New York-New York-170 Fifth Avenue Lease - 170 Fifth Associate Inc. and iVillage Inc.
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STANDARD FORM OF OFFICE LEASE
The Real Estate Board of New York, Inc.
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Agreement of Lease, made as of this ________________ day of August 1995,
between 170 FIFTH ASSOCIATE, INC, having an office at 55 Fifth Avenue, 17th
Floor, New York, NY party of the first part, hereinafter referred to as OWNER,
and
iVILLAGE, INC.
party of the second part, hereinafter referred to as TENANT,
Witnesseth: Owner hereby leases to Tenant and Tenant hereby hires from Owner all
of the fourth (4th) floor
in the building known as 170 Fifth Avenue in the Borough of Manhattan, City of
New York, for the term of Six (6) Years (or until such term shall sooner cease
and expire as hereinafter provided) to commence on the 1st day of SEPTEMBER
nineteen hundred and ninety five, and to end on the 31st day of AUGUST Two
thousand and one both dates inclusive, at an annual rental rate set forth at the
RIDER;
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 installments in advance on the first day of each
month during said term, at the office of Owner or such other place as Owner may
designate, without any set off or deduction whatsoever, except that Tenant shall
pay the first __ monthly installment(s) on the execution hereof (unless this
lease be a renewal).
In the event, at the commencement of the term of this lease, or thereafter,
Tenant shall be in default in the payment of rent to Owner pursuant to the terms
of another lease with Owner or with Owner's predecessor in interest, Owner may
at Owner's option and without notice to Tenant add the amount of such arrears to
any monthly installment of rent payable hereunder and the same shall be payable
to Owner as additional rent.
The parties hereto, for themselves, their heirs, distributees, executors,
administrators, legal representatives, successors and assigns, hereby covenant
as follows:
Rent Occupancy
1. Tenant shall pay the rent as above and as hereinafter provided at the RIDER.
2. Tenant shall use and occupy demised premises for Advertising and Media
Services and for no other purpose.
Tenant Alterations:
3. Tenant shall make no changes in or to the demised premises of any nature
without Owner's prior written consent. Subject to the prior written consent of
Owner, and to the provisions of this article, Tenant at Tenant's expense, may
make alterations, installations, additions or improvements which are
non-structural and which do not affect utility services or plumbing and
electricity lines, in or to the interior of the demised premises by using
contractors or mechanics first approved by Owner. Tenant shall, before making
any alterations, additions, installations or improvements, 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 workman's compensation, general
liability, personal and property damage insurance as Owner may require. If any
mechanic's lien is filed against the demised premises, or the building of which
the same forms a part, for work claimed to have been done for, or materials
furnished to, Tenant, whether or not done pursuant to this article, the same
shall be discharged by Tenant within thirty days thereafter, at Tenant's
expense, by filing the bond required by law. All fixtures and all paneling,
partitions, railings and like installations, installed in the premises at any
time, either by Tenant or by Owner in Tenant's behalf, shall, upon installation,
become the property of Owner and shall remain upon and be surrendered with the
demised premises unless Owner, by notice to Tenant no later than twenty days
prior to the date fixed as the termination of this lease, elects to relinquish
Owner's right thereto and to have them removed by Tenant, in which event the
same shall be removed from the premises by Tenant prior to the expiration 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, moveable office
furniture and equipment, but upon removal of any such from the premises or upon
removal of other installations as may be required by Owner, Tenant shall
immediately and at its expense, repair and restore the premises to the condition
existing prior to 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.
Maintenance and [ILLEGIBLE]
4. Tenant shall, throughout the term of this lease, take good care of the
demised premises and the fixtures and [ILLEGIBLE] which arise out of any work,
labor, service or equipment done for or supplied to Tenant or any subtenant or
arising out of the installation, use or operation of the property or equipment
of Tenant or any subtenant. Tenant shall also repair all damage to the building
and the demised premises caused by the moving of Tenant's fixtures, furniture
and equipment. Tenant shall promptly make, at Tenant's expense, all repairs in
and to the demised premises for which Tenant is responsible, using only the
contractor for the trade or trades in question, selected from a list of at least
two contractors per trade submitted by Owner. Any other repairs in or to the
building or the facilities and systems thereof for which Tenant is responsible
shall be performed by Owner at the Tenant's expense. Owner shall maintain in
good working order and repair the exterior and the structural portions of the
building, including the structural portions of its demised premises, and the
public portions of the building interior and the building plumbing, electrical,
heating and ventilating systems (to the extent such systems presently exist)
serving the demised premises. Tenant agrees to give prompt notice of any
defective condition to the premises for which Owner may be responsible
hereunder. There shall be no allowance to Tenant for diminution of rental value
and no liability on the part of Owner by reason of inconvenience, annoyance or
injury to business arising from Owner or others making repairs, alterations,
additions or improvements in or to any portion of the building or the demised
premises or in and to the fixtures, appurtenances or equipment thereof. It is
specifically agreed that Tenant shall not be entitled to any setoff or reduction
of rent by reason of any failure of Owner to comply with the covenants of this
or any other article of this Lease. Tenant agrees that Tenant's sole remedy of
law in such instance will be by way of an action for damages for breach of
contract. The provisions of this Article 4 shall not apply in the case of fire
or other casualty which are dealt with in Article 9 hereof.
Window Cleaning:
5. Tenant will not clean nor require, permit, suffer or allow any window in the
demised premises to be cleaned from the outside in violation of Section 202 of
the Labor Law or any other applicable law or of the Rules of the Board of
Standards and Appeals, or of any other Board or body having or asserting
jurisdiction.
Requirements of Law, Fire Insurance, Floor Loads:
6. Prior to the commencement of the lease term, if Tenant is then in possession,
and at all times thereafter, Tenant, at Tenant's sole cost and expense, shall
promptly comply with all present and future laws, orders and regulations of all
state, federal, municipal and local governments, departments, commissions and
boards and any directon of [ILLEGIBLE]
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of use or manner of use of the premises or the building (including the use
permitted under the lease). Nothing herein shall require Tenant to make
structural repairs or alterations unless Tenant has, by its manner of use of the
demised premises or method of operation therein, violated any such laws,
ordinances, orders, rules, regulations or requirements with respect thereto.
Tenant may, after securing Owner to Owner's satisfaction against all damages,
interest, penalties and expenses, including, but not limited to, reasonable
attorney's fees, by cash deposit or by surety bond in an amount and in a
company satisfactory to Owner, contest and appeal any such laws, ordinances,
orders, rules, regulations or requirements provided same is done with all
reasonable promptness and provided such appeal shall not subject Owner to
prosecution for a criminal offense or constitute a default under any lease or
mortgage under which Owner may be obligated, or cause the demised premises or
any part thereof to be condemned or vacated. Tenant shall not do or permit any
act or thing to be done in or to the demised premises which is contrary in 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 with
respect to the demised premises or the building of which the demised premises
form a part, or which shall or might subject Owner to any liability or
responsibility to any person or for property damage. Tenant shall not keep
anything in the demised premised except as now or hereafter permitted by the
Fire Department, Board of Fire Underwriters, Fire Insurance Rating Organization
or other authority having jurisdiction, and then only in such manner and such
quantity so as not to increase the rate for fire insurance applicable to the
building, nor use the premises in a manner which will increase the insurance
rate for the building or any property located therein over that in effect prior
to the commencement of Tenant's occupancy. Tenant shall pay all costs, expenses,
fines, penalties, or damages, which may be imposed upon Owner by reason of
Tenant's failure to comply with the provisions of this article and if by reason
of such failure the fire insurance rate shall, at the beginning of this lease or
at ant 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. In any action or proceeding wherein Owners
and Tenant are parties, a schedule or "make-up" of rate for the building or
demised premises issued by the New York Fire Insurance Exchange, or other body
making fire insurance rates applicable to said premises shall be conclusive
evidence of the facts therein stated and of the several items and charges in the
fire insurance rates then applicable to said premises. Tenant shall not place a
load upon any floor of the demised premises exceeding the floor load per square
foot area which it was designed to carry and which is allowed by law. Owner
reserves the right to prescribe the weight and position of all safes, business
machines and mechanical equipment. Such installations shall be placed and
maintained by Tenant, at Tenant's expense, in settings sufficient, in Owner's
judgement, to absorb and prevent vibration, noise and annoyance.
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 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.
Property--Loss, Damage, Reimbursement, 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
or any private, public or quasi public work. If at any time any windows of the
demised premises are temporarily closed, darkened or bricked up (or permanently
closed, darkened or bricked up, if required by law) for any reason whatsoever
including, but not limited to Owner's own acts, Owner shall not be liable for
any damage Tenant may sustain thereby and Tenant shall not be entitled to any
compensation therefor nor abatement or diminution of rent nor shall the same
release Tenant from its obligations hereunder nor constitute an eviction. 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 agents,
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 sub-tenant,
and any agent, contractor, employee, invitee or licensee of any sub-tenant. 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 counsel approved by Owner in writing,
such approval not to be unreasonably withheld.
Destruction, Fire and Other Casualty:
9. (a) If the demised premises 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 [ILLEGIBLE] 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 days specified in such notice the term of
this lease shall expire as fully and completely as if such date were the date
set forth above for the termination of this lease and Tenant shall forthwith
quit, surrender and vacate the premises without prejudice however, to Landlord'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 of 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 control. 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 hereinabove shall relieve Tenant
from liability that may exist as a result of damage from fire or other casualty.
Notwithstanding the foregoing, each party shall look first to any insurance in
its favor before making any claim against the other party for recovery for loss
or damage resulting from fire or other casualty, and to the extent 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. If, and to the extent, that such
waiver can be obtained only by the payment of additional premiums, then the
party benefitting from the waiver shall pay such premium within ten days after
written demand or shall be deemed to have agreed that the party obtaining
insurance coverage shall be free of any further obligation under the provisions
hereof with respect to waiver of subrogation. 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 the 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 and assigns to Owner, Tenant's entire
interest in any such award.
Assignment, Mortgage, Etc.:
11. Tenant, its heirs, distributees, executors, administrators, legal
representatives, successors and assigns, expressly covenants that it shall not
assign, mortgage or encumber this agreement, nor underlet, or suffer or permit
the demised premises or any part thereof to be used by others, without the prior
written consent of Owner in each instance. Transfer of the majority of the stock
of a corporate Tenant shall be deemed an assignment. 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 this 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 underletting.
Electric Current:
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. SEE RIDER
Access to Premises:
13. Owner or Owner's agents 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 the demised
premises or to any other portion of the building or which Owner may elect to
perform. 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 concealed within the walls, floor or ceiling/ Owner
may during the [ILLEGIBLE]
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same to prospective purchasers or mortgagees of the building, and during the
last six months of the term for the purpose of showing the same to prospective
tenants. If Tenant is 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 cause is
exercised to safeguard Tenant's property, such entry shall not render Owner or
its agents liable therefor, nor in any event shall the obligations of Tenant
hereunder be affected. If during the last month of the 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.
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 location 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, not 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 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 cancelled by Owner by the sending of a written notice to Tenant
within a reasonable time after the happening of any one of 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 by Tenant of an assignment
or any other arrangement for the benefit or 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 lease.
(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 demised premises for the same
period. In the computation of such damages the difference between any
installment of rent becoming due hereunder after the date of termination and the
fair and reasonable rental value of the demised premises for the period for
which such installment was payable shall be discounted to the date of
termination at the rate of four percent (4%)) per annum. If such premises or any
part hereof be relet 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 of rent reserved upon such reletting
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.
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
premises shall be taken or occupied by someone other than Tenant; or if this
lease be rejected under ss. 235 of Title 11 of the U.S. Code (bankruptcy code);
or if Tenant shall fail to move into or take possession of the premises within
fifteen (15) days after the commencement of the term of this lease, then, in any
one or more of such events, upon Owner serving a written __ days notice upon
Tenant specifying the nature of said default and upon the expiration of said
________, 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 ______ day period, and if
Tenant shall not have diligently commenced during such default within such five
___ 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 __
days' notice of cancellation of this lease upon Tenant, and upon expiration of
said ___ days this lease and the term thereunder shall end and expire as fully
and completely as if the expiration of such [ILLEGIBLE].
(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 Owners 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. If Tenant shall make
default hereunder prior to the date fixed as the commencement of any renewal or
extension of this lease, Owner may cancel and terminate such renewal or
extension agreement by written notice.
Remedies of Owner and Waiver of Redemption:
18. In case of any such default, re entry, reparation and/or dispossess by
summary proceedings or otherwise, (a) the rent shall become due thereupon and be
paid up to the time of such re entry, dispossess and on 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 covenanted to be paid and the net
amount, if any, of the rents collected on account of the lease or leases of the
demised premises for each month of the period which would otherwise have
constituted the balance of the term of this lease. 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 and any suit brought to collect
the amount of the deficiency for any month shall not prejudice in any way the
rights of Owner to collect the deficiency for any subsequent month by a similar
proceeding. 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 hereunder as aforesaid. Owner shall in no event be liable in any way
whatsoever for failure to re let the demised premises, or in the event that the
demised premises are re let, for failure to collect the rent thereof under such
re- letting, and in no event shall Tenant be entitled to receive any excess, if
any, of such net rents collected over the sums payable by Tenant to Owner
hereunder. In the event of a breach or threatened breach by Tenant of any 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 in the event of Tenant
being evicted or dispossessed for any cause, or in the event of Owner obtaining
possession of demised premises, by reason of the violation by Tenant of any of
the covenants and conditions of this lease, or otherwise.
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. If
Owner, in connection with the foregoing or in connection with 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 action or
proceeding, then Tenant will reimburse Owner for such sums so paid or
obligations incurred with interest and costs. The foregoing expenses incurred by
reason of Tenant's default shall be deemed to be additional rent hereunder and
shall be paid by Tenant to Owners within five (5) days of rendition of any bill
or statement to Tenant therefor. 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.
Building Alterations and Management:
20. Owner shall have the right at any time without the same constituting an
eviction and without incurring liability to Tenant therefore 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.
There shall be no allowance to Tenant for diminution of rental value and no
liability on the part of Owner by reason of inconvenience, annoyance or injury
to business arising from Owner or other Tenants making any repairs in the
building or any such alterations, additions and improvements. Further more,
Tenant shall not have any claim against Owner by reason of Owner's imposition of
such controls of the manner of access to the building by Tenant's [ILLEGIBLE]
<PAGE>
it is erected or the demised premises, 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.
End of Term:
22. 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 and damages which Tenant is not required to
repair as provided elsewhere in this lease excepted, and Tenant shall remove all
its property. Tenant's obligation to observe or perform this covenant shall
survive the expiration or other termination of this lease. If the last day of
the term of this lease or any renewal thereof, falls on Sunday, this lease shall
expire at noon on the preceding Saturday unless it be a legal holiday in which
case it shall expire at noon on the preceding business day.
Quiet Enjoyment:
23. Owner covenants and agrees with Tenant that upon Tenant paying the rent and
additional rent and observing and performing all the terms, covenants and
conditions, on Tenant's part to be observed and performed, Tenant may peaceably
and quietly enjoy the premises hereby demised, subject, nevertheless, to the
terms and conditions of the lease including, but not limited to, Article 31,
hereof and to the ground leases, underlying leases and mortgages hereinbefore
mentioned.
Failure to Give Possession:
24. If the 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
demised premises are 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 Owner's inability to obtain
possession) until after Owner shall have given Tenant written notice that the
premises are substantially ready the 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 are 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:
25. 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 by Owner of a lesser amount than the monthly rent
herein stipulated shall be deemed to be other than on 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 leases provided. No act or thing done by Owner or Owner's agents during the
term hereby demised shall be deemed an 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:
26. 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 including a counterclaim under Article 4.
[ILLEGIBLE] unable to fulfill any of its obligations under this lease or to
supply or is delayed in supplying any service expressly or impliedly to be
supplied or is unable to make, or is delayed in making any repair, additions,
alterations or decorations or is unable to supply or is delayed from so doing by
reason of strike or labor troubles or any cause whatsoever including, but not
limited to, government preemption in connection with a National Emergency or by
reason of any rule, order or regulation of any department or subdivision thereof
of any government agency or by reason of the conditions of supply and demand
which have been or are affected by war or other emergency.
Inability to Perform:
27. 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 impliedly to be supplied or is
unable to make, or is delayed in making any repair, additions, alterations or
decorations or is unable to supply or is delayed in supplying any equipment or
fixtures if Owner is prevented or delayed from so doing by reason of strike or
labor troubles or any cause whatsoever including, but not limited to, government
preemption in connection with a National Emergency or by reason of any rule,
order or regulation of any department or subdivision thereof of any government
agency or by reason of the conditions of supply and demand which have been or
are affected by war or other emergency.
Bills and Notices:
28. Except as otherwise in this lease provided, a bill, statement, notice or
communication which Owner may desire or be required to give to Tenant, shall be
deemed sufficiently given or tendered if, in writing, delivered to Tenant
personally or sent by registered or 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 bill 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 hereinabove
given or at such other address as Owner shall designate by written notice.
Services Provided by Owners:
29. SEE RIDER
Captions:
30. 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 provisions thereof.
Definitions:
31. The term "office", or "offices", wherever used in this lease, shall not be
construed to mean premises used as a store or stores, for the sale or display,
at any time, of goods, wares or merchandise, of any kind, or as a restaurant,
shop, booth, bootblack or other stand, barber shop, or for other similar
purposes or for manufacturing. The term "Owner" means a landlord or lessor, and
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 or their successors in interest, or
between the parties and the purchaser, at any such sale, or the said lessee of
the building, or of the land and building, that the purchaser or the lessee of
the building has assumed and agreed to carry out any and all covenants and
obligations of 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 29 hereof), Sundays
and all days observed by the State or Federal Government [ILLEGIBLE]
<PAGE>
Adjacent Excavation-Shoring:
32. 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:
33. 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 shall be
deemed waived unless the same shall be asserted by service of a notice, in
writing upon Owner within thirty (30) days after the giving of notice thereof.
Nothing in the 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.
Security:
34. Tenant has deposited with Owner the sum of $14,600.00* as security for the
faithful performance 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, including,
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 and 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 re-letting 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 a sale of the land and building or leasing of the building, of which
the demised premises form a part, Owner shall 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 said 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 nor its successors or assigns shall be bound by
any such assignment, encumbrance, attempted assignment or attempted encumbrance.
Estoppel Certificate:
35. Tenant, at any time, and from time to time, upon at lease 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 to which the rent and additional
rent have been paid, and stating whether or not there exists any default by
Owner under this Lease, and, if so, specifying each such default.
Successors and Assigns:
36. The covenants, conditions and agreements contained in this lease shall 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.
----------
* Space to be filled in or deleted.
SEE RIDER ANNEXED HERETO
In Witness Whereof, Owner and Tenant have respectively signed and sealed this
lease as of the day and year first above written.
170 FIFTH ASSOCIATES, INC.
Witness for Owner: By:
-------------------------------------
------------------------------------ ----------------------------------------
iVILLAGE, INC.
Witness for Tenant: By:
-------------------------------------
------------------------------------ ----------------------------------------
ACKNOWLEDGMENTS
CORPORATE OWNER CORPORATE TENANT
STATE OF NEW YORK, ss. STATE OF NEW YORK, ss.
County of County of
On this ____ day of ___________, On this ____ day of ___________,
19__, before me personaly came 19__, before me personaly came
______________________________________ ______________________________________
to me known, who being by me duly to me known, who being by me duly
sworn, did depose and say that he sworn, did depose and say that he
resides in __________________________ resides in __________________________
that he is the ___________________ of that he is the ___________________ of
_____________________________________ _____________________________________
the corporation described in and the corporation described in and
which executed the foregoing which executed the foregoing
instrument, as OWNER; that he knows instrument, as TENANT; that he knows
the seal of said corporation; that the seal of said corporation; that
the seal affixed to said instrument the seal affixed to said instrument
is such corporate seal; that it was is such corporate seal; that it was
so affixed by order of the Board of so affixed by order of the Board of
Directors [ILLEGIBLE] Directors [ILLEGIBLE]
<PAGE>
GUARANTY
FOR VALUE RECEIVED, and in consideration for, and as an inducement to Owner
making the within lease with Tenant, the undersigned guarantees to Owner,
Owner's successors and assigns, the full performance and observance of all the
covenants, conditions and agreements, therein provided to be performed and
observed by Tenant, including the "Rules and Regulations" as therein provided,
without requiring any notice of non-payment, non-performance, or non-observance,
or proof, or notice, or demand, whereby to charge the undersigned therefor, all
of which the undersigned hereby expressly waives and expressly agrees that the
validity of this agreement and the obligations of the guarantor hereunder shall
in no wise be terminated, affected or impaired by reason of the assertion by
Owner against Tenant of any of the rights or remedies reserved to Owner pursuant
to the provisions of the within lease. The undersigned further covenants and
agrees that this guaranty shall remain and continue in full force and effect as
to any renewal, modification or extension of this lease and during any period
when Tenant is occupying the premises as a "statutory tenant". As a further
inducement to Owner to make this lease and in consideration thereof, Owner and
the undersigned covenant and agree that in any action or proceeding brought by
either Owner or the undersigned against the other on any matters whatsoever
arising out of, under, or by virtue of the terms of this lease or of this
guarantee that Owner and the undersigned shall and do hereby waive trial by
jury.
Dated: 19
------------------------------------------------------ ------------------
--------------------------------------------------------------------------------
Guarantor
--------------------------------------------------------------------------------
Witness
--------------------------------------------------------------------------------
Guarantor's Residence
--------------------------------------------------------------------------------
Business Address
--------------------------------------------------------------------------------
Firm Name
STATE OF NEW YORK )
) ss.:
COUNTY OF )
On this _____ day of __________________________, 19__, before me personally came
________________________________________________________________________________
to me known and known to me to be the individual described in, and who
executed the foregoing Guaranty and acknowledged to me that he executed the
same.
______________________________
Notary
[GRAPHIC] IMPORTANT - PLEASE READ [GRAPHIC]
RULES AND REGULATIONS ATTACHED TO AND
MADE A PART OF THIS LEASE
IN ACCORDANCE WITH ARTICLE 33.
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 or 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 of by jobbers or others in the delivery or
receipt of merchandise, any hand trucks, except those equipped with rubber tires
and sideguards. If said premises are situated on the ground floor of the
building, Tenant thereof shall further, at Tenant's expense, keep the sidewalk
and curb in front of said premises clean and free from ice, snow, dirt and
rubbish.
2. 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 and no
sweepings, rubbish, rags, acids or other substances shall be deposited therein,
and the expense of any breakage, stoppage, or damage resulting from the
violation of this rule shall be borne by the Tenant who, or whose clerks,
agents, employees or visitors, shall have caused it.
3. No carpet, rug or other article shall be hung or shaken out of any
window of the building; and no Tenant shall sweep or throw or permit to be swept
or thrown from the demised premises any dirt or other substances into any of the
corridors or halls, elevators, or out of the doors or windows or stairways of
the building and 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 an 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, nor shall any animals or birds be kept in or about the
building. Smoking or carrying lighted cigars or cigarettes in the elevators of
the building is prohibited.
4. No awnings or other projections shall be attached to the outside walls
of the building without the prior written consent of Owner.
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 on 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. Interior signs on
doors and directory tablet shall be inscribed, painted or affixed for each
Tenant by Owner at the expense of such Tenant, and shall be a size, color and
style acceptable to Owner.
6. No Tenant shall mark, 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
other similar floor covering, so that the same shall 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 interlining of builder's deadening felt shall
be first affixed to the floor, by a paste or other material, soluble in water,
the use of cement or other similar adhesive material being expressly prohibited.
7. No additional locks or bolts of any kind shall be placed upon any of the
doors or windows by any Tenant, nor shall any changes be made in existing locks
or mechanism thereof. Each Tenant must, upon the termination of his Tenancy,
restore to Owner all keys of stores, offices and toilet rooms, either furnished
to, or otherwise procured by, such Tenant, and in the event of the loss of any
keys, so furnished, such Tenant shall pay to Owner the cost thereof.
8. 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 entrances and corridors, and only
during the hours and in a manner approved by Owner. Owner reserves the right to
inspect all freight to be brought into the building and to exclude from the
building all freight which violates any of these Rules and Regulations of the
lease or which these Rules and Regulations are a part.
9. Canvassing, soliciting and peddling in the building is prohibited and
each Tenant shall cooperate to prevent the same.
10. 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 Sundays, and legal holidays all persons
who do not present a pass to the building signed by 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 persons.
11. Owner shall have the right to prohibit any advertising by any Tenant
which in Owner's opinion, tends to impair the reputation of the building or its
desirability as a as a building for offices, and upon written notice from
owner, Tenant shall refrain from or discontinue such advertising.
12. 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
processes, or any unusual or other objectionable odors to penetrate in or
emanate from the demised premises.
13. If the building contains central air conditioning and ventiation,
Tenant agrees to keep all windows closed at all times and to abide by all rules
and regulations issued by the Owner with respect to such services. If Tenant
requires air conditioning or ventilation after the usual hours, Tenant shall
give notice in writing to the building superintendent prior to 3 P.M. in the
case of services required on week days, and prior to 3 P.M. on the day prior in
the case of after hours services requested on weekends or on holidays.
14. Tenant shall not move any safe, heavy machinery, heavy equipment, bulky
matter, or fixtures into or out of the building without Owner's prior written
consent. Is such safe, machinery, equipment, bulky matter or fixtures requires
special handling, all work in connection therewith shall comply with the
Administrative Code of the City of New York and all other laws and regulations
applicable thereto and shall be done during such hours as Owner may designate.
================================================================================
TO
================================================================================
STANDARD FORM OF
OFFICE (SEAL)
LEASE
Real Estate Board of New York, Inc.
Copyright 1983. All rights Reserved
[ILLEGIBLE] in whole or in part prohibited.
================================================================================
19
.......Checked by ..............................................................
.......Approved by .............................................................
================================================================================
<PAGE>
RIDER ANNEXED TO LEASE DATED AUGUST 21, 1995
BETWEEN 170 FIFTH ASSOCIATES, INC., AS OWNER,
and
iVILLAGE, INC., AS TENANT
of all of the 4th floor at the building known as
170 Fifth Avenue, New York, NY
RIDER PROVISIONS PREVAIL:
If and to the extent that any of the provisions of this Rider conflict or
are otherwise inconsistent with any of the preceding printed provisions of this
Lease, or of any rules and regulations connected with this Lease (whether or not
such inconsistency is expressly noted in this Rider), the provisions of this
Rider shall prevail. Unless otherwise indicated, capitalized terms shall have
the meaning assigned to them at Paragraph 37 hereof (Rider Paragraph reference
numbers ("R._") correspond to paragraphs of the standard form, above.)
SUPPLEMENTAL TO STANDARD FORM
R.1.1 Rent:
A. Fixed Annual Rent. The Fixed annual Rent which Tenant agrees to pay
hereunder shall be as follows:
--------------------------------------------------------------------------------
Lease
Year Rent/year Rent/month Period
--------------------------------------------------------------------------------
1 $ 87,600.00 $ 7,300.00 September 1, 1995 -- August 31, 1996
--------------------------------------------------------------------------------
2 $ 91,104.00 $ 7,592.00 September 1, 1996 -- August 31, 1997
--------------------------------------------------------------------------------
3 $ 94,748.16 $ 7,895.68 September 1, 1997 -- August 31, 1998
--------------------------------------------------------------------------------
4 $ 98,538.09 $ 8,211.51 September 1, 1998 -- August 31, 1999
--------------------------------------------------------------------------------
5 $ 102,479.61 $ 8,539.97 September 1, 1999 -- August 31, 2000
--------------------------------------------------------------------------------
6 $ 106,578.79 $ 8,881.57 September 1, 2000 -- August 31, 2001
--------------------------------------------------------------------------------
Plus a prorated rental of $243.33 per day for each day between occupancy
(approximately August 23. 1995) and September 1, 1995.
B. Intentionally Deleted.
-1-
<PAGE>
C. Additional Rent:
Tenant shall pay any and all Additional Rent which may become due and
payable under any of the terms, covenants and conditions of this Lease.
All costs, charges and expenses which Tenant assumes, agrees or may become
obligated to pay pursuant to this Lease shall be deemed Additional Rent, and in
the event of non-payment thereof, Owner shall have all of the rights and
remedies with respect thereto as is herein provided for in the case of
non-payment of Fixed Rent.
R.1.2. REAL ESTATE TAXES:
A. If the Taxes for any Tax Year shall be greater than the Base Tax (as
defined at Paragraph 37 hereof), whether as a result of increases in rates or
assessments or otherwise, Tenant shall pay as Additional Rent for such Tax year
a sum equal to EIGHT and 19/00 (8.19%) PERCENT (herein "Tenant's Share") of the
amount by which the Taxes for such Tax Year exceed the Base Tax (Tenant's Share
of such annual excess hereinafter called the "Tax Payment"). (For so long as
Tenant is not in continuing default hereunder, Tenant shall pay only seventy
five (75%) percent of the Tax Payment described above). Should this Lease
commence or terminate prior to the expiration of a Tax Year, such Tax Payment
shall be prorated accordingly. So long as the Tax Payment underlying any needed
adjustment accrues during the Term, then Tenant's obligation to pay Additional
Rent, and Owner's obligation to make any refund adjustment pursuant to Paragraph
B, below (as the case may be) shall survive termination of this Lease. If the
Taxes for any portion of a Tax Year or the Base Tax Year shall be reduced as a
result of a contest and/or certiorari proceeding before the taxing authority,
Tenant's Share of Owner's costs and expenses of obtaining such reduction and of
any retroactive adjustment in the amount of any Tax Payment previously accruing,
shall be added to and be deemed part of the Taxes for such Tax Year, and become
due with the next monthly installment of Fixed Rent, (or within thirty (30) days
after tender of a statement therefor, if the adjustment arises after Expiration
or earlier Termination of the Lease). Payment of Additional Rent for any Tax
Payment due from Tenant shall be made as and subject to the conditions herein
provided. Any net credit to Tenant arising from said reduction of Taxes shall be
offset against Tenant's Prospective obligations for Tax Payments.
B. Owner shall be under no obligation to contest the Taxes or the assessed
valuation of the Real Property for any Tax year (or to refrain from contesting
the same), and may settle any such contest on such terms as Owner in its sole
judgment considers proper. If Owner shall receive a refund for any Tax Year for
which a Tax Payment shall have been made by Tenant pursuant to Subpart A, above,
Owner shall advise Tenant and shall repay to Tenant, with reasonable promptness,
Tenant's Share of such refund after deducting from such refund Tenant's Share of
the costs and expenses (including reasonable experts' and attorneys fees) of
obtaining such refund. If the assessment for the Base Tax Year shall be reduced
from the amount originally imposed after Owner shall have rendered a comparative
statement to Tenant (as provided in Paragraph C below) with respect to any Tax
year affected by such reduction, Owner shall advise Tenant of same, and the
amount of the Tax Payment shall be adjusted retroactively in accordance with
such chance and Tenant, on Owner's demand, shall pay Tenant's Share of the
increase in Additional Rent resulting from such adjustment.
-2-
<PAGE>
C. After the Taxes for a given Tax Year become known Owner may at any time
during or after such Tax Year, render to Tenant a comparative statement showing
the amount of the Tax Payment, if any, due from Tenant for such Tax Year,
indicating thereon in reasonable detail the computation of such Tax Payment. The
appropriate installment of the Tax Payment shown on such comparative statement
shall be payable in full concurrently with the installment of Fixed Rent then or
next due, or if such statement shall be rendered at or after the termination of
this Lease, then within thirty (30) days after Owner's rendition of such
statement. Whenever so requested, but not more often than once a year, Owner
will furnish Tenant with a reproduced copy of the most recent bill for Taxes
affecting the Real Property.
D. Owner's failure during the Lease term to prepare and deliver any notice,
comparative statement or bill, or Owner's failure to make a demand, shall not in
any way cause Owner to forfeit or surrender Owner's right to collect any
Additional Rent which may have become due during the term of this Lease under
this Article, and Tenant's liability for same (together with interest at FIVE
PERCENT (5%) from the time of Owner's payment) shall survive the termination of
this Lease.
R.3 TENANT CHANCES:
A. All renovations, additions, installations, improvements and/or
alterations of any kind or nature in the Demised Premises (herein "Tenant's
Changes"), as well as the schematic and final plans therefor and the
contractor(s) proposed to conduct said work, shall require the prior written
consent of Owner thereto not to be unreasonably withheld or needlessly delayed.
(Should any contractor be selected which is not on Owner's approval list, a
supervisory fee of up to FIFTEEN PERCENT (15%) of Owner's estimate of the cost
of such works, may be assessed, at Owner's discretion.)
B. In no event shall Owner be required to consent to any Tenant's Changes
which might adversely affect the physical condition or operation of any part of
the Building or would adversely affect the proper functioning of the mechanical,
electrical, sanitary or other service systems of the Building. At the time
Tenant requests Owner's written consent to any Tenant's Change, Tenant shall
deliver to Owner plans and specifications at a level of detail reasonably
adequate for Building Department and/or other affected agency review and
reasonably satisfactory to Owner therefor. Tenant shall pay to Owner any
reasonable fees or expenses incurred by Owner in connection with Owner's
submitting such plans and specifications, if it so chooses, to an architect or
engineer selected by Owner for review or examination in an amount equal to the
lesser of FIVE THOUSAND DOLLARS ($5,000.00) or five percent (5%) of Owner's
estimate of the cost of Tenant Changes. Owner's approval of any plans or
specifications shall not relieve Tenant of responsibility for the legal
sufficiency and technical competency of said plans and of the changes to be
effected pursuant thereto. Tenant, before commencement of any Tenant's Changes,
shall:
(1) obtain the necessary consents, authorizations and licenses from
all federal, state and/or municipal authorities having jurisdiction
over such work;
(2) furnish to Owner certificate(s) of adequate Worker's Compensation
Insurance covering any contractors, subcontractors or other persons
who will perform Tenant's Changes for Tenant;
(3) in the case of Tenant's Changes having an estimated value
exceeding FIVE THOUSAND DOLLARS ($5,000.00), a performance bond,
securing completion of such work for Owner's benefit; and
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(4) furnish to Owner an original policy of public liability insurance
covering Owner in an amount and through insurance carriers reasonably
satisfactory to Owner for injuries or damages to person and property
(in no event more than THREE MILLION ($3,000,000) DOLLARS, combined
single limit). Such policy shall be maintained at all times during the
progress of Tenant's Changes and until completion thereof, and shall
provide that no cancellation shall be effective unless ten (10) days'
prior written notice has been given to Owner.
C. Tenant agrees to indemnify and hold Owner harmless from and against:
(1) any and all bills for labor performed and equipment, fixtures and
materials furnished to Tenant;
(2) any and all liens, bills or claims therefor' against the Demised
Premises or the Real Property; and
(3) all losses, damages, costs, expenses, suits and claims whatsoever
in connection with Tenant's Changes.
The cost of Tenant's Changes shall be paid for in cash or its equivalent,
so that the Demised Premises and the Real Property shall at all times be free of
liens for labor and materials supplied or claimed to have been supplied.
D. Tenant, at its expense, shall cause any Tenant's Changes consented to by
Owner to be performed in compliance with all applicable requirements of
insurance bodies having jurisdiction and in such manner as not to interfere
with, delay or impose any additional expense upon, the Owner and/or other
tenants, employees or contractors at the Building, in the maintenance or
operation of any portion of the Building and so as to maintain harmonious labor
relations in the building.
E. Subject to Owner's approval of the Tenant's plans, contractors and all
other arrangements for Tenant's Changes, Owner shall complete the improvements
described at the Work Letter annexed hereto as Exhibit "2". Except for such
work, the Demised Premises are delivered and accepted "as is". Owner represents
that the existing fixtures and equipment on the Demised Premises (if any are
particularly identified in Exhibit "2"), are in reasonable working condition as
of the execution hereof.
G. Tenant shall contribute $5,000.00 upon exectuion hereof toward the Owner
cost of the Work Letter.
R.4 MAINTENANCE AND REPAIRS:
A. Following completion of initial Work Letter items, Tenant, at Tenant's
own cost and expense, shall install, maintain and keep in good order and repair,
or replace as necessary, all plumbing fixtures, ventilating equipment and all
other fixtures in the demised premises, from the wall surface outward, as well
as its air conditioning unit and other facilities (including, e.g., behind any
dropped ceilings or within walls) serving the Demised Premises alone. Owner
shall be responsible for repair and maintenance of items installed directly by
Owner or its own agents. Tenant may obtain a Maintenance Contract from an owner-
approved Air Conditioner Contractor to maintain the existing air conditioning
systems in or serving the Demised Premises throughout the term of the Lease, or
Tenant may otherwise arrange for its repair and maintenance at Tenant's sole
cost. A copy of any pre-paid Maintenance contract (if Tenant elects to employ
same) will be furnished to Owner within twenty (20) days following execution of
the Lease. Owner, upon payment by Tenant of a FIVE PERCENT (5%) surcharge shall
allocate the cost of Tenant's maintenance contract between or among Tenant and
other tenant(s) now or hereafter sharing the use, enjoyment and operation of
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the air conditioning equipment serving its floor(s), and all affected tenants
shall be responsible for its operation and control, as well as the maintenance
cited above; provided, however, that Owner may intervene when it deems
appropriate for reasons of Building maintenance, repair or similar necessity.
Owner shall have no obligation to maintain, replace or install any fixtures or
equipment unless the need for such repair is occasioned by Owner's gross
negligence or willful misconduct.
B. Owner shall be authorized to arrange for all necessary structural
repairs and for changes and/or alterations that Owner may deem appropriate to
the Demised Premises, (including, without limitation, the exterior walls,
downspouts, gutters, roof and the sewer and water lines located outside of the
Demised Premises). Owner shall not be required to incur any additional expense
for work to be done at times other than regular business hours and days, or any
other unusual cost or expense, but Owner shall endeavor to minimize interference
with Tenant's use and occupancy.
C. Except as otherwise provided herein, Tenant agrees, at Tenant's cost and
expense, to keep and maintain the Demised Premises and each and every part
thereof in good repair, order and condition and to make all ordinary repairs
thereto, (of a kind not affecting the baic structure of the Building, except as
otherwise provided herein) including any to the fixtures and equipment therein
and the appurtenances thereto (including without limitation, the doors and door
frames, window glass, entrances, interior walls and partitions, and the
components of the lighting, emergency lighting, exit signage, electrical, air
conditioning equipment including any of the foregoing and/or any affected pipes,
lines, ducts, wires, conduits and other fixtures and facilities within the
Demised Premises, installed by or for Tenant at the Demised Premises.
R.5 CLEANING:
Tenant, at its expense, and in a manner reasonably satisfactory to Owner,
shall cause the Demised Premises, including the exterior and interior of the
windows thereof, to be kept clean. Tenant shall, at Tenant's expense, arrange
for refuse separation, and on a daily basis, remove all Tenant's rubbish and
trash (in authorized containers) to such area of the Building as Owner shall
designate, and Owner will arrange for removal of same from the Building. Owner
shall arrange for periodic vacuuming of the Demised Premises, per customary
frequency. Tenant shall regularly, at Tenant's expense, but using such
contractor as Owner may from time to time designate or reasonably approve, clean
the interior and exterior of the windows in the Demised Premises, but in no case
less than two (2) times yearly. To the extent that any other such services are
transferred during the term and at Owner's option, to Building-wide service
regimens by Owner's employees and/or Owner-designated contractors, Tenant agrees
to participate in same upon payment of its share of Owner's charges therefor.
R.6 COMPLIANCE WITH LAW:
A. Notwithstanding anything contained to the contrary elsewhere in this
Lease, Tenant acknowledges (1) with respect to any alterations made within the
Demised Premises, subsequent to the initial Work Letter items to be approved by
Owner hereunder; or (2) with respect to changes in law or regulation enacted
hereafter; that it shall be Tenant's responsibility and obligation to comply
with all fire safety requirements and controls imposed by Local Laws 5 and 16 of
the City of New York,(as same now exist or may hereafter be amended), as well as
with any and all other laws, rules and regulations of the City of New York or of
any governmental agency or department thereof (hereafter, "Requirement") having
jurisdiction with respect to the Demised Premises (including, without
limitation, any affecting partitioning or layout; exit signs; telephone,
telecommunications or public address systems; fire alarms, sprinklers,
extinguisher or command
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systems; electrical outlets, conduits, controls or wiring, and any additions to
the Building electrical system; and plumbing or HVAC systems). Tenant further
acknowledges and agrees that, if Owner shall have performed Work Letter items,
any Tenant's Changes or other installation or alteration work for Tenant
pursuant to Tenant's request, Owner's sole responsibility with respect thereto
shall be limited to the workmanlike manner of such installation or alteration
and its consistency with Tenant's plans, but that it is the responsibility of
Tenant and Tenant's architect to verify the legality of Tenant's plans relative
to any Requirements for any such installation or alteration (i.e., Tenant shall
be responsible for the drawing of plans in compliance with law and the obtaining
of all permits relating thereto including, without limitation, all necessary
approvals and sign-offs, that may now or subsequently be required by law. Owner
shall bear no responsibility in this regard for Tenant's state of awareness
respecting additions to or changes in Requirements arising during the Term).
Modification(s) of any such installation or alteration made within the Demised
Premises, shall be solely the responsibility of Tenant at Tenant's sole cost and
expense and Owner shall have no obligation or duty with respect thereto. Any of
the foregoing work required of Tenant shall be performed by Tenant in accordance
with and subject to all applicable provisions of this Lease and any
Requirements.
B. Tenant acknowledges that the Certificate of Occupancy for the Building
limits the permitted occupancy levels of the Building to twenty (20) persons for
this floor, unless specific legal requirements for expanding such occupancy are
met. Accordingly, Tenant agrees that the Demised Premises shall be improved for,
and that its operation upon the Demised Premises shall require and entail,
occupancy by no more than twenty (20) persons, except with the prior written
consent of Owner, and that Owner may freely withhold consent, inter alia if and
to the extent required to insure compliance with the said Certificate of
Occupancy and any Requirements applicable law.
C. Tenant acknowledges that normal business hours at the Building are
between 8:00 AM and 5:30 PM on weekdays, and that access to the building is also
available under supervision of Building personnel during the hours of 5:30 PM
through 12:00 AM Monday through Friday, and from 10:00 AM through 6:00 PM on
Saturday and Sunday (hereinafter "Normal Building Hours"). In order to comply
with the fire safety procedures promulgated by Local Law 5 and any new/or
successor law, (and subject to final approval by Owner, and to procedures
outlined at Exhibit 3), Tenant covenants and agrees that if it intends to use
the Demised Premises after Normal Building Hours, Tenant shall see to its own
compliance and that of all of its employees and other personnel authorized to
occupy the Demised Premises, with the regulations respecting the use and
occupancy of the Demised Premises and the Building, during hours other than
Normal Building Hours, prescribed at Exhibit 3.
R.7 SUBORDINATION:
A. This Lease is subject and subordinate to all mortgages and trust
indentures which now or may hereafter affect the Demised Premises or the land
and the Building, or other buildings erected or to be erected thereon, of which
the Demised Premises now or shall hereafter form a part; and this Lease is also
subject and subordinate to all present and future ground or underlying leases of
the land and/or said buildings and to all present and future mortgages and trust
indentures which now or may hereafter be placed on or affect such leases and/or
all or any part of the real property of which the Demised Premises form a part
or any part; and to each advance made or to be made under any such mortgage,
trust indenture or lease;, and to all renewals, modifications, consolidations,
replacements or extensions of and/or substitutes for any of the above. (As of
execution, no superior ground leases affect the Property upon which the Building
is situated.)
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<PAGE>
B. In confirmation of such subordination Tenant shall promptly execute any
certificate, and/or any amendment of this Lease, that Owner or any present or
future mortgagee, trustee or lessor, and/or their respective agents or
successors in interest, may reasonably request Tenant hereby constitutes and
irrevocably appoints Owner or any present or future mortgagee, trustee or
lessee, or their respective successors in interest as the Tenant's
attorney-in-fact, coupled with an interest, to execute and deliver any such
certificate or appropriate amendment for and on behalf of Tenant.
R.8 INDEMNIFICATION AND INSURANCE:
A. Tenant covenants and agrees that it will indemnify and save Owner
harmless from and against all damages, liabilities, claims, costs and expenses,
including reasonable attorneys' fees, arising out of the use or occupancy of the
Demised Premises, any wrongful vacancy from or abandonment of Premises, any
other wrongful action or omission to act, or any work or thing done, or any
condition created, by or for Tenant or its employees, agents or contractors
and/or Tenant's licensees, invitees or customers whether or not caused by the
negligence or breach of an obligation by Tenant.
B. Tenant covenants and agrees that it shall immediately secure, and that
at all times during the term of this Lease thereafter, it shall maintain in full
force and effect, at its own cost and expense, comprehensive general personal
injury, death and property damage insurance coverage, such insurance to afford
minimum protection during the term of this Lease, of not less than ONE MILLION
DOLLARS ($1,000,000) per occurrence, respecting bodily injury or death, and of
not less than FIVE HUNDRED THOUSAND DOLLARS ($500,000) for property damage,
together with umbrella, extended or coverage, in such amounts as may be
reasonably required by Owner. Such insurance policies shall name Owner and
Tenant as insureds, as their respective interests may appear, and shall insure
against all costs, expenses and/or liability arising out of or based upon any
and all claims, accidents, injuries and damages whatsoever affecting any person
or property, where such accident, damage or injury arose out of any action or
omission on the part of Tenant or its agents, employees, contractors, licensees,
invitees or customers or where same occurred on or about the Demised Premises.
C. Upon commencement of the term hereof, and thereafter at least ten (10)
days prior to the expiration of any such policy, Tenant shall deliver to Owner
the policy or policies of insurance and shall furnish to Owner at least ten (10)
days prior to the expiration of any such policy, evidence of the payment of
premium for the renewal of such policy together with the renewal policy. In the
event Tenant shall fail to provide the aforesaid insurance Owner shall have the
right, but not the obligation, after giving Tenant five (5) days' written
notice, to procure and pay for such insurance, and Tenant shall reimburse to
Owner, as Additional Rent, the cost thereof, together with interest at the then
maximum legal rate from the date of payment to the date of reimbursement. Each
such policy shall contain an endorsement that such insurance may not be canceled
or amended except upon ten (10) days' prior written notice to Owner. Tenant's
failure to provide and keep in force the aforementioned insurance shall be
regarded as a material default hereunder, entitling Owner to exercise any or all
of the remedies herein prescribed in the event of Tenant's default.
D. All policies of insurance procured by Tenant shall be issued in form
acceptable to Owner by insurance companies licensed to do business in the State
of New York and authorized to issue such policy or policies and eligible for a
rating by Best's Rating Service of "A" or better.
E. Tenant shall not stock, use or sell or suffer to be stocked, used or
sold any article or do or omit to do anything in or about the Demised Premises,
or the Building which may (either alone or in combination with the actions or
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omissions of other Tenants) tend to: (a) subject Owner to any liability for
injury to any person or property; (b) cause any increase in the insurance rates
applicable to any policies of insurance carried by Owner; (c) result in the or
threaten cancellation of, or assertion of any defense by the insurer to any
claim under, any policy of insurance maintained by or for the benefit of Owner;
(d) be prohibited by or violate the rules and regulations of the Insurance
Service Organization ("ISO") or any other insurance rating organization having
jurisdiction; or (e) increase any insurance rates or premiums on the Demised
Premises or the Building or cause the Demised Premises or the Building to be
uninsurable.
F. Owner and Tenant hereby waive, (solely to the extent permitted mutually
in the particular instance at hand, by both of their respective insurers), the
right to recover from each other for any damage or loss occasioned by any
hazards that may be fully compensated by insurance (including liability
insurance), regardless of whether said damages or loss resulted from the
negligence of either party, their employees or otherwise; and provided that the
conditions hereinabove recited are met, said parties do hereby waive the right
to subrogate any insurance carrier or other party to their respective rights of
recovery against each other in any event.
G. Tenant shall procure Tenant's own Property and personal insurance for
Tenant's merchandise, contents, fixtures, installations and furnishings (herein
"Property"), and, for rental obligations and lost profits arising out of any and
all interruptions of Tenant's business operations during the Term for whatever
reason; and, irrespective of whether said Tenant's Property and/or business
interruption insurance should at any time prove inadequate to cover Tenant's
loss therefrom, Tenant hereby relieves Owner of any responsibility for such
interruption or damage to Tenant's Property, whether caused by negligence of
Owner or its employees, or for other reasons (to wit, relative to pipe or roof
leaks, building system(s) or structural failure, etc.) that may accrue in excess
of Tenant's coverage amounts.
R.11 ASSIGNMENT AND SUBLETTING:
Notwithstanding the provisions of Article 11, and in modification and
amplification thereof:
A. If Tenant's interest in this Lease is assigned, whether or not in
violation of the provisions of this Lease, Owner may, at Owner's sole
discretion, collect Rent from the assignee. If the Demised Premises or any part
thereof are sublet to, or occupied or used by, any person other than Tenant,
whether or not in violation of this Lease, Owner may, at Owner's sole
discretion, collect Rent from any licensee, subtenant, user or occupant, and, at
its option, Owner may apply the net amount collected toward the Rents reserved
in this Lease, but no such action by Owner shall, if not accompanied by Owner's
express written consent, be deemed to indicate the acceptance by Owner of such
assignee, subtenant, licensee occupant or user as a tenant or in any way to
relieve Tenant of its obligations hereunder. The consent by Owner to any
assignment, subletting, occupancy or use shall not relieve Tenant of its
obligation to obtain the express prior written consent of Owner to any further
assignment, subletting, occupancy or use.
B. Tenant agrees to pay to Owner any reasonable counsel fees incurred by
Owner in connection with Owner's review of any proposed assignment of Tenant's
interest in this Lease or any proposed subletting of the Demised Premises or any
part thereof in an amount of approximately SEVEN HUNDRED FIFTY ($750.00) DOLLARS
(lower, if the need for review of finances and related matters is obviated by
the offer of further security and/or personal guaranties' reasonably
satisfactory to Owner, or higher, if circumstances require).
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C. Should Tenant desire to assign this Lease or to sublet the Demised
Premises, Tenant shall submit to Owner a written request for Owner's consent to
such assignment or subletting, which request shall contain or be accompanied by
the following information: (i) the name and address of the proposed assignee or
subtenant; (ii) the terms and conditions of the proposed transaction; (iii) the
nature and character of the business of the proposed assignee or subtenant and
its proposed use of the Demised Premises; (iv) and (v) banking, financial and
other credit information reasonably sufficient to enable Owner to determine the
financial resposibility of the proposed assignee or subtenant. Upon receipt of
the foregoing items, Owner shall have the following options, to be exercised by
notice (the "Exercise Notice") to be given to Tenant within thirty (30) days
after the receipt of Tenant's request for consent:
(1) Owner shall have a right of first refusal to undertake the
transaction above proposed upon similar terms, and upon exercise
thereof, Owner may require Tenant to surrender the Demised Premises to
Owner and to accept a termination of this Lease as of a date (the
"Termination Date") to be designated by Owner in its written notice
(the "Exercise Notice"), which date shall not be less than thirty (30)
days nor more than one hundred twenty (120) days following date of
Owner's Exercise Notice; at which time Tenant shall be released from
its obligations thereafter accruing hereunder and receive a refund
such part of its security as shall not previously have been applied;
or
(2) Owner may elect to review the above proposal to assign or sublet
to the party named therein, pursuant to Subpart D hereof.
If Owner shall exercise its election pursuant to C.(l) hereof, then this
Lease shall expire on the Termination Date as if that date had been originally
fixed as the Expiration Date, in which event Owner shall be free to use or
occupy the Demised Premises for its own account, or to arrange for disposition
of same to any third party (including, without limitation, Tenant's prospective
assignee or subtenant) in which event Tenant shall be released from its
obligations thereafter accruing hereunder.
D. If Owner shall not exercise its options under Paragraph C.(l) above,
within the time period therein provided, as to the proposed assignment or
subletting of the entire Demised Premises, then (subject to the remaining
provisions hereof) Owner's consent thereto shall not unreasonably be withheld
(except that Owner shall be under no obligation to be reasonable respecting any
proposal that would result in a subdivision of said Premises.)
The following facts (and, where applicable, written confirmation of same by
Tenant and any proposed assignee or sublessee) shall be necessary but nor
sufficient pre-conditions to the granting of such consent (if any) by Owner:
(1) Tenant shall not then be in default under this Lease with respect
to any incurable defaults and no curable default shall then be
continuing beyond applicable grace periods, and all representations
set forth at Exhibit 1 hereof shall be true (or any appropriate
exceptions to same, noted) through the date of Owner's consent;
(2) Without Limitation as to other conditions Owner may establish, the
proposed subtenant or assignee shall not request permission to operate
as: a school of any kind; an employment or placement
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agency; a governmental or quasi-governmental agency; a telephone or
secretarial service; a labor union; a food vendor, restaurant,
pharmacy or store for the sale of merchandise; or any establishment
doing business with the public at large or otherwise in a manner that
would tend to generate elevator or other Building traffic of a kind or
volume inconsistent with the Building's small scale and limited
capacity of the Building.
(3) The subletting or assignment shall be to a party tenant whose
image and appearance occupany will be in keeping with the dignity and
first class and character of the Building, and whose occupancy will
neither be more objectionable nor more hazardous than that of Tenant
herein, nor impose any material burden upon Owner in the operation of
the Building;
(4) The availability of the space for proposed sublease or assignment
shall not be advertised by Tenant at a lower rental rate than that
being charged at the time for similar space available for rental by
Owner at the Building, without Owner's consent;
(5) If the Rent, together with any form of monetary or in-kind
consideration due to Tenant in connection with any permitted sublease
or assignment shall, in the aggregate, exceed the Rent and Additional
Rent fixed under this Lease, Tenant shall pay seventy-five (75%)
percent of such excess to the Owner as Additional Rent;
(6) Neither the proposed sublessee, or assignee (nor any affiliates
having a substantial identity of ownership and/or control with them)
shall be a tenant, subtenant, licensee, occupant or assignee of any
other premises in the Building;
(7) The proposed sublessee or assignee is a reputable party whose net
worth and financial responsibility, considering the obligations
undertaken, are reasonably satisfactory to Owner;
(8) Any subletting shall be expressly subject to the further condition
and restriction that the sublease shall not be assigned, encumbered or
otherwise transferred, nor the affected spaces further sublet by the
sublessee in whole or in part, nor any part thereof suffered or
permitted by the sublessee to be used or occupied by others, without
the prior written consent of Owner per this R.ll, in each such
instance; and
(9) Owner may condition its approval of the proposed assignee or
sublessee upon the posting by such party of security (over and above
that already furnished by Tenant and to be held by Owner) up to the
amount of the security then in effect, unless circumstances indicate
more is warranted;
E. No permitted or consented-to assignment or subletting shall be effective
or valid for any purpose whatsoever unless and until a counterpart of the
assignment or a counterpart or reproduced copy of the sublease satisfactory to
Owner shall have been first delivered to Owner and, in the event of an
assignment, Tenant shall deliver to Owner a written agreement executed and
acknowledged by Tenant and such assignee in recordable form wherein such
assignee shall assume jointly and severally with Tenant the due performance of
all obligations under this Lease on Tenant's part to be performed, to the end of
the term of this Lease, notwithstanding any other or further assignment.
F. Any transfer, by operation of law or otherwise, shall be deemed an
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assignment of this Lease requiring the prior consent of Owner:
(1) if it affects more than Fifty-one Percent (51%) of the interest
in the then-Tenant's equity;or
(2) if it diminishes by Twenty-five percent (25%) or more the net
assets or net worth, of Tenant, (or the resulting Tenant entity
referred to at F(l), above);
irrespective of whether such transfer is effected: (A) in connection with this
Lease or otherwise; (B) in an arms length transaction or to an entity totally or
partially under common control with Tenant; or (C) in one transaction or in
successive steps.
R.12 ELECTRICITY AND OTHER UTILITIES:
A. As of the Commencement Date, Tenant shall be furnished with electrical
power by way of a direct meter already allocated to the Demised Premises and
Tenant shall arrange to pay for same through its own account with the public
utility, subject to Part B hereof. Tenant shall make no alterations or changes
in, or addition to, any of the service lines, or major equipment or appliance
loads now or hereafter servicing, or located upon the Premises without the
written consent of the Owner, (which Owner may either grant or withhold, in its
sole discretion) which consent Owner may grant or withhold in its sole
discretion. If, in the opinion of an Electrical Consultant, Tenant's electrical
installations or appliances or the operation of Tenant's business does or may
overload any riser or feeder on the Property of which the Demised Premises are a
part, or servicing the Demised Premises, Tenant will, at Tenant's expense,
install any additional riser or feeder as may reasonably be required, but none
of same may be installed without the prior written authorization and consent of
the Owner, on the basis of plans and specifications indicating the extent,
character and nature of the proposed installations.
B. Where more than one meter measures the service to Tenant, the service
rendered through each meter may be computed and billed separately in accordance
with this Article. Where one meter serves space in addition to the Demised
Premises, Owner shall pro-rate the charges therefor between Tenant and such
other space tenants, on the basis of a relative electrical loading and use of
each, as estimated by Owner from time to time; and, whenever Owner deems it
necessary Owner may engage an Electrical Consultant to prepare renewed estimates
of such relative equipment loading and usage, but shall not require
recomputation of the allocation of charges from any such shared meter more
frequently than once each calendar quarter. When allocation among submeters is
required, Owner may assess at time of billing an administrative fee of fifteen
(15%) percent of said allocated electrical usage.
C. Bills for electrical service shall be rendered in writing to Tenant's
address at such times as Owner may elect (but not more frequently than monthly)
and the amount, as computed from a meter (and allocated per Part B, if
applicable), shall be deemed to be, and be paid as, Additional Rent. In the
event that such bills are not paid promptly after the same are rendered, Owner
may, upon twenty (20) days' prior written notice, discontinue the service of
electric current to the Demised Premises without releasing Tenant from any
liability under this Lease and without Owner or Owner's agent incurring any
liability for any damage or loss sustained by Tenant by such discontinuance of
service. If any tax is imposed upon Owner's receipt from the sale or resale of
electrical energy or gas or telephone service to Tenant by any federal, state,
or municipal authority, Tenant covenants and agrees that, unless expressly
precluded by law, Tenant's pro rata share of such taxes shall be included in
said bill for reimbursement by Tenant to Owner.
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D. Furthermore, to the extent same may be required, Tenant shall, at its
sole cost and expense, procure all licenses, permits and other authorizations
that may be required for the lawful and proper installation of meters, pipes,
wires, conduits, tubes and other equipment and/or applicances used in creating
and/or supplying utility service for the Demised Premises.
E. Tenant further agrees to maintain, repair and replace, when necessary,
at its sole cost and expense, the heating, air conditioning, electric and
plumbing equipment serving the Demised Premises. In connection with this
obligation of Tenant, Owner agrees to provide Tenant access to the Building for
the installation and maintenance of Tenant's utility lines, meters and
equipment.
F. Owner shall have no liability for any loss or damage or expense which
Tenant may sustain or incur by reason of any failure, interruption, curtailment,
inadequacy or defect in the character, quantity or supply of electric current or
any other utility furnished to the Demised Premises, unless, and then solely to
the extent same may arise directly out of Owner's gross negligence, recklessness
or wilful misonduct.
R.13 ACCESS:
A. Tenant covenants and agrees that it will permit Owner, its agents,
servants, employees and contractors, at any and all times to pass and repass on
and through the Demised Premises, to gain access to any portions of the Building
as and when Owner may deem appropriate for the inspection, maintenance, repair,
improvement or reconstruction of the Building or any part thereof. In connection
with this access, Tenant will furnish Owner on demand with a set of keys to any
locked portions of the Demised Premises for emergency situations.
B. Without incurring any liability to Tenant, Owner may permit access to
the Demised Premises and open the same, whether or not Tenant shall be present,
to and upon demand of any receiver, trustee, assignee for the benefit of
creditors, sheriff, marshall or court officer or upon demand of any
representative of the fire, police, building, sanitation or other department of
the city, state or federal governments who by color of law appears entitled to
do so, and/or to any such party taking possession of, and/or removing, Tenant's
property, or for any other apparently lawful purpose; but no action by Owner
hereunder shall be deemed to impair Tenant's obligations under the Lease, nor to
indicate an acknowledgement on Owner's part that any such party has any right or
interest in or to this Lease or the Demised Premises.
R.17 DEFAULT:
A. No receipt of monies by owner from Tenant, after any re-entry or after
the cancellation or termination of this Lease in any lawful manner, shall
reinstate the Lease; and after the service of notice to terminate this Lease, or
after the commencement of any action or proceeding Owner may demand, receive-and
collect any monies due, and apply them on account of Tenant's obligations under
this Lease but without in any respect affecting such notice, action, proceeding
or remedy, except that if a money judgment is being sought in any such action or
proceeding, the amount of such judgment shall be reduced by such payment.
B. If Tenant is in arrears in the payment of Fixed Rent or any category of
Additional Rent, Tenant waives its right, if any, to designate the items in
arrears against which any payments made by Tenant are to be credited and Owner
may apply any of such payments to any such items in arrears as Owner, in its
sole discretion, shall determine, irrespective of any designation by Tenant
respecting same.
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C. No payment by Tenant nor receipt by Owner of a lesser amount than may be
required to be paid hereunder shall be deemed to be other than on account of
such payment, nor shall any endorsement or statement on any check or any letter
accompanying any check tendered as payment 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 payment due or to pursue any other remedy in this
Lease provided.
D. Tenant shall pay a "late charge" in the amount of three percent (3%) of
the face amount of any installment of Fixed Rent and Additional Rent paid more
than ten (10) business days after its scheduled due date or in the case of
charges provided herein to be assesed by statement from Owner, then within ten
(10) business days after such statement is rendered.
E. All of the rights and remedies herein given to Owner for the recovery of
the Demised Premises because of the default by the Tenant in the payment of any
sums which may be payable pursuant to the terms of this Lease, or upon the
breach of any of the terms hereof, or the right to re-enter and take possession
of the Demised Premises upon the happening of any of the defaults or breaches of
any of said covenants, or the right to maintain any action for Rent or damages
and all other rights and remedies allowed by law or in equity, are hereby
reserved and conferred upon Owner as distinct, separate and cumulative remedies,
and no one of them, whether exercised by Owner or not, shall be deemed to be to
the exclusion of any of the others.
R.18 REMEDIES OF OWNER:
A. (INTENTIONALLY OMITTED]
B. Without limitation as to remedies of Owner set forth at Paragraph 18 and
elsewhere in this Lease, Tenant agrees that Owner shall be entitled to collect
interest at the lesser of FIFTEEN PERCENT (15%) per annum, or the highest rate
then permitted by law, accruing on any installment of rent beginning on the
thirtieth (30th) day following the time same shall become due, until the time
same is paid. Said rate of interest shall apply as well to the amount of any
then-already-accrued deficiency between the amount of any installment of Rent
or Additional Rent hereunder, and the amount of rental received (if any) upon a
reletting of the Demised Premises.
C. At Owner's sole option following a reletting of the Premises pursuant to
Paragraph 18, Owner may demand and Tenant shall pay liquidated damages for any
prospective deficiency between the rentals stipulated herein and those set forth
in any such lease upon reletting, in a single payment, to be computed by
discounting to present value, the amount of such prospective deficiency from
each such future due date to the date that such liquidated sum is paid, at a
discount rate equal to or less than the discount rate of the Federal Reserve
Bank of New York at the time of award plus ONE PERCENT (1%); with any subsequent
excess of rental on re-letting actually received, over the amount of said
liquidated damages, to survive as a credit to Tenant in an amount up to but not
exceeding the face amount of Tenant's actual payments for such period of the
Term.
D. Tenant further agrees that, in calculating the damages incurred by
Owner, whether same are to be satisfied in monthly installments or by way of a
liquidated sum, allowance shall also be made for reasonably documented instances
of direct and consequential damages incurred by Owner (including, e.g., damages
in the event that prospective tenants elect to decline to Lease, respectively,
where Tenant's default and/or abandonment is, alone or together with the
defaults of others, a significant factor influencing any said party's
determination). Notwithstanding the foregoing, consequential damages shall be
exclusive of the costs of reconstructing the Premises to suit the particular
requirements of a replacement Tenant (but inclusive of the costs of demolishing
Tenant's particular improvements and pro-rata costs of repainting or
re-finishing the floors).
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R.20 BUILDING ALTERATION, MANAGEMENT: LANDMARK STATUS
A. Without limitation as to Paragraph 20, Tenant acknowledges that the
hallways and common areas adjoining the Demised Premises at its floor and
elsewhere in the Building, are intended for common use for purposes of access
only, by Tenant and other tenants now or hereafter situated there, and their
authorized personnel, contractors and invitees. Same shall at all times remain
unobstructed by any such persons, or by any of their personal property or
effects, and shall not be used for storage, loitering, congregation or any other
purpose. Owner reserves the right to refinish, reconfigure or otherwise
maintain, repair or alter these common areas and to regulate, replace, or remove
signage of Owner or any tenant therein, and same shall in no wise be deemed to
interfere with or effect an eviction of Tenant, so long as Tenant is given due
notice and so long as its use of the Demised Premises is not thereby prevented.
B. Tenant acknowledges that the Building is subject to regulation as a
landmark property pursuant to the New York City Landmarks Preservation Law.
Tenant hereby agrees to abide by any restrictions and/or permit any repair,
maintenance or alterations at any time respecting the treatment of the facade,
fenestration or other features of the Building, that may be reasonably entailed
in said landmark status, or that may be directly imposed by authorities having
jurisdiction over the Building and/or over any changes or alterations that may
be undertaken by Owner, in its sole discretion, in order to enhance the
appearance or operation of the Building. Owner shall be authorized at any time
and from time to time to undertake maintenance, renovation or alteration of any
portion of the Building, including the Building entrance, lobby, facades and any
other portion of the Building visible from the street, without thereby becoming
liable for any resulting inconvenience, annoyance or injury to business arising
from same.
C. Provided that Tenant is given at least ninety (90) days' notice and
reimbursement of any direct relocation and reconstruction expenses, Owner shall
have the option at any time to relocate the Demised Premises to comparable space
elsewhere in the Building, with a pro-rata adjustment of Rent, Tenant's Share
and other affected parameters, for any material change in Tenant's area
resulting therefrom.
R.21 WHOLE AGREEMENT: 110 REPRESENTATIONS:
A. Tenant hereunder agrees that it has inspected the Demised Premises and
accepts same in their present "as is" condition, Tenant further acknowledges
that it is not relying upon any verbal or written statement, representations,
real estate broker's "setups" or flyers pertaining to the layout, size or other
characteristics of the Building or the Demised Premises.
B. Tenant has examined the entire Lease, and all components thereof
described at Paragraph 45.D hereof, and Tenant acknowledges that it is
thoroughly familiar with all the terms, covenants, warranties and conditions set
forth herein. In accordance with Paragraph 21 of the Lease, and Section 5-703(2)
of the New York State General Obligations Law, Tenant hereby covenants and
agrees as follows:
(1) The Lease of which this provision is a part is the sole agreement
between the parties;
(2) Tenant has not relied, nor shall it rely upon any purported
modification hereof or additions hereto, nor upon any other purported
representation in connection herewith, unless same has been executed
by a natural person known to Tenant to be a duly authorized principal
of the Owner, and Tenant acknowledges that
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unless any such principal acting on behalf of Owner expressly notifies
Tenant in writing to the contrary, no agent, employee, attorney or
other party having "apparent authority" shall be deemed authorized to
bind Owner;
(3) No writing which purports to rescind, modify or otherwise vary the
terms of this Lease shall be deemed of any force and effect, and any
of same arising prior to the date hereof shall be deemed to have been
superseded hereby, unless expressly incorporated by reference herein;
and
(4) This Lease includes and consists exclusively of those documents
enumerated at Article 45.D hereof.
R.22 HOLDING OVER:
If Tenant shall then hold over after the Expiration Date then, for so long
as Owner shall elect to delay proceedings to remove Tenant from the Premises in
the manner permitted by law, the parties hereby agree that Tenant's use
occupancy of the Demised Premises after the expiration of the stated term shall
be in the nature of a month-to-month tenancy at sufferance of the Owner,
commencing on the first day after the expiration of the term, which tenancy
shall be upon all of the terms set forth in this Lease except Tenant shall pay
for its use and occupancy on the first day of each month of the holdover TWICE
(2%) the sum of: (a) the monthly installment of Fixed Annual Rent due and
payable by Tenant during the last month preceding such holdover period and (b)
the monthly installment of each and every category of Additional Rent payable by
Tenant pursuant to applicable formulas set forth in this Lease, in the amounts
that would have been billable by Owner during such holdover period had the term
of the Lease not expired.
R.29 SERVICES:
A. Freight elevators shall be available for use Monday through Friday
during the hours of 9:30 AM through noon, and 1:30 PM through 3:30 PM. All use
and operation of freight elevators shall be subject to the exclusive supervision
of the Building Management which shall be available outside said normal freight
hours only upon reasonable prior notice to Owner, and upon payment of Owner's
then customary fees therefor. Any operation other than by trained and authorized
personnel is strictly prohibited. The use of passenger elevators is reserved
exclusively for individuals traveling among floors of the Building, and the
transportation of freight thereon is strictly prohibited.
B. Owner shall furnish heat to the Demised Premises during the hours of
8:00 AM and 5:30 PM, Monday through Friday only.
C. In accordance with landmark regulations affecting the Building, the use
of through-window air conditioning units is strictly prohibited, except with
the express prior written consent of the Owner and the Landmarks Preservation
Commission. Each floor shall be equipped with an independent air conditioning
fan and compressor unit, designed to respect the integrity of the Building's
facade. All electrical power required for the operation of the respective air
conditioning units shall be drawn through lines serving the Demised Premises and
comsumption of same shall be charged by way of the direct meter, or any
subsequently designated submeter serving the Demised Premises, pursuant to R.12
hereof.
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R.34 SECURITY:
A. Subject to the provisions of R.18 hereof, the initial security deposit
hereunder shall be in the sum of $14,600.00 to be held throughout the term of
the Lease until later to occur of (1) the expiration or earlier termination of
this Lease; or (2) Tenant's full satisfaction of all terms, covenants and
conditions of this Lease subject to any offsets, charges or applications thereof
as shall have accrued against Tenant; together with four (4%) percent interest
upon the balance adjusted for for offsets or application during the term.
Provided that a separate accounting is maintained for funds to be credited
toward Tenant's security, said cash funds may be comingled with Owner's funds,
to the extent permitted by law.
B. If at any time during the term of this Lease, Owner shall have applied
all or a portion of the security deposit towards the curing of a default by
Tenant continuing beyond the expiration of any applicable grace period, or a
default that would entitle Owner to move to dispossess Tenant, then Tenant
shall, upon notice by Owner, promptly deposit with Owner such sums as may be
necessary to restore or augment the security deposit to the amount required
under the terms of this Lease. Tenant's failure to so restore or augment such
security within ten (10) days after receipt of such notice from Owner, shall
constitute a material default under this Lease.
R.35 TENANT'S CERTIFICATE:
Tenant agrees, at any time and from time to time, upon not less than five
(5) business days' prior written notice from Owner, to execute, acknowledge and
deliver to Owner, a certificate, in writing, addressed to Owner (and to such
other persons as Owner may request) in the form annexed hereto as Exhibit "1"
and containing additional certifications with respect to such other matters as
Owner may reasonably request. If Tenant believes that any of the certificates
contained therein are inaccurate, said certificate shall set forth, in
reasonable detail, the basis for such assertions and if appropriate, Tenant
shall modify the form of certificate solely to the extent needed accurately to
reflect the facts within Tenant's knowledge. Any such certificate may be relied
upon by Owner, any purchasers of the Building and/or the land, by any owner
under a ground or underlying lease affecting the Building and/or the land, and
by any assignee or transferee of any of the foregoing.
R.36 TRANSFER OF OWNER'S INTEREST:
In the event of a bona fide sale, lease or transfer of the Property of
which the Premises are a part, (the other party thereto, herein the
"Transferee") then Owner shall thereafter be entirely relieved of all terms,
covenants and obligations of Owner under this Lease, provided that (a) any funds
then in the hands of Owner in which Tenant has an interest shall be turned over,
(subject to such interest) to the Transferee; (b) notice of such transaction
shall be delivered to Tenant, and (c) the Transferee shall assume all of Owner's
obligations under this Lease.
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ADDITIONAL RIDER PROVISIONS
37. ADDITIONAL DEFINITIONS:
For the purposes of this Lease and all communications with respect thereto,
unless the context otherwise requires:
1. The term "Fixed Rent" shall mean rent at the annual rental rate or rates
provided for in Paragraph R.l.
2. The term "Additional Rent" shall mean all sums of money, other than
Fixed Rent, and which become due and payable from Tenant to Owner hereunder, and
Owner shall have the same remedies therefor as for a default in payment of Fixed
Rent.
3. The terms "Rent" and "Rents" shall mean and include Fixed Rent and/or
Additional Rent hereunder.
4. The terms "Commencement Date" shall mean June 1, 1991; and the term
"Expiration Date" shall mean May 31, 2001; said dates shall be subject to
modification, pursuant to the remaining provisions of this Lease.
5. The term "Real Property" shall mean the land and buildings presently
designated as Block 823, Lot 45 of the Tax Map of the County of New York which
designation includes the Demised Premises, and all rights and interests in and
to said Real Property as of the date hereof, irrespective of any subsequent re-
designation or subdivision of the tax lot boundaries of the Real Property, or
any transfer, reallocation or incorporation of zoning or development rights to
or into any other tax lot, whether pursuant to zoning lot merger, landmark
transfer or otherwise.
6. The term "Taxes" shall mean the real estate taxes, water and sewer rents
and other assessments imposed upon the Real Property including Tenant's share of
any penalties and interest on Taxes that may result from non-payment thereof by
Tenant. Income, franchise, transfer, inheritance and capital stock taxes shall
be deemed excluded from the term "Taxes" for the purposes hereof, except as
otherwise provided herein. If and to the extent that, due to a change in the
basis for and/or method of assessment or taxation, any business improvement
district, transit, or other additional form of charge shall be imposed, or if
any franchise, capital stock, capital, Rents, income, profits or other tax or
charge shall be designated as new forms of "Tax" hereunder substituted in whole
or in part for the Taxes now or hereafter imposed upon the Real Property, then
such additional or substitute tax or charge, shall be deemed included in the
term "Taxes" for the purposes hereof.
7. The term "Tax Year" shall mean each period of twelve (12) months,
commencing on the first day of July of each such period, in which occurs any
part of the term of this Lease or such other period of twelve (12) months
occurring during the term of this Lease, as hereafter may be duly adopted as the
fiscal year for real estate tax purposes of the City of New York. The first "Tax
Year" will commence on July 1, 1992.
8. The term "Base Tax" shall mean Taxes for the year July 1., 1991 to June
30, 1992 (the "Base Tax Year").
9. Intentionally Deleted.
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10.
11.
[INTENTIONALLY DELETED]
12.
13.
38. LIMITATION OF LIABILITY:
Tenant agrees that the liability of Owner under this Lease and all matters
pertaining to or arising out of the tenancy and the use and occupancy of the
Demised Premises, shall be limited to Owner's interest in the Real Property and
in no event shall Tenant make any claim against, or seek to impose any personal
liability upon, any general or limited partner of Owner, or any principal of any
firm or corporation that may hereafter be, become or succeed to the interest of
the Owner in this Lease, subject to any such successor complying with the terms
of R.36 hereof.
39. BROKER:
Tenant represents and warrants that it neither consulted nor negotiated
with any broker or finder except Walter L. Deane of Longstreet Assoc. with
regard to the rental of the Demised Premises from Owner, and Tenant hereby
indemnifies and holds Owner harmless from any damages, costs, and expenses
suffered by Owner by reason of any breach of the foregoing representation.
40. ATTORNEY'S FEES:
Wherever this agrement provides that either Tenant or Owner is required to
pay attorney's fees incurred by the other, such provisions shall be deemed to
mean reasonable attorneys' fees.
41. SIGNS:
Tenant shall not install any sign within, upon or about the Building or
Demised Pemises which can be seen from the street or the Building or the
exterior of the Demised Premises or Building without Owner's prior written
approval, as to which Owner's discretion shall be unrestricted. Owner shall have
the right, with or without notice to Tenant, to remove any signs installed by
Tenant in violation of this Article and to charge Tenant for the cost of such
removal and any repairs necessitated thereby. Tenant shall remove signs
installed by it, if any, at the end of the Term and restore any damage to the
Demised Premises or the Property caused by maintenance, installation or removal
of same, at Tenant's sole cost and expense. There are no present plans for a
Building Lobby Directory, but Tenant will be entitled to __________________ line
entries in any that may be installed hereafter.
42. CHANGES IN LAW:
In the event that all or any part of the Rent or Additional Rent provided
to be paid by Tenant under the provisions of this Lease during the demised term
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shall be uncollectible by virtue of any federal, state or city law, order or
regulation now or hereafter in effect, Owner, at its option, may at any time
thereafter terminate this Lease by not less than sixty (60) days' written notice
to Tenant, in which event this Lease shall terminate on the date fixed in said
notice as if the said date were the date originally fixed herein for the
expiration of the term; provided, however, that if Tenant agrees in writing
within thirty (30) days after Owner's notice to enter into a new or amended
lease which, by its terms, yields to Owner an amount not less than the full
scheduled amount of the Rent and Additional Rent required to be paid under the
provisions of this particular Lease, and provided that such new agreement by
Tenant shall then be legally enforceable by Owner, then Owner agrees to execute
such new or amended lease agreement.
43. LIMITATION OF REMEDIES:
If in this Lease it is provided that Owner's consent or approval as to any
matter will not be unreasonably withheld, and it is established by a court or
body having final jurisdiction thereover that Owner has been unreasonable, then
so long as Owner is not found to have shown actual malice, the only effect of
such finding shall be that Owner shall be deemed to have given its consent or
approval; but Owner shall not be liable to Tenant in any respect for money
damages by reason of withholding its consent.
44. OPERATIONAL COVENANTS:
A. Tenant covenants and agrees that it will, at its sole cost and expense,
at least once a month during the term of this Lease, or at such other intervals
as Owner reasonably selects, employ the services of a licensed, competent and
insured exterminator to keep the Demised Premises free of all insects, vermin,
rodents and any other pests of any kind or nature whatsoever. Upon Tenant's
default in obtaining such services Owner may secure such service for its own
account and charge the Tenant therefor as Additional Rent under the terms of
this Lease, with all of Owner's remedies therefor.
B. Tenant covenants that it will not use or suffer or permit any person to
use or occupy the Demised Premises for any unlawful purpose, and that Tenant
will obtain and maintain at Tenant's sole cost and expense all licenses and
permits from any and all governmental authorities having jurisdiction of the
Demised Premises, which may be necessary for the conduct of Tenant's business
therein and for such use and occupancy. Tenant further covenants to comply with
all applicable laws, resolutions, codes, rules and regulations of any
department, bureau, agency, or any governmental authority having jurisdiction
(together "Requirements") and (2) to idemnify and save Owner harmless from and
against any claims, penalties, loss, damage or expense imposed by reason of any
violation of any such Requirements; in either case, respecting or arising out of
the operation, occupancv, improvement, alteration, maintenance and use of othe
Demised Premises for the purposes set forth herein.
C. Without limitation as to the remaining provisions of this Lease
controlling permitted uses, Tenant hereby expressly warrants and represents that
Tenant's use as defined at Paragraph 2 hereof does not now, and shall not at any
time during the Term hereof, entail, include or in any way involve the
treatment, processing, storage, handling or presence at, on or near the Demised
Premises, of any hazardous or toxic substance which is now or may hereafter
become subject to regulation or control pursuant to the terms of any
Requirements now or hereafter enacted by any body now or hereafter having
jurisdiction over such matters.
For purposes hereof, the terms "toxic" or "hazardous" shall be construed
both with referenc to the operative terms of any Requirements, and with
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reference to their plain meaning; and accordingly, Tenant hereby covenants and
agrees that it shall notify and seek the written consent of Owner, prior to the
introduction or use of any substance that Tenant should reasonably know might be
toxic or hazardous in nature, irrespective of whether same is at that time known
to be subject to any enforceable Requirement. The Tenant acknowledges and agrees
that the foregoing is intended to safeguard the health and safety of all
tenants, licensees and invitees expected to occupy or frequent Demised Premises,
the Building and their environs, and, accordingly, that the benefit of every
doubt concerning the potentially toxic or hazardous character, or the
appropriate use, of any substance at the Building, shall be cast in favor of
reasonable caution in the interest of health and safety.
Any default by Tenant under this Paragraph 44.C shall be deemed a violation
of a material obligation of the Lease, entitling Owner to exercise any and all
remedies available to it in the event of a material default hereunder. The terms
of this Paragraph 44.C shall inure to the benefit of Owner, and that of any
Mortgagees under mortgages now or hereafter affecting the Building.
45. MISCELLANEOUS:
A. It is specifically understood and agreed that this Lease is subject to
the prior written consent of Owner and any Mortgagee of Owner who may now or
hereafter require same; and Tenant has hereunto affixed its signature with the
understanding that (without prejudice as to the terms hereof respecting payment
of Rent) the said Lease shall not in any way bind Owner until the earlier to
occur of (1) the thirtieth (30) day following execution hereof; or (2) such time
as any prior notice of approval or disapproval is issued by Mortgagee.
B. The terms "person" and "persons" as used in this Lease, shall be deemed
to include natural persons, firms, corporations, partnerships, associations and
any other private or public entities.
C. This lease shall be governed in all respects by the laws of the State of
Mew York. If any term or provision of this Lease or the application thereof to
any persons or circumstance shall, to any extent, be finally held to be invalid
or unenforceable, then the remainder of this Lease, (or the application of such
term or provision to persons or circumstances other than those as to which it is
held invalid or unenforceable), shall not be affected thereby and each term and
provision of this Lease shall be deemed valid and be enforced according to its
terms, to the fullest extent permitted by law.
D. This Lease contains the entire agreement between the parties, and any
writing heretofore or hereafter made shall not operate to change, modify, or
discharge this Lease in whole or in part unless such writing (if prior) is
included or incorporated by reference herein and, in any event, is signed by the
party sought to be charged therewith. This Lease consists exclusively of the
following documents, and no others:
(1) Standard Form of Office Lease (REBMY 3/90), consisting of
Paragraphs 1 through 36;
(2) Rider having 22 pages consisting of Paragraphs R.l through R.36,
and Paragraphs 37 through 45;
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(3) Exhibit 1: Estoppel Certificate
Exhibit 2: Work Letter
Exhibit 3: After Hours Access
Exhibit 4: Guaranty;
(4) Exhibit A: Demised Premises.
E. Notices delivered hereunder shall be delivered in writing, via
messenger, certified mail, and/or recognized overnight courier service, In any
event, with a return receipt requested, to the parties at the addresses first
hereinabove set forth or at such other addresses as thereafter specified by
notice; with copies to their respective counsel:
For Owner at:
Finkelstein Bruckman Wohl Most & Rothman
575 Lexington Avenue, 19th Floor
New York, New York 10022
Att: George T. Bruckman, Esq. or
Alan S. Fintz, Esq.
(212) 754-3100
(212) 371-2980 (FAX)
and for Tenant:
Jeannette Warner, Esq.
110 East 59th Street Suite 600
New York, NY 10022
tel. 909-0400
fax. 909-0592
F. Without limitation as to the remaining terms of the Lease, any
continuing material default hereafter arsing under this Lease shall be deemed a
default under the 5th floor Lease of Look's affiliate, Rockin Beast, Inc. and
its Co-Tenant, Taka's House, Inc., and any continuing material default under the
latter lease shall be deemed a default hereunder; and any and all security
deposits under either Lease shall be deemed security available for application
in the event of a default under the other. By execution hereof, Owner does not
waive any objection to any pre-existing default, arrearage, or other condition
heretofore accruing under Look's existing 4th floor lease, and any of same shall
be deemed to survive the Commencement Date against the account of Tenant under
this Lease.
G. Tenant acknowledges that this Lease is entered into in order to extend
its current occupancy at the Building (under the "Existing Lease"). The terms of
this Lease shall control with respect to all matters accruing on and after the
execution hereof. So long as Tenant shall not have been in continuing default
hereunder or under its Existing Lease from date of execution through June 1,
1991, this Lease shall go into effect as of said scheduled Commencement Date.
Without limitation as to the remaining terms of the Lease, any continuing
material default arising between this date and the Commencement Date under
either lease shall entitle Owner forthwith and without notice, to cancel this
Lease at any time. By execution hereof, Owner does not waive objection to any
preexisting default, arrearage, or other condition heretofore accruing, and any
of same shall be deemed to survive the Commencement Date against the account of
Tenant under this Lease.
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EXHIBIT "1"
Form of Estoppel Certificate
The undersigned ____________________________________________ ("Tenant") in
consideration of One Dollar ($1.00), and other valuable considerations, the
receipt and sufficiency of which is hereby acknowledged, hereby certifies to 170
FIFTH ASSOCIATES Inc.("Owner"), [the holder of any mortgage covering the
property (the "Mortgagee")] [the ground lessor under any ground lease affecting
the Property (the "Ground Lessor")] and [the vendee under any contract of sale
with respect to the Property (the "Purchaser)], as follows:
1. Tenant executed and exchanged with Owner a certain lease (the "Lease"),
dated_______________1991, including only those documents at Paragraph 45.D
thereof, and covering the Premises shown on the plan annexed hereto as Schedule
A (the "Demised Premises") for a term to commence (or which commenced) on
__________________ 1991, and to expire on _______________, 199__.
2. The Lease is in full force and effect and has not been modified,
changed, altered or amended in any respect.
3. Tenant has accepted and is now in possession of the Demised Premises and
is paying the full Rental under the Lease.
4. The Fixed Annual Rent payable under this Lease is $________________. The
Fixed annual Rent and all Additional Rent and other charges required to be paid
under the Lease have been paid for the period up to and including
____________________________.
5. No Rent under the Lease has been paid for more than thirty (30) days in
advance of its due date.
6. All work required under the Lease to be performed by Owner has been
completed to the full satisfaction of Tenant; and there are no other defects in
The Demised Premises or Building affecting Tenant's rights under the Lease; and
the Demised Premises are not affected by any toxic or hazardous substances
within the meaning of Paragraph 44C of the Lease.
7. There are presently no defaults existing under the lease on the part of
either Owner or Tenant.
8. There is no existing or anticipated basis for Tenant to cancel or
terminate the Lease.
9. As of the date hereof, there exists no valid defense, offsets, credits,
abatement or deductions in Rent or claims against the enforcement of any of the
agreements, terms, covenants or conditions of the Lease.
10. There are no actions, whether voluntary or otherwise, pending or
threatened against the Tenant under the bankruptcy Laws of the United States or
any state thereof.
11. Tenant acknowledges that Owner has informed Tenant that a collateral
assignment of Owner's interest in the Lease has been or will be made to the
Mortgagee and that no modification, revision, or cancellation of the Lease, or
amendments thereto, shall be effective unless a written consent thereto of the
Mortgagee is first obtained, and that until further notice, payments under
-23-
<PAGE>
the Lease may continue as heretofore.
12. The Lease does not contain and the undersigned does not have any
outstanding option or rights of first refusal to purchase the Building, or any
part thereof, or the real property of which the Building is a part.
13. The amount of the security deposit, if any, deposited with the Owner,
in cash or letter of credit pursuant to the terms of the Lease, is $________.
14. This certification is made to induce Purchaser to consummate a purchase
of the Property and to induce Mortgagee to make and maintain a mortgage loan
secured by the Property, knowing that said Purchaser and Mortgagee rely upon the
truth of this certification in making and/or maintaining such purchase or
mortgage, as applicable.
15. Except as modified herein, all other provisions of the Lease are hereby
ratified and confirmed.
DATE:__________________________
By:____________________________
TENANT
- 24 -
<PAGE>
Exhibit 2
Scope of Owner's Work
and Outline Specifications
4th Floor- 170 Fifth Avenue, New York, NY
for iVillage,Inc. ("Tenant")
Owner agrees, at its sole cost and expense and without charge to Tenant, to do
the following work, all of which shall be of material, manufacture, design,
capacity and finish selected by the Owner as Standard of the Building. The
following shall define the scope of work.
1. Demolition
Provide, as necessary, demolition and removal of all existing six interior
partition walls ("recording rooms") including related doors, ceilings, light
fixtures, electric and telephone outlets, shelving brackets, nails, screws, and
obsolete attachments. This shall include removal of discarded furniture,
equipment, shelving or fixtures discarded by Tenant.
2. Ceiling Systems
No drop ceiling shall be provided or allowed.
3. Floor Coverings and Cove Base
Owner shall refinish, where existing, the original maple floors. Where the
floors have missing hardwood boards or gaps exist, new maple boards will be
patched in to fill the void. The Owner shall reasonably attempt to repair the
floor with like materials to provide a flat surface. Owner shall not be
responsible to reconstruct the entire floor to correct any inconsistencies in
the floor finish, whether due to discoloring, staining or wear marks, scratches
or board patterns, whether due to original construction or subsequent cutting or
mutilation, it being understood that irregular board patterns are in keeping
with the historic quality of the building. Floors will be resanded and treated
with one coat of sealer and two coats of polyurethane.
4. Lighting
Install up to 125 linear feet of track lighting with an allowance for ten track
fixtures at a budget of $50.00 per fixture.
5. Gypsum Wallboard System and Plastering
Install up to fifteen linear feet of drywall partition wall approximately eight
feet high at a location to be determined by Tenant ("New Walls"). New Walls
shall consist of a 3-5/8 metal stud assembly with one layer of 5/8 drywall on
each side. Wall height shall vary in accordance with the Plans. shall not be
acoustically insulated. All new drywall partitions shall be taped and have a
minimum of two coats of joint compound, sanded smooth with all screw holes
filled and also sanded to a smooth finish. Any voids in the walls or ceiling
from prior attachments or damage shall be filled and sanded smooth.
With respect to the permiter wall and remaining walls and ceilings. Owner shall
not skim coat the entire surface of the original plaster walls or ceiling; any
uneveness in the plaster work or painted surface shall remain.
Page 1
8/7/95
iVillage, Inc.
Owner's Work
P.25 A
<PAGE>
6. Doors. Door Frames and Hardware
None.
7. Painting. Wall Coverings/Finishing
All wall surfaces will be primed and painted with two coats of paint in an
eggshell vinyl throughout on all wall and ceiling surfaces with no more than one
color. All doors, door frames and window frames will be painted with a single
color in an enamel alkyd paint. Exposed duct shall be painted.
8. Window Treatment (Blinds or Shades) None.
9. Plumbing None.
10.Existing Windows, Glass and Glazing All window bottom sashes will be made
operable. Broken window glass shall be replaced. All windows shall be cleaned
inside and outside.
11. Electrical Receptacles Any recepticles that are attached to existing
partitions which will be demolished shall be remounted, if reasonably possible,
to adjacent walls. Wiring may be installed in concealed cabling or in exposed
electrical conduit.
13. Heating Ventilating and Air Conditioning
c) Remove the air conditioner compressor installed in the lower sash of the #2
westerly window and install it in the upper sash of the #1 westerly window.
Clean and inspect only the air-conditioning equipment. Owner makes no
warranties, express or implied, as to the condition of the existing
air-conditioning equipment. Any other work on the air-conditioning shall be by
Tenant.
The steam radiation shall be examined for any leaks or breaks. The air valves
shall be changed and any leaky shut-off valves shall be changed.
14. Telephone and Data Piping and Wiring
None.
15. Millwork and Casework
None; all furniture, shelving, files and or built in workstations shall be by
Tenant.
16. Fire Protection No changes
17. As Is
Except for the foregoing, the premises shall remain "As Is" with all of the
existing conditions to remain unchanged. The Tenant has inspected the premises
and is fully familiar with all conditions. Tenant has not relied on Landlord,
Landlord's architect or Landlord's agents for consultation as to the suitability
of the premises for Tenant's use. Tenant has consulted with its own
professionals and relies on its own knowledge of its requirements and outside
consultants to understand the outline specifications described herein.
Page 2
8/7/95
iVillage. Inc.
Owner's Work
25 B
<PAGE>
EXHIBIT "3"
AFTER HOUR ACCESS
(l)Tenant agrees to arrange for at least two (2) of its regular authorized
occupants at the Demised Premises to be trained as Fire Wardens and as Building
Evacuation Supervisors ("Supervisors"), within the meaning of New York City Fire
Department Regulations promulgated pursuant to Local Law 5 ("Regulations"), with
such training to be conducted, and the fitness of any such personnel to be
subject to supervision and approval in Owner's sole discretion;
(2)In the event that any one or more of the persons authorized by the
Tenant to occupy the Demised Premises, desire from time to time to continue work
related to Tenant's permitted use during hours other than Normal Building Hours,
Tenant agrees that at least one of the two persons tenant described at subpart
(1), above, shall be at the Demised Premises and ready to carry out the
responsibilities of a designated Supervisor until the Last person has vacated
the Demised Premises, or until the beginning of the next-succeeding shift of
Normal Building Hours, whichever first occurs;
(3)In the event that extended hours are anticipated by any authorized
occupants, the Demised Premises, then, prior to the end of the Normal Business
Hours for the affected day, Tenant's designated Supervisor will log in at the
Building management office, to acknowledge that some of Tenant's personnel shall
be occupying the Building late, and to indicate that the designated Supervisor
will be available during such hours to carry out his/her resconsibilities;
(4)Tenant acknowledges and agrees that, in the event that its designated
Supervisors are unavailable to serve in their intended capacities, occupancy of
the Demised Premises after Normal Building Hours shall be strictly prohibited,
unless Tenant makes prior written arrangements with any other tenants, or with
the Building Management, for other persons duly authorized under the Regulations
to execute the resconsibility of a Supervisor as hereinabove set forth, on
behalf of the Tenant.
-26-
<PAGE>
Lease Amendment
AGREEMENT, made this 20th day of September, 1995 by and between 170 Fifth
Associates, Inc. a New York Corporation (hereinafter called "Owner") and
i Village, Inc., a Delaware Corporation, (hereinafter called "Tenant").
WITNESSETH:
WHEREAS, Owner and Tenant entered into a written agreement of Lease bearing
date of August 21, 1995, (hereafter referred to as the "Lease") whereby the
Owner leased to Tenant and Tenant hired from Owner, all of the fourth floor
"Demised Premises," in the Building situate and known by the street address 170
Fifth Avenue, New York, NY (the "Building");
Whereas, the parties agree to amend the lease for ten dollars and good and
valuable consideration to provide additional services in the Building all as
hereinafter set forth:
NOW, THEREFORE IT IS HEREBY MUTUALLY AGREED AS FOLLOWS:
1. Tenant shall be entitled to After Hour Access pursuant to strict compliance
with the agreement attached hereto labeled "Exhibit 3."
2. Owner specifically reserves the right to revoke the privileges of After Hour
Access, without notice, if Tenant fails to comply in any respect to the rules
and regulations, promulgated for the building- which rules may change from time
to time- in Owner's sole discretion.
3. Tenant shall pay a fee for each access card of $12.00 in advance (subject to
reasonable increase from time to time). The fee is non-refundable and shall
apply for each replacement, whether lost, stolen or broken (including normal
wear and tear). Only one card is issued per person and the card is
non-transferable to other individuals (including among individuals in the same
Tenant or among company employees).
4. Ratification of Least. All provisions of the Lease, not expressly amended
hereby remain in full force and effect
IN WITNESS WHEREOF, the parties hereto, intending to be legally bound hereby,
have hereunto set their hands and seals the day and year first above written.
iVillage, Inc. (Tenant)
Signature /s/ Candice Carpenter
------------------------
170 FIfth Associates, Inc.
/s/ Sheldon Stein
---------------------------------
Sheldon Stein, President
Lease Amendment
Page 1 9/19/95
<PAGE>
6. The undersigned subordinate to Owner any and all claims which either of
them may have against the Tenant by reason of subrogation for payments or
performance under this Guaranty or claims for any other reason or cause. The
undersigned agree not to assert any claim which either may have against the
Tenant. including claims by reason of subordination under this Guaranty, until
such time as payment and other obligations of the Tenant to the Owner are fully
satisfied and discharged.
7. This Guaranty is binding upon the undersigned, its principals, legal
representatives and assigns, and is binding upon and shall inure to the benefit
of the Owner and its successors and assigns. No purported assignment or
delegation by the undersigned shall release them of their obligations under this
Guaranty, and with reference to Tenant's obligations, the term "Tenant" used
herein includes the first and any successive assignees or subleases of the
Tenant or of any such assignee or subleases.
8. Except as otherwise provided at Par.3 hereof, this Guaranty may not be
modified orally. but only by writing signed by both the undersigned and Owner.
9. "Good Guy" Clause": Notwithstanding anything to the contrary hereinabove
set forth. Owner acknowledges and agrees that Guarantors shall not be personally
liable under this Guaranty for the payment of rent obligations of Tenant that
shall accrue for the portion of the Lease Term that follows the date upon which
Tenant vacates the Premises hereunder, irrespective of whether such vacancy (a
"Vacancy"), might occur in technical violation of Lease terms respecting the
stated Expiration Date. For purposes of this Paragraph 9, a "Vacancy" shall be
deemed to occur if and only if: (a) Tenant surrenders Premises broom clean
condition; (b) Tenant removes all of its personalty, including furnishings,
fixtures and equipment form Premises; (c) Owner shall have been given notice of
Vacancy and an opportunity to confirm that Premises are delivered in condition
substantially identical to that obtaining upon the Commencement Date of the
Lease, subject only to reasonable wear and tear; and (d) Tenant surrenders to
Owner or its designated agent, possession of all keys to the Premises and its
remaining appurtenances. The foregoing limitation upon Guarantor's obligations
shall apply to costs of removing abandoned property; restoring damage or
unauthorized alterations to Premises; and generally, to any and all claims,
liabilities and expenses. including known or contingent tort or contractual
liabilities to third parties (e.g. without limitation, outstanding or
unsatisfied liens, encumbrances, tide retention agreements or the like), which
may have accrued or arisen at the Premises or pursuant to Lease operation, with
or without Owner's knowledge or consent, prior to the Vacancy date, to the
extent that same would otherwise constitute Additional Rent obligations or
liabilities of Tenant. under the remaining terms of the Lease.
Guarnatee is limited to the obligations of the initial Lease term unless the
terms of the guarantee are extended in writing by the parties hereto.
IN WITNESS WHEREOF. the undersigned have duly signed this Guaranty on this
____ day of August, 1995.
By: /s/ Candice Carpenter
----------------------
Name: Candice Carpenter
Address: 799 Park Avenue, New York. New York 10021
SSN: - -
Page 2 of 2
8:36 PM
<PAGE>
FIRST AMENDMENT AND SUPPLEMENT TO LEASE AGREEMENT
-------------------------------------------------
THIS FIRST AMENDMENT AND SUPPLEMENT TO OFFICE LEASE made
as of the 5 day of April, 1996, by and between 170 FIFTH ASSOCIATES,
INC., a New York corporation (hereafter referred to as "Owner") with an
office at 55 Fifth Avenue, New York, New York 10003 and iVILLAGE, INC., a
Delaware corporation (hereafter refined to as "Tenant") with an office at
170 Fifth Avenue, New York, New York 10010.
W I T N E S S E T H:
WHEREAS, Owner and Tenant entered into a certain lease
agreement dated August 21, 1995 ("Lease") for office space occupying the
entire Fourth Floor at 170 Fifth Avenue, New York, New York ("Premises"),
for a term of six years commencing September 11, 1995 and ending on August
31, 2001; and;
WHEREAS, Tenant and Owner mutually agreed to amend the
lease September 20, 1995 to provide for after hour access into the building,
and otherwise more particularly set forth therein;
WHEREAS, it is the desire of the Owner and the Tenant to
add to the demised premises additional space known as the rear half of the
Fifth Floor at 170 Fifth Avenue, New York, New York and for that purpose
wish to amend and supplement the Lease, under certain terms and conditions,
all as hereinafter set forth.
NOW, THEREFORE, in consideration for the premises, the
mutual terms, covenants, conditions, warranties and agreements herein set
forth and other good and valuable consideration, the adequacy of .which is
hereby acknowledged by both parties, intending to be legally bound hereby,
Owner and Tenant agree as follows:
1. Additional Space: Anything in the Lease, to the contrary,
notwithstanding, the Lease is hereby amended by adding thereto the rear half
(Suites 504, 505,. 506 & 507) of the Fifth Floor at 170 Fifth Avenue, New
York, New York (hereinafter "Additional Space") effective April 5, 1996.
2. Term: The Lease term for the Additional Space shall commence
April 5, 1996 and end in accordance with the provisions of the Second
Amendment and Supplement to the Lease Agreement attached hereto as Exhibit B
(hereinafter "Second Amendment"). In the event the Second Amendment is
voided in accordance with paragraph 15 therein, the lease term for the
Additional Space, shall continue on a month to month tenancy thereafter at
the same fixed minimum rent.
3. Owner's Work: The Additional Space is leased and shall be
delivered in "as is" condition. Owner shall not make any improvements to the
Additional Space.
4. Fixed Minimum Rent: Effective on April 5, 1996, the Fixed
Minimum Rent for the Additional Space shall be:
<PAGE>
Lease Term Fixed Minimum Rent
April 5, 1996 - April 30, 196 $3,033.42 (26 days @ 116.67 per diem)
After April 30, 1996 $3,500.00 per month
Owner reserves the right to raise the fixed minimum rent with at least 30
days advance written notice. Without limitation as to the rent schedule
under this amendment, Tenant shall remain obligated for any and all rent
accrued prior to the date hereof, and for all items of additional rent
hereafter accruing under the terms of the Lease Agreement, including without
limitation Tenant's pro-rata share of real estate taxes and electrical power
consumption and other items of additional rent, and/or charges, fees, and
penalties stipulated under the remaining provisions of the lease as amended.
5. Utility Service: Anything in the Lease, as amended,
notwithstanding, Tenant acknowledges and agrees that effective April 5,
1996, Tenant shall pay a proportionate cost of electric consumption of the
Fifth Floor meter. The meter serves the entire floor including the Heating,
Ventilating and Air Conditioning system equipment. Tenant's proportionate
share of meter charges shall be 28% during Tenant's occupancy of the
Additional Space.
6. Security Deposit: Tenant acknowledges and agrees that the amount
of the Security Deposit required pursuant to Paragraph 34 of the Lease, is
hereby amended in proportion to the addition of the Additional Space.
Accordingly, the pre-existing principal security balance of $14,600.00 is
augmented by payment due contemporaneously with this Amendment, in the sum
of $3,500.00 respecting Suite 504 of the Fifth Floor, with the amended
aggregate total security to be in the sum of $18,100.00.
7. Liability Insurance: Within seven (7) days following the
execution of this Amendment, Tenant shall furnish to Owner a Certificate of
Insurance (as required by Rider paragraph 8 of the Lease), to include
Tenant's occupancy of the Additional Space.
8. Unoccupied portion of Fifth Floor: In the event the front half
(suites 500, 501, 502, & 503) of the Fifth Floor becomes vacant and
available during Tenant's occupancy of Suite 504 and prior to delivery of
both the Third and Tenth Floors in accordance with the Second Amendment,
then Tenant shall let the entire front portion of the fifth floor (to
augment and become part of the "Additional Space" as defined herein) and the
fixed minimum rent recited herein representing the rear portion of the fifth
floor shall be doubled to represent occupancy by Tenant of the entire fifth
floor until the term of this First Amendment and Supplement to the Lease has
concluded.
Upon Tenant's hire of the entire Fifth Floor, Tenant
hereby acknowledges and agrees to arrange to place the utility meter in
their own name and be directly responsible for all utility charges for the
entire Fifth Floor. Within seven (7) days of occupancy of the entire Fifth
Floor, Tenant agrees to furnish Owner with a Certificate of Insurance
evidencing coverage of the entire Fifth Floor, said coverage to become
effective upon the first day- of occupancy by Tenant of the entire Fifth
Floor.
<PAGE>
9. Failure to give Possession: The provisions of paragraph 24 of
the Lease remain unamended and are specifically confirmed herein to continue
in full force and effect during the entire term of this Amendment.
10. Holding Over: The provisions of Rider paragraph 22 of the Lease
remain unamended and are specifically confirmed herein and shall continue in
full force and effect during the entire term of this agreement.
11. Right to Terminate: Owner shall have the right to terminate
this lease Amendment, termination to take place on the last day of the
calendar month upon 14 days written notice. Notice of termination shall be
served in accordance with paragraph 45 of the Lease Agreement.
12. Ratification of the Lease: Except as otherwise expressly set
forth hereinabove, all terms, covenants and conditions of the Lease are
hereby confirmed to remain unamended and in full force and effect, and are
incorporated by reference as if fully set forth herein.
13. Not an Offer: Tenant acknowledges and agrees that this
instrument is submitted for review and execution by Tenant subject to final
disposition by Owner; that delivery hereof shall not be deemed to constitute
an "offer" within the meaning of New York State contract law; and that same
shall be binding upon Owner only following Owner's review, approval,
execution and delivery of same to Tenant by Owner, in Owner's sole
discretion. Owner's acceptance of this agreement is subject to review by
Owner's lender.
IN WITNESS WHEREOF, the said parties have caused this
Amendment to be executed the day and year first above written.
TENANT: iVILLAGE, INC. OWNER: 170 FIFTH ASSOCIATES, INC.
By: Valhal Corp., General Partner
By: /s/ Candice Carpenter By: /s/ Sheldon Stein
----------------------------- ------------------------------------
Candice Carpenter, CEO Sheldon Stein, President
<PAGE>
EXHIBIT B
SECOND AMENDMENT AND SUPPLEMENT TO LEASE AGREEMENT
THIS SECOND AMENDMENT AND SUPPLEMENT TO OFFICE LEASE made as of the ____
day of April, 1996, by and between 170 FIFTH ASSOCIATES, INC. a New York
corporation, (hereafter referred to as "Owner") with an office at c/o Vaihal
Corp. 55 Fifth Avenue, 17th Floor, New York, New York, 10003 and iVillage, Inc.
a New York corporation (hereafter referred to as "Tenant") with an office at 170
Fifth Avenue, New York, NY, 10010.
WITNESSETH:
WHEREAS, Owner and Tenant entered into a certain lease agreement dated
August 21, 1995 ("Lease") for office space occupying the entire fourth floor of
the building 170 Fifth Avenue, New York, NY ("Premises") and more particularly
delineated on the floor plan annexed to the Lease as "Exhibit 2A", for a term of
six years commencing September 11, 1995 and August 31, 2001; and;
WHEREAS, Tenant and Owner mutually agreed to amend the lease on September
20, 1995 to provide for after hour access into the building, and otherwise more
particularly set forth therein; and
WHEREAS, Tenant and Owner entered into a First Amendment and Supplement to
Lease Agreement dated April___, 1996, to temporarily lease the rear half of the
fifth floor as particularly set forth therein;
WHEREAS, it is the desire of the Owner and the Tenant to amend the lease
again under certain terms and conditions, all as hereinafter set forth.
NOW, THEREFORE, in consideration for the premises, the mutual terms,
covenants, conditions, warranties and agreements herein set forth and other good
and valuable consideration, the adequacy of which is hereby acknowledged by both
parties, intending to be legally bound hereby, Owner and Tenant agree as
follows:
1. Amendment to Prevail: If and to the extent that any of the provisions
below of this Amendment conflict or are otherwise inconsistent with any of
the terms of the Lease as previously written or amended (whether or not
such inconsistency is expressly noted below) the provisions of this
Amendment shall prevail.
2. Rental of the Third and Tenth Floors: As of the Second Commencement Date
as set forth below, Tenant shall lease two additional full floors in 170
Fifth Avenue, New York, NY., the third and tenth floors, hereafter to be
called "New Floors," subject to the following terms and conditions. Lease
provisions defined below that are indicated to apply to the New Floors
shall not apply to the Demised Premises under lease preceding this
amendment.
3. Term: The Lease term for the New Floors shall be two years commencing on
the Second Commencement Date (as defined below), hereafter" New Floors
Demised Term."
4. Owner's Work: Owner, at Owner's sole expense. shall (i) paint the walls
of the New Floors (and not the windows, ceiling or doors) (ii) build up to
50 linear feet of 8' high partitions finished with tape and compound to
professional standards with all holes filled and seams covered; (iii)
re-poly the floors on the 3rd and 10th Floors; (iv) clean, paint and
improve lighting in the stairwell between third and fourth floors and
install one each 100 square inch glass lite in each stairtower door; (v)
relocated glass door and side lite on 10th floor; (vi) clean and start-up
the air-conditioning units, collectively "Owner's Work". The parties agree
that Owner's Work shall be commenced and completed prior to the Second
Commencement Date. Notwithstanding Owner's Work items above and subject to
any express representations, warranties and covenants
iVillage, Inc.- Second Amendment
Page 1 of 5 4/5/96 2:23 PM
<PAGE>
set forth in the Lease and all amendments thereto, the New Floors are
delivered and accepted "as Is
5. Consultants: Tenant warrants to Owner that the Tenant has not consulted
with any real estate brokers or real estate sales persons who would look to
the Owner for compensation or a commission.
6. Second Commencement Date: When Owner believes that Owner's Work is
substantially complete (subject to normal punchlist items) Owner shall give
notice thereof to Tenant, accompanied by an executed Second Commencement
Date Memorandum ("Memorandum[s]") in the form attached hereto as Exhibit C.
Tenant shall not delay acceptance of the Premises because of any
outstanding punchlist items or for any other reason. Tenant shall accept
the Premises if substantially complete and attach a punchlist to the
Memorandum detailing any construction items that Owner shall complete
following the Tenant Occupancy. If Tenant contests the Substantial
Completion as represented by Owner, Tenant shall within One business day of
receipt of Owner's Memorandum detail in writing to Owner any deficiencies
to Substantial Completion that Tenant believes remain to be completed.
Following delivery of the newly constructed Premises to Tenant, Owner shall
diligently prosecute completion of the Punchlist items at minimal
interference to Tenant within two weeks of Commencement Date for each New
Floor. By executing the Memorandum, Tenant shall be deemed to have agreed
that Owner's Work has been completed in accordance with the terms of this
Amended Lease. The Second Commencement Date shall be the date as defined in
the Memorandum. Notwithstanding the foregoing, Owner shall deliver and
Tenant shall accept delivery of each New Floor separately as it becomes
available, subject to the terms of this agreement, and the rent shall be
pro-rated to the proportionate value assigned in the Fixed Minimum Rent
schedule below for the respective area delivered. A separate memorandum
shall be executed for each New Floor.
7. Fixed Minimum Rent: Effective on the New Commencement Date, the Fixed
Minimum Rent for the New Floors shall be:
--------------------------------------------------------------------------------
YEAR 1 YEAR 2
--------------------------- ----------------------------
Rent/year Rent/month Rent/year Rent/month
--------- ---------- --------- ----------
10th Floor 91,250 $ 7,600.00 94,900 $ 7,800.00
3rd Floor(1) 83,950 $ 6,995.83 87,600 $ 7,300.00
========= =========== ========= ===========
Total $ 175,200 $ 14,596.00 $ 182,500 $ 15,100.00
--------------------------------------------------------------------------------
Without limitation as to the rent schedule under this amendment, Tenant
shall remain obligated for any and all rent accrued prior to the date
hereof, accruing under the Lease, as amended, and for all items of
additional rent hereafter including without limitation Tenant's pro-rata
share of real estate taxes and electrical power consumption, if applicable,
and other items of additional rent, and/or charges, fees, and penalties
stipulated under the remaining provisions of the lease as amended.
8. Real Estate Taxes: Only During the New Floors Demised Term, the real
estate tax Percent as defined in the lease shall be changed as follows: In
section R.1.2.A of the Lease, in the first sentence EIGHT and 19/00 shall
be deleted and in its place TWENTY-FOUR and 57/100 shall be substituted.
The Tenant shall pay 100% of the Tax Payment for the New Floors,
notwithstanding the seventh line of the same section: this shall continue
to apply for the Fourth Floor but shall not apply for the two third
proportion relating to the New Floors.
----------
Subject to the right of Owner to substitute the Fifth Floor in place of the
Third Floor in accordance with paragraph 14 hereof In the event of a Fifth Floor
substitution then all rents and other provisions attributable to the Third Floor
shall equally apply to the Fifth Floor.
iVillage, Inc.- Second Amendment
Page 2 of 5 4/5/96 2:23PM
<PAGE>
9. Direct Utility Service: Anything in the Lease, as amended,
notwithstanding, Tenant acknowledges and agrees that effective the New
Commencement Date, Tenant shall arrange for electrical service by way of a
direct account with the public utility for the New Floors. It shall be
Tenant's sole responsibility to convert the existing meter into Tenant's
name with the utility and pay all charges accrued on its own account.
10. Security Deposit: Tenant acknowledges and agrees that the amount of the
Security Deposit required pursuant to R.34 of the Lease, is hereby amended
in proportion to the addition of the New Floors to the total leased
premises. Accordingly, the pre-existing principal security balance of
$14,600.00 is augmented by payment due contemporaneously with this
Amendment, in the sum of $15,000.00 respecting the New Floors, and $7,500
due upon execution of each Memorandum, with the amended aggregate total
security to be in the sum of $44,600.00. The security deposit respecting
the New Floors shall be returned, consistent with the terms of the Lease,
at the end of the New Floors Demised Term.
11. Liability Insurance: Within thirty (30) days following the New
Commencement Date, Tenant shall furnish to Owner a Certificate of Insurance
(as required by Pars. 8 and R.8 of the Lease), reflecting full coverage for
amounts recited therein.
12. Maintenance: Tenant shall re-polyurethane the wood floors in the
premises with an additional coat no less than one time annually during the
term hereof. Tenant shall change filters on the Air-conditioning units no
less than two times annually and have the unit cleaned, if necessary, for
good operation. Owner shall advise tenant of the scheduling of the
foregoing maintenance, and at Tenant's election, contract for the foregoing
services and be reimbursed by Tenant at no additional charge to Tenant
above what Tenant would pay if it contracted directly for the same
services. Notwithstanding, if Tenant fails to maintain the floors and
air-conditioners (and evidence same to Owner) then Owner may contract for
same at Tenant's expense. Tenant shall reimburse Owner for any related
expense in its next monthly billing.
13. Ratification of the Lease: Except as otherwise expressly set forth
hereinabove, the terms, covenants and conditions of the Lease Agreement are
hereby confirmed to remain unammended and in full force and effect, and are
incorporated by reference as if fully set forth herein.
14. DELIVERY SCHEDULE for New Floors. The 10th floor shall be delivered to
Tenant on or before July 1, 1996 and the Third Floor on or before July, 31,
1996. Notwithstanding the foregoing, Owner may elect to substitute the
Fifth Floor in the same time frame indicated above lieu of the Third floor,
with substantially similar improvements, including an equal number of
private offices, conference rooms, lighting treatment, and wall glass in a
plan to be mutually agreed between Tenant and Owner. In the event of a
Fifth Floor substitution by Owner for the Third Floor, all provisions
respecting the Third Floor shall alternately apply to the Fifth Floor
("Substitute")
Owner shall notify Tenant on or before May 1, 1996 whether Owner elects a
substitution of floors and immediately thereafter Owner shall commence
construction on the fifth floor if Substitution is elected by Owner. In the
event of substitution to the fifth floor, the Owner shall construct the
improvements on the front half of the floor while Tenant is in occupancy on
the back halt with the intent to minimize interference with Tenant's
business, and Tenant shall then occupy the completed front half of the
floor to allow Owner to do the construction in the back half Tenant shall
only bear the cost of rent for the half of floor in occupancy during such
period.
Owner shall credit Tenant a late delivery penalty equal to One Hundred and
Fifty Dollars ($150.00) per day for each day of delay in delivery of the
respective premises after July 1,
iVillage, Inc.- Second Amendment
Page 3 of 5 4/5/96 2:23PM
<PAGE>
1996 and July 31, 1996, respectively. The foregoing schedule is subject to
delays of FORCE MAJURE (forces beyond Owner's control).
15. Owner Option to Void Agreement. If on or before May 1, 1996 Owner
determines that delivery of the New Floors cannot be reasonably
accomplished in the time frame above then Owner reserves the right to void
this agreement In the event of an Owner election to Void the agreement,
Owner shall return the security deposit tendered therewith and the
agreement shall have no further force and effect.
16. Options to Extend Term: Effective upon expiration of the two year term
as defined herein, Tenant shall have the option to extend the lease term
for the New Floors for an additional two year term ("First New Floor
Extension Term"). Upon expiration of the First New Floor Extension Term,
Tenant shall have the option to extend the lease term for the New Floors
for a term to end concurrently and absolutely upon the expiration of the
Lease term for the fourth floor premises as defined in the Lease as August
31, 2001 ("Second New Floor Extension Term"). Tenant shall exercise said
options by providing written notice to Owner no sooner than 180 days and no
later than 150 days prior to the expiration of any given current term. Upon
commencement of both the First New Floor Term and Second New Floor Term,
the fixed minimum rent for the New Floors shall increase at a stipulated
3.5% per annum during each and every extended term period.
17. Fifth Floor- Interim Use. Tenant's occupancy of the rear of the Fifth
Floor of the Building pursuant to the First Amendment to the Lease shall
continue until Owner delivery of both New Floors in the event this
agreement is not voided pursuant to provision 15 hereof
18. Not an Offer: Tenant acknowledges and agrees that this instrument is
submitted for review and execution by Tenant subject to final disposition
by Owner; that delivery hereof shall not be deemed to constitute an "offer"
within the meaning of New York State contact law; and that same shall be
binding upon Owner only following Owner's review, approval, execution and
delivery of same to Tenant by Owner, in Owner's sole discretion. Owner's
acceptance of this agreement is subject to review by Owner's lender.
IN WITNESS WHEREOF, the said parties have caused this Agreement to be
executed the day and year first above written.
TENANT: iVillage, Inc.
BY: _____________________________
Candice Carpenter, President
OWNER: 170 FIFTH ASSOCIATES, Inc.
BY: Valhal Corp., General Partner
______________________________
Sheldon Stein, President
iVillage, Inc.- Second Amendment
Page 4 of 5 4/5/96 2:23PM
<PAGE>
EXHIBIT C
MEMORANDUM OF SECOND COMMENCEMENT DATE
Pursuant to the requirements of the Second Amendment and Supplement to the
Lease Agreement, dated April 5, 1996 ("Second Amendment") between 170 FIFTH
ASSOCIATES, INC. ("Owner") and iVillage. Inc. ("Tenant"), this agreement will
serve to confirm the Second Commencement Date for the Second Amendment, as
follows:
1. Delivery of Additional Space. Subject to the remaining provisions
hereof, the delivery of the Additional Space within the meaning of the Paragraph
6 of the Second Amendment will be: July 10, 1996 for the 5th Floor. It is
expressly agreed that one New Floor shall be delivered in sequence at a time and
a separate New Commencement Date shall apply for each new floor. The delivery of
the second of the two New Floors shall establish the Second Commencement Date
for the initial Term of the Second Amendment.
2. Expiration Date. The expiration of the Lease term will
be June 30, 1998.
3. Fixed Minimum Rent Payment The first payment of Fixed Minimum Rent
pursuant to Paragraph 7 of the Second Amendment shall be payable upon the
execution by all parties of this Memorandum of New Commencement Date. Tenant
acknowledging that the New Commencement Date, with respect to its rights and
Owner's obligations under the Lease and all Amendments thereto including the
Second Amendment, is contingent upon payment of any and all sums due thereunder
through the date of this Memorandum, which, in the event Owner declares the New
Commencement Date to fall in the middle of a calendar month, shall include
payment of the pro rata portion of said fixed minimum rent and any additional
rent due for the fraction of the calendar month within which the New
Commencement Date falls.
4. Acceptance of New Floor. Tenant acknowledges and agrees that Owner's
work required under the Second Amendment with respect to the New Floor, has been
completed and Tenant hereby accepts the entire 5th New Floor in its
present condition, subject only to punch list items described on Schedule 1
attached hereto, which Owner agrees to complete within a reasonable time
hereafter, and subject further to latent defects, if any, not readily
discernible upon reasonable inspection.
IN WITNESS WHEREOF, the parties have executed this New Commencement Date
Memorandum on this ______ day of ,1996.
TENANT: iVillage, Inc.
BY: /s/ Fean Clinton
-------------------------------
Candice Carpenter, CEO
OWNER: 170 FIFTH ASSOCIATES, INC.
BY: /s/ Sheldon Stein
------------------------------
Sheldon Stein, President
Valhal Corp., General Partner
iVillage. Inc.-Second Amendment
Page 5 of 5 4/5/96 2:23 PM
<PAGE>
EXHIBIT C
MEMORANDUM OF SECOND COMMENCEMENT DATE
Pursuant to the requirements of the Second Amendment and Supplement to the
Lease Agreement dated April 5, l996 ("Second Amendment') between 170 FIFTH
ASSOCIATES, INC. ("Owner") and iVillage, Inc. ("Tenant"), this agreement will
serve to confirm the Second Commencement Date For the Second Amendment, as
follows:
1. Delivery of Additional Space. Subject to the remaining provisions
hereof, the delivery of the Additional Space within the meaning of the Paragraph
6 of the Second Amendment will be: 6/19/96 for the 3rd Floor. It is expressly
agreed that one New floor shall be delivered in sequence at a time and a
separate New Commencement Date shall apply for each new floor. The delivery of
the second of the two New Floors shall establish the Second Commencement Date
for the initial Term of the Second Amendment.
2. Expiration Date. The expiration of the Lease term will be 6/30/98.
3. Fixed Minimum Rent Payment. The first payment of Fixed Minimum Rent
pursuant to Paragraph 7 of the Second Amendment shall be payable upon the
execution by all parties of this Memorandum of New Commencement Date. Tenant
acknowledging that the New Commencement Date, with respect to its rights and
Owner's obligations under the Lease and all Amendments thereto including the
Second Amendment, is contingent upon payment of any and all sums due thereunder
through the date of this Memorandum, which, in the event Owner declares the New
Commencement Date to fall in the middle of a calendar month, shall include
payment of the pro rata portion of said fixed minimum rent and any additional
rent due for the fraction of the calendar month within which the New
Commencement Date falls.
4. Acceptance of New Floor. Tenant acknowledges and agrees that Owner's
work required under the Second Amendment with respect to the New Floor, has been
completed and Tenant hereby accepts the entire 3rd New Floor in its present
condition, subject only to punch list items described on Schedule 1 attached
hereto, which Owner agrees to complete within a reasonable time hereafter, and
subject further to latent defects, if any, not readily discernible upon
reasonable inspection.
IN WITNESS WHEREOF, the parties have executed this New Commencement Date
Memorandum on this _____ day of ______ 1996.
TENANT: iVillage. Inc.
BY: /s/ Candice Carpenter
----------------------
Candice Carpenter, CEO
OWNER: 170 FIFTH ASSOCIATES. INC.
BY: /s/ Sheldon Stein
----------------------
Sheldon Stein President
Vaihal Corp., General Partner
<PAGE>
[LOGO]
THIRD AMENDMENT AND SUPPLEMENT TO LEASE AMENDMENT
AGREEMENT, made this 20 day of January 1997 by and between 170 Fifth Associates,
Inc. a New York Corporation (hereinafter called "Owner") and iVillage, Inc., a
Delaware Corporation, (hereinafter called "Tenant").
WITNESSETH:
WHEREAS, Owner and Tenant, entered into a written agreement of Lease
bearing date of August 21, 1995, (hereafter referred to as the "Lease") whereby
the Owner leased to Tenant and Tenant hired from Owner, all of the fourth floor
"Demised Premises," in the Building situate and known by the street address 170
Fifth Avenue, New York, NY (the "Building");
WHEREAS, Tenant and Owner entered into a First Amendment and Supplement
to the Lease Agreement dated April 5, 1996, to temporarily lease the rear half
of the fifth floor as more particularly set forth therein;
WHEREAS, Tenant and Owner entered into a Second Amendment and Supplement
to the Lease Agreement dated April 5, 1996, to lease the third and tenth floors
of the building, as more particularly set forth therein;
WHEREAS, Tenant and Owner entered into a Letter Agreement dated April
19, 1996, substitute the leasing of the fifth floor in lieu of the leasing of
the tenth floor, as more particularly set forth therein;
WHEREAS, Tenant and Owner entered into a Letter Agreement dated
September 27, 1996, to clarify several issues regarding the design and
construction of the filth floor, as more particularly set forth therein;
WHEREAS, the parties agree to again amend the lease for ten dollars and
good and valuable consideration to provide additional services in the Building
all as hereinafter set forth:
NOW, THEREFORE IT IS HEREBY MUTUALLY AGREED AS FOLLOWS:
1. Amendment to Prevail: If and to the extent that any of the provisions
below of this Amendment conflict or are otherwise inconsistent with
any of the terms of the Lease as previously written or amended
(whether or not such inconsistency is expressly noted below) the
provisions of this Amendment shall prevail.
2. Rental of the 11th Floor: As of the Third Commencement Date as set
forth below, Tenant shall lease the eleventh floor of the building,
170 Fifth Avenue, for a term of two years, commencing on or about May
1, 1997 and ending two years from the Commencement Date, on or about
April 30, 1999, subject to the terms and conditions set forth herein.
Notwithstanding Exhibit 2 attached hereto, if the Commencement of the
11th floor is later than May 1, 1997, the term shall expire upon the
second anniversary of the Commencement Date.
Lease Amendment Page 1 1/14/97
<PAGE>
[LOGO]
3 Premises "As Is": The 11th Floor shall be delivered "As is," in its
present arrangement and condition except that Owner shall provide a
work allowance of $12,000.00 for improving the 12th Floor premises. No
other work by Owner is included as a condition of this agreement.
Owner shall perform work allowance improvements on Tenant's behalf to
achieve values competitive for similar commercial improvements,
including architectural design, painting, partition demolition and
partition construction.
4. The Fixed Minimum Rent for the 11th Floor shall be in accordance with
the rent schedule, Exhibit 2,, attached hereto. The Fixed Minimum Rent
for the 11th Floor shall commence upon delivery of the floor to by
Owner to the Tenant, on or about May 1, 1997.
5 Lease Conditional: The Owner reserves that is agreement is subject to
Owner receiving from the Tenant, to Owner's satisfaction, in Owner's
sole discretion, proof on or before March 15, 1997 of $20 Million in
new funding commitments. In the event that Owner determines that new
funding commitments are insufficient, the leasing of the 11th Floor as
described herein can be withdrawn by Owner and the agreement hereof
shall be null and void.
6. Floor shall be extended for one year to October 31, 1999. The Lease
Term of the Fourth Floor shall be reduced by one year to an expiration
of August 31, 2000.
7. Real Estate Taxes: During the Demised Term, the Tenant shall pay the
increases in Real Estate Taxes for each floor pursuant to section
R1.2.A of the Lease. Each floor represents 8.19% of the building with
the total of the four floors representing 32.76% of the building.
Tenant's tax proportion shall be adjusted for each Lease Year to be
apportioned for the term of he respective floors. The Tenant shall pay
100% of the Tax Payment for the 3rd, 5th and 11th Floors,
notwithstanding the seventh line of R.1.2A in the Lease.
8 Intentionally Deleted.
9. No cleaning or repair services for the Demised Premises are included
by Owner under the terms hereof.
10. Brokers: Tenant warrants to Owner that Tenant has not consulted with
any real estate brokers other than Valhal Corp. Tenant shall indemnify
Owner for any costs or expenses related to a claim by a real estate
broker to Owner for a commission Dot specifically noted herein.
11. Licenses and Use Fees: Tenant shall pay any licenses and use fees or
taxes related to Tenant's occupancy in the Premises including but not
limited to rent taxes and or occupancy fees or equipment usage fees
specifically related to the Demised Premises whether installed by
Owner or Tenant. Such fees may be charged by any city, state or
federal agency and may relate to usage of the premises or services
Lease Amendment Page 2 1/24/97
<PAGE>
[LOGO]
enjoyed by the tenant in the premises whether or not the equipment is
owned by the Tenant or located on the premises for the tenant's use.
12. Not an Offer: Tenant acknowledges and agrees that this instrument is
submitted for review and execution by Tenant subject to final
disposition by Owner; that delivery hereof shall not be deemed to
constitute an "offer" within the meaning of New York State contract
law; and that same shall be binding upon Owner only following Owner's
review, approval, execution and delivery of this Agreement to Tenant
by Owner, in Owner's sole Discretion. Owner's acceptance of this
agreement is also subject to approval by Owner's lender.
13. Ratification of Lease All provisions of the Lease, not expressly
amended hereby remain in full force and effect.
IN WITNESS WHEREOF, the parties hereto, intending to be legally bound hereby,
have hereunto set their hands and seals the day and year first above written.
iViliage, Inc. (Tenant) 170 Fifth Associates, Inc.
Signature /s/ Steven Elkes /s/ Sheldon Stein
-------------------- ------------------------
by: Steven Elkes Sheldon Stein, President
title: VP Finance
Lease Amendment Page 3 1/14/97
<PAGE>
FOURTH AMENDMENT TO LEASE
-------------------------
THIS FOURTH AMENDMENT TO LEASE is made on the 3rd day of
November, 1998 by and between 170 FIFTH ASSOCIATES, INC. (hereinafter called
"Owner") with an office at 55 Fifth Avenue, New York, NY 10003 and
iVilliage, Inc., a Delaware Corporation (hereinafter called "Tenant"), with
an office at 170 Fifth Avenue, New York, NY.
BACKGROUND
----------
Landlord and Tenant are parties to an office Lease dated
August 21, 1995 ("Original Lease"), pursuant to which Landlord leased to
Tenant the fourth floor of the Building 170 Fifth Avenue, New York, NY
("Building").
Whereas, the Original Lease was amended by a First Amendment
dated April 5, 1996;
Whereas, the Lease was amended again with a Second
Amendment dated April 5, 1996, to lease the third and tenth floors of the
Building;
Whereas, the Lease was amended with a Letter Agreement
dated April 19, 1996, substituting the fifth floor in lieu of the tenth
floor of the Building, as more particularly set forth therein;
Whereas, the Lease was amended by a Third Amendment dated
January 20, 1997 which added the 11th floor to the Lease;
Whereas, the Lease was amended by a Letter Agreement dated
May 8, 1997 to clarify issues of the Third Amendment to the Lease:
The Lease as amended by both prior amendments, is
hereinafter referred to as the "Amended Lease".
Whereas, it is the desire of the parties to amend the
lease again, all as hereinafter set forth.
Now, Therefore, intending to be legally bound hereby,
Landlord and Owner agree as follows:
1. TERM ADJUSTMENTS. The Lease term respecting the respective
floors of the Building shall be changed per the schedule below.
<PAGE>
Expiration as of this
Leased Floor Scheduled Term Expiration Fourth Amendment
Third Floor October 31, 1999 Unchanged
Fourth Floor August 31, 2000 May 31, 1999
Fifth Floor October 31, 1998 June 30, 1999
Eleventh Floor April 30, 1999 November 30, 1998
2. RENT. The Fixed Minimum Rent for the fifth floor shall be
increased to $9,000.00 monthly as of May 1, 1999, payable in advance, per
the rent schedule attached hereto as Exhibit A.
3. EFFECTIVENESS. This is not an offer by Landlord to lease space,
and shall become an amendment to the Lease only upon execution by both
parties.
4. NO BROKER. Tenant represents to Owner that it has not consulted
with a Real Estate Broker in this transaction. The Tenant has not engaged a
Broker to represent Tenant in this lease transaction. Tenant recognizes that
Owner's reliance on the foregoing sentence represents a material inducement
to enter into this agreement and in consideration therefore, the Tenant
shall indemnify Owner for and Tenant shall pay any and all costs for Owner
related thereto (including attorney fees, court costs and any commissions,
if ultimately owed) in defending a claim by a real estate broker claiming a
right to a commission related to Broker's claimed engagement or association
with Tenant.
5. RATIFICATION OF LEASE. ALL PROVISIONS OF THE AMENDED LEASE NOT
EXPRESSLY AMENDED HEREBY REMAIN IN FULL FORCE AND EFFECT.
6. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be an original and all of which shall be
one and the same instrument.
7. ENTIRE AGREEMENT. This Agreement (including the documents
referred to herein) constitutes the entire agreement among the parties and
supersedes any prior understandings, agreements, or representations by or
among the parties, written or oral, to the extent they have related in any
way to the subject matter hereof.
8. HEADINGS. The section headings contained in this Agreement are
inserted for convenience only and shall not affect in any way the meaning or
interpretation of this Agreement.
9. EXECUTION. This Agreement may be executed by facsimile
signatures by either party hereto and such signature shall be deemed binding
for all purposes hereof, but each party shall deliver an original signed
copy to the other party immediately thereafter.
<PAGE>
10. AMENDMENTS AND WAIVERS. No amendment of any provision of this
Agreement shall be valid unless the same shall be in writing and signed by
each party hereto. No waiver by any party of any default, misrepresentation,
or breach of warranty or covenant hereunder, whether intentional or not,
shall be deemed to extend to any prior or subsequent default,
misrepresentation, or breach of warranty or covenant hereunder or affect in
any way any rights arising by virtue of any prior or subsequent such
occurrence.
11. SEVERABILITY. Any term or provision of this Agreement that is
invalid or unenforceable in any situation in any jurisdiction shall not
affect the validity or enforceability of the offending term or provision in
any other situation or in any other jurisdiction.
12. INCORPORATION OF EXHIBITS AND ANNEXES. The Exhibits and Annexes
identified in this Agreement are incorporated herein by reference and made a
part hereof.
IN WITNESS WHEREOF, the parties hereto, intending to be
legally bound hereby, have hereunto set their hands and seals the day and
year first above written.
iVillage, Inc. 170 Fifth Associates, Inc.
By: /s/ Steven Elkes By /s/ Sheldon Stein
--------------------------------------- ------------------------------
Steven Elkes, VP Business Affairs Sheldon Stein, President
<PAGE>
Exhibit A
iVillage Rent Schedule 10-19-98 9:31AM
-------------------------------------------------------------------------------------------------------------------------------
Nov-96 Dec-96 Jan-97 Feb-97 Mar-97 Apr-97 May-97 Jun-97 Jul-97
-------------------------------------------------------------------------------------------------------------------------------
3rd Floor $ 6,995.83 $ 6,995.83 $ 6,995.83 $ 6,995.83 $ 6,995.83 $ 6,995.83 $ 6,995.83 $ 6,995.83 $ 7,300.00
-------------------------------------------------------------------------------------------------------------------------------
4th Floor $ 7,592.00 $ 7,592.00 $ 7,592.00 $ 7,592.00 $ 7,592.00 $ 7,592.00 $ 7,592.00 $ 7,592.00 $ 7,592.00
-------------------------------------------------------------------------------------------------------------------------------
5th Floor $ 7,300.00 $ 7,300.00 $ 7,300.00 $ 7,300.00 $ 7,300.00 $ 7,300.00 $ 7,300.00 $ 7,300.00 $ 7,300.00
-------------------------------------------------------------------------------------------------------------------------------
11th Floor $ 8,212.50 $ 8,212.50 $ 8,212.50
-------------------------------------------------------------------------------------------========== ========== ==========
$21,887.83 $21,887.83 $21,887.83 $21,887.83 $21,887.83 $21,887.83 $30,100.33 $30,100.33 $30,404.50
-------------------------------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------------------------------
Nov-97 Dec-97 Jan-98 Feb-98 Mar-98 Apr-98 May-98 Jun-98 Jul-98
-------------------------------------------------------------------------------------------------------------------------------
3rd Floor $ 7,300.00 $ 7,300.00 $ 7,300.00 $ 7,300.00 $ 7,300.00 $ 7,300.00 $ 7,300.00 $ 7,300.00 $ 7,300.00
-------------------------------------------------------------------------------------------------------------------------------
4th Floor $ 7,895.68 $ 7,895.68 $ 7,895.68 $ 7,895.68 $ 7,895.68 $ 7,895.68 $ 7,895.68 $ 7,895.68 $ 7,895.68
-------------------------------------------------------------------------------------------------------------------------------
5th Floor $ 7,573.75 $ 7,573.75 $ 7,573.75 $ 7,573.75 $ 7,573.75 $ 7,573.75 $ 7,573.75 $ 7,573.75 $ 7,573.75
-------------------------------------------------------------------------------------------------------------------------------
11th Floor $ 8,212.50 $ 8,212.50 $ 8,212.50 $ 8,212.50 $ 8,212.50 $ 8,212.50 $ 8,582.06 $ 8,582.06 $ 8,582.06
-------------========== ========== ========== ========== ========== ========== ========== ========== ==========
$30,981.93 $30,981.93 $30,981.93 $30,981.93 $30,981.93 $30,981.93 $31,351.49 $31,351.49 $31,351.49
-------------------------------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------------------------------
Nov-98 Dec-98 Jan-99 Feb-99 Mar-99 Apr-99 May-99 Jun-99 Jul-99
-------------------------------------------------------------------------------------------------------------------------------
3rd Floor $ 7,300.00 $ 7,300.00 $ 7,300.00 $ 7,300.00 $ 7,300.00 $ 7,300.00 $ 7,300.00 $ 7,300.00 $ 7,300.00
-------------------------------------------------------------------------------------------------------------------------------
4th Floor $ 8,211.52 $ 8,211.52 $ 8,211.52 $ 8,211.52 $ 8,211.52 $ 8,211.52 $ 8,211.52 $ 8,211.52 $ 8,211.52
-------------------------------------------------------------------------------------------------------------------------------
5th Floor
-------------------------------------------------------------------------------------------------------------------------------
11th Floor $ 8,582.06 $ 8,582.06 $ 8,582.06 $ 8,582.06 $ 8,582.06 $ 8,582.06
-------------========== ========== ========== ========== ========== ==========
$24,093.58 $24,093.58 $24,093.58 $24,093.58 $24,093.58 $24,093.58
-------------------------------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------------------------------
Nov-99 Dec-99 Jan-00 Feb-00 Mar-00 Apr-00 May-00 Jun-00 Jul-00
-------------------------------------------------------------------------------------------------------------------------------
3rd Floor
-------------------------------------------------------------------------------------------------------------------------------
4th Floor $ 8,539.97 $ 8,539.97 $ 8,539.97 $ 8,539.97 $ 8,539.97 $ 8,539.97 $ 8,539.97 $ 8,539.97 $ 8,539.97
-------------------------------------------------------------------------------------------------------------------------------
5th Floor
-------------------------------------------------------------------------------------------------------------------------------
11th Floor
-------------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------
Aug-97 Sep-97 Oct-97
----------------------------------------------------
3rd Floor $ 7,300.00 $ 7,300.00 $ 7,300.00
----------------------------------------------------
4th Floor $ 7,592.00 $ 7,895.68 $ 7,895.68
----------------------------------------------------
5th Floor $ 7,300.00 $ 7,300.00 $ 7,300.00
----------------------------------------------------
11th Floor $ 8,212.50 $ 8,212.50 $ 8,212.50
----------------========== ========== ==========
$30,404.50 $30,708.18 $30,708.18
----------------------------------------------------
----------------------------------------------------
Aug-98 Sep-98 Oct-98
----------------------------------------------------
3rd Floor $ 7,300.00 $ 7,300.00 $ 7,300.00
----------------------------------------------------
4th Floor $ 7,895.68 $ 8,211.52 $ 8,211.52
----------------------------------------------------
5th Floor $ 7,573.75 $ 7,573.75 $ 7,573.75
----------------------------------------------------
11th Floor $ 8,582.06 $ 8,582.06 $ 8,582.06
----------------========== ========== ==========
$31,351.49 $31,667.33 $31,667.33
----------------------------------------------------
----------------------------------------------------
Aug-99 Sep-99 Oct-99
----------------------------------------------------
3rd Floor $ 7,300.00 $ 7,300.00 $ 7,300.00
----------------------------------------------------
4th Floor $ 8,211.52 $ 8,539.97 $ 8,539.97
----------------------------------------------------
5th Floor
----------------------------------------------------
11th Floor
----------------------------------------------------
----------------------------------------------------
Aug-00 Sep-00 Oct-00
----------------------------------------------------
3rd Floor
----------------------------------------------------
4th Floor $ 8,539.97
----------------------------------------------------
5th Floor
----------------------------------------------------
11th Floor
----------------------------------------------------
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