenant shall not interpose any counterclaim it may
otherwise assert in any summary proceeding whether such summary proceeding is
based on nonpayment of Rents or on Tenant's holding over after expiration of
the Term or on any other basis pursuant to Article 7 of the Real Property
Actions and Proceedings Law of the State of New York, unless by not interposing
such counterclaim Tenant would be barred from asserting such counterclaim in a
separate action or proceeding.
SECTION 15.4 Partial Payment; No Waiver. No payment by Tenant or
receipt or acceptance by Landlord of a lesser amount
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than the full Rents due hereunder shall be deemed to be other than a payment on
account, nor shall any endorsement or statement on any check or any letter
accompanying any check or payment be deemed an accord and satisfaction, and
Landlord may accept such check or payment without prejudice to Landlord's right
to recover the balance, treat such partial payment as a default or pursue any
other remedy provided in this Lease or at law or in equity. If at any time
Tenant shall pay Landlord less than the full amount of Rents then due, Landlord
shall have the right to apply such payment to any item or items of Rents that
Landlord, in its discretion, deems appropriate. No consent or waiver, express
or implied, by Tenant or Landlord of any breach of any obligation of the other
party shall be construed as a consent or waiver to or of any other breach of
the same or any other obligation. The failure of Landlord or Tenant at any time
to insist upon the strict performance of any obligation of the other or to
exercise any right or remedy herein contained (including the right to make any
demand upon Tenant for payment of any Additional Rent due hereunder) shall not
be construed as a waiver or relinquishment of the performance of such
obligation or of the right to exercise any right or remedy in the future. The
receipt or acceptance by Landlord of Rents or the payment by Tenant of Rents
with knowledge of a breach by the other party of any term of this Lease shall
not be deemed a waiver of such breach. The rights and remedies of either party
provided in this Lease for a breach by the other are cumulative and not
exclusive, and the exercise by either party of any other right or remedy it may
have shall not preclude the concurrent or subsequent exercise of any other
right or remedy it may have pursuant to this Lease, at law or in
equity.
SECTION 15.5 Right to Cure. Landlord may, but shall not be obligated
to, cure any default by Tenant under this Lease at any time after notice and
the lapse of any cure period included within the conditional limitation to
which such default relates, without giving further notice. Whenever Landlord so
elects, all costs and expenses incurred by Landlord in curing any such default,
including attorneys' fees and disbursements, together with interest at the
Interest Rate on the amount of costs and expenses so incurred commencing on the
day such costs are paid by Landlord, shall be paid by Tenant to Landlord as
Additional Rent within 20 days of demand.
SECTION 15.6 Effect of Re-Entry. The mere re-entry or taking
possession of the Premises by Landlord shall not be construed as an election to
terminate this Lease.
SECTION 15.7 Payment of Landlord's Expenses. All costs and expenses,
including attorneys' fees (whether or not legal proceedings are instituted),
involved in collecting Rents or enforcing the obligations of Tenant under this
Lease, including the cost and expense of instituting and prosecuting legal
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proceedings or recovering possession of the Premises after breach by Tenant or
upon expiration or earlier termination of this Lease, to the extent such costs
and expenses have not already been paid as a Deficiency or as liquidated
damages under Section 15.2.4 shall be due and payable by Tenant as Additional
Rent within 20 days of demand.
ARTICLE XVI
MISCELLANEOUS
SECTION 16.1 Quiet Enjoyment. So long as Tenant timely pays all the
Rents and performs all of Tenant's other obligations hereunder within the time
periods required under this Lease, Tenant shall peaceably and quietly hold and
enjoy the Premises during the Term without hindrance or ejection by Landlord or
any person lawfully claiming through or under Landlord, subject, nevertheless,
to the provisions of this Lease. This covenant is a covenant running with the
land and is subject to Article XII.
SECTION 16.2 Broker. Each of Landlord and Tenant represents to the
other that it has dealt with no broker in connection with this Lease other than
Glenn Sternbach, Oxford & Simpson and ESG of Long Island (collectively,
"Broker"). Each of Landlord and Tenant agrees to indemnify, defend and hold
harmless the other from and against any claims, based or alleged to be based
upon the acts or omissions of the indemnifying party, for any brokerage
commission or finder's fee with respect to this Lease by persons other than
Broker and for all costs, expenses and liabilities incurred in connection with
such claims, including attorneys' fees and disbursements arising out of a
breach of the foregoing representation.
SECTION 16.3 No Recording. Tenant shall not record this Lease or any
memorandum thereof.
SECTION 16.4 Entire Agreement. This Lease (including the Exhibits
attached hereto, whether executed or not) contain all of the agreements and
understandings between the parties related to the leasing of the Premises and
the respective obligations of Landlord and Tenant in connection therewith. All
prior agreements and understandings between the parties have merged into this
Lease and such other documents referred to in this Section 16.4.
SECTION 16.5 Amendments. No agreement shall be effective to amend,
change, modify, waive, release, discharge, terminate or effect an abandonment
of this Lease, in whole or in part, unless such agreement is in writing, refers
expressly to this Lease, and is signed by Landlord and Tenant.
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SECTION 16.6 Successors. Except as otherwise expressly provided
herein, the obligations of this Lease shall bind and benefit the successors and
assigns of the parties hereto; provided, however, that no assignment, sublease
or other transfer in violation of the provisions of Article XIV shall operate
to vest any rights in any putative assignee, sublessee or transferee of Tenant.
SECTION 16.7 Force Majeure. Landlord shall have no liability
whatsoever to Tenant on account of the inability of Landlord to timely fulfill
any of Landlord's obligations under this Lease (other than those relating to
the payment of money) by reason of any strike, lockout or other labor trouble;
inability to obtain labor, materials, coal, oil, or other suitable fuel or
reasonable substitutes therefor or the failure of the supply of any thereof;
acts of God, fire or other casualty; governmental preemption of priorities or
other controls in connection with a public emergency; governmental restrictions
or requirements of Laws; enemy or hostile governmental action; civil commotion;
or any other cause, whether similar or dissimilar to the above, beyond
Landlord's reasonable control (the foregoing events are collectively referred
to as "Force Majeure"). If this Lease specifies a time period for performance
of an obligation of Landlord, that time period shall be extended by the period
of any delay in Landlord's performance caused by any of the events of Force
Majeure.
SECTION 16.8 Post-Termination Obligations. Upon the expiration or
earlier termination of this Lease, neither party shall have any obligation or
liability to the other in respect of any period after such expiration or
termination (except as otherwise expressly provided in this Section 16.8 or
elsewhere in this Lease), but all obligations and liabilities under this Lease
in respect of any period prior to such expiration or termination shall survive
such termination or expiration. Notwithstanding the foregoing, (a) in case of
any termination or expiration under Article XV, Tenant shall remain liable as
provided therein, and (b) Tenant's or Landlord's accrued liability or
obligations, as the case may be, under this Lease shall in all events survive
the expiration or earlier termination of the Term.
SECTION 16.9 Interpretation.
16.9.1 Governing Law. (a) This Lease shall be governed by, and be
construed in accordance with, the laws of the State of New York without regard
to the principles of conflicts of laws. To the fullest extent permitted by law,
Tenant hereby unconditionally and irrevocably waives any claims to assert that
the law of any other jurisdiction governs this Lease and agrees that this Lease
shall be governed by and construed in accordance with the laws of the State of
New York pursuant to 5-1401 of the New York General Obligations Law.
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(b) Any legal suit, action or proceeding against Tenant or Landlord
arising out of or relating to this Lease may be instituted in any federal or
state court in Nassau County, New York, pursuant to 5-1402 of the New York
General Obligations Law, and Tenant hereby waives any objection which it may
now or hereafter have to the laying of venue of any such suit, action or
proceeding including, without limitation, any claim of forum non convenient
pursuant to any rule of common law and/or any applicable federal or state
statute, law or provision, and Tenant hereby irrevocably submits to the
jurisdiction of any such court in any suit, action or proceeding.
16.9.2 Invalidity. If any provision of this Lease or the application
thereof to any Person or circumstance shall be invalid or unenforceable, the
remainder of this Lease and the application of that provision to other Persons
or circumstances shall not be affected but rather shall be enforced to the
fullest extent permitted by law.
16.9.3 Covenants. Each provision of this Lease on Tenant's part to be
performed shall be deemed and construed as a separate and independent covenant
of Tenant, not dependent on any other provision or covenant.
16.9.4 Number and Gender. All words used or defined in this Lease or
the Exhibits hereto, regardless of the number or gender in which they are used,
shall be deemed to include any other number and any other gender as the context
may require.
16.9.5 Exhibits. All exhibits, schedules and riders appended to this
Lease are incorporated herein and by this reference made a part hereof.
References to "Exhibits" or "Schedules" shall be to Exhibits and Schedules
attached to this Lease except where the context requires otherwise.
SECTION 16.10 Submission of Lease. The submission of this Lease to
Tenant or its broker, agent or attorney for review or signature does not
constitute an offer to Tenant to lease the Premises or the granting of an
option to do so. This instrument shall have no binding force or effect until
its execution and unconditional delivery by both Landlord and Tenant.
SECTION 16.11 Notices, Consents and Approvals. In order to be
effective, any notice, demand, consent or approval ("Notice") hereunder shall
be in writing (except as otherwise expressly stated herein) and signed by the
party giving such Notice. Any Notice in writing shall be personally delivered,
sent by a nationally recognized courier service, or mailed by registered or
certified mail, return receipt requested, addressed, (a) if to Tenant, c/o
Miramar Park of Commerce, 2929 West Commerce Parkway, Miramar, Florida 33025,
Attention: Controller, or such other address as Tenant shall have last
designated by notice as
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provided in this Section 16.1 l to Landlord, with a copy to: Muenz & Meritz,
P.C., Three Hughes, PC, Dix Hills, New York 11746, Attnetion: Lawrence A.
Muenz, Esq. and (b) if to Landlord, to the Address of Landlord, or at such
other address as Landlord shall have last designated by Notice as provided in
this Section 16.11 to Tenant, in any case, with a copy to Rubin Baum Levin
Constant & Friedman, 30 Rockefeller Plaza, New York, N.Y. 10112, Attn.: David
A. Mandel, P.C., and with a copy to Landlord's Agent or to such other address
as such party shall have last designated by notice in writing to the party
giving the notice. Notices in writing shall be deemed given when personally
delivered or upon receipt (or refusal of receipt) if mailed or sent by a
courier service.
SECTION 16.12 Directory Listings. Landlord, at Tenant's request, shall
maintain Tenant's name on the directory board located in the lobby of the
Building.
SECTION 16.13 Signage. Tenant shall have the right to install
appropriate signage identifying Tenant or any subtenant permitted under Article
XIV, in keeping with the nature of the Building, on the doors to the Premises.
SECTION 16.14 Security Deposit. Tenant shall deposit the Security
Deposit with Landlord on the signing of this Lease as security for the faithful
performance and observance by Tenant of the provisions of this Lease. If Tenant
defaults, after the giving of any required notice and the expiration of any
required grace period, in any of its obligations under this Lease, Landlord may
apply or retain the whole or any part of the Security Deposit to the extent
required for the payment of any Rents as to which Tenant is in default or for
any sum that Landlord may expend or may be required to expend by reason of
Tenant's default under this Lease. If Tenant shall comply with all of its
obligations under this Lease, the Security Deposit shall be returned to Tenant
without interest and less any expenses incurred but not paid by Tenant in
accordance with this Lease, within 60 days after the expiration of the Term and
after delivery of possession of the entire Premises to Landlord. Upon a sale or
transfer of the Building or any other transaction set forth in Section 12.2,
Landlord shall have the right to transfer the Security Deposit to the vendee,
lessee or transferee and Landlord shall thereupon be released by Tenant from
all liability for the return of the Security Deposit; and Tenant shall look
solely to the new landlord for the return of the Security Deposit. The
provisions hereof shall apply to every transfer or assignment made of the
Security Deposit to a new landlord. Tenant shall not assign or encumber or
attempt to assign or encumber the Security Deposit, and neither Landlord nor
its successors or assigns shall be bound by any such assignment, encumbrance,
attempted assignment or attempted encumbrance.
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16.14.1 Restoration/Reduction of Security. It is understood and agreed
that the amount of Tenant's Security Deposit throughout the term of this Lease
shall at all times be equal to two (2) monthly installments of Base Rent, as
the same shall increase each Lease Year of the Term. If Landlord is required to
apply or draw upon all or any part of the Security Deposit to cure any default
by Tenant under this Lease, Tenant shall, within 10 days of notice or demand by
Landlord, restore such Security Deposit to an amount equal to two (2) monthly
installments of Base Rent then due under this Lease.
SECTION 16.15 Building Security. Landlord shall be the sole
determinant of the type and amount of security services to be provided in the
Building. In all events and notwithstanding any provision of this Lease to the
contrary, Landlord and the Landlord Parties shall not be liable to Tenant and
Tenant hereby waives any claim against Landlord, for (a) any unauthorized or
criminal entry of third parties into the Premises or the Building, or (b) any
damage to persons or property in or about the Premises or the Building by or
from any unauthorized or criminal acts of third parties, regardless of any
action, inaction, failure, breakdown, malfunction of the security services
provided or any negligence on the part of Landlord or any Landlord Party.
SECTION 16.16 Relocation. Landlord expressly reserves the right at
Landlord's sole cost and expense to remove Tenant from the Premises and to
relocate Tenant in some other space of Landlord's choosing of approximately the
same dimensions and size within the Building, which other space shall be
improved and decorated by Landlord at Landlord's expense. Landlord shall have
the right, in Landlord's sole discretion, to use such decorations and materials
from the existing Premises, or other materials so that the space in which
Tenant is relocated shall be comparable in its interior design and decoration
to the Premises from which Tenant is removed. Nothing herein contained shall be
construed to relieve Tenant or imply that Tenant is relieved of the liability
for or obligation to pay any Additional Rent due by reason of the provisions of
Section 2.3 of this Lease, the provisions of which paragraph shall be applied
to the space in which Tenant is relocated on the same basis as said provisions
were applied to the Premises from which Tenant is removed. Tenant agrees that
Landlord's exercise of its election to remove and relocate Tenant shall not
terminate this Lease or release Tenant, in whole or in part, from Tenant's
obligations to pay any Rents and perform the covenants and agreements hereunder
for the full Term.
ARTICLE XVII
PARKING
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Tenant shall be entitled to seven (7) reserved parking spaces on a
non-exclusive basis free of charge. On or before the Commencement Date,
Landlord will provide Tenant with 7 parking stickers for said spaces.
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IN WITNESS WHEREOF, Landlord and Tenant have hereunto
executed this Lease by their respective duly authorized representatives as of
the day and year first above written.
LANDLORD:
Lighthouse Hicksville Limited
Partnership
By: Lighthouse Hicksville Operating
LLC, its general partner
By: /s/ Paul Cooper
----------------------------------------
Name: Paul Cooper
Title: Member
TENANT:
Star Multi Care Services, Inc.
By: /s/ Stephen Sternbach
----------------------------------------
Name: Stephen Sternbach
Title: CEO
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EXHIBIT A
Floor Plan
[A FLOOR PLAN]
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EXHIBIT B
Definitions
Whenever used in this Lease. The following terms shall have the indicated
meanings:
Address of Landlord: As defined in Section 1.1.
Address of Tenant: As defined in Section 1.1.
Additional Rent: As defined in Section 3.2.
Alteration: The installation, relocation or removal of any Improvement. An
Alteration may include (a) repair work performed by Tenant pursuant to Article
VIII or (b) compliance work performed by Tenant pursuant to Section 5.3 if such
work involves the installation, relocation or removal of any Improvement.
Base Rent: As defined in Section 1.1.
Building: The office building, other improvements and underlying
land known as 25 Newbridge Road, Hicksville, New York.
Building Service Systems: All mechanical, electrical, plumbing, gas,
telecommunication, sanitary, sprinkler, HVAC, security, life safety, elevator
and other systems or facilities that service the Building up to the point of
localized distribution to the Premises (if and to the extent any such systems
or facilities service the Premises) and excluding any systems or facilities
located in the Premises or extending beyond such point of localized
distribution.
Building Standards: Such standards as Landlord may adopt and generally enforce
uniformly from time to time to govern the technical aspects of alterations to
the Premises.
Business Days: Monday through Friday, other than Federal or New York State or
union legal holidays.
Business Hours: As defined in Section 6.2.
Commencement Date: As defined in Section 1.1.
Common Areas: As defined in Section 8.3.
Deficiency: As defined in Section 15.2.4.
Electric Inclusion Amount: As defined in Section 6.1.
Eminent Domain: As defined in Section 10.1.
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Expiration Date: As defined in Section 1.1.
Force Majeure: As defined in Section 16.7.
GAAP: Generally accepted accounting principles, consistently applied.
Hazardous Materials: Any element, compound, chemical mixture, contaminant,
pollutant, material, waste or other substance which is defined, determined or
identified as a "hazardous substance", hazardous waste or hazardous material
under any federal, state or local statute, regulation or ordinance applicable
to the Premises, as well as any amendments and successors to such statutes and
regulations, as may be enacted and promulgated from time to time, including,
without limitation, the following: (i) the Comprehensive Environmental
Response, Compensation and Liability Act of 1980 (codified in scattered
sections of 26 U.S.C., 33 U.S.C., 42 U.S.C. and 42 U.S.C. ss. 9601 et seq.);
(ii) the Resource Conservation and Recovery Act of 1976 (42 U.S.C. ss. 6901 et
seq.); (iii) the Hazardous Materials Transportation Act (49 U.S.C. ss. 1801 et
seq.); (iv) the Toxic Substances Control Act (15 U.S.C. ss. 2601 et seq); (v)
the Clean Water Act (33 U.S.C. ss. 1251 et seq.); (vi) the Clean Air Act (42
U.S.C. ss. 7401 et seq); (vii) the Safe Drinking Water Act (21 U.S.C. ss. 349;
42 U.S.C. ss. 201 and ss. 300f et seq); (viii) the National Environmental
Policy Act of 1969 (42 U.S.C. ss. 3421); (ix) the Superfund Amendment and
Reauthorization Act of 1986 (codified in scattered sections of 10 U.S.C., 29
U.S.C., 33 U.S.C. and 42 U.S.C.); (x) Title III of the Superfund Amendment and
Reauthorization Act (40 U.S.C. ss. 1101 et seq.) and (xi) the Environmental
Conservation Law of the State of New York (modified in section 17 1/2 of
McKinney's 1984).
HVAC: Heating, ventilation and air conditioning.
Improvement: Any fixed improvement in, to or upon the Premises made by or for
any tenant or occupant.
Insurance Requirements: As defined in Exhibit D.
Interest Rate: As defined in Section 3.5.
Land: The real property upon which the Building is situated.
Landlord: As defined in the introductory paragraph of this Lease.
Landlord Parties: Landlord, any Senior Interest Holder, Landlord's Agent, the
managing agent for the Building, and any partner, principal, director, officer,
agent or employee of any of the foregoing.
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Landlord's Agent: Lighthouse Real Estate Management LLC, c/o Sheinker
Wasserstein Realty Services, Inc., 581 Sixth Avenue, 4th Floor, New York, New
York 10011
Landlord's Electrical Consultant: As defined in Section 6.1.
Landlord's Work As defined in Exhibit E.
Law(s): The terms "law," "laws,"provisions of law," "requirements of law," and
words of similar import shall mean present and future laws, statutes (including
the Americans with Disabilities Act, 42 U.S.C. ss. 12,101 et seq.), ordinances,
codes (including building and fire codes), rules (including the rules and
requirements of the Occupational Safety and Health Administration relating to
indoor air quality codified at 29 CFR parts 1910, 1915, 1926 and 1928),
regulations, requirements, decrees, orders and directives of any or all of the
federal, state, county and city governments and all agencies, authorities,
bureaus, courts, departments, subdivisions, or offices thereof, and of any
other governmental, public or quasi-public authorities (including the board of
fire underwriters or other insurance body) having jurisdiction over the
Building or the Premises, and the direction of any public officer pursuant to
law, whether now or hereafter in force. References to specific statutes include
(a) successor statutes of similar purpose and import, and (b) all rules,
regulations and orders made thereunder.
Lease Year: Any calendar year all or any part of which falls within the Term.
Mechanics Lien: Any mechanics or other lien or encumbrance filed, claimed or
asserted in connection with any Alteration or any other work, labor, services
or materials done for or supplied to Tenant or any Person claiming through or
under Tenant.
Notice: As defined in Section 16.11.
Objection Notice: As defined in Section 4.5.
Offer: As defined in Section 14.3.
Person: A natural person, firm, corporation, partnership, joint venture, trust
(including any beneficiary thereof, association, unincorporated association or
other form of business or legal entity, as the case may be.
Premises: As defined in Section 1.1.
Prohibited Use: Any use or occupancy of the Premises (other than a Permitted
Use) that, in the sole opinion of Landlord, as the case may be, (1) violates
any certificate of occupancy in force
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for the Premises or the Building; (2) causes or is likely to cause damage to
the Building, the Premises or any equipment, facilities or other systems
therein; (3) impairs the character, reputation, image or appearance of the
Building; (4) interferes with the proper, efficient and economic maintenance,
operation and repair of the Building or its equipment, facilities or systems,
including without limitation, the Building Service Systems; (5) constitutes a
nuisance, annoyance or inconvenience to other tenants or occupants of the
Building or interferes with or disrupts the use or occupancy of any area of the
Building (other than the Premises) by other tenants or occupants; (6) results
in demonstrations, bomb threats or other events that require evacuation of or
increased security for the Building or otherwise disrupts the use, occupancy or
quiet enjoyment of the Building by other tenants and occupants; (7) interferes
with the transmission or reception of microwave, television, radio or other
communication signals by antennae located on the roof of, or elsewhere in, the
Building: (8) violates any provision of any financing documents from time to
time encumbering the Building, all covenants, conditions and restrictions
affecting the building or any modifications, amendments, substitutions,
replacements, supplements or additions to any of the foregoing; or (9) violates
any requirement or condition of any insurance policy maintained by Landlord in
connection with the Building or of the standard fire insurance policy issued
for office buildings in the County of Nassau or the rules and regulations of
the New York Board of Fire Underwriters or Insurance Services Office (or
similar bodies). In addition to the foregoing, a Prohibited Use also includes
the use of any part of the Premises for: (i) a restaurant or bar; (ii) the
preparation, consumption, storage, manufacture or sale of food, beverages,
liquor, tobacco or drugs (excluding the sale, storage and consumption of food
or beverages from or in connection with vending machines installed for use by
Tenant's employees); (iii) the business of photocopying, multiplying or offset
printing (but Tenant may use part of the Premises for photocopying in
connection with its own business); (iv) a typing or stenography business; (v) a
school or classroom; (vi) cooking, lodging or sleeping; (vii) the operation of
retail facilities of a savings and loan association or retail facilities of any
financial, lending, securities brokerage or investment activity; (viii) medical
or dental offices or laboratories; (ix) a barber, beauty or manicure shop; (x)
an employment agency, executive search firm or similar enterprise; (xi) a
consulate; (xii) the manufacture, retail sale, storage of merchandise or
auction of merchandise, goods or property of any kind; or (xiii) any immoral or
illegal purposes.
Rents: As defined in Section 3 3.
Rules and Regulations: As defined in Section 5 3.
Security Deposit: As defined in Section 1.1.
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Senior Interest Holders: As defined in Section 13.1.
Senior Interests: As defined in Section 13.1.
Substantially Completed: Such completion as (excluding any alterations or work
to be performed by Tenant) which would enable Tenant to reasonably and
conveniently use and occupy the Premises for the conduct of its ordinary
business, even though minor details, decorations, and/or mechanical adjustments
may remain to be completed by Landlord to Landlord's Work.
Target Date: As defined in Section 14.3.
Taxable Property: As defined in Section 4.1.5.
Tax Statement: As defined in Section 4.1.4.
Tax Year: As defined in Section 4.1.1.
Taxes: As defined in Section 4.1.3.
Tenant: As defined in the introductory paragraph of this Lease.
Tenant's Improvements: Improvements made to the Premises by
Tenant.
Tenant's Property: As defined in Section 8.2.
Tenant's Share: As defined in Section 1.1.
Tenant's Tax Payment: As defined in Section 4.2.
Term: As defined in Section 1.1.
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EXHIBIT C
Rules and Regulations
1. The sidewalks, areas, entrances, vestibules, passages, corridors,
halls, elevators and stairways shall not be encumbered nor obstructed by any of
the tenants, their agents, clerks, servants or visitors, or be used by them for
any other purpose than for ingress and egress to and from their respective
premises. Landlord reserves the right to restrict and regulate the use of
aforementioned public areas of the Building by the tenants, their employees,
guests, contractors and customers and by persons making deliveries to tenants,
including but not limited to the right to allocate certain elevators for
delivery service, and the right to designate which Building entrances shall be
used by persons making deliveries in the Building.
2. The doors, skylights, and windows that reflect or admit light into
passageways or into any place in the Building shall not be covered or
obstructed by any tenant.
3. The water-closets, wash-closets, urinals and other water apparatus
shall not be used for any purposes other than those for which they were
constructed and no sweepings, rubbish, rags, ashes, chemicals, refuse from
electric batteries, or other substances shall be thrown therein. No tenant
shall lay linoleum or other similar floor covering so that the same shall come
in direct contact with the floor covering of the Premises, and if linoleum or
other similar floor covering is desired to be used, an interlining of builder's
deadening felt shall be first affixed to the floor by a paste, or other
material, which may easily be removed with water, the use of cement or other
similar adhesive material being expressly prohibited
4. No tenant shall mark, paint, drill into, drive nails into, or in
any way damage, mutilate or deface any walls, ceilings, partitions, floors,
wood, stone or iron work of the Building, except in connection with
Alterations.
5. No sign, advertisement or notice shall be inscribed, painted,
affixed or displayed on any of the windows or doors or on any other part of the
outside or the inside of the Building No awnings or other projections shall be
attached to the outside walls or windows of the Building without the prior
consent of Landlord. No curtains, blinds, shades, or screens shall be attached
to or hung in, or used in connection with, any window or door of the premises
demised to any tenant or occupant, without the prior consent of Landlord. Such
awnings, projections, curtains, blinds, shades, screens or other fixtures must
be of a quality, type, design and color, and attached in a manner approved by
Landlord. No sign, advertisement, object, notice or
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other lettering shall be exhibited, inscribed, painted or affixed on any part
of the outside or inside of the premises demised to any tenant or occupant or
of the Building without the prior consent of Landlord. Interior signs on door
and directory tablets, if any, shall be of a size, color and style approved by
Landlord.
6. No tenant shall do anything or permit anything to be done, in its
Premises, or bring or keep anything therein or in the Building, that will in
any way obstruct or interfere with the rights of other tenants, or in any way
injure or annoy them, or those having business with them. Tenants, their
agents, clerks, servants or visitors, shall not make or cause any improper
noises in the Building, or interfere in any way with other tenants, or those
having business with them.
7. No freight, furniture, or bulky matter of any description will be
received into the Building, or carried up or down, except during hours and in
the manner designated by Landlord, which may involve overtime work for
Landlord's employees, agents or contractors. Tenants shall reimburse Landlord
for costs incurred by Landlord, including the cost of such overtime work. The
moving of safes shall occur at such times as Landlord shall designate upon
previous notice to Landlord or Landlord's agent; and the persons employed to
move the safes in and out of the Premises must be acceptable to Landlord in its
sole discretion. No tenant shall use the passenger elevators for the hauling
and removal of materials or debris and the same shall be done only after
Business Hours and only via the designated freight elevator.
8. Tenants shall not install any locks or bolts on any doors nor make
any changes in existing locks unless Tenant promptly provides Landlord with a
key or combination thereto. All keys shall be keyed to the building master.
Each tenant must, upon the termination of the tenancy, restore to Landlord all
the keys (or other similar access devices) of offices, rooms and toilet-rooms
which shall have been furnished to Tenant or that Tenant shall have had made,
and in the event of loss of any keys so furnished shall pay Landlord therefor.
9. Tenant shall not use the Premises for the manufacturing or storage
of merchandise or for lodging.
10. Nothing shall be swept or thrown by the tenants or by their
agents, clerks, servants or visitors into the corridors, halls, stairways,
elevators, or light shafts, or upon the skylights of the Building, or into or
upon any heating or ventilating registers, or plumbing apparatus in the
Building, or upon adjoining buildings or upon the street. No awnings or other
projections shall be attached to the outside walls of the Building.
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11. No animals (except seeing eye dogs) or birds shall be kept in or
about the Premises.
12. Tenants shall not bring into the Building or keep to use in the
Building any Hazardous Material.
13. No tenant shall cause or permit any odors of cooking or other
processes or any unusual or objectionable odors to emanate from the Premises.
No tenant shall install or permit the installation or use of any machine
dispensing goods for sale, including without limitation foods, beverages,
cigarettes or cigars; or permit the delivery of any food or beverage to the
Premises. No food or beverages shall be carried in the public halls and
elevators of the Building except in closed containers.
14. Tenants shall not obtain any towel supply service or ice service
except from Persons approved by Landlord, nor obtain drinking water for
delivery on the Premises from any source not approved by Landlord. Canvassing,
peddling and soliciting are prohibited in the Building and Tenant shall
cooperate to prevent the same.
15. Telegraph, telephone and other wires and instruments shall not be
introduced by Tenant without previous notice to Landlord and with its
reasonable approval.
16. Landlord reserves the right to exclude from the Building between
the hours of 6:00 o'clock p.m. and 8:00 o'clock a.m. on weekdays, on Saturdays,
Sundays and legal holidays, all Persons who do not present a pass to the
Building signed by Landlord or Landlord's agent. Landlord or its agent will
furnish passes to Persons for whom any tenant requests same in writing. Each
tenant shall be responsible for all Persons for whom he requests such pass and
shall be liable to Landlord for all acts of such Persons. Landlord may require
all such Persons to sign a register on entering and leaving the Building.
17. Landlord shall not be responsible to Tenant for the non-observance
or violation of these rules and regulations by any other tenant or occupant.
18. Landlord may from time to time adopt additional systems and
procedures to improve the security or safety of the Building, any persons
occupying, using or entering the same, or any equipment, finishing or contents
thereof, and Tenant shall comply with Landlord's reasonable requirements
relative thereto.
19. Tenant shall conduct all aspects of its operations so as to
preserve labor harmony and to insure that the security and operations of the
Building shall not be disrupted.
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20. Landlord reserves the right to rescind, alter, waive or add, as to
one or more or all tenants, any rule or regulation at any time prescribed for
the Building when, in the judgment of Landlord, Landlord deems it necessary or
desirable for the reputation, safety, character, security, care, appearance or
interests of the Building or the Premises, the preservation of good order
therein, the operation or maintenance of the Building, the equipment thereof,
or the comfort of tenants or others in the Building. No rescission, alteration,
waiver or addition of any rule or regulation in respect of one tenant shall
operate as a rescission, alteration or waiver in respect of any other tenant.
21. Tenant shall not place a load upon any floor of the Premises that
exceeds 50 pounds live load per square foot (except in locations expressly
indicated by Landlord in writing to have been reinforced to bear greater live
loads). Business machines and mechanical equipment used in the Premises that
cause vibrations or noise that may be transmitted to any other space in the
Building to such a degree as to be reasonably objectionable to Landlord or to
any tenants or occupants of the Building shall be placed and maintained by
Tenant, at its expense, in settings of cork, rubber or spring-type vibration
eliminators sufficient, in Landlord's judgment, to eliminate such vibrations or
noise.
22. Tenant shall neither contract for, nor employ, any labor in
connection with the maintenance or cleaning of, or providing of any other
services to, the Premises (but excluding Tenant's Property) without the prior
consent of Landlord in its sole discretion (Landlord may withhold any such
consent on the ground that use of such service provider would disturb labor
harmony in the Building.)
23. All removals from the Building, or the carrying in or out of the
Building or the premises demised to any tenant, of any safes, freights,
furniture or bulky matter of any description must take place at such time and
in such manner as Landlord or its agents may determine, from time to time.
Landlord reserves the right to inspect all freight to be brought into the
Building and to exclude from the Building all freight which violates any of the
Building Rules or the provisions of such tenant's lease.
24. No tenant or occupant shall engage or pay any employees in the
Building, except those actually working for such tenant or occupant in the
Building, nor advertise for laborers giving an address at the Building.
25. Each tenant, before closing and leaving the premises demised to
such tenant at any time, shall see that all entrance doors are locked, all
windows are closed and all lights are turned off.
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26. The requirements of tenants will be attended to only upon
application at the office of Landlord. Building employees shall not be required
to perform, and shall not be requested by any tenant or occupant to perform,
any work outside of their regular duties, unless under specific instructions
from the office of Landlord.
27. There shall not be used in the Building, either by any tenant or
occupant or by their agents or contractors, in the delivery or receipt of
merchandise, freight or other matter, any hand trucks or other means of
conveyance except those equipped with rubber tires, rubber side guards and such
other safeguards as Landlord may require.
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EXHIBIT D
INSURANCE REQUIREMENTS
The following requirements (collectively, the "Insurance
Requirements") shall be complied with by Tenant at all times during the Term:
1. Insurance to be Maintained by Tenant. At all times during the Tern,
Tenant shall maintain, at Tenant's expense, the following insurance coverage:
(a) fire and extended coverage property insurance covering all
physical loss to the Improvements, Alterations and Tenant's Property in the
Premises for their full replacement value;
(b) broad form commercial general liability insurance (including
protective liability coverage on operations of independent contractors engaged
in construction and blanket contractual liability insurance), written on a per
occurrence basis with an aggregate limit of not less than $5,000,000, a per
occurrence limit of not less than $1,000,000, and with other limits reasonably
satisfactory to Landlord;
(c) business interruption insurance covering risk of loss due to the
occurrence of any of the hazards covered by the insurance to be maintained by
Tenant described in Paragraph l(a) with coverage in a face amount of not less
than the aggregate amount, for a period of 12 months following the
insured-against peril, of 100% of all Rents to be paid by Tenant under this
Lease;
(d) worker's compensation insurance and employer's liability coverage
in statutory limits, and New York State disability insurance as required by
Law, covering all employees; and
(e) such other coverage as Landlord may reasonably require with
respect to the Premises, its use and occupancy and the conduct or operation of
business therein. Landlord may, from time to time, but not more frequently than
once every year, adjust the minimum limits set forth above.
2. Insurer and Policy Requirements. All insurance policies to be
maintained under Paragraph I (a) shall be issued by companies of recognized
responsibility, licensed to do business in the State of New York, reasonably
acceptable to Landlord, and maintaining a rating of A-/VI or better in Best's
Insurance Reports-Property-Casualty (or an equivalent rating in any successor
index adopted by Best's or its successor), (b) shall provide that they may not
be cancelled or modified unless Landlord and all additional insureds and loss
payees thereunder are given at least 30 days prior written notice of such
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cancellation or modification, (c) shall name, as additional insureds, Landlord,
Landlord's Agent and any Senior Interest Holder whose name and address shall
have been furnished to Tenant, and (d) shall be primary and non-contributory in
all respects. All policies providing fire and extended coverage property
insurance coverage pursuant to Paragraph 1(a) shall name, as loss payees,
Landlord, each Senior Interest Holder and Tenant, as their interests may
appear.
3. Evidence of Coverage; Renewals. Prior to the Commencement Date or,
in the case of insurance required during the performance of Alterations, prior
to the commencement of the Alterations, Tenant shall deliver to Landlord
certificates of insurance for the insurance coverage required by Paragraph I
and, if required by Landlord, copies of the policies therefor, in each case, in
form and providing for deductibles reasonably satisfactory to Landlord. Tenant
shall procure and pay for renewals of such insurance from time to time before
the expiration thereof, and Tenant shall deliver to Landlord certificates of
renewal at least 30 days before the expiration of any existing policy. If
Tenant fails to procure or maintain any insurance required by this Lease and to
pay all premiums and charges therefor, Landlord may (but shall not be obligated
to) pay the same, and Tenant shall reimburse Landlord, within 20 days after
demand, for all such sums paid by Landlord. Any such payment shall not cure or
waive any default by Tenant in the performance of its obligations hereunder,
nor shall the foregoing right of Landlord to make such payment in any way
limit, reduce, diminish or impair the rights of Landlord under the terms of
this Lease or at Law or in equity arising as a result of any such default.
4. Additional Insurance; Blanket Insurance. Tenant shall not carry
separate or additional insurance, concurrent in form or contributing in the
event of any loss or damage with any insurance required to be obtained by
Tenant under this Lease unless the parties required by Paragraph 2 to be named
as additional insureds or loss payees thereunder are so named. Tenant may carry
any insurance coverage required of it hereunder pursuant to blanket policies of
insurance so long as the coverage afforded Landlord and the other additional
insureds or loss payees, as the case may be hereunder shall not be less than
the coverage that would be provided by direct policies.
-53-
<PAGE>
EXHIBIT E
Work Letter
Landlord shall build out the space using building standard methods,
means and materials ("Landlord's Work"), at its sole cost and expense.
Landlord's Work shall be deemed to have been "substantially completed"
notwithstanding the fact that minor or nonsubstantial details of construction,
mechanical adjustment or decoration remain to be performed, the non-completion
of which would not interfere with Tenant's use of the Premises for its intended
purpose. No work shall be deemed incomplete if the delay in completing the work
shall be due to special work, changes, alterations or additions required to be
made by Tenant, or shall be caused by delay or default on the part of the
Tenant.
-54-
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