STANDARD FORM OF STORE LEASE
THE REAL ESTATE BOARD OF NEW YORK, INC.
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AGREEMENT OF LEASE MADE AS OF THIS 26TH day of May, 1994 between
BAYSIDE MAIL REAL PROPERTY HOLDING CORP, 000 Xxxxxxx Xxxx, Xxxxxxxx, Xxx Xxxx,
party of the first part, hereinafter referred to as OWNER and BAYBRIDGE
PLAYROBICS, INC., a domestic corporation, party of second part, hereinafter
referred to as TENANT.
WITNESSETH: Owner hereby lease to Tenant and Tenant hereby hires from
Owner the building known as 208-32 to 000-00 Xxxx Xxxxxxxxx, Xxxxxxx 00000 in
the Borough of Queens, City of New York, for term of Fifteen (20) Years (or
until such term shall sooner cease and expire as hereinafter provided) to
commence on the First (1st)Day of June, nineteen hundred and ninety-four, and to
end on the thirtieth (30)
day of May, two thousand and fourteen, both dates inclusive, at an annual rate
of $ ( See paragraph "C" hereof).
Which Tenant agrees to pay in lawful money of the United States which
shall be legal tender in payment of all debts and dues, public and private, at
the time of payment, in equal monthly installment in advance of the first day of
each month during said term, at the office of Owner or such place as Owner may
designate, without any set off or deduction whatsoever, excepts that Tenant
shall pay first monthly installment(s) on the execution hereof (unless this
lease be a renewal).
The parties hereto, for themselves, their heirs, distributees,
executors, administrator, legal representatives, successors and assigns, hereby
covenant as follows:
RENT OCCUPANCY:
1. Tenant shall pay the rent as above and as hereinafter
provided.
2. Tenant shall use and occupy demised premises for use as a
children play center with refreshment, retail sales and related
use and for no other purpose, tenant shall at all times conduct
its business in a high grade and reputable manner, shall not
violate Articles 37 hereof, and shall keep show windows and signs
in a neat and clean condition.
ALTERATIONS: 3. Tenant shall make no changes in or to demised
premises of any nature without Owner's prior written consent.
Subject to prior written consent of Owner and to the provisions
of this articles, Tenant at Tenant's expense, may make
alterations, installations, additions or improvement which are
nonstructural and which do not affect utility services or
plumbing and electrical lines, in or to the interior of demised
premises by using contractors or mechanics first approved by
Owner. Tenant shall, before making any alterations,
installations, additions or improvement, at its expense, obtain
all permits, approvals and certificates required by any
governmental or quasi-governmental bodies and (upon completion)
certificates of final approval thereof and shall deliver promptly
duplicates of all such permits, approvals and certificates to
Owner and Tenant agrees to carry and will cause Tenant's
contractors and sub-contractors to carry such xxxxxxx'x
compensation, general liability, personal and property damage
insurance as Owner may require. If any mechanic's lien is filed
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against the demised premises, or the building of which the same
forms a part, for work claimed to have done for, or materials
furnished to, Tenant, whether or not done pursuant to this
article, the same shall be discharged by Tenant within ten days
thereafter, at Tenant's expense, bu filling the bond required by
law. All fixtures and all paneling, partitions, railing and
installations, installed in the premises at any times, either by
Tenant or by Owner in Tenant's behalf, shall, upon installations,
become the property of Owner and shall remain upon and be
surrendered with the demised premises unless Owner, by notice to
Tenant no later then twenty days prior to the date fixed as the
termination of this lease, elects to relinquish Owner's rights
thereto and to have them removed by Tenant, in which event, the
same shall be removed from the premises by Tenant prior to the
expirations of the lease, at Tenant's expense. Nothing in this
article shall be construed to give Owner title to or to prevent
Tenant's removal of trade fixtures, moveables office furniture
and equipment, but upon removal of any such from the premises or
upon removal of other installations as may be requires by Owner.
Tenant shall immediately and at its expense, repair and restore
the premises to the condition existing prior ro installation and
repair any damage to the demised premises or the building due to
such removal. All property permitted or required to be removed by
Tenant at the end of the term remaining in the premises after
Tenant's removal shall be deemed abandoned and may, at the
election of Owner, either be retained as Owner's property or may
be removed from the premises by Owner at Tenant's expense.
REPAIR:
4. Owner shall maintain and repair the public portions of the
building, both exterior and interior, except that if Owner allows
Tenant to erect on the outside of the building a sign or signs,
or a hoist, lift or sidewalk elevator for the exclusive use of
Tenant. Tenant shall maintain such exterior installations in good
appearance and shall cause the same to be operated in a good and
workmanlike manner and shall make all repair thereto necessary to
keep same in good order and condition, at Tenant's own cost and
expense, and shall cause the same to be covered by the insurance
provided for hereafter in Article 8. Tenant shall, throughout the
term of this lease, take good care of the demised premises and
the fixtures and appurtenances therein, and the sidewalks
adjacent thereto, and it its sole cost and expense, make all
non-structural repairs thereto as and when needed to preserve
them in good working order and condition, reasonable wear and
tear, obsolescence and damage from the elements and fire or other
casualty, excepted. If the demised premises be or become infested
with vermin, Tenant shall at Tenant's expense, cause the same to
be exterminated from time to time to the satisfaction of Owner.
Except as specifically provide in Article 9 or elsewhere in this
lease, there shall be no allowance to the Tenant for the
diminution of rental value and no liability on the part of Owner
by reason of inconvenience, annoyance or injury to business
arising from Owner, Tenant or others making or failing to make
any repair, alterations, additions or improvements in or to any
portion of the building or the demised premises, or in and to the
fixtures, appurtenances or equipment thereof. The provisions of
this article 4 with respect o the making of repair shall not
apply in the case of fire or other casualty which are dealt with
in Article 9 hereof.
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WINDOW
CLEANING: 5. Tenant will not clean nor require, permit, suffer or
allow any window in demised premises to be cleaned from the
outside in violation of Section 202 of the New York State Labor
Law or any other applicable law or of the Rules of the Board of
Standards and Appeals, or of any other Board or body having or
asserting jurisdiction.
FIRE REQUIREMENTS:
6. Prior to commencement of lease term, if Tenant is then in
possession, and at all times thereafter, Tenant at Tenant's sole
cost and expense, shall promptly conform to regulations of all
state, federal, municipal and local governments, departments,
commissions and boards and any direction of any public officer
pursuant to law and all orders, rules and regulations of the New
York Board of Fire Underwriters or the Insurance Services Offices
, or any similar body which may impose violation, order or duty
upon Owner or Tenant with respect to the demised premises, and
with respect to the portion of the sidewalk adjacent to the
premises, if the premises are on the street level, whether or not
arising out of the Tenant's use or manner of use thereof, or with
respect to the building if arising out of the Tenant's use or
manner of use of the premises or the building (including the use
permitted under the lease). Except as provided in Article 29
hereof, nothing herein shall require Tenant to make structural
repairs or alterations unless Tenant has by its manner of use of
the demised premises of method of operation therein, violated any
such laws, ordinances. orders, rules, regulations or requirements
with respect thereto. Tenant shall not do or permit any act or
thing to be done in or to the demised premises which is contrary
to law, or which will invalidate or be in conflict with public
liability, fire or other policies of insurance at any time
carried by or for the benefit of Owner. Tenant shall pay all
costs, expenses, fines, penalties or damages, which may he
imposed upon Owner by reason of Tenant's failure to comply with
fire provisions or this article, if the fire insurance rate
shall, at the beginning of the lease or at any time thereafter,
be higher than it otherwise would be, then Tenant shall reimburse
Owner, as additional rent hereunder, for that portion of all fire
insurance premiums thereafter paid by Owner which Shall have been
charged because of such failure by Tenant, to comply with the
terms of this article. In any action or proceeding wherein Owner
and Tenant are parties, a schedule or "make-up" of rate for the
building or demised premises issued by a body making fire
insurance rates applicable to said premises shall be conclusive
evidence of the facts therein stated and of the several items and
charges in the fire insurance rate then applicable to said
premises.
SUBORDINATION:
7. This lease is subject and subordinate to all ground or
underlying leases and to all mortgages which may now or hereafter
affect such leases or the real property of which demised premises
are a part and to all renewals, modifications, consolidations,
replacements and extensions of any such underlying leases and
mortgages. This clause shall be self operative and no further
instrument of subordination shall be required by any ground or
underlying lessor or by any mortgagee affecting any lease or the
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real property of which the demised premises are a part. In
confirmation of such subordination, Tenant shall execute promptly
any certificate that Owner may request.
TENANT'S LIABILITY INSURANCE, PROPERTY LOSS, DAMAGE, INDEMNITY:
8. Owner or its agents shall not be liable for any damage to
property of Tenant or of others entrusted to employees of the
building, nor for loss of or damage to any property of Tenant by
theft or otherwise, nor for any injury or damage to persons or
property resulting from any cause of whatsoever nature, unless
caused by or due to the negligence of Owner, its agents, servants
or employees. Owner or its agents will not be liable for any such
damage caused by other tenants or persons in, upon or about said
building or caused by operations in construction of any private,
public or quasi-public work. Tenant agrees at Tenant's sole cost
and expense, to maintain general public liability insurance in
standard form in favor of Owner and Tenant against claims for
bodily injury or death or property damage occurring in or upon
the demised premises, effective from the date Tenant enters into
possession and during the term of this lease. Such insurance
shall be in an amount and with carriers acceptable to the Owner.
Such policy or policies shall be delivered to the owner. On
Tenant's default in obtaining or delivering any such policy or
policies or failure to pay the charges therefor, Owner may secure
or pay the charges for any such policy or policies and charge the
Tenant as additional rent therefor. Tenant shall indemnify and
save harmless Owner against and from all liabilities,
obligations, damages, penalties, claims, costs and expenses for
which Owner shall not be reimbursed by insurance, including
reasonable attorneys fees, paid, suffered or incurred as a result
of any breach by Tenant, Tenant's agent, contractors, employees,
invitees, or licensees of any covenant or condition of this
lease, or the carelessness, negligence or improper conduct of the
Tenant, Tenant's agents, contractors, employees, invitees or
licensees. Tenant's liability under this lease extends to the
acts and omissions of any subtenant, and any agent, contractor,
employee, invitee or licensee of any subtenant. In case any
action or proceeding is brought against Owner by reason of any
such claim, Tenant, upon written notice from Owner, will, at
Tenant's expense, resist or defend such action or proceeding by
Council approved by Owner in writing, such approval not to be
unreasonably withheld.
DESTRUCTION, FIRE AND OTHER CASUALTY:
9. (a) If the demised promises or any part thereof shall be
damaged by fire or other casualty, Tenant shall give immediate
notice thereof to Owner and this lease shall continue in full
force and effect except as hereinafter set forth. (b) If the
demised premises are partially damaged or rendered partially
unusable by fire or other casualty, the damages thereto shall be
repaired by and at the expense of Owner and the rent, until such
repair shall be substantially completed, shall be apportioned
from the day following the casualty according to the part of the
premises which is usable. (c) If the demised premises are totally
damaged or rendered wholly unusable by fire or other casualty,
then the rent shall be proportionately paid up to the time of the
casualty and thenceforth shall cease until the
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date when the premises shall have been repaired and restored by
owner, subject to Owner's right to elect not to restore the same
as hereinafter provided. (d) If the demised premises are rendered
wholly unusable or (whether or not the demised premises are
damaged in whole or in part) if the building shall be so damaged
that Owner shall decide to demolish it or to rebuild it, then, in
any of such events, Owner may elect to terminate this lease by
written notice to Tenant given within 90 days after such fire or
casualty specifying a date for the expiration of the lease, which
date shall not be more than 60 days after the giving of such
notice, and upon the date specified in such notice the terms of
this lease shall expire as fully and completely as if such date
were the date set forth above for the termination of this lease
and Tenant shall forthwith quit, surrender and vacate the
premises without prejudice however, Owner's rights and remedies
against Tenant under the lease provisions in effect prior to such
termination, and any rent owing shall be paid up to such date and
any payments of rent made by Tenant which were on account in any
period subsequent to such date shall be returned to Tenant,
unless Owner shall serve a termination notice as provided for
herein, Owner shall make the repairs and restorations under the
conditions of (b) and (c) hereof with all reasonable expedition
subject to delays due to adjustment of insurance claims, labor
troubles and causes beyond Owner's controls. After any such
casualty, Tenant shall cooperate with Owner's restoration by
removing from the premises as promptly as reasonably possible,
all of Tenant's salvageable inventory and movable equipment,
furniture and other property. Tenant's liability for rent shall
resume five (5) days after written notice from Owner that the
premises are substantially ready for Tenant's occupancy. (e)
Nothing contained herein above shall relieve Tenant from
liability that may exist as a result of damage from fire or other
casualty. Notwithstanding the foregoing, each party shall look
first to any insurance in its favor before making any claim
against the other party for recovery for loss or damage resulting
from fire or other casualty, and to the extent that such
insurance is in force and collectible and to the extent permitted
by law Owner and Tenant each hereby releases and waives all right
of recovery against the other or any one claiming through or
under each of them by way of subrogation or otherwise. The
foregoing release and waiver shall be in force only if both
releasors' insurance Policies contain a clause providing that
such a release or waiver shall not invalidate the insurance and
also, provided that such a policy can be obtained without
additional premiums. Tenant acknowledges that Owner will not
carry insurance on Tenant's furniture and/or furnishings or any
fixtures or equipment, improvements or appurtenances removable by
Tenant and agrees that Owner will not be obligated to repair any
damage thereto or replace the same. (f) Tenant hereby waives the
provisions of Section 227 of the Real Property Law and agrees
that the provisions of this article shall govern and control in
lieu thereof.
EMINENT DOMAIN:
10. If the whole or any part of the demised premises shall be
acquired or condemned by Eminent Domain for any public or
quasi-public use or purpose, then and in that event, the term of
this lease shall cease and terminate from the date of title
vesting in such proceeding and Tenant shall have no claim for the
value of any unexpired term of said lease.
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ASSIGNMENT, MORTGAGE, ETC.:
11. Tenant for itself, its heirs, that it shall not assign,
mortgage or encumber this agreement, nor underlet, or suffer or
permit the demised premises or any part thereof to be used by
others, without the prior written consent of Owner in each
instance. If this lease be assigned, or if the demised premises
or any part thereof be underlet or occupied by anybody other than
Tenant, Owner may, after default by Tenant, collect rent from the
assignee, under-tenant or occupant, and apply the net amount
collected to the rent herein reserved, but no such assignment,
underletting, occupancy or collection shall be deemed a waiver of
the covenant, or the acceptance of the assignee, under-tenant or
occupant as tenant, or a release of Tenant from the further
performance by Tenant of covenants on the part of Tenant herein
contained. The consent by Owner to an assignment or underletting
shall not in any wise be construed to relieve Tenant from
obtaining the express consent in writing of Owner to any further
assignment or under letting.
ELECTRIC:
12. Rates and conditions in respect to submetering or rent
inclusion, as the case may be, to be added in RIDER attached
hereto. Tenant covenants and agrees that at all times its use of
electric current shall not exceed the capacity of existing
feeders to the building or the risers or wiring installation and
Tenant may not use any electrical equipment which, in Owner's
opinion, reasonably exercised, will overload such installations
or interfere with the use thereof by other tenants of the
building, The change at any time of the character of electric
service shall in no wise make Owner liable or responsible to
Tenant, for any loss, damages or expenses which Tenant may
sustain.
ACCESS TO PREMISES:
13. Owner or Owner's agents shall have the right (but shall not
be obligated) to enter the demised premises in any emergency at
any time, and, at other reasonable, times, to examine the same
and to make such repairs, replacements and improvements as Owner
may deem necessary and reasonably desirable to any portion of the
building or which Owner may elect to perform, in the premises,
following Tenant's failure to make repairs or perform any work
which Tenant is obligated to perform under this lease, or for the
purpose of complying with laws, regulations and other directions
of governmental authorities. Tenant shall permit Owner to use and
maintain and replace pipes and conduits in and through the
demised premises and to erect new pipes and conduits therein,
provided they are within the walls. Owner may, during the
progress of any work in the demised premises, take all necessary
materials and equipment into said premises without the same
constituting an eviction nor shall the Tenant be entitled to any
abatement of rent while such work is in progress nor to any
damages by reason of loss or interruption of business or
otherwise. Throughout the term hereof Owner shall have the right
to enter the demised premises at reasonable hours for the purpose
of showing the same to prospective purchasers or mortgages of the
building, and during the last six months of the term for the
purpose of showing the same to prospective
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tenants and may, during said six months period, place upon the
premises the usual notice "To Let" and "For Sale"' which notices
Tenant shall permit to remain thereon without molestation. If
Tenants not present to open and permit an entry into the
premises, Owner or Owner's agents may enter the same whenever
such entry may be necessary or permissible by master key or
forcibly and provided reasonable care is exercised to safeguard
Tenant's 1)property and such entry shall not render Owner or its
agents liable therefore nor in any event shall the obligations of
the Tenant hereunder be affected. If during the last month of
term, Tenant shall have removed all or substantially all of
Tenant's property therefrom, Owner may immediately enter, alter,
renovate or redecorate the demised premises without limitation or
abatement of rent, or incurring liability to Tenant for any
compensation and such act shall have no effect on this lease or
Tenant's obligations hereunder. Owner shall have the right at any
time, without the same constituting an eviction and without
incurring liability to Tenant therefor to change the arrangement
and/or location of public entrances, passageways, doors,
doorways, corridors, elevators. stairs, toilets, or other public
parts of the building and to change the name, number or
designation by which the building may be known.
VAULT, VAULT SPACE, AREA:
14. No vaults, vault space or area, whether or not enclosed or
covered, not within the property line of the building is leased
hereunder, anything contained in or indicated on any sketch, blue
print or plan, or anything contained elsewhere in this lease to
the contrary notwithstanding. Owner makes no representation as to
the rotation of the property line of the building. All vaults and
vault space and all such areas not within the property line of
the building, which Tenant may be permitted to use and/or occupy,
is to be used and/or occupied under a revocable license, and if
any such license be revoked, or if the amount of such space or
area be diminished or required by any federal, state or municipal
authority or public utility. Owner shall not be subject to any
liability nor shall Tenant be entitled to any compensation or
diminution or abatement of rent, nor shall such revocation,
diminution or requisition be deemed constructive or actual
eviction. Any tax, fee or charge of municipal authorities for
such vault or area shall be paid by Tenant.
OCCUPANCY:
15. Tenant will not at any time use or occupy the demised
premises in violation of, Articles 2 or 37 hereof, or of, the
certificate of occupancy issued for the building of which the
demised premises are a part. Tenant has inspected the premises
and accepts them as is, subject to the riders annexed hereto with
respect to Owner's work, if any. In any event, Owner makes no
representation as to the condition of the premises and Tenant
agrees to accept the same subject to violations whether or not of
record.
BANKRUPTCY:
16. (a) Anything elsewhere in this lease to the contrary
notwithstanding. this lease may be canceled by Landlord by the
sending of a written notice to Tenant within a reasonable time
after the happening of any one or more of the following events:
(1) the commencement of a case in bankruptcy or under the laws of
any state naming Tenant as the debtor; or (2) the making
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by Tenant of an assignment or any other arrangement for the
benefit of creditors under any state statute, neither Tenant nor
any person claiming through or under Tenant, or by reason of any
statute or order of court, shall thereafter be entitled to
possession of the premises demised but shall forthwith quit and
surrender the premises. If this lease shall be assigned in
accordance with its terms. the provisions of this Article 16
shall be applicable only to the party then owning Tenant's
interest in this case. (b) It is stipulated and agreed that in
the event of the termination of this lease pursuant to (a)
hereof, Owner shall forthwith, notwithstanding any other
provisions of this lease to the contrary, be entitled to recover
from Tenant as and for liquidated damages an amount equal to the
difference between the rent reserved hereunder for the unexpired
portion of the term demised and the fair and reasonable rental
value of the demise premises for the same period. In the
computation of such damages the difference between any
installment of rent becoming due hereunder after the date of
termination and the fair and reasonable rental value of the
demised premises for the period for which such installment was
payable shall be discounted to the date of termination at the
rate of four per cent (4%) per annum. If such premises or any
part thereof be re-let by the Owner for the unexpired term of
said lease, or any part thereof, before presentation of proof of
such liquidated damages to any court, commission or tribunal, the
amount or rent reserved upon such re-letting shall be deemed to
be the fair and reasonable rental value for the part or the whole
of the premises so re-let during the term of the re-letting.
Nothing herein contained shall limit or prejudice the right of
the Owner to prove for and obtain as liquidated damages by reason
of such termination, an amount equal to the maximum allowed by
any statute or rule of law in effect at the time when, and
governing the proceedings in which. such damages are to be
proved, whether or not such amount be greater, equal to, or less
than the amount of the difference referred to above.
DEFAULT:
17. (1) If Tenant defaults in fulfilling any of the covenants of
this lease other than the covenants for the payment of rent or
additional rent., or if the demised premises become vacant or
deserted; or if any execution or attachment shall be issued
against Tenant or any of Tenant's property whereupon the demised
promises shall be taken or occupied by someone other than Tenant;
or if this lease be rejected under Section 365 of Title 11 of the
U.S. Code (Bankruptcy Code); or if Tenant shall fail to move into
or take possession of he premises within Fifteen (15) days after
the commencement of the term of this lease, of which fact Owner
shall the the sole judge; then, in any one or more of such
events, upon Owner serving a written five (5) days notice upon
Tenant specifying the nature of said default. and upon the
expiration of said five (5) days, if Tenant shall have failed to
comply with or remedy such default, or if the said default or
omission complained of shall be of a nature that the same cannot
be completely cured or remedied within said five (5) day period,
and if Tenant shall not have diligently commenced curing such
default within such five (5) day period, and shall not thereafter
with reasonable diligence and in good faith proceed to remedy or
cure such default, then Owner may serve a written three (3) days
notice of cancellation of this lease upon Tenant, and upon the
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expiration of said three (3) days, this lease and the term
thereunder shall end and expire as fully and completely as if the
expiration of such three (1) day period were the day herein
definitely fixed for the end and expiration of this lease, and
the term thereof and Tenant shall then quit and surrender the
demised premises to Owner but Tenant shall remain liable as
hereinafter provided. (2) If the notice provided for in (1)
hereof shall have been given, and the term shall expire as
aforesaid; or if Tenant shall make default in the payment of the
rent reserved herein or any item of additional rent herein
mentioned or any part of either or in making any other payment
herein required; then and in any of such events Owner may without
notice, re-enter the demised premises either by force or
otherwise, and dispossess Tenant by summary proceedings or
otherwise, and the legal representative of Tenant or other
occupant of demised premises and remove their effects and hold
the premises as if this lease had not been made, and Tenant
hereby waives the service of notice of intention to re-enter or
to institute legal proceedings to that end.
REMEDIES OF OWNER AND WAIVER OF REDEMPTION:
18. In case of any such default, re-entry, expiration and/or
dispossess by summary proceedings or otherwise, (a) the rent, and
additional rent, shall become due thereupon and be paid up to the
time of such re-entry, dispossess and/or expiration. (b) Owner
may re-let the premises or any part or parts thereof, either in
the name of Owner or otherwise, for a term OR TERMS WHICH MAY AT
OWNER'S OPTION BE LESS than or exceed the period which would
otherwise have constituted the balance of the term of this lease
and may grant concessions or free rent or charge a higher rental
than that in this lease, and/or (c) Tenant or the legal
representatives of Tenant shall also pay Owner as liquidated
damages for the failure of Tenant to observe and perform said
Tenant's covenants herein contained, any deficiency between the
rent hereby reserved and/or convenanted to be paid and the net
amount if any, of the rents collected an account of the subse
quent lease or leases of the demised premises for each month of
the period which would otherwise have constituted the balance of
the term of this lease. The failure of Owner to re-let the
premises or any part or parts thereof shall not release or affect
Tenant's liability for damages. In computing such liquidated
damages there shall be added to the said deficiency such expenses
as Owner may incur in connection with re- letting, such as legal
expenses, attorneys' fees, brokerage, advertising and for keeping
the demised premises in good order or for preparing the same for
re-letting. Any such liquidated damages shall be paid in monthly
installments by Tenant on the rent day specified in this lease.
Owner, in putting the demised premises in good order or preparing
the same for re- rental may, at Owner's option, make such
alterations, repairs, replacements, and/or decorations in the
demised premises as Owner, in Owner's sole judgement, considers
advisable and necessary for the purpose of re-letting the demised
premises, and the making of such alterations. repairs,
replacements, and/or decorations shall not operate or be
construed to release Tenant from liability. Owner shall in no
event be liable in any way whatsoever for failure to re-let the
demised premises, or
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in the event that the devised promises are re-let, for failure to
collect the rent thereof Under such reaching, and in no event
shall Tenant be entitled to receive any excess, if any, of such
net rent collected over the sums payable by Tenant to Owner
hereunder, In the event of a breach or threat ened breach by
Tenant or an of the covenants or provisions hereof, Owner shall
have the right of injunction and the right to invoke any remedy
allowed at law or in equity as if re-entry, summary proceedings
and other remedies were not herein provided for. Mention in this
lease of any particular remedy, shall not preclude Owner from any
other remedy, in law or in equity. Tenant hereby expressly waives
any and all rights of redemption granted by or under any present
or future laws.
FEES AND EXPENSES:
19. If Tenant shall default in the observance or performance of
any term or covenant on Tenant's part to be observed or performed
Under or by virtue of any of the terms or provisions in any
article of this lease, then, unless otherwise provided elsewhere
in this lease, Owner may immediately or at any time thereafter
and without notice perform the obligation of Tenant thereunder,
and if Owner, in connection therewith or in connection which any
default by Tenant in the covenant to pay rent hereunder, makes
any expenditures or incurs any obligations for the payment of
money, including but not limited to attorney's fees, in
instituting, prosecuting or defending any actions or proceeding,
such sums so paid or obligations incurred with interest and costs
shall be deemed to be additional rent hereunder and shall be paid
by Tenant to Owner within five (5) days of rendition of any xxxx
or statement to Tenant therefor, and if Tenant's lease term shall
have expired at the time of making of such expenditures or
incurring of such obligations, such sums shall be recoverable by
Owner as damages.
NO REPRESENTATIONS BY OWNER:
20. Neither Owner nor Owner's agents have made any
representations or promises with respect to the physical
condition of the building, the land upon which it is erected or
the demised promises, the rents, leases, expenses of operation,
or any other matter or thing affecting or related to the premises
except as herein expressly set forth and no rights, easements or
licenses are acquired by Tenant by implication or otherwise
except as expressly set forth in the provisions of this lease.
Tenant has inspected the building and the demised premises and is
thoroughly acquainted with their condition, and agrees to take
the same "as is", and acknowledges that the taking of possession
of the demised premises by Tenant shall be conclusive evidence
that the said premises and the building of which the same form a
part were in good and satisfactory condition at the time such
possession was so taken, except as to latent defects. All
understandings and agreements heretofore made between the parties
hereto are merged in this contract, which alone fully and
completely expresses the agreement between Owner and Tenant and
any executory agreement hereafter made shall be ineffective to
change, modify, discharge or effect an abandonment of it in whole
or in part, unless such executory agreement is in writing and
signed by the party against whom enforcement of the change,
modification, discharge or abandonment is sought.
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END OF TERM:
21. Upon the expiration or other termination of the term of this
lease, Tenant shall quit and surrender to Owner the demised
premises, broom clean, in good order and condition, ordinary wear
excepted, and Tenant shall remove all it's property. Tenant's
obligation to observe or perform this covenant shall survive the
expiration or other termination of this lease. If the last day of
the term of this lease or any renewal thereof, falls on Sunday,
this lease shall expire at noon on the preceding Saturday unless
it be a legal holiday in which case it shall expire at noon on
the preceding business day.
QUIET ENJOYMENT:
22. Owner covenants and agrees with Tenant that upon Tenant
paying the rent and additional rent and observing and performing
the terms, covenants and conditions on Tenant's part to be
observed and performed. Tenant may peaceably and quietly enjoy
the premises hereby demised, subject, nevertheless, to the terms
and conditions of this lease including, but not limited to,
Article 33 hereof and to the ground leases, underlying leases and
mortgages hereinbefore mentioned.
FAILURE TO GIVE POSSESSION:
23. If Owner is unable to give possession of the demised premises
on the date of the commencement of the term hereof, because of
the holding-over or retention of possession of any Tenant,
undertenant or occupants, or if the premises arc located in a
building being constructed, because such building has not been
sufficiently completed to make the premises ready for occupancy
or because of the fact that a certificate of occupancy has not
been procured or for any other reason, Owner shall not be subject
to any liability for failure to give possession on said date and
the validity of the lease shall not be impaired under such
circumstances, nor shall the same be construed in any wise to
extend the term of this lease, but the rent payable hereunder
shall be abated provided Tenant is not responsible for the
inability to obtain possession until after Owner shall have given
Tenant written notice that the premises are substantially ready
for Tenant's occupancy. If permission is given to Tenant to enter
into the possession of the demised premises or to occupy premises
other than the demised premises prior to the date specified as
the commencement of the term of this lease. Tenant covenants and
agrees that such occupancy shall be deemed to be under all the
terms, covenants. conditions and provisions of this lease, except
as to the covenant to pay rent. The provisions of this article
arc intended to constitute "an express provision to the contrary"
within the meaning of Section 223-a of the New York Real Property
Law.
NO WAIVER:
24. The failure of Owner to seek redress for violation of, or to
insist upon the strict performance of any covenant or condition
of this lease or of any of the Rules or Regulations set forth or
hereafter adopted by Owner, shall not prevent a subsequent act
which would have originally constituted a violation from having
all the force and effect of an original violation. The receipt by
owner of rent with knowledge of the breach of any covenant of
this lease shall not be deemed a waiver of such breach and no
provision of this lease shall be deemed to have been waived by
Owner unless such waiver be in writing signed by Owner, No
payment by Tenant or receipt
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by Owner of a lesser amount than the monthly rent herein
stipulated shall be deemed to be other than an account of the
earliest stipulated rent, nor shall any endorsement or statement
of any check or any letter accompanying any check or payment as
rent be deemed an accord and satisfaction, and Owner may accept
such check or payment without prejudice to Owner's right to
recover the balance of such rent or pursue any other remedy in
this lease provided, no act or thing done by Owner or Owner's
agents during tho term hereby demised shall be deemed in
acceptance of a surrender of said premises and no agreement to
accept such surrender shall be valid unless in writing signed by
Owner. No employee of Owner or Owner's agent shall have any power
to accept the keys of said premises prior to the termination of
the lease and the delivery of keys to any such agent or employee
shall not operate as a termination of the lease or a surrender of
the premises.
WAIVER OF TRIAL BY JURY:
25. It is mutually agreed by and between Owner and Tenant that
the respective parties hereto shall and they hereby do waive
trial by jury in any action, proceeding or counterclaim brought
by either of the parties hereto against the other (except for
personal injury or property damage) on any matters whatsoever
arising out of or in any way connected with this lease, the
relationship of Owner and Tenant. Tenant's use of or occupancy of
said premises, and any emergency statutory or any other statutory
remedy. It is further mutually agreed that in the event Owner
commences any summary proceeding for possession of the premises,
Tenant will not interpose any counterclaim of whatever nature or
description in any such proceeding.
INABILITY TO PERFORM:
26. This lease and the obligation of Tenant to pay rent hereunder
and perform all of the other covenants and agreements hereunder
on part of Tenant to be performed shall in no wise be affected,
impaired or excused because Owner is unable to fulfill any of its
obligations under this lease or to supply or is delayed in
supplying any service expressly or implicitly to be supplied or
is unable to make, or is delayed in making any repair, additions,
alterations or decorations or is unable to supply or is delayed
in supplying any equipment or fixtures if owner is prevented or
delayed from so doing by reason of strike or labor troubles,
government preemption in connection with a national emergency or
by reason of any rule, order or regulation of any department or
subdivision thereof of any government agency or by reason of the
conditions of supply and demand which have been or are affected
by war or other, emergency, or when, in the judgment of Owner,
temporary interruption of such services is necessary by reason of
accident, mechanical breakdown, or to make repairs, alterations
or improvements.
BILLS
AND NOTICES: 27. Except as otherwise in this lease provided, a
xxxx, statement, notice or communication which Owner may desire
or be required to give to Tenant, shall be deemed sufficiently
given or rendered if, in writing, delivered to Tenant personally
or sent by registered certified mail addressed to Tenant at the
building of which the demised premises form a part or at the last
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known residence address or business address of Tenant or left at
any of the aforesaid premises addressed to Tenant, and the time
of the rendition of such xxxx or statement and of the giving of
such notice or communication shall be deemed to be the time when
the same is delivered to Tenant, mailed, or left at the premises
as herein provided. Any notice by Tenant to Owner must be served
by registered or certified mail addressed to Owner at the address
first herein above given or at such other address as Owner shall
designate by written notice.
WATER CHARGES:
28. If Tenant requires, uses or consumes water for any purpose in
addition to ordinary lavatory purposes (of which fact Tenant
constitutes Owner to be the sole judge) Owner may install a water
meter and thereby measures Tenant's water consumption for all
purposes. Tenant shall pay Owner for the cost of the meter and
the cost of the installation thereof and throughout the duration
of Tenant's occupancy Tenant shall keep said meter and
installation equipment in good working order and repair at
Tenant's own cost and expense. Tenant agrees to pay for water
consumed, as shown on said meter as and when bills are rendered.
Tenant covenants and agrees to pay the sewer rent, charge or any
other tax, rent, levy or charge which now or hereafter is
assessed, imposed or a lien upon the demised premises or the
realty of which they are part pursuant to law, order or
regulation made or issued in connection with the use,
consumption, maintenance or supply of water, water system or
sewage or sewage connection or system. The xxxx rendered by Owner
shall be payable by Tenant as additional rent. If the building or
the demised premises or any part thereof be supplied with water
through a meter through which water is also supplied to other
promises Tenant shall pay to Owner as additional rent, on the
first day of each month, %, ($ ) of the total meter charges, as
Tenant's portion. Independently of and in addition to any of the
remedies reserved to Owner herein above or elsewhere in this
lease. Owner may xxx for and collect any monies to be paid by
Tenant or paid by Owner for any of the reasons or purposes herein
above set forth.
SPRINKLERS:
29. Anything elsewhere in this lease to the contrary
notwithstanding, if the New York Board of Fire Underwriters or
the Insurance Services Office or any bureau, department or
official of the federal, state or city government require or
recommend the installation of a sprinkler system or that any
changes, modifications, alterations, or additional sprinkler
heads or other equipment be made or supplied in an existing
sprinkler system by reason of Tenant's business, or the location
of partitions, trade fixtures, or other contents of the demised
premises, or for any other reason, or if any such sprinkler
system installations, changes, modifications, alterations,
additional sprinkler heads or other such equipment become
necessary to prevent the imposition of a penalty or charge
against the full allowance for a sprinkler system in the fire
insurance rate set by any said Exchange or by any fire insurance
company. Tenant shall, at Tenant's expense, promptly make such
sprinkler system installations, changes, modifications,
alterations, and supply additional sprinkler heads or other
equipment as required whether the work involved shall be
structural or non-structural in nature, Tenant shall pay to Owner
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as additional rent the sum of $ , on the first day of each month
during the term of this lease, as Tenant's portion of the
contract price for sprinkler supervisory service.
HEAT, CLEANING:
30. As long as Tenant is not in default under any of the
covenants of this lease, Owner shall, if and insofar as existing
facilities permit, furnish heat to the demised premises, when and
as required by law, on business days from 8:00 a.m. to 6:00 p.m.,
and on Saturdays from 8:00 a.m. to 1:00 p.m. Tenant shall at
Tenant's expense, keep demised premises clean and in order, to
the satisfaction of Owner, and if demised premises are situated
on the street floor, Tenant shall, at Tenant's own expenses make
all repairs and replacements to the sidewalks and curbs adjacent
thereto, and keep said sidewalks and curbs free from snow, ice,
dirt and rubbish. Tenant shall pay to Owner the cost of removal
of any of Tenant's refuse and rubbish from the building. Bills
for the same shall be rendered by Owner to Tenant at such times
as Owner may elect and shall be due and payable when rendered,
and the amount of such bills shall be deemed to be, and be paid
as additional rent. Tenant shall, however, have the option of
indepen dently contracting for the removal of such rubbish and
refuse in the event that Tenant does not wish to have same done
by employees of Owner. Under such circumstances, however, the
removal of such refuse and rub xxxx by others shall be subject to
such rules and regulations as, in the judgment of Owner, are
necessary for the proper operation of the building.
SECURITY:
31. Tenant has deposited with Owner the sum of $ as security for
the faithful performance of and observance by Tenant of the
terms, provisions and conditions of this lease, it is agreed that
in the event Tenant defaults in respect of any of the terms,
provisions and conditions of this lease, in cluding, but not
limited to, the payment of rent and additional rent. Owner may
use, apply or retain the whole or any part of the security so
deposited to the extent required for the payment of any rent and
additional rent or any other sum as to which Tenant is in default
or for any sum which Owner may expend or may be required to
expend by reason of Tenant's default in respect of any of the
terms, covenants and conditions of this lease, including but not
limited to, any damages or deficiency in the refitting of the
premises, whether such damages or deficiency accrued before or
after summary proceedings or other re-entry by Owner. In the
event that Tenant shall fully and faithfully comply with all of
the terms, provisions, covenants and conditions of this lease,
the security shall be returned to Tenant after the date fixed as
the end of the lease and after delivery of entire possession of
the demised premises to Owner. In the event of sale of the land
and building or leasing of the building, of which the demised
premises form a part, Owner shalt have the right to transfer the
security to the vendee or lessee and Owner shall thereupon be
released by Tenant from all liability for the return of such
security, and Tenant agrees to look to the new Owner solely for
the return of said security; and it is agreed that the provisions
hereof shall apply to every transfer or assignment made of the
security to a new Owner. Tenant further covenants that it will
not assign or encumber or attempt to assign or encumber the
monies deposited herein as security and that neither Owner
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nor its successors or assigns shall be bound by any such
assignment, encumbrance, attempted assignment or attempted
encumbrance.
CAPTIONS:
32. The Captions are inserted only as a matter of convenience and
for reference and in no way define, limit or describe the scope
of this lease nor the intent of any provision thereof.
DEFINITIONS:
33. The term "Owner" as used in this lease means only the Owner,
or the mortgagee in possession, for the time being of the land
and building (or the Owner of a lease of the building or of the
land and building) of which the demised premises form a part, so
that in the event of any sale or sales of said land and building
or ,of said lease, or in the event of a lease of said building,
or of the land and building, the said Owner shall be and hereby
is entirely freed and relieved of all covenants and obligations
of Owner hereunder, and it shall be deemed and construed without
further agreement between the parties of their successors in
interest, or between the parties and the purchaser, at any such
sale, or the said lessee of the building, or of the land and
building, that the purchaser or the lessee of the building has
assumed and agreed to carry out any and all covenants and
obligation of Owner hereunder. The words "re-enter" and
"re-entry" as used in this lease are not restricted to their
technical legal meaning. The term "business days" as used in this
lease shall exclude Saturdays (except such portion thereof as is
covered by specific hours in Article 30 hereof). Sundays and all
days designated as holidays by the applicable building service
union employees service contract or by the applicable Operating
Engineers contract with respect to HVAC service.
ADJACENT EXCAVATION/SHORING:
34. If an excavation shall be made upon land adjacent to the
demised premises, or shall be authorized to be made, Tenant shall
afford to the person causing or authorized to cause such
excavation, license to enter upon the demised premises for the
purpose of doing such work as said person shall deem necessary to
preserve the wall or the building of which demised premises form
a part from injury or damage and to support the same by proper
foundations without any claim for damages or indemnity against
Owner or diminution or abatement of rent.
RULES AND REGULATIONS:
35. Tenant and Tenant's servants, employees, agents, visitors,
and licensees shall observe faithfully, and comply strictly with
the Rules and Regulations and such other and further reasonable
Rules and Regulations as Owner or Owner's agents may from time to
time adopt. Notice of any additional rules or regulations shall
be given in such manner as Owner may elect. In case Tenant
disputes the reasonableness of any additional Rule or Regulation
hereafter made or adopted by Owner or Owner's agents, the parties
hereto agree to submit the question of the reasonableness of such
Rule or Regulation for decision to the New York office of the
American Arbitration Association, whose determination shall be
final and conclusive upon the parties hereto. The right to
dispute the reasonableness of any additional Rule or Regulation
upon Tenant's part
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shall be deemed waived unless the same shall be asserted by
service of a notice, in writing, upon Owner within ten (10) days
after the giving of notice thereof. Nothing in this lease
contained shall be construed to impose upon Owner any duty or
obligation to enforce the Rules and Regulations or terms,
covenants or conditions In any other lease, as against any other
tenant and Owner shall not be liable to Tenant for violation of
the same by any other tenant, its servants, employees, agents,
visitors or licensees.
GLASS:
36. Owner shall replace, at the expense of Tenant, any and all
plate and other glass, damaged or broken from any cause
whatsoever in and about the demised premises. Owner may insure,
and keep insured, at Tenant's expenses all plate and other glass
in the demised premises for and in the name of Owner. Bills for
the premiums therefor shall be rendered by Owner to Tenant at
such times as Owner may elect, and shall be due from, and payable
by, Tenant when rendered, and the amount thereof shall be deemed
to be, and be paid as, additional rent.
PORNOGRAPHIC USE PROHIBITED:
37. Tenant agrees that the value of the demised premises and the
reputation of the Owner will be seriously injured if the premises
are used for any obscene or pornographic purposes or any sort of
commercial sex establishment. Tenant agrees that Tenant, will not
bring or permit any obscene or-pornographic material on the
premises, and shall not permit or conduct any obscene, nude, or
semi-nude live performances on the premises, nor permit use of
the premises for nude modeling, rap sessions, or as a so-called
rubber goods shop, or as a sex club of any sort, or as a massage
parlor. Tenant agrees further that Tenant will not permit any of
these uses by any sublessee or assignee of the premises. This
Article shall directly bind any successors in interest to the
Tenant. Tenant agrees that if at any time Tenant violates any of
the provisions of this Article, such violation shall be deemed a
breach of a substantial obligation of the terms of this lease and
objectionable conduct. Pornographic material is defined for
purposes of this Article as any written or pictorial matter with
prurient appeal or any objects of instrument that are primarily
concerned with lewd or prurient sexual activity. Obscene material
is defined here as it is in Penal law ss.235.00.
ESTOPPEL CERTIFICATE:
38. Tenant, at any time, and from time to time, upon at least 10
days prior notice by Owner, shall execute, acknowledge and
deliver to Owner, and/or to any other person, firm or corporation
specified by Owner, a statement certifying that this lease is
unmodified and in full force and effect (or, if there have been
modifications, that the same is in full force and effect as
modified and stating the modifications), stating the dates which
the rent and additional rent have been paid, and stating whether
or not there exists any defaults by Owner under this lease, and
if so, specifying each such default.
SUCCESSORS AND ASSIGNS:
39. The covenants. conditions and agreements contained in this
lease shall
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bind and inure to the benefit of Owner and Tenant and their
respective heirs, distributees, executors, administrators,
successors, and except as otherwise provided in this lease, their
assigns.
IN WITNESS THEREOF, Owner and Tenant have respectively signed and
sealed this lease as of the day and year first above written.
/S/ XXXXXX XXXXXXX
-------------------------
XXXXXX XXXXXXX, PRESIDENT
BAYBRIDGE PLAYROBICS, INC.
/S/ XXX XXXXXXXX
-------------------------
XXX XXXXXXXX, PRESIDENT
CHILD'S PLAYROBICS, INC.
[THIS SPACE INTENTIONALLY LEFT BLANK]
RULES AND REGULATIONS ATTACHED TO AND
MADE A PART OF THIS LEASE
IN ACCORDANCE WITH ARTICLE 35
1. The sidewalks, entrances, driveways, passages, courts, elevators,
vestibules, stairways, corridors or halls shall not be obstructed or encumbered
by any Tenant or used for any purpose other than for ingress to and egress from
the demised premises and for delivery of merchandise and equipment in a prompt
and efficient manner using elevators and passageways designated for such
delivery by Owner. There shall not be used in any space, or in the public hall
of the building, either by any Tenant or by jobbers, or others in the delivery
or receipt of merchandise, any hand trucks except those equipped with rubber
tires and safeguards.
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2. If the premises are situated an the ground floor of the building,
Tenant thereof shall further, at Tenant's expense, keep the sidewalks and curb
in front of said premises clean and free from ice, snow, etc.
3. The water and wash closets and plumbing fixtures shall not be used
for any purposes other than those for which they were designed or constructed.
4. Tenant shall not use, keep or permit to be used or kept any foul or
noxious gas or substance in the demised premises, or permit or suffer the
demised premises to be occupied or used in a manner offensive or objectionable
to Owner or other occupants of the building by reason of noise, odors and/or
vibrations or interfere in any way with other Tenants or those having business
therein.
5. No sign, advertisement, notice or other lettering shall be
exhibited, inscribed, painted or affixed by any Tenant on any part of the
outside of the demised premises or the building or are the inside of the demised
premises if the same is visible from the outside of the premises without the
prior written consent of Owner, except that the name of Tenant may appear on the
entrance door of the premises. In the event of the violation of the foregoing by
any Tenant, Owner may remove same without any liability and may charge the
expense incurred by such removal to Tenant or Tenants violating this rule. Signs
on interior doors and directory tablet shall be inscribed, painted or affixed
for each Tenant by Owner at the expense of such Tenant, and shall be of a size,
color and style acceptable to Owner.
6. No Tenant shall xxxx, paint, drill into, or in any way deface any
part of the demised premises or the building of which they form a part. No
boring, cutting or stringing of wires shall be permitted, except with the prior
written consent of Owner and as Owner may direct. No Tenant shall lay linoleum
or similar floor covering so that the same may come in direct contact with the
floor of the demised premises, and, if linoleum or other similar floor covering
is desired to be used, an underlining of builders deadening felt shall be first
affixed to the floor by a plastic or other material, soluble in water, the use
of cement or other similar adhesive material being expressly prohibited.
7. Freight, furniture, business equipment, merchandise and bulky matter
of any description shall be delivered to and removed from the premises only on
the freight elevators and through the service entrance and corridors, and only
during hours and in a manner approved by Owner. Owner reserves the right to
inspect all freight to be brought in to the building and to exclude from the
building all freight which violates any of theft Rules and Regulations or the
lease of which these Rules and Regulations are a part.
8. Owner reserves the right to exclude from the building between the
hours of 6 p.m. and 8 a.m., and at all hours on Sunday and holidays all persons
who do not present a pass to the building signed by the Owner. Owner will
furnish passes to persons for whom any Tenant requests same in writing. Each
Tenant shall be responsible for all Persons for whom he requests such pass and
shall be liable to Owner for all acts of such person.
9. Owner shall have the right to prohibit any advertising by any Tenant
which, in Owner's opinion, tends to impair the reputation of Owner or its
desirability as a building for stores or offices, and upon written notice from
Owner, Tenant shall refrain from or discontinue such advertising.
10. Tenant shall not bring or permit to be brought or kept in or on the
demised premises, any inflammable, combustible or explosive fluid, material,
chemical or substance, or cause or permit any odors of cooking or other process,
or any unusual or other objectionable odors to permeate in or eminate from the
demised premises.
11. Tenant shall not place a load on any floor of the demised premises
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exceeding the floor load per square foot area which it was designed to carry and
which is allowed by law. Owner reserves the right to prescribe the weight and
position of all safes, business machines and mechanized equipment. Such
installations shall be placed and maintained by Tenant at Tenant's expense in
setting sufficient in Owner's judgement to absorb and proven vibration, noise
and annoyance.
GUARANTY
The undersigned guarantor guarantees to Owner, Owner's successors and
assigns, that full performance and observance of all the agreements to be
performed and observed by Tenant in the attached lease, including the "Rules and
Regulations"as therein provided, without requiring any notice to Guarantor of
nonpayment or, nonperformance, or proof, or notice of demand, to hold the
undersigned responsible under this guaranty, all of which the undersigned hereby
expressly waives and expressly agrees that the legality of this agreement and
the agreements of the Guarantor under this agreement shall not be ended, or
changed by reason of the claims to Owner against Tenant of any of the rights or
remedies attached lease. The guarantor further agrees that this guaranty shall
remain and continue in full force and effect as to any renewal, change or
extension of the lease. As a further inducement to Owner to make the lease Owner
and Guarantor agree that in any action or proceeding brought by either Owner or
Guarantor against the other on any matters concerning the lease or of this
guaranty that Owner and the undersigned shall and do waive trial by jury.
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