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EXHIBIT 10.61
THIS LEASE made the 1st day of May, 1991 between XXXXXXX XXXXXXX
COMPANY, having an address at 000 Xxxxx XxxXxxxxxx Xxxxxxx, Xx. Xxxxxx, Xxx Xxxx
hereinafter referred to as LANDLORD, and XXXXXXX XXXXXXX JEWELERS, INC., located
at 000 Xxxxx XxxXxxxxxx Xxxxxxx, Xxxxx Xxxxxx, Xxx Xxxx hereinafter jointly,
severally and collectively referred to as TENANT.
WITNESSETH, that the Landlord hereby leases to the Tenant, and the
Tenant hereby hires and takes from the Landlord the entire building in the
building known as 00 Xxxxx XxxXxxxxxx Xxxxxxx, Xxxxx Xxxxxx, Xxx Xxxx to be used
and occupied by the Tenant
and for no other purpose, for a term to commence on May 1, 1991, and to end on
April 30th, 2001, unless sooner terminated as hereinafter provided, at the
ANNUAL RENT of
See paragraph 62 herein
all payable in equal monthly installments in advance on the first day of each
and every calendar month during said term, except the first installment, which
shall be paid upon the execution hereof.
THE TENANT JOINTLY AND SEVERALLY COVENANTS:
FlRST.--That the Tenant will pay the rent as above provided.
SECOND.-- REPAIRS
ORDINANCES AND VIOLATIONS
ENTRY
INDEMNIFY LANDLORD
That, throughout said term, the Tenant will take good care of the
demised premises, fixtures and appurtenances, and all alterations,
additions and improvements to either; make all repairs in and about the
same necessary to preserve them in good order and condition, which
repairs shall be, in quality and class, equal to the original work;
promptly pay the expense of such repairs; suffer no waste or injury;
give prompt notice to the Landlord of any fire that may occur; execute
and comply with all laws, rules, orders, ordinances and regulations at
any time issued or in force, applicable to the demised premises or to
the Tenant's occupation thereof, of the Federal, State and Local
Governments, and of each and every department, bureau and official
thereof, and of the New York Board of Fire Underwriters; permit
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at all times during usual business hours, the Landlord and
representatives of the Landlord to enter the demised premises for the
purpose of inspection, and to exhibit them for purposes of sale or
rental; suffer the Landlord to make repairs and improvements to all
parts of the building, and to comply with all orders and requirements
of governmental authority applicable to said building or to any
occupation thereof; suffer the Landlord to erect, use, maintain, repair
and replace pipes and conduits in the demised premises and to the
floors above and below; forever indemnify and save harmless the
Landlord for and against any and all liability, penalties, damages,
expenses and judgments arising from injury during said term to person
or property of any nature, occasioned wholly or in part by any act or
acts, omission or omissions of the Tenant, or of the employees, guests,
agents, assigns or undertenants of the Tenant and also for any matter
or thing growing out of the occupation of the demised premises or of
the streets, sidewalks or vaults adjacent thereto; permit during the
six months next prior to the expiration of the term the usual notice
"To Let" to be placed and to remain unmolested in a conspicuous place
upon the exterior of the demised premises; repair, at or before the end
of the term, all injury done by the installation or removal of
furniture and property; and at the end of the term, to quit and
surrender the demised premises with all alterations, additions and
improvements in good order and condition.
THIRD.-- MOVING INJURY SURRENDER
NEGATIVE COVENANTS
OBSTRUCTION SIGNS
AIR CONDITIONING
That the Tenant will not disfigure or deface any part of the building,
or suffer the same to be done, except so far as may be necessary to
affix such trade fixtures as are herein consented to by the Landlord;
the Tenant will not obstruct, or permit the obstruction of the street
or the sidewalk adjacent thereto; will not do anything or suffer
anything to be done upon the demised premises which will increase the
rate of fire insurance upon the building or any of its contents, or be
liable to cause structural injury to said building; will not permit the
accumulation of waste or refuse matter, and will not, withhold the
written consent of the Landlord first obtained in each case, either
sell, assign, mortgage or transfer this lease, underlet the demised
premises or any part thereof, permit the same or any part thereof to be
occupied by anybody other than Tenant and the Tenant's employees, make
any alterations in the demised premises, use the demised premises or
any part thereof for any purpose other than the one first above
stipulated, or for any purpose deemed extra hazardous on account of
fire risk, nor in violation of any law or ordinance. That the Tenant
will not obstruct or permit
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the obstruction of the light, halls, stairway or entrances to the
building, and will not erect or inscribe any sign, signals or
advertisements unless and until the style and location thereof have
been approved by the Landlord; and if any be erected or inscribed
without such approval, the Landlord may remove the same. No water
cooler, air conditioning unit or system or other apparatus shall be
installed or used without the prior written consent of Landlord.
IT IS MUTUALLY COVENANTED AND AGREED, THAT
FOURTH.-- FIRE CLAUSE.
If the demised premises shall be partially damaged by fire or other
cause without the fault or neglect of Tenant, Tenant's servants,
employees, agents, visitors or licensees, the damages shall be repaired
by and at the expense of Landlord and that rent until such repairs
shall be made shall be apportioned according to the part of the demised
premises which is usable by Tenant. But if such partial damage is due
to the fault or neglect of Tenant, Tenant's servants, employees,
agents, visitors or licensees, without prejudice to any other rights
and remedies of Landlord and without prejudice to the rights of
subrogation of Landlord's insurer, the damages shall be repaired by
Landlord but there shall be no apportionment or abatement of rent. No
penalty shall accrue for reasonable delay which may arise by reason of
adjustment of insurance on the part of Landlord and/or Tenant, and for
reasonable delay on account of "labor troubles", or any other cause
beyond Landlord's control. If the demised premises are totally damaged
or are rendered wholly untenantable by fire or other cause, and if
Landlord shall decide not to restore or not to rebuild the same, or if
the building shall be so damaged that Landlord shall decide to demolish
it or to rebuild it, then or in any of such events Landlord may, within
ninety (90) days after such fire or other cause, give Tenant a notice
in writing of such decision, which notice shall be given as in
Paragraph Twelve hereof provided, and thereupon the term of this lease
shall expire by lapse of time upon the third day after such notice is
given, and Tenant shall vacate the demised premises and surrender the
same to Landlord. If Tenant shall not be in default under this lease
then, upon the termination of this lease under the conditions provided
for in the sentence immediately preceding. Tenant's liability for rent
shall cease as of the day following the casualty. Tenant hereby
expressly waives the provisions of Section 227 of the Real Property Law
and agrees that the foregoing provisions of this Article shall govern
and control in lieu thereof. If the damage or destruction be due to the
fault or neglect of Tenant the debris shall be removed by, and at the
expense of, Tenant.
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FIFTH.-- EMINENT DOMAIN.
If the whole or any part of the premises hereby demised shall be taken
or condemned by any competent authority for any public use or purpose
then the term hereby granted shall cease from the time when possession
of the part so taken shall be required for such public purpose and
without apportionment of award, the Tenant hereby assigning to the
Landlord all right and claim to any such award, the current rent,
however, in such case to be apportioned.
SIXTH.-- LEASE NOT IN EFFECT
DEFAULTS
TEN DAY NOTICE
RE-POSSESSION OF LANDLORD
RE-LETTING
WAIVER BY TENANT
If, before the commencement of the term, the Tenant be adjudicated a
bankrupt, or make a "general assignment", or take the benefit of any
insolvent act, or if a Receiver or Trustee be appointed for the
Tenant's property, or if this lease or the estate of the Tenant
hereunder be transferred or pass to or devolve upon any other person or
corporation, or if the Tenant shall default in the performance of any
agreement by the Tenant contained in any other lease to the Tenant by
the Landlord or by any corporation of which an officer of the Landlord
is a Director, this lease shall thereby, at the option of the Landlord,
be terminated and in that case, neither the Tenant nor anybody claiming
under the Tenant shall be entitled to go into possession of the demised
premises. If after the commencement of the term, any of the events
mentioned above in this subdivision shall occur, or if Tenant shall
make default in fulfilling any of the covenants of this lease other
than the covenants for the payment of rent or "additional rent" or if
the demised premises become vacant or deserted, the Landlord may give
to the Tenant ten days' notice of intention to end the term of this
lease, and thereupon at the expiration of said ten days' (if said
condition which was the basis of said notice shall continue to exist)
the term under this lease shall expire as fully and completely as if
that day were the date herein definitely fixed for the expiration of
the term and the Tenant will then quit and surrender the demised
premises to the Landlord, but the Tenant shall remain liable as
hereinafter provided.
If the Tenant shall make default in the payment of the rent reserved
hereunder, or any item of "additional rent" herein mentioned, or any
part of either or in making any other payment herein provided for, or
if the notice last above provided for shall have been given and if the
condition which
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was the basis of said notice shall exist at the expiration of said ten
days' period, the Landlord may immediately, or at any time thereafter,
re-enter the demised premises and remove all persons and all or any
property therefrom, either by summary dispossess proceedings, or by any
suitable action or proceeding at law, or by force or otherwise, without
being liable to indictment, prosecution or damages therefor, and
re-possess and enjoy said premises together with all additions,
alterations and improvements. In any such case or in the event that
this lease be "terminated" before the commencement of the term, as
above provided, the Landlord may either re-let the demised premises or
any part or parts thereof for the Landlord's own account, or may, at
the Landlord's option, re-let the demised premises or any part or parts
thereof as the agent of the Tenant, and receive the rents therefor,
applying the same first to the payment of such expenses as the Landlord
may have incurred, and then to the fulfillment of the covenants of the
Tenant herein, and the balance, if any, at the expiration of the term
first above provided for, shall be paid to the Tenant. Landlord may
rent the premises for a term extending beyond the term hereby granted
without releasing Tenant from any liability. In the event that the term
of this lease shall expire as above in this subdivision "Sixth"
provided, or terminate by summary proceedings or otherwise, and if the
Landlord shall not re-let the demised premises for the Landlord's own
account, then, whether or not the premises be re-let, the Tenant shall
remain liable for, and the Tenant hereby agrees to pay to the Landlord,
until the time when this lease would have expired but for such
termination or expiration, the equivalent of the amount of any of the
rent and "additional rent" reserved herein less the avails of
re-letting, if any, and the same shall be due and payable by the Tenant
to the Landlord on the several rent days above specified, that is, upon
each of such rent days the Tenant shall pay to the Landlord the amount
of deficiency then existing. The Tenant hereby expressly waives any and
all right of redemption in case the Tenant shall be dispossessed by
judgment or warrant of any court or judge, and the Tenant waives and
will waive all right to trial by jury in any summary proceedings
hereafter instituted by the Landlord against the Tenant in respect to
the demised premises. The words "re-enter" and "re-entry" as used in
this lease are not restricted to their technical legal meaning.
In the event of a breach or threatened breach by the Tenant of any of
the covenants or provisions hereof, the Landlord shall have the right
of injunction and the right to invoke any remedy allowed at law or in
equity, as if re-entry, summary proceedings and other remedies were not
herein provided for.
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SEVENTH.-- LANDLORD MAY PERFORM
ADDITIONAL RENT
If the Tenant shall make default in the performance of any covenant
herein contained, the Landlord may immediately, or at any time
thereafter, without notice, perform the same for the account of the
Tenant. If a notice of mechanic's lien be filed against the demised
premises or against premises of which the demised premises are part,
for, or purporting to be for, labor or material alleged to have been
furnished, or to be furnished to or for the Tenant at the demised
premises, and if the Tenant shall fail to take such action as shall
cause such lien to be discharged within fifteen days after the filing
of such notice, the Landlord may pay the amount of such lien or
discharge the same by deposit or by bonding proceedings, and in the
event of such deposit or bonding proceedings, the Landlord may require
the lienor to prosecute an appropriate action to enforce the lienor's
claim. In such case, the Landlord may pay any judgment recovered on
such claim. Any amount paid or expense incurred by the Landlord as in
this subdivision of this lease provided, and any amount as to which the
Tenant shall at any time be in default for or in respect to the use of
water, electric current or sprinkler supervisory service, and any
expense incurred or sum of money paid by the Landlord by reason of the
failure of the Tenant to comply with any provision hereof, or in
defending any such action, shall be deemed to be "additional rent" for
the demised premises, and shall be due and payable by the Tenant to the
Landlord on the first day of the next following month, or, at the
option of the Landlord, on the first day of any succeeding month. The
receipt by the landlord of any installment of the regular stipulated
rent hereunder or any of said "additional rent" shall not be a waiver
of any other "additional rent" then due.
EIGHTH.-- AS TO WAIVERS.
The failure of the Landlord to insist, in any one or more instances
upon a strict performance of any of the covenants of this lease or to
exercise any option herein contained, shall not be construed as a
waiver or a relinquishment for the future of such covenant or option,
but the same shall continue and remain in full force and effect. The
receipt by the Landlord of rent, with knowledge of the breach of any
covenant hereof, shall, not be deemed a waiver of such breach and no
waiver by the Landlord of any provision hereof shall be deemed to have
been made unless expressed in writing and signed by the Landlord. Even
though the landlord shall consent to an assignment hereof no further
assignment shall be made without express consent in writing by the
Landlord.
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NINTH.-- COLLECTION OF RENT FROM OTHERS.
If this lease be assigned, or if the demised premises or any part
thereof be underlet or occupied by anybody other than the Tenant, the
Landlord may collect rent from the assignee, undertenant or occupant,
and apply the net amount collected to the rent herein reserved, and no
such collection shall be deemed a waiver of the covenant herein against
assignment and underletting, or the acceptance of the assignee,
undertenant or occupant as tenant or a release of the Tenant from the
further performance by the Tenant of the covenants herein contained on
the part of the Tenant.
TENTH.-- MORTGAGES.
This lease shall be subject and subordinate at all times, to the lien
of the mortgages now on the demised premises, and to all advances made
or hereafter to be made upon the security thereof, and subject and
subordinate to the lien of any mortgage or mortgages which at any time
may be made a lien upon the premises. The Tenant will execute and
deliver such further instrument or instruments subordinating this lease
to the lien of any such mortgage or mortgages as shall be desired by
any mortgagee or proposed mortgagee. The Tenant hereby appoints the
Landlord the attorney-in-fact of the Tenant, irrevocable, to execute
and deliver any such instrument or instruments for the Tenant.
ELEVENTH.-- IMPROVEMENTS.
All improvements made by the Tenant to or upon the demised premises,
except said trade fixtures, shall when made, at once be deemed to be
attached to the freehold and become the property of the Landlord, and
at the end or other expiration of the term, shall be surrendered to the
Landlord in as good order and condition as they were when installed,
reasonable wear and damages by the elements excepted.
TWELFTH.-- NOTICES.
Any notice or demand which under the terms of this lease or under any
statute must or may be given or made by the parties hereto shall be in
writing and shall be given or made by mailing the same by certified or
registered mail addressed to the respective parties at the addresses
set forth in this lease.
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THIRTEENTH.-- NO LIABILITY.
The Landlord shall not be liable for any failure of water supply or
electrical current, sprinkler damage, or failure of sprinkler service,
nor for injury or damage to person or property caused by the elements
or by other tenants or persons in said building, or resulting from
steam, gas, electricity, water, rain or snow, which may leak or flow
from any part of said buildings, or from the pipes, appliances or
plumbing works of the same, or from the street or sub-surface, or from
any other place, nor for interference with light or other incorporeal
hereditaments by anybody other than the Landlord, or caused by
operations by or for a governmental authority in construction of any
public of quasi-public work, neither shall the Landlord be liable for
any latent defect in the building.
FOURTEENTH.-- NO ABATEMENT.
No diminution or abatement of rent, or other compensation shall be
claimed or allowed for inconvenience or discomfort arising from the
making of repairs or improvements to the building or to its appliances,
nor, for any space taken to comply with any law, ordinance or order of
a governmental authority. ln respect to the various "services" if any,
herein expressly or impliedly agreed to be furnished by the Landlord to
the Tenant, it is agreed that there shall be no diminution or abatement
of the rent, or any other compensation for interruption or curtailment
of such "service" when such interruption or curtailment shall be due to
accident, alterations or repairs desirable or necessary to be made or
to inability or difficulty in securing supplies or labor for the
maintenance of such "service" to some other cause, not gross negligence
on the part of the Landlord. No such interruption or curtailment of any
such "service" shall be deemed a constructive eviction. The Landlord
shall not be required to furnish, and the Tenant shall not be entitled
to receive, any of such "services" during any period wherein the Tenant
shall be in default in respect to the payment of rent. Neither shall
there be any abatement or diminution of rent because of making of
repairs, improvements or decorations to the demised premises after the
date above fixed for the commencement of the term, it being understood
that rent shall, in any event, commence to run at such date so above
fixed.
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FIFTEENTH.-- RULES, ETC.
The Landlord may prescribe and regulate the placing of safes,
machinery, quantities of merchandise and other things. The Landlord may
also prescribe and regulate which elevator and entrances shall be used
by the Tenant's employees, and for the Tenant's shipping. The Landlord
may make such other and further rules and regulations as, in the
Landlord's judgment, may from time to time be needful for the safety,
care or cleanliness of the building, and for the preservation of good
order therein. The Tenant and the employees and agents of the Tenant
will observe and conform to all such rules and regulations.
SIXTEENTH.-- SHORING OF WALLS.
In the event that an excavation shall be made for building or other
purposes upon land adjacent to the demised premises or shall be
contemplated to be made, the Tenant shall afford to the person or
persons causing or to cause such excavation, license to enter upon the
demised premises for the purpose of doing such work as said person or
persons shall deem to be necessary to preserve the wall or walls,
structure or structures upon the demised premises from injury and to
support the same by proper foundations.
SEVENTEENTH--VAULT SPACE.
No vaults or space not within the property line of the building are
leased hereunder. Landlord makes no representation as to the location
of the property line of the building. Such vaults or space as Tenant
may be permitted to use or occupy are to be used or occupied under a
revocable license and if such license to revoked by the Landlord as to
the use of part or all of the vaults or space Landlord shall not be
subject to any liability; Tenant shall not be entitled to any
compensation of reduction in rent nor shall this be deemed constructive
or actual eviction. Any tax, fee or charge of municipal or other
authorities for such vaults or space shall be paid by the Tenant for
the period of the Tenant's use or occupancy thereof.
EiGHTEENTH.-- ENTRY.
That during seven months prior to the expiration of the term hereby
granted, applicants shall be admitted at all reasonable hours of the
day to view the premises until rented; and the Landlord and the
Landlord's agents shall be permitted at any time during the term to
visit and examine them at any reasonable hour of the day, and workmen
may enter at any time when
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authorized by the Landlord or the Landlord's agents, to make or
facilitate repairs in any part of the building; and if the said Tenant
shall not be personally present to open and permit an entry into said
premises, at any time, when for any reason an entry therein shall be
necessary or permissible hereunder, the Landlord or the Landlord's
agents may forcibly enter the same without rendering the Landlord or
such agents liable to any claim or cause of action for damages by
reason thereof (if during such entry the Landlord shall accord
reasonable care to the Tenant's property) and without in any manner
affecting the obligations and covenants of this lease; it is, however,
expressly understood that the right and authority hereby reserved, does
not impose, nor does the Landlord assume, by reason thereof, any
responsibility or liability whatsoever for the care or supervision of
said premises, or any of the pipes, fixtures, appliances or
appurtenances therein contained or therewith in any manner connected.
NINETEENTH.-- NO REPRESENTATIONS.
The Landlord has made no representations or promise in respect to said
building or to the demised premises except those contained herein, and
those, if any, contained in some written communication to the Tenant,
signed by the Landlord. This instrument may not be changed, modified,
discharged or terminated orally.
TWENTIETH.-- ATTORNEY'S FEES.
If the Tenant shall at any time be in default hereunder, and if the
Landlord shall institute an action or summary proceeding against the
Tenant based upon such default, then the Tenant will reimburse the
Landlord for the expense of attorneys' fees and disbursements thereby
incurred by the Landlord, so far as the same are reasonable in amount.
Also so long as the Tenant shall be a tenant hereunder the amount of
such expenses shall be deemed to be "additional rent"' hereunder and
shall be due from the Tenant to the Landlord on the first day of the
month following the incurring of such respective expenses.
TWENTY-FIRST.-- POSSESSION.
Landlord shall not be liable for failure to give possession of the
premises upon commencement date by reason of the fact that premises are
not ready for occupancy, or due to a prior Tenant wrongfully holding
over or any other person wrongfully in possession or for any other
reason: in such event the rent shall not commence until possession is
given or is available but the term herein shall not be extended.
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THE TENANT FURTHER COVENANTS:
TWENTY-SECOND.-- IF A FIRST FLOOR
If the demised premises or any part thereof consist of a store, or of a
first floor, or of any part thereof, the Tenant will keep the sidewalk
and curb in front hereof clean at all times and free from snow and ice,
and will keep insured in favor of the Landlord, all plate glass therein
and furnish the landlord with policies of insurance covering the same.
TWENTY-THIRD.-- INCREASED FIRE INSURANCE RATE.
If by reason of the conduct upon the demised premises of a business not
herein permitted, or if by reason of the improper or careless conduct
of any business upon or use of the demised premises, the fire insurance
rate shall at any time be higher than it otherwise would be, then the
Tenant will reimburse the Landlord, as additional rent hereunder, for
that part of all fire insurance premiums hereafter paid out by the
Landlord which shall have been charged because of the conduct of such
business not so permitted, or because of the improper or careless
conduct of any business upon or use of the demised premises, and will
make such reimbursement upon the first day of the month following such
outlay by the Landlord; but this covenant shall not apply to a premium
for any period beyond the expiration date of this lease first above
xxxxxxxxx.Xx any action or proceeding wherein the Landlord and Tenant
are parties, a schedule or "make up" of rate for the building on the
demised premises, purporting to have been issued by New York Fire
Insurance Exchange, or other body making fire insurance rates for the
demised premises, shall be prima facie evidence of the fact therein
stated and of the several items and charges included in the fire
insurance rate then applicable to the demised premises.
TWENTY-FOURTH.-- WATER RENT
SEWER
If a separate water meter be installed for the demised premises, or any
part thereof, the Tenant will keep the same in repair and pay the
charges made by the municipality of water supply company for or in
respect to the consumption of water, as and when bills therefor are
rendered. If the demised premises, or any part thereof, be supplied
with water through a meter which supplies other premises, the Tenant
will pay to the Landlord, as and when bills are rendered therefore, the
Tenant's proportionate part of all charges which the municipality or
water supply
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company shall make for all water consumed through said meter, as
indicated by said meter. Such proportionate part shall be fixed by
apportioning the respective charge according to floor area against all
of the rentable floor area in the building (exclusive of the basement)
which shall have been occupied during the period of the respective
charges, taking into account the period that each part of such area was
occupied. Tenant agrees to pay as additional rent the Tenant's
proportionate part determined as aforesaid, of the sewer rent or charge
imposed or assessed upon the building of which the premises are a part.
TWENTY-FIFTH.-- ELECTRIC CURRENT.
That the Tenant will purchase from the Landlord, if the Landlord shall
so desire, all electric current that the Tenant requires at the demised
premises, and will pay the Landlord for the same, as the amount of
consumption shall be indicated by the meter furnished therefor. The
price for said current shall be the same as that charged for
consumption similar to that of the Tenant by the company supplying
electricity in the same community. Payment shall be due as and when
bills shall be rendered. The Tenant shall comply with like rules,
regulations and contract provisions as those prescribed by said company
for a consumption similar to that of the Tenant.
TWENTY-SIXTH.-- SPRINKLER SYSTEM.
If there now is or shall be installed in said building a "sprinkler
system" the Tenant agrees to keep the appliances thereto in the demised
premises in repair and good working condition, and if the New York
Board of Fire Underwriters or the New York Fire Insurance Exchange or
any bureau, department or official of the State or local government
requires or recommends that any changes, modifications, alterations or
additional sprinkler heads or other equipment be made or supplied by
reason of the Tenant's business, or the location of partitions, trade
fixtures, or other contents of the demised premises, or if such
changes, modifications, alterations, additional sprinkler heads or
other equipment in the demised premises are necessary to prevent the
imposition of a penalty or charge against the full allowance for a
sprinkler system in the fire insurance rate as fixed by said Exchange
or by any fire insurance company, the Tenant will at the Tenant's own
expense, promptly make and supply such changes, modifications,
alterations, additional sprinkler head or other equipment. As
additional rent hereunder the Tenant will pay to the Landlord, annually
in advance, throughout the term 100%, toward the contract price for
sprinkler supervisory service.
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TWENTY-SEVENTH.-- SECURITY.
The sum of -0- Dollars is deposited by the Tenant herein with the
Landlord herein as security for the faithful performance of all the
covenants and conditions of the lease by the said Tenant. If the Tenant
faithfully performs all the covenants and conditions on his part to be
performed, then the sum deposited shall be returned to said Tenant.
TWENTY-EIGHTH.-- INSURANCE.
This lease is granted and accepted on the especially understood and
agreed condition that the Tenant will conduct his business in such a
manner, both as regards noise and kindred nuisances, as will in nowise
interfere with, annoy, or disturb any other tenants, in the conduct of
their several businesses, or the landlord in the management of the
building; under penalty of forfeiture of this lease and consequential
damages.
TWENTY-NINTH.-- BROKERS COMMISSIONS.
The Landlord hereby recognizes MA as the broker who negotiated and
consummated this lease with the Tenant herein, and agrees that if, as,
and when the Tenant exercises the option, if any, contained herein to
renew this lease, or fails to exercise the option, if any, contained
therein to cancel this lease, the Landlord will pay to said broker a
further commission in accordance with the rules and commission rates of
the Real Estate Board in the community. A sale, transfer, or other
disposition of the Landlord's interest in said lease shall not operate
to defeat the Landlord's obligation to pay the said commission to the
said broker. The Tenant herein hereby represents to the Landlord that
the said broker is the sole and only broker who negotiated and
consummated this lease with the Tenant.
THIRTIETH.-- WINDOW CLEANING.
The Tenant agrees that it will not require, permit, suffer, nor allow
the cleaning of any window, or windows, in the demised premises from
the outside (within the meaning of Section 202 of the Labor Law) unless
the equipment and safety devices required by law, ordinance, regulation
or rule, including, without limitation, Section 202 of the New York
Labor Law, are provided and used, and unless the rules or any
supplemental rules of the Industrial Board of the State of New York are
fully complied with; and the Tenant hereby agrees to indemnify the
Landlord, Owner, Agent, Manager
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and/or Superintendent as a result of the Tenant's requiring,
permitting, suffering, or allowing any window, or windows in the
demised premises to be cleaned from the outside in violation of the
requirements of the aforesaid laws, ordinances, regulations and/or
rules.
THIRTY-FIRST.-- VALIDITY.
The invalidity or unenforceability of any provision of this lease shall
in no way affect the validity or enforceability of any other provision
hereof.
THIRTY-SECOND. EXECUTION AND DELIVERY OF LEASE.
In order to avoid delay, this lease has been prepared and submitted to
the Tenant for signature with the understanding that it shall not bind
the Landlord unless and until it is executed and delivered by the
Landlord.
THIRTY-THIRD.-- EXTERIOR OF PREMISES.
The Tenant will keep clean and polished all metal, trim, marble and
stonework which are a part of the exterior of the premises, using such
materials and methods as the Landlord may direct and if the Tenant
shall fail to comply with the provisions of this paragraph, the
Landlord may cause such work to be done at the expense of the Tenant.
THIRTY-FOURTH.-- PLATE GLASS.
The Landlord shall replace at the expense of the Tenant any and all
broken glass in the skylights, doors, and walls in and about the
demised premises. The Landlord may insure and keep insured all plate
glass in the skylights, doors and walls in the demised premises, for
and in the name of the Landlord and bills for the premiums thereof
shall be rendered by the Landlord to the Tenant at such times as the
Landlord may elect and shall be due from and payable by the Tenant when
rendered, and the amount thereof shall be deemed to be, and shall be
paid as, additional rent.
THIRTY-FIFTH.-- WAR EMERGENCY
This lease and the obligations of the Tenant to pay rent hereunder and
perform all of the other covenants and agreements hereunder on part of
Tenant to be performed shall in nowise be affected, impaired or
executed because Landlord is unable to supply or is delayed in
supplying any service expressly or impliedly to be supplied or is
unable to make, or is delayed in making any repairs, additions,
alterations or decorations or is unable to supply or is delayed in
supplying any equipment or fixtures if Landlord is
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prevented or delayed from so doing by reason of governmental preemption
in connection with a National Emergency declared by the President of
the United States or in connection with any rule, order or regulation
of any department or subdivision thereof of any government agency or by
reason of the conditions of supply and demand which have been or are
affected by war or other emergency.
THE LANDLORD COVENANTS
FIRST.-- QUIET POSSESSION.
That if and so long as the Tenant pays the rent and "additional rent"
reserved hereby, and performs and observes the covenants and provisions
hereof, the Tenant shall quietly enjoy the demised premises, subject,
however, to the terms of this lease, and to the mortgages above
mentioned, provided however, that this covenant shall be conditioned
upon the retention of title to the premises by Landlord.
And it is mutually understood and agreed that the covenants and
agreements contained in the within lease shall be binding upon the
parties hereto and upon their respective successors, heirs, executors
and administrators.
IN WITNESS WHEREOF, the Landlord and Tenant have respectively signed
and sealed these presents the day and year first above written.
/s/ Xxxxxxx Xxxxxxxxx
---------------------
XXXXXXX XXXXXXX COMPANY Landlord
IN PRESENCE OF:
XXXXXXX XXXXXXX JEWELERS, INC.
------------------------------
Tenant
BY: /s/Xxxxx Xxxx
----------
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State of New York, County of Westchester ss:
On the 1st day of May, 1991, before me personally came Xxxxxxx
Xxxxxxxxx, to me known, who, being by me duly sworn, did depose and say that he
resides at ; that he is General Partner of Xxxxxxx Xxxxxxx
Company , the partnership described in and which executed the
within instrument; and that he signed his name thereto by like order.
/s/XxxxXxx Xxxxx
----------------
Notary Public
State of New York, County of Westchester ss:
On the Ist day of May, 1991, before me personally came Xxxxx Xxxx, to
me known, who, being by me duly sworn, did depose and say that he resides at
; that he is Chief Financial Officer of Xxxxxxx Xxxxxxx Jewelers,
Inc., the corporation described in and which executed the within instrument;
that he knows the seal of said corporation; that the seal affixed to said
instrument is such corporate seal; that it was so affixed by order of the Board
of Directors of said corporation, and that he signed his name thereto by like
order.
/s/XxxxXxx Xxxxx
----------------
Notary Public
BUILDING
-----------------------------
Premises 00 Xxxxx XxxXxxxxxx Xxxxxxx
---------------------------
Mount Vernon, New York
----------------------
XXXXXXX XXXXXXX COMPANY Landlord
to
XXXXXXX XXXXXXX JEWELERS, INC. Tenant
-------------------------------------------
LEASE
--------------------------------------------
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RIDER TO LEASE DATED:
May 1, 1991
by and between: XXXXXXX XXXXXXX COMPANY
of: 000 Xxxxx XxxXxxxxxx Xxxxxxx, Xxxxx Xxxxxx, XX and: XXXXXXX XXXXXXX
JEWELERS, INC.
of: 000 Xxxxx XxxXxxxxxx Xxxxxxx, Xxxxx Xxxxxx, XX respecting premises:
The entire building known as 00 Xxxxx XxxXxxxxxx Xxxxxxx, Xxxxx Xxxxxx,
XX
36. If this rider conflicts in any way with the printed form Lease, this
rider shall control.
37. Tenant shall provide and keep in force during the term of this lease,
for the benefit of Landlord and Tenant, general liability insurance in
good and solvent insurance companies selected by Tenant but licensed in
the State of New York, with limits of $2,000,000 in respect to any one
accident and $300,000 in respect to property damages. Landlord may at
any time and from time to time require that the limits for the said
liability insurance to be maintained by Tenant be increased to such
limits as new tenants in the building wherein the demised premises are
located are required by landlord to maintain. Such general liability
insurance shall be in standard form and shall name the Landlord and
his, her or its agents, servants, employees, contractors, licensees and
invitees as insured parties. Tenant agrees to furnish certificates of
such insurance to Landlord at the commencement of this lease and
thereafter to deliver renewal certificates or replacement policies at
least 15 days prior to the expiration of any such policy. In the event
that the Tenant shall fail to provide any coverage required in this
lease, Landlord may place the same and may pay the premium therefor for
a period not exceeding one year and the amount so paid by Landlord
shall be payable by Tenant to Landlord as additional rent on the next
rent day after presentation of a xxxx therefor. Notwithstanding the
terms of any such policy, Tenant agrees that occupation of the demised
premises is at Tenant's own risks and Tenant hereby agrees to indemnify
and hold Landlord harmless for any and all liability for injury to
persons and/or property resulting from Tenant's operation of the
demised premises and from any and all claims resulting from accident,
damage, injury or death occurring at the demised premises.
38. Tenant acknowledges that Tenant has made a careful inspection of the
entire premises hereunder and is thoroughly familiar with the condition
thereof, and agrees to accept same in "as is" condition.
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39. Landlord reserves and Tenant shall have no right to use:
(a) The exterior faces of all perimeter walls
(b) The roof and
(c) The land, improvements and space below the lower surface of the
lowest floor of the demised premises and above the interior
surface of the ceiling of the highest floor of the demised
premises.
40. Landlord in no way warrants the fitness of the demised premises for any
particular purpose and makes no representation that the premises are in
good repair or otherwise fit for use and occupancy.
41. Tenant expressly acknowledges and agrees that Landlord has not made and
is not making, and tenant, in executing and delivering this lease, is
not relying upon, any warranties, representations, promises or
statements, except to the extent that the same are expressly set forth
in this lease or in any other written agreement(s) which may be made
between the parties concurrently with the execution and delivery of
this lease. All understandings and agreements heretofore made between
the parties are merged in this lease and any other written agreement(s)
made concurrently herewith, which alone fully and completely express
the agreement of the parties and which are entered into after full
investigation. Neither party has relied upon any statements or
representations not embodied in this lease or in any other written
agreement(s) made concurrently herewith. No agreement shall be
effective to change, modify, waive, release, discharge, terminate or
effect abandonment of this lease, in whole or in part unless such
agreements are in writing, refers expressly to this lease and is signed
by the party against whom enforcement of effectuation of abandonment is
sought.
42. Tenant may not assign this lease without Landlord's prior written
consent in each instance, which consent Landlord agrees not to withhold
or delay unreasonably. Any such assignment, sublease or other transfer,
however, must be in writing. The Tenant's obligations hereunder must be
assumed in writing by the transferee and a fully executed copy of the
instrument of transfer with assumption thereof must be furnished to
Landlord within ten (10) days after full execution thereof. No such
transfer, however, shall be construed so as to release the transferor
from responsibility for performance of Tenant's obligations
hereunder. In determining whether to grant consent to the Tenant's
sublet or assignment request, the Landlord may consider any reasonable
factor. Landlord and Tenant agree that any one of the following
factors, or any other reasonable factor, will be reasonable grounds for
deciding the Tenant's request:
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(a) Financial strength of the proposed subtenant/assignee must be at
least equal to that of the existing tenant, as of the date of signing of this
Lease Agreement;
(b) Business reputation of the proposed subtenant/assignee must be in
accordance with generally acceptable commercial standards ;
(c) Use of the premises by the proposed subtenant/assignee must be
identical to the use permitted by this Lease Agreement;
(d) Managerial and operational skills of the proposed
subtenant/assignee must be of a quality equal or superior to that of the
existing Tenant;
(e) Use of the premises by the proposed subtenant/assignee must not
violate or create any potential violation of any laws;
(f) Use of the premises by the proposed subtenant/assignee must not
violate any other agreements affecting the premises, the Landlord or other
Tenants.
43. If Tenant shall at any time request Landlord to sublet or let the
demised premises for Tenant's account, Landlord or its agent is
authorized to receive keys for such purposes without releasing Tenant
from any of its obligations under this lease, and Tenant hereby
releases Landlord from any liability for loss or damage to any of the
Tenant's property in connection with such subletting or letting.
44. The liability of the original named Tenant and any other person(s) who
at any time was or were liable to perform Tenant's obligations under
this lease shall not be discharged, released or impaired by an
agreement or stipulation made by Landlord modifying any of the
obligations of this lease, except to the extent of any increase in the
rent then called for by extension of the original duration of this
lease beyond the original term, or by any waiver or failure of Landlord
to enforce any of the obligations of this lease.If this lease is:
(a) Assigned, or otherwise transferred, or
(b) Through a sublease the demised premises or any part thereof is
sublet, then any rent paid by such assignee, transferee, or
sub lessee, all rent in excess of the rent provided by this
lease, shall be for the benefit of and shall be immediately
paid to the Landlord.
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45. If Tenant shall request Landlord's consent and Landlord shall fail and
refuse to give such consent, Tenant shall not be entitled to any
damages for any withholding by Landlord of its consent; Tenant's sole
remedy shall be an action for specific performance or injunction, and
such remedy shall be available only in those cases where Landlord has
expressly agreed in writing not to unreasonably withhold its consent or
where as a matter of law Landlord may not unreasonably withhold its
consent.
46. Tenant shall reimburse Landlord for the full cost incurred by landlord
in maintaining fire, liability and other hazard insurance on the
premises during the entire term of this lease and Tenant shall pay same
as additional rent payable on the next day ensuing thereafter.
47. Tenant may not effect any alterations at the demised premises without
Landlord's prior written consent in each instance, which consent will
not be withheld unreasonably; however in connection with any such
alteration, Tenant must comply with the rules and regulations of any
and all governmental authorities having jurisdiction and, at the
termination of Tenant's occupancy, Tenant must restore the premises to
its former condition at Landlord's option.
48. INTENTIONALLY OMITTED.
49. Anything herein contained to the contrary not notwithstanding, Tenant
shall have the right to install and maintain a sign or signs at the
demised premises providing that same comply in all respects with such
governmental or other regulations as may apply thereto, and further
providing that Landlord's prior written consent is obtained in each
instance which consent shall not be unreasonably withheld.
50. Anything herein contained to the contrary notwithstanding:
(a) Landlord shall not be responsible for the furnishing of any heat or
hot water to the demised premises.
(b) Tenant agrees to procure and maintain plate glass insurance in
standard form naming both Tenant and Landlord as insured parties and covering
all exterior plate glass at the demised premises. Upon Tenant's failure so to
do, Landlord may replace, at the Tenant's expense, any and all broken exterior
plate glass at the demised premises, and may insure and keep insured all such
plate glass for and in the name of the Landlord, whereupon bills for the
premiums therefor, when rendered by Landlord to Tenant, shall be due and payable
when rendered and the amount thereof shall be deemed to be and shall be payable
as additional rent.
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51. Tenant agrees to collect, properly contain and dispose of any and all
garbage, trash, rubbish and refuse generated at the demised premises or
by reason of the Tenant's business and to dispose of same promptly at
Tenant's sole cost and expense in full compliance with any and all
applicable municipal regulations and without undue interference with
the Landlord and/or other Tenants in the building in which the demised
premises are located. Tenant further agrees to store any garbage
dumpster inside the building at all times the Tenant's business is
closed.
52. Tenant shall not do any act, whether in connection with maintenance or
use of the equipment or otherwise, which will or may disturb any other
occupant of the building where the demised premises are located,
including but not limited to the generation of noise to excess, the
emission of unpleasant or disturbing odors/or permitting of the
congregation of teenagers and the like.
53. As a further consideration for the granting of this lease, Tenant
agrees that it will maintain any and all plumbing waste lines serving
the demised premises or the demises premises and other and keep said
lines clear of blockages from the building in which the demised
premises are located up to the connection with the public sewer main.
54. Tenant shall be solely responsible for and maintaining all electricity
and air-conditioning used by it at the time demised premises. Tenant
covenants and agrees that at all times its uses of electric current
shall not exceed the capacity of existing feeders to the building or
the risers or wiring installations and Tenant may not use any
electrical equipment which, in Landlord's opinion, reasonably exercised
will overload such installations or interfere with the use thereof by
other tenants of the building. The change at any time of the character
of electric service shall in no way make Landlord liable or responsible
to Tenant, for any loss, damages or expenses which Tenant may sustain.
Tenant shall make all repairs to and/or replace if necessary, the gas
heater.
55. The rent shall be paid on the first of the month in lawful money of the
United States at its office, or such other place, or the Landlord's
agent at such other place, as Landlord shall designate by notice to
Tenant. Tenant shall pay the rent promptly when due without notice or
demand therefore and without any abatement, deduction or setoff for any
reason whatsoever, except as may expressly be provided for in this
lease.If Tenant makes any payment to Landlord by check, same shall be
Tenant's check and Landlord shall not be required to accept the check
of any other person, and any check received by Landlord shall be deemed
received subject to collection. If any check is mailed by Tenant,
Tenant shall post such check and will be received by Landlord on or
before date
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when payment is due. Tenant shall assume the risk of lateness or
failure of delivery of the mail, and no lateness or failure of the mail
will excuse Tenant from its obligations to have made payment in
question when required under this lease. Landlord shall have the right
at all times to require payment of rent by means of cash, money order,
certified or bank check. In the event that rent due on the first of the
month is not paid by the fifth of the month, Tenant acknowledges that
it shall pay Landlord a late charge of two cents for each dollar paid
late to cover additional administration and bookkeeping costs.
56. No payment by Tenant or receipt or acceptance by Landlord of a lesser
amount than the correct rent 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 rights to recover the balance or pursue any
other remedy in this lease to recover the balance or pursue any other
remedy in this lease or at law provided. Whether or not Tenant is in
arrears in payment of rent Tenant waives Tenant's right if any, to
designate the times to which any payments made by Tenants are to be
credited and Landlord may apply any payments made of and
notwithstanding any designation or request by Tenant as to the items to
which any such payments shall be credited. If any of Tenant's check
shall be dishonored by Tenant's bank, for whatever reason, Landlord
shall be entitled to a dishonored check fee of fifty ($50.00) dollars,
payable immediately, for each such occurrence, and Tenant shall replace
such dishonored check with a certified check immediately.
57. Tenant shall be responsible for all janitorial or cleaning expenses
relating to the demised premises.
58. Tenant agrees to pay, as additional rent, all real estate taxes,
assessments, water and sewer charges and any other taxes which may
hereafter be assessed or attributable to the land and building of which
the demised premises form a part for the entire term of the lease and
any extensions thereto. Where any lease year does not coincide with the
fiscal year, an appropriate adjustment shall be made. The land and
buildings are known as tax block _________and Lots______________.
59. lrrespective of the place of execution or performance, this lease shall
be governed by and construed in accordance with the Laws of the State
of New York.
60. Tenant shall pay for its own utility charges.
61. Tenant agrees not to record this lease.
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62. (a) Tenant agrees to pay a base annual rental in equal monthly
installments in advance on the first day of each and every
month during said term, except the first installment which
shall be paid upon execution hereof, as follows:
(1) Eighteen Thousand and 00/100 (18,000.00) dollars each
month for period commencing May 1, 1991, and ending
April 30, 1993;
(2) Nineteen Thousand Five Hundred and 00/100 (19,500.00)
dollars each month for period commencing May 1, 1993,
and ending April 30, 1995;
(3) Twenty-One Thousand and 00/100 (21,000.00) dollars
each month for period commencing May 1, 1995, and
ending April 30, 1997;
(4) Twenty-Four Thousand and 00/100 ($24,000.00) dollars
each month for period commencing May 1, 1997, and
ending April 30, 1999;
(5) Twenty-Seven Thousand and 00/100 ($27,000.00) dollars
each month for period commencing May 1, 1999, and
ending April 30, 2001, at which time the tenancy
shall terminate.
63. Landlord reserves the right to require Tenant to deposit two months
security at any time during the pendency of the lease term.
64. This lease is intended to be a net/net/net Lease and any maintenance or
operating costs, taxes or insurance not mentioned herein, which costs
are incurred by virtue of the existence of the premises leased
hereunder, are to be borne by the Tenant as additional rental and are
due on the next rent day ensuing thereafter.
65. Tenant agrees to clean the sidewalk in front of the premises and keep
same free of snow, ice and rubbish. Tenant further agrees to keep
premises free of vermin, rodents, and other such pest and to use the
services of any exterminator if necessary.
66. Tenant agrees that tenant will keep tenant's business at the demised
premises open for business during normal business hours during the
period of this lease with the exception of not more than two (2) weeks
during the calendar year for vacation or other purposes.
Landlord Xxxxxxx Anthonv Cornpany
By: /s/Xxxxxxx Xxxxxxxxx
--------------------
Xxxxxxx Xxxxxxxxx, General Partner
Tenant Xxxxxxx Xxxxxxx Jewelers, Inc.
-----------------------------
By: /s/ Xxxxx Xxxx
--------------
Xxxxx Xxxx, Chief Financial Officer
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