LEASE
Exhibit
10.2(c)
AGREEMENT
OF LEASE, made and entered into this 31 day of December, 2005, by
and between XXXXXXX CORPORATION, a New York corporation with
offices at 00 Xxxx Xxxxxx, Xxxxxxxxx, Xxx Xxxx 00000, hereinafter referred
to as
“Landlord”;
and
XXXXX
& XXXXX OF NEW YORK, INC.,
a New
York corporation with offices at 00 Xxxx Xxxxxx, Xxxxxxxxx, Xxx Xxxx 00000,
hereinafter referred to as “Tenant.”
W
I T N E S S E T H :
For
and
in consideration of the rent and the covenants herein contained, Landlord hereby
agrees to lease and let to Tenant, and Tenant does hereby take and lease from
Landlord the following described premises (the “Premises”
or
“Demised
Premises”):
approximately 17,814 rentable square feet of office space located on a portion
of the ground floor and all of the seventh and eighth floors in the building
located at 00 Xxxx Xxxxxx, Xxxxxxxxx, XX as more particularly shown on plans
attached hereto and made a part hereof as Exhibit “A,” said space to be taken in
its as is condition together with the right with the Landlord and other tenants
to public and common areas within the building; for a term of five (5) years,
or
until such term shall earlier terminate, cease or expire as hereinafter
provided. Said term to commence on the 1st
day of
January, 2006, and to end on the 31st
day of
December, 2010, at rental and additional rental provided herein
below.
The
parties hereto on behalf of themselves, their successors and permitted assigns
do hereby agree and covenant as follows:
RENT
1. For
the initial three
(3) calendar years of the Lease term, Tenant shall pay Landlord rent in the
amount of Two Hundred Fifty-Five Thousand Dollars ($255,000) per annum payable
monthly in advance in the amount of $21,250 on the first day of each and every
month during the term hereof. During the last two calendar years of the Lease
term, Tenant shall pay Landlord rent (the “Percentage Rent”) in the amount of
three (3%) of the annual gross revenues derived from or arising out of the
business conducted by Tenant within or from the Premises (the “Premises
Revenues”)
(regardless of whether for cash or for credit or where the actual revenues
are
recorded) for each such calendar year. During the last two calendar years of
the
Lease term, Tenant shall remit monthly estimates on account of the Percentage
Rent, which estimates shall be paid in advance of the first day of each month.
During the fourth calendar year of the term, the monthly estimates shall be
in
the amount of one-twelfth of the actual Percentage Rent payable for the fourth
calendar year of the term, except that Tenant shall continue to pay monthly
estimates of $21,250 until the final Percentage Rent due for the fourth calendar
year has been finalized. During the last two calendar years of the Lease term,
the Tenant shall, within 30 days after the completion of each fiscal quarter,
deliver to Landlord a certificate that sets forth the Premises Revenues on
a
year-to-date basis and the Percentage Rent due for such quarter. If the actual
Percentage Rent due for such quarter is greater than the amount of the estimates
paid by Tenant for such quarter, then the certificate shall be accompanied
by a
payment equal to the shortfall. If the actual Percentage Rent due for such
quarter is less than the amount of the estimates paid by Tenant for such
quarter, then Tenant shall be entitled to a credit for such overpayment, which
credit may be taken by Tenant against the next monthly estimate(s) due
hereunder. Each quarterly certificate delivered by Tenant shall be signed by
the
Tenant’s Vice President-Finance and shall contain undertaking therein that the
information contained therein is true, accurate and complete, has been derived
from the books and records of Tenant and that Tenant has complied with its
obligations under this Paragraph 1.
All
rent
shall be paid at the address specified herein above for the Landlord or at
such
other place as Landlord may designate in writing, from time to time. All rent
shall be paid without demand and without counterclaim, deduction or
setoff.
For
the
purposes of this Section 1, the term “gross revenues” means the total gross
dollar amount of all sales, charges for the rendering of services, or other
revenues. The parties intend for the foregoing definition to be interpreted
as
broadly as possible.
Tenant
agrees to maintain financial records, which specifically account for gross
revenues for the Premises. Tenant further agrees to refrain from taking any
actions that would tend to manipulate or decrease the gross revenues for the
Premises, including, without limitation, the diversion of gross revenues with
the intent to decrease the amount of rent due hereunder. Landlord shall have
the
right to review the financial records of Tenant with respect to the Premises,
upon the completion of the third year of the Lease term and upon the completion
of each year of the Lease term thereafter. In the event Tenant fails to maintain
such financial records or fails to comply with Landlord’s request to review such
financial records, Landlord may, in its sole discretion, consider Tenant to
be
in breach of this Lease and may take action in accordance with Section 17
hereof.
USE
2. Tenant’s
purpose is to use and occupy the Premises as an insurance and general office
use: and for no other purpose. Landlord represents that the Premises may
lawfully be used for this intended purpose.
REAL
PROPERTY TAXES
3. Tenant
shall
pay, within thirty (30) days after receipt of a xxxx therefore, as additional
rental, its pro-rata share of any increase in real property taxes levied
against
00 Xxxx Xxxxxx, over and above the Monroe County tax including all portions
thereof, and any replacement or substitution therefore for the year 2006;
and
over and above the City of Rochester, City and School tax, including all
portions thereof; or any replacement or substitution therefore and including
any
and all additional charges or assessments thereon whether or not identified
as a
tax, user charge or other designation for the fiscal year, July 1, 2005 to
June
30, 2006; whether said increases arise out of a change in rate, assessments,
or
any other case. Tenant further covenants and agrees to pay its pro-rata share
of
all water pollution charges, including, without limitation, pure water charges
of any kind and nature, and including any replacement or substitution therefore,
regardless of source, levied against 00 Xxxx Xxxxxx within thirty (30) days
after receipt of a xxxx.
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PRO
RATA SHARE
4. Landlord
and
Tenant agree that the Demised Premises constitute 27.8% of the total rentable
space within the building at 00 Xxxx Xxxxxx and wherever this Lease provides
for
pro-rata share, this percentage will be used to make such
computation.
CARE AND REPAIR OF PREMISES AND ALTERATIONS
5. Tenant
shall
commit no act of waste and shall take good care of the Demised Premises and
fixtures and appurtenances therein, and shall, in the use and occupancy of
the
Premises, conform to all laws, orders and regulations of the Federal, State
and
Municipal governments, or any of their departments, and regulations of the
New
York Board of Fire Underwriters, applicable to the Premises; Tenant shall
not do
or permit to be done any act or thing upon the Premises, which will invalidate
or be in conflict with the fire insurance policies covering the building
of
which the Demised Premises form a part, and fixtures and property therein,
and
shall not do, or permit to be done, any act or thing upon said Premises which
shall or might be subject Landlord to any liability or responsibility for
injury
to any person or persons or to property by reason of any business or operation
being carried on upon said Premises or for any other reason. Upon termination
of
the term, Tenant shall surrender the Premises in as good condition as they
were
at the beginning of the term, reasonable wear, and damage by fire, the elements,
casualty, or other cause not due to the misuse or neglect by Tenant or Tenant’s
agents, servants visitors or licensees, expected. Tenant shall not xxxx,
paint,
drill into, or in any way harm or deface any part of the Demised Premises
or the
building of which they form a part. Landlord has not conveyed to Tenant any
rights in or to the outer side of the outside walls of the building of which
the
Demised Premises are a part, and except as provided herein Tenant shall not
display or erect any lettering, signs, advertisements, awnings or other
projections or do any boring, or cutting, or stringing of wires in or, on
the
Demised Premises or in or on the building of which they form a part, or make
any
alterations, decorations, installations, additions or improvements in or
to the
Demised Premises or in or to the building of which they form a part, without
the
prior written consent of Landlord, and at Tenant’s sole expense. No water
cooler, air-conditioning unit or system or other apparatus shall be installed
or
used by Tenant without the written consent of the Landlord. All alterations,
decorations, installations, additions or improvements upon the Demised Premises,
made by either party, (including paneling, partitions, railings, mezzanine
floors, galleries and the like), but excepting movable trade fixtures shall,
at
Landlord’s option, become the property of the Landlord.
All
property of Tenant remaining on the Demised Premises after the last day of
the
term of this Lease shall conclusively be deemed abandoned and may, at the
option
of the Landlord, be removed and Tenant shall reimburse Landlord for the cost
of
such removal. Landlord may have any such property stored at Tenant’s risk and
expense for a reasonable period of time.
Landlord
specifically reserves the right to approve the choice of any contractors
or
subcontractors employed by, through, or under the Tenant in connection with
any
tenant alterations or repairs.
Landlord
shall be responsible, at its cost and expense, for the repair and maintenance
of
all common areas within 00 Xxxx Xxxxxx.
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SIGNS
6. Tenant
shall not place or cause or allow to be placed any sign or signs of any kind
whatsoever at, in or above the entrance to the building or to the Demised
Premises or any part thereof except in or at such place or places a may be
approved by Landlord in writing. In the event that Landlord shall deem it
necessary to remove any such sign or signs in order to paint and make repairs,
alterations or improvements in or upon said Premises or building or any part
thereof, the Landlord shall have the right to do so and the cost of removing
and
replacing said signs shall be borne by the Tenant.
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 the Demised Premises form a part, and to all renewable, modifications,
consolidations, replacements and extensions thereof. This clause shall be
self-operative and no further instrument of subordination shall be required
by
any mortgagee. In confirmation of such subordination, Tenant shall executive
promptly any certificate that Landlord may reasonably request of
Tenant.
Tenant
agrees to give any Mortgagees and/or Trust Deed Holders, by Registered Mail,
a
copy of any Notice of Default served upon the Landlord, provided that prior
to
such notice Tenant has been notified, in writing, (by way of Notice of
Assignment of Rents and Leases or otherwise) of the address of such Mortgagees
and/or Trust Deed Holders. Tenant further agrees that if Landlord shall have
failed to cure such default within the time provided for in this Lease, then
the
Mortgagees and/or Trust Deed Holders shall have an additional thirty (30) days
within which to cure such default or if such default cannot be cured within
that
time, then such additional time as may be necessary if within such thirty (30)
days, any Mortgagee and/or Trust Deed Holder has commenced and is diligently
pursuing the remedies necessary to cure such default, including but not limited
to commencement of foreclosure proceedings, if necessary to effect such cure
in
which event this lease shall not be terminated while such remedies are being
so
diligently pursued.
NO
ASSIGNMENT, NO SUBLETTING
8. Tenant
shall
not pledge, hypothecate, assign, mortgage or encumber this Lease, or sublease
the whole or any portion of the Demised Premises without the prior written
consent and approval of the Landlord. In the event of any assignment of this
Lease or if the Demised Premises or any part thereof be sublet or occupied
by
anybody other than Tenant, Landlord may, after default by Tenant, collect rent
from the assignee, subtenant, or occupant and apply the net amount collected
to
the rent reserved herein, but no such assignment of subletting or occupancy
or
collection shall be deemed a waiver of this covenant or the acceptance of the
assignee, subtenant or occupant as tenant, or a release of Tenant from the
further performance by Tenant of covenants on the part of Tenant contained.
The
consent by Landlord to an assignment or subletting shall not in way be construed
as a waiver if this covenant, nor shall it serve to relieve Tenant from
liability on account hereof nor from obtaining the expressed consent in writing
of Landlord for any further assignment or subletting.
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PROPERTY
LOSS, DAMAGE, REIMBURSEMENT
9. Landlord
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 the loss of or damage to
any
property of Tenant by theft or otherwise. Landlord or its agents shall not
be
liable for any injury or damage to persons or property resulting from fire,
explosion, falling plaster, steam, gas, electricity, water, rain or snow
or
leaks from any part of said building or from the pipes, appliances or plumbing
works or from the root street or sub-surface or from any other place or by
dampness or by any other cause of whatsoever nature, unless caused by or
due to
the negligence of Landlord, its agents, servants, or employees; nor shall
Landlord be liable for any latent defect in the Demised Premises or in the
building of which they form a part. Tenant shall reimburse and compensate
Landlord as additional rent within five (5) days after rendition of a statement
for all expenditures made by, or damages or fines sustained or incurred by,
Landlord due to non-performance or non-compliance or breach or failure to
observe any term, covenant or condition of this Lease upon Tenant’s part to be
kept, observed, performed or complied with. Tenant shall give immediate notice
to Landlord in case of fire or accidents in the Demised Premises or in the
building or of defects therein or in any fixtures or
equipment.
DESTRUCTION - FIRE OR OTHER CASE
10. 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
the rent until such repairs shall be made shall be apportioned according
to the
part of the Demised Premises which is usable by the Tenant. But if such partial
damage is due to the fault or neglect of the Tenant, Tenant’s servants,
employees, agents, visitors or licensees, without prejudice to the rights
of
subordination 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 no to restore or not to rebuild
the
same, or if the building shall be so damaged that Landlord shall decide to
demolish it or not to rebuild it, then or in any such events Landlord may,
within ninety (90) days after such fire or other cause, give Tenant a notice
in
writing of such decision, 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 is due to
the
fault or neglect of Tenant the debris shall be removed by and at the expense
of
the Tenant.
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INSURANCE;
WAIVERS OF SUBROGATION
11. Landlord
shall insure
the building of which the Demised Premises are a part against fire and other
uses included in standard extended coverage by policies. Tenant shall maintain
throughout the term of this Lease broad from comprehensive general liability
insurance (written on an occurrence basis and including contractual liability
coverage and an endorsement for bodily injury) in minimum amounts carried by
prudent tenants engaged in similar operations but in no event in an amount
less
than Two Million Dollars ($2,000,000.00) combined single limit per occurrence.
Tenant shall also carry property insurance in an amount not less than that
required to replace all of its fixtures, improvements personal property and
all
other contents of the Premises. Tenant further covenants and agrees to cause
all
said insurance to be placed with insurance companies authorized and licensed
to
issue such policies in the State of New York and to maintain such insurance
at
all times during the term of this Lease. Tenant covenants and agrees that each
such policy shall name landlord as additional insured. Tenant shall deliver
a
certificate of such insurance to landlord concurrently with Tenant's execution
of this Lease and at least annually thereafter. Landlord and Tenant each hereby
waive any and all right to recover against the other (or against their
respective officers, directors, trustees, partners, joint venturers, employees
or agents) for any required to be carried by such party pursuant to this or,
if
greater, actually carried by such party. Landlord and Tenant shall secure
appropriate waivers of subrogation from their respective insurance carriers;
and
each party will, upon request, deliver to the other a certificate evidencing
such waiver of subrogation by the insurer.
SERVICES
- ELEVATOR; HVAC, WATER &
CLEANING
12. Landlord
shall
furnish the following services;
(a) Automatic
passenger
elevator service;
(b) Heat,
when and as
required by law, on business days, Monday through Friday, between the hours
of
7:00 AM and 6:00 PM, excluding Saturday, Sunday and legal holidays, unless
special arrangements have been made with the Landlord;
(c) Hot
and cold water
for lavatory purposes without charge;
(d) Cleaning
services
customary in 00 Xxxx Xxxxxx from time to time, if the Demised Premises are
used
exclusively for offices;
(e) Electricity
for usual
office requirements;
(f) Air
cooling during
the appropriate season on business days Monday through Friday between the hours
of 7:00 AM and 6:00 PM, and excluding Saturdays, Sundays and legal holidays,
unless special arrangements have been made with the Landlord.
6
NO
OBSTRUCTIONS
13. Tenant
shall neither
encumber nor obstruct the entrance to or halls and stairs of 00 Xxxx Xxxxxx
nor
allow the same to be obstructed or encumbered in any way.
ABANDONMENT
14. In
the event the
Tenant shall vacate or abandon the Demised Premises during the term hereof,
and
cease paying rent or in the event the Tenant should fail to take possession
or
to operate its business and cease paying rent, the Landlord may, at its option,
re-enter the Demised Premises and shall have the same rights and remedies as
provided herein upon Tenant's Default.
CONDEMNATION
15. If
the Demised
Premises or any part thereof or any estate therein, or any other part of 00
Xxxx
Xxxxxx materially affecting Tenant's use of the Demised Premises, be takes
by
virtue of eminent domain, this Lease shall terminate on the date when title
vested pursuant to such taking, the rent and additional rent shall be
apportioned as of said date and any rent paid for any period beyond said date
shall be repaid to Tenant. Tenant shall not be entitled to any part of the
award
or any payment in lieu thereof, but Tenant may file a claim for any taking
of
fixtures and improvements owned by Tenant, and for moving expenses, if allowed
by law.
INDEMINIFICATION
16. The
Tenant agrees to
and does hereby indemnify and hold Landlord harmless from any and all claims,
demands, costs, expenses, damages and liabilities arising out of or pertaining
to the use or occupancy of the Demised Premises or by the operations acts or
omissions of Tenant, or of its servants, agents, employees, upon or in relation
to the Demised Premises, and further agrees to defend Landlord with respect
to
any and all claims or causes obligations arising out or relating to the
aforesaid use or operation of the Demised Premises by the Tenant, its agents,
servants, employees, guest or invitees.
WAIVER
OF TRIAL BY JURY & RIGHT OF
REDEMPTION
17. It
is mutually agreed
by and between Landlord and Tenant that the respective parties hereto shall
and
they hereby do waive trial by jury in any action, proceeding or counterclaim
brought by wither of the parties hereto against the other on any matters
whatsoever arising our of or in any way, connected with this Lease, the
relationship of Landlord and Tenant, Tenant's use or occupancy of said Premises
and/or any claim of injury or damage, and any emergency statutory or any other
statutory remedy. It is further mutually agreed that in the event Landlord
commences any proceeding for non-payment of rent, Tenant will not interpose
any
counterclaim of whatever nature or description in any such proceeding, Tenant
hereby further waives any right of redemption after summary proceedings and
the
right to a
7
distributes
and assigns and on behalf of all persons or
corporations claiming through or under this Lease, together with creditors
of
all classes and all other persons having an interest therein.
NO
WAIVER
18. Receipt
of any rent
or any portion thereof, whether specifically reserved or payable under any
of
the covenants herein contained, or of any portion thereof, after a default
on
the part of the Tenant (whether such rent is due before or after such default)
shall not be deemed to operate as a waiver of the right of the Landlord to
enforce the payment of any rent or other obligation herein reserved or to
declare a forfeiture of this lease and to recover the possession of the leased
premises, as provided in this Lease. Nor shall the failure to enforce any
covenant after its breach or any provision after default be construed as a
waiver on the part of this Landlord of any rights under this Lease.
DEFAULT,
LANDLORD REMEDIES
19. (a) If
the Tenant shall,
at any time, be in default in the payment of the rents or any other payments
required of the Tenant hereunder, or any part thereof, and such default shall
continue for a period of fifteen (15) days after the due date, of if the Tenant
shall be in default in the performance of any of the other covenants and
conditions of this Lease to be kept, observed and performed by the Tenant,
and
such default shall not been cured) within twenty (20) days after written notice
and demand, or if this leasehold interest shall be levied on and taken on
execution, attachment or other process of law, whereby the Demised Premises
shall be taken or occupied by someone other than the Tenant, or if a receiver,
assignee or trustee shall be appointed for the Tenant or Tenant's property,
and
the appointment of such received be not vacated and set aside within twenty
(20)
days from the date of such appointment, or if this Lease shall, by operation
of
law, devolve upon or pass to any person or persons other then the Tenant, then,
in any of the events enumerated above, the Landlord may, at the Landlord's
option, upon five (5) days notice in writing, served either personally or by
Certified Mail on the Tenant, terminate this Lease, and this Lease and the
terms
thereof shall automatically cease and terminate at the termination date, and
it
shall be lawful for the Landlord, at his option, to enter the Demised Premises,
or any part thereof, and to hold, possess and enjoy the said Premises and remove
all persons therefrom by summary proceedings or by any action or proceeding
or
by force or otherwise, anything herein contained to the contrary
notwithstanding, and any notice required by Section 731 of the Real Property
Actions and Proceedings Law of the State of New York, or any other statute
or
regulation now or hereafter in force is specifically waived by the
Tenant.
In
the event the Landlord recovers the Demised Premises
as a result of a breach of the terms covenants and conditions contained in
this
Lease, as heretofore and hereafter referred to, the Landlord, at his option,
reserves the right to relet the Premises, either in the name of the Landlord
or
Tenant for a term or terms which may, at the Landlord's option, extend beyond
the balance of the term of this Lease; and the Tenant shall pay the Landlord
any
deficiency between the rent hereby reserved and covenanted to be paid and the
net amount of the rents collected on such reletting, as well as any reasonable
expenses incurred by the Landlord in such relation, including, but not limited
to, attorney's fees, brokers' fees, expenses for putting
8
the
Demised Premises in good order and preparing same
for rental. Such deficiency shall be paid in monthly installments upon
statements rendered by the Landlord to the Tenant, any suits brought to collect
the amount of the deficiency for any one or Tore months shall not preclude
any
subsequent suit or suits to collect the deficiency for any subsequent
months.
No
receipt of monies by the Landlord from the Tenant or
the termination in any way of this Lease or after the giving of any notice
shall
reinstate, continue or extend the term of this Lease or affect any notice given
to the Tenant prior to the receipt of such money; it being agreed that after
the
service of notice or the commencement of a suit, or after final judgment for
possession of the Demised Premises, the Landlord any received and collect any
rent due, and the payment of said rent shall not waive or affect said notice,
suit or judgment.
(b) If
the Tenant
defaults in the payment of any of the obligations payable by the Tenant
hereunder, the Landlord may, at its option, pay the same, and the amount
so paid, together with interest at the legal rate thereof may be added as
additional rent to the next installment of rent becoming due on the next rent
day, and the amount so paid, whether or not paid by the Landlord shall be deemed
to rent due and payable on such rent or any subsequent rent day as the landlord
may, at his option elect, but it is expressly convenanted and agreed that
payment by the Landlord of any obligation herein imposed upon the Tenant shall
not be deemed to waived or release the default in the payment thereof by the
Tenant or the right of the Landlord immediately to recover possession, at the
Landlord's option, of the Demised Premises by reason of such
default.
(c) Any
and all rights
and remedies given to the Landlord herein with respect to the recovery of the
Demised Premises by reason of the Tenant's default or breach of any of the
terms
and provisions thereof, including without limitation, the payment of any sums
due pursuant hereto, of the right to re-enter and take possession of the Demised
Premises upon the happening of any such breach or default, or the right to
maintain any action for rent or cumulative remedies; and no one of them, whether
exercised by the Landlord as distinct, separate and deemed to be an exclusion
of
any of the others. In any action by Landlord in, furtherance of its shall be
entitled to collect from Tenant any and all reasonable attorneys fees in
addition to any other costs and expenses allowed by law.
BANKRUPTCY
20. In
order to more
effectively secure to the Landlord the rent and other terms herein provided,
it
is agreed, as a further condition of this lease, that the filing of any
voluntary petition under the Bankruptcy Code, or an assignment for the benefit
of creditors by or against the Tenant shall be deemed to constitute a breach
of
this Lease, and thereupon ipso facto and without entry of any other action
by
the Landlord, this Lease shall become and be terminated, as aforesaid, and
the
Landlord shall have the same rights and remedies as set forth
hereinabove.
9
LANDLORD'S
RIGHT TO CURE
21. If
the Tenant
breaches a covenant or condition of this Lease, Landlord may, on reasonable
notice to Tenant (except that no notice need to given in case of emergency).
cure such breach at the expense of Tenant and the reasonable amount of all
expenses. Including attorneys' fees, incurred by Landlord in doing so (whether
paid by Landlord or not) shall be deemed additional rent payable on demand.
In
the event Landlord shall assign this Lease, Tenant agrees to look only to the
Landlord's assignee for the performance of Landlord's obligations as specified
herein.
MECHANIC'S
LIEN
22. Tenant
shall within
ten (10) days after notice from Landlord discharge any mechanic's lien for
materials or labor claimed to have furnished to the Demised Premises; on
Tenant's behalf. In the event the Tenant shall fail to cause such mechanic's
lien to be discharged by payment or posting of a bond, landlord may thereupon
take any steps it deems reasonably necessary for the discharge of such
mechanic's lien, including the payment of the amounts claimed therein, whereupon
any sums paid by the Landlord for the purpose of securing such discharge,
including any and all reasonable attorneys' fees, shall be deemed additional
rent, payable on demand.
POSSESSION
23. That
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 because
a prior Tenant or any other person is wrongfully holding over or is in wrongful
possession, or for any other reason. The rent (including reserved rent to be
apportioned shall not commence until possession is given or is available, but
the term herein shall not be extended.
INTERRUPTION
OF SERVICE OR
USE
24. Interruption
or
curtailment of any service maintained in 00 Xxxx Xxxxxx, caused by strikes,
mechanical difficulties, or any causes beyond Landlord's control whether similar
or dissimilar to those enumerated, shall not entitle Tenant to any claim against
Landlord or to any abatement in rent, nor shall the same constitute constructive
or partial eviction, unless Landlord fails to take such measures as may be
reasonable in the circumstances to restore the service without undue delay.
If
the Demised Premises are rendered untenantable in whole or in part, for a period
of over three (3) business days, by the making of repairs, replacements or
additions, other than those made with Tenant's consent or caused by misuse
or
neglect by Tenant or Tenant's agents, servant visitors or licensees, there
shall
be a proportionate abatement or rent during the period of such
untenantability.
10
MARGINAL
NOTATIONS
25. The
marginal
notations in this Lease are included for convenience on and shall not be
taken
into consideration in any construction or interpretation of this lease or
any of
its provisions.
QUIET ENJOYMENT
26. Landlord
covenants that so long as Tenant pays the rent and additional rent provided
for
herein and performs its other covenants herein, Tenant shall peaceably and
quietly have, hold and enjoy the Demised Premises for the term herein mentioned,
subject to the provisions of this Lease.
BILLS & NOTICES
27. Except
as
otherwise in this Lease provided, a xxxx, statement, notice or communication
which Landlord 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 Certified Mail addressed to Tenant at the building of which the Demised
Premises form a part or at the last 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 Demised Premises as herein provided. Any notice
by Tenant to Landlord must be served by Certified Mail addressed to Landlord
at
the address first hereinabove given or at such other address ad Landlord
shall
designate by written notice.
GLASS
28. Landlord
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.
Tenant shall insure all plate and other glass in and about the Demises Premises.
In the event Tenant fails to do so, Landlord may insure, and keep insured,
at
Tenant’s expense, all plate and other glass in the Demises Premises for and in
the name of Landlord. Bills for the premiums therefore shall be rendered
by
Landlord to Tenant at such times as Landlord may elect for any expense incurred
by Landlord in replacement of the glass, 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.
SUCCESSORS AND ASSIGNS
29. The
provisions of this Lease shall apply to and bind the Tenant, and its successors
and permitted assigns. The provisions of this Lease shall apply to and bind
and
inure to the benefit of Landlord and its successors and
assigns.
11
ESTOPPEL
CERTIFICATE
30. Tenant
agrees, upon request, to execute and deliver and Estoppel Certificate certifying
that this Lease continues in full force and effect and that the Landlord
is not
in default of any provision hereunder and that there exists no defenses,
setoffs, or counterclaims with respect to the Tenant’s obligations to pay rent
or perform any of its obligations hereunder.
RULES
& REGULATIONS
31. Tenant
shall
observe and comply with any rules and regulations hereinafter set forth, which
are made a part hereof, and with such further reasonable rules and regulations
as Landlord may prescribe, on written notice to Tenant, for the safety, care
and
cleanliness of 00 Xxxx Xxxxxx and the comfort, quiet and convenience of other
occupants of 00 Xxxx Xxxxxx.
IN
WITNESS WHEREOF, the
parties hereto have duly executed this lease as of the day and year first above
written.
| LANDLORD | ||
| XXXXXXX CORPORATION | ||
| By: | /s/ Xxxx Xxxxxxx | |
| Xxxx Xxxxxxx, Chairman | ||
|
TENANT
|
||
| XXXXX & XXXXX OF NEW YORK, INC. | ||
| By: |
/s/
Xxxxxx X. Xxxxx
|
|
| Xxxxxx X. Xxxxx | ||
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