New York-New York-149 Fifth Avenue Lease - 149 Fifth Avenue Corp. and iVillage Inc.
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STANDARD FORM OF LOFT LEASE
The Real Estate Board on New York, Inc.
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Agreement of Lease, made as of this 5th day of March 1998, between 149 Fifth
Avenue Corporation, a New York corporation with offices c/o William Colavito,
Inc., 510 Madison Avenue, New York, NY 10022 party of the first part,
hereinafter referred to as OWNER, and iVILLAGE, INCORPORATED, a Delaware
Corporation, with offices at 170 Fifth Avenue N.Y., NY 10010 party of the second
part, hereinafter referred to as TENANT,
Witnesseth: Owner hereby leases to Tenant and Tenant hereby hires from Owner The
westerly Portion of the second (2nd) floor as shown in blue on the plan attached
hereto and forming a part of this lease. (5500 square feet) in the building
known as 149 Fifth Avenue, thru to and including 921-5 Broadway in the Borough
of Manhattan, City of New York, for the term of TWO (2) YEARS & 1/2 MONTHS (or
until such term shall sooner cease and expire as hereinafter provided) to
commence on the 15th day of March nineteen hundred and Ninety-Eight, and to end
on the 31st day of March Two Thousand both dates inclusive, at an annual rental
rate of ONE HUNDRED TEN THOUSAND ($110,000.00) DOLLARS
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 on such or such 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 that, 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: 1. Tenant shall pay the rent as above and as hereinafter provided.
Occupancy: 2. Tenant shall use and occupy demised premises for offices for its
internet web site business provided such use is in accordance with the
certificate of occupancy for the building, if any, and for no other purpose.
Alterations:
3. Tenant shall make no changes in or to the demised premises of any nature
without Owner's prior written consent not to be unreasonably withheld or
delayed. Subject to 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 nonstructural and which do not affect
utility services or plumbing and electrical lines, in or to the interior of the
demised premises using contractors or mechanics. Tenant shall, at its expense,
before making any alterations, additions, installations or improvements obtain
all permits, approval 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. 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 necessary and as Owner may
reasonably 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 payment or filing the bond required by
law or otherwise. All fixtures and all paneling, partitions, railings and like
installations, installed in the premises at any time, either by Tenant or by
Owner on 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
demised 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, taking into regard ordinary wear and tear repair and restore the
premises to the condition existing prior to installation and repair any material
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 removed from the
premises by Owner, at Tenant's expense.
Repairs:
4. Owner shall maintain and repair the exterior of and the public portions of
the building. Tenant shall, throughout the term of this lease, take good care of
the demised premises including the bathrooms and lavatory facilities and the
windows and window frames and, the fixtures and appurtenances therein and at
Tenant's sole cost and expense promptly make all repairs thereto and to the
building, whether structural or non-strucutural in nature, caused by or
resulting from the carelessness, omission, neglect or improper conduct of
Tenant, Tenant's servants, employees, invitees, or licensees, and whether or not
arising from such Tenant conduct or omission, when required by other provisions
of this lease, including Article 6. Tenant shall also repair all damage to the
building and the demised premises caused by the moving of Tenant's fixtures,
furniture or equipment. All the aforesaid repairs shall be of quality or class
equal to the original work or construction. If Tenant fails, after ten days
notice, to proceed with due diligence to make repairs required to be made by
Tenant, the same may be made by the Owner at the expense of Tenant, and the
expenses thereof incurred by Owner shall be collectible, as additional rent,
after rendition of a bill or statement therefore. If the demised premises be or
become infested with vermin as a direct result of action or inaction by tenant,
Tenant shall, at its expense, cause the same to be exterminated. Tenant shall
give Owner prompt notice of any defective condition in any plumbing, heating
system or electrical lines located in the demised premises and following such
notice, Owner shall remedy the condition with due diligence and with best
efforts, but at the expense of Tenant, if repairs are necessitated by damage or
injury attributable to Tenant, Tenant's servants, agents, employees, invitees or
licensees as aforesaid not attributable to ordinary wear and tear. Except as
specifically provided in Article 9 or elsewhere in this lease, there shall be no
allowance to the Tenant for a diminution of rental value and no liability on the
part of Owner by reason of inconvenience, annoyance or injury to business
arising from Owner, Tenant or others making or failing to make any 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 set
off or reduction of rent by reason of any non-material failure of Owner to
comply with the covenants of this or any other article of this lease. Tenant
agrees that Tenant's sole remedy at law in such instance will be by way of any
action for damages for breach of contract. The provisions of this Article 4 with
respect to the making of repairs shall not apply in the case of fire or other
casualty with regard to which Article 9 hereof shall apply.
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 New York State Labor Law or any other applicable law or of the Rules of the
Board of Standards and Appeals, or of any other Board or body having or
asserting jurisdiction.
Requirements of Law, Fire Insurance:
6. Prior to the commencement of the lease term, if Tenant is then in possession,
and at all times thereafter Tenant shall, at Tenant's solo cost and expense,
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 direction of any public officer pursuant to law, and all orders,
rules and regulations of the New York Board of Fire Underwriters, or the
Insurance Services Office, or any similar body which shall impose any violation,
order or duty upon Owner or Tenant with respect to the demised premises, whether
or not arising out of Tenant's use or manner of use thereof, or, with respect to
the building, if arising out of Tenant's use or manner of use of the demised
premises of the building (including the use permitted under the lease). Except
as provided in Article 30 hereof, 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 shall not do or
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permit any act or thing to be done in or to the demised premises which is
contrary to law, or which will invalidate or be in conflict with public
liability, fire or other policies of insurance at any time carried by or for the
benefit of Owner. Tenant shall not keep anything in the demised premises except
as now or hereafter permitted by the Fire Department, Board of Fire
Underwriters, Fire Insurance Rating Organization and 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 substantially increase the insurance rate for
the building or any property located therein over that in effect prior to the
commencement of Tenant's occupancy. If by reason of failure to comply with the
foregoing the fire insurance rate shall, at the beginning of this lease or any
time thereafter, be higher than it otherwise would be, then Tenant shall
reimburse Owner, as additional rent hereunder, for that portion of all fire
insurance premiums thereafter paid by Owner which shall have been charged
because of such failure by Tenant. Tenant shall be entitled to conduct an
independent audit to determine an increase in Owner's insurance rate, proposed
increase, if any, and if the audit reveals less than owner's proposed increase,
Tenant's independent audit rate shall apply to said increase, if any. In any
action or proceeding wherein Owner and Tenant are parties, a schedule or
"make-up" or rate for the building or demised premises issued by a body making
fire insurance rates applicable to said premises shall be conclusive evidence of
the facts therein stated and of the several items and charges in the fire
insurance 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 or 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 from time to time execute promptly any certificate that Owner may
reasonably request.
Tenant's Liability Insurance Property Loss, Damage, Indemnity:
8. Owner or its agents shall not be liable for any damage to property of Tenant
or of others entrusted to employees of the building, nor for loss of or damage
to any property of Tenant by theft or otherwise, nor for any injury or damage to
persons or property resulting from any cause of whatsoever nature, unless caused
by or due to the negligence of Owner, its agents, servants or employees; Owner
or its agents shall not be liable for any damage caused by other tenants or
persons in, upon or about said building or caused by operations in connection of
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 attorney's 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 repaired by and at the
expense of Owner and the rent and other items of additional rent as applicable,
until such repair shall be completed, shall be apportioned from the day
following the casualty according to the part of the premises which is usable.
(c) If the demised premises are totally damaged or rendered wholly unusable by
fire or other casualty, then the rent and other items of additional rent as
hereinafter expressly provided shall be proportionately paid up to the time of
the casualty and thenceforth shall cease until the date when the premises shall
have been repaired and restored by Owner (or sooner reoccupied in part by Tenant
then rent shall be apportioned as provided in subsection (b) above), 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, or 30 days after adjustment of
the insurance claim for such fire or casualty, whichever is sooner, specifying a
date for the expiration of the lease, which date shall not be more than 60 days
after the giving of such notice, and upon the date specified in such notice the
term of the 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
Owner's rights and remedies against Tenant under the lease provisions in effect
prior to such termination, and any rent owing shall be paid up to such date and
any payments of rent made by Tenant which were on account 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. (c) Nothing contained hereinabove
shall relieve Tenant from liability that may exist as a result of damage from
fire or other casualty. Notwithstanding the foregoing, including Owner's
obligation to restore under subparagraph (b) above, 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 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 with respect to subparagraphs (b), (d) and (c) above, against the other
or any one claiming through or under each of them by way of subrogation or
otherwise. The release and waiver herein referred to shall be deemed to include
any loss or damage to the demised premises and/or to any personal property,
equipment, trade fixtures, goods and merchandise located therein. The foregoing
release and waiver shall be in force only if both releasors' insurance policies
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 appurtunances
removable by Tenant and agrees that Owner will not be obligated to repair any
damage thereto or replace the same.
Eminent Domain:
10. If the whole or any part of the demised premises shall be acquired or
condemned by Eminent Domain for any public or quasi public use or purpose, then
and in that event, the term of this lease shall cease and terminate from the
date of title vesting in such proceeding and Tenant shall have no claim for the
value of any unexpired term of said lease. Tenant shall have the right to make
an independent claim to the condemning authority for the value of Tenant's
moving expenses and personal property, trade fixtures and equipment, provided
Tenant is entitled pursuant to the terms of the lease to remove such property,
trade fixtures and equipment at the end of the term and provided further such
claim does not reduce Owner's award.
Assignment, Mortgage, Etc.:
11. Tenant, for itself, 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 not to be unreasonably
withheld or delayed. Transfer of the majority of the stock of a corporate Tenant
or the majority partnership interest of a partnership 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 my be, to be added in RIDER attached hereto. Tenant covenants and agrees
that at all times its use of electric current shall no 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 reasonable change at any time of the
character of electric service shall in no wise make Owner liable or responsible
to Tenant, for any loss, damages or expenses which Tenant may sustain.
Access to Premises:
13. Owner or Owner's agents shall have the right (but shall not be obligated) to
enter the demised premises in any emergency at any time, and, at other
reasonable times, to examine the same and to make such repairs, replacements and
improvements as Owner may deem necessary and reasonably desirable to any portion
of the building or which Owner may elect to perform in the premises after
Tenant's failure to make repairs or perform any work which Tenant is obligated
to perform under this lease, or for the purpose of complying with laws,
regulations and other directions of governmental authorities. Tenant shall
permit Owner to use and maintain and replace pipes and conduits in and through
the demised premises and to erect new pipes and conduits therein provided,
wherever possible, they are within walls or otherwise concealed. Owner may,
during the progress of any work in the demised premises, take all necessary
materials and equipment into said premises without the same constituting an
eviction nor shall the Tenant be entitled to any abatement of rent while such
work is in progress nor to any damages by reason of loss or interruption of
business or otherwise. However, the Owner agrees to make its best effort to
expedite such work and perform same in a diligent and unobtrusive manner.
Throughout the term hereof Owner shall have the right to enter the demised
premises at reasonable hours for the purpose of showing the same to prospective
purchasers or mortgagees of the building, and during the last six months of the
term for the purpose of showing the same to prospective tenants and may, during
said six months period, place upon
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the demised premises the usual notices "To Let" and "For Sale" which notices
Tenant shall permit to remain thereon without molestation. If Tenant is not
present to open and permit an entry into the demised 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 best efforts are 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 upon prior notice to
Tenant enter, alter, renovate or redecorate the demised premises without
limitation or abatement of rent, and such act shall have no effect on this lease
or Tenant's obligation 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
building, which Tenant may be permitted to use and/or occupy, is to be used
and/or occupied under a revocable license, and if any such license be revoked,
or if the amount of such space or area be diminished or required by any federal,
state or municipal authority or public utility, Owner shall not be subject to
any liability nor shall Tenant be entitled to any compensation or diminution or
abatement of rent, nor shall such revocation, diminution or requisition be
deemed constructive or actual eviction. Any tax, fee or charge of municipal
authorities for such vault or area shall be paid by Tenant, if used by Tenant,
whether or not specifically leased hereunder.
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. If any governmental license or permit shall be required for the proper
and lawful conduct of Tenant's business, Tenant shall be responsible for and
shall procure and maintain such license or permit. See Art. 57.
Bankruptcy:
16: (a) Anything elsewhere in this lease to the contrary notwithstanding, this
lease may be cancelled by either party by sending of a written notice to the
other party within a reasonable time after the happening of any one or more of
the following events: (1) the commencement of a case in bankruptcy or under the
laws of any state naming as the debtor; or (2) the making by the other party of
an assignment or any other arrangement for the benefit of creditors under any
state statute. Neither Tenant nor any person claiming through or under Tenant,
or by reason of any statute or order of court, shall thereafter be entitled to
possession of the premises demised but shall forthwith quit and surrender the
premises. If this lease shall be assigned in accordance with its terms, the
provisions of this Article 16 shall be applicable only to the party then owning
Tenant's interest in this 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 rental reserved hereunder for the unexpired
portion of the term demised 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 thereof 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.
Default:
17. (1) If Tenant defaults in fulfilling any of the covenants of this lease
other than the covenants for the payment of rent or additional rent; or if the
demised premises becomes vacant or deserted" or if this lease be rejected under
ss. 235 of Title 11 of the U.S. Code (bankruptcy code);" 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 Tenant shall make default with respect to any other lease between
Owner and Tenant; or if Tenant shall have failed, after five (5) days written
notice, to redeposit with Owner any portion of the security deposited hereunder
which Owner has applied to the payment of any rent and additional rent due and
payable hereunder or failed to move into or take possession of the premises
within thirty (30) days after the commencement of the term of this lease, of
which fact Owner shall be the sole judge; then in any one or more of such
events, upon Owner serving a written fifteen (15) days notice upon Tenant
specifying the nature of said default and upon the expiration of said fifteen
(15) days, if Tenant shall have failed to comply with or remedy such default, or
if the said default or omission complained of shall be of a nature that the same
cannot be completely cured or remedied within said fifteen (15) day period, and
if Tenant shall not have diligently commenced during such default within such
fifteen (15) day period, and shall not thereafter with reasonable diligence and
in good faith, proceed to remedy or cure such default, then Owner may serve a
written five (5) days' notice of cancellation of this lease upon Tenant, and
upon the expiration of said five (5) days this lease and the term thereunder
shall end and expire as fully and completely as if the expiration of such five
(5) day period were the day herein definitely fixed for the end and expiration
of this lease and the term thereof and Tenant shall then quit and surrender the
demised premises to Owner but Tenant shall remain liable as hereinafter
provided. (2) If the notice provided for in (1) hereof shall have been given,
and the term shall expire as aforesaid; or if Tenant shall make default in the
payment of the rent reserved herein or any item of additional rent herein
mentioned or any part of either or in making any other payment herein required;
then and in any of such events Owner may without notice, re-enter the demised
premises either by force or otherwise, and dispossess Tenant by summary
proceedings or otherwise, and the legal representative of Tenant or other
occupant of demised premises and remove their effects and hold the premises as
if this lease had not been made, and Tenant hereby waives the service of notice
of intention to re-enter or to institute legal proceedings to that end. 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, expiration and/or dispossess by
summary proceedings or otherwise, (a) the rent, and additional rent, shall
become due thereupon and be paid up to the time of such re-entry, dispossess
and/or expiration, (b) Owner may re-let the premises or any part or parts
thereof, either in the name of Owner or otherwise, for a term or terms, which
may at Owner's option be less than or exceed the period which would otherwise
have constituted the balance of the term of this lease and may grant concessions
or free rent or charge a higher rental than that in this lease, (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
subsequent 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 reasonable attorney's
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 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 by
Tenant of any of the covenants or provisions hereof, Owner may 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.
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, after reasonable notice
if required and upon expiration of any applicable grace period if any, (except
in an emergency), 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,
make any expenditures or incurs any obligations for the payment of money,
including but not limited to reasonable attorney's fees, in instituting,
prosecuting or defending any action or proceedings, and prevails in any such
action or proceeding, then Tenant will reimburse Owner for such sums so paid or
obligations incurred. 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 Owner within ten (10) 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 therefor to change the
arrangement and or location of public entrances, passageways, doors, doorways,
corridors, elevators, stairs, toilets or other public parts of the building and
to change the name, number or designation by which the building may be known.
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 Tenant making any repairs in the
building or any such alterations, additions and improvements. Furthermore,
Tenant shall not have any claim against Owner by reason of Owner's imposition of
any controls of the manner of access to the building by Tenant's social or
business visitors as the Owner may reasonably deem necessary for the security of
the building and its occupants. However, the Owner agrees to make it's best
effort to expedite such work and perform same in a diligent and unobtrusive
manner.
<PAGE>
No Representations by Owner:
21. Neither Owner nor Owner's agents have made any representations or promises
with respect to the physical condition of the building, the land upon which it
is erected or the demised premises, the rents, leases, expenses of operation or
any other matter or thing affecting or related to the demised premises or the
building 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" on the date possession is tendered 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 from the demised premises. 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 this lease including, but not limited to, Article 34
hereof and to the ground leases, underlying leases and mortgages hereinbefore
mentioned.
Failure to Give Possession:
24. If Owner is unable to give possession of the demised premises on the date of
the commencement of the term hereof, because of the holding-over or retention of
possession of any tenant, undertenant or occupants or if the 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 if Owner has
not completed any work required to be performed by Owner, 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 or complete
any work required) until after Owner shall have given Tenant notice that Owner
is able to deliver possession in the condition required by this lease. 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 possession and/or occupancy shall be deemed to be under all the
terms, covenants, conditions and provisions of this lease, except the obligation
to pay the fixed annual rent set forth in page one of this lease. 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 lease provided. All checks tendered to Owner as and for the rent of the
demised premises shall be deemed payments for the account of Tenant. Acceptance
by Owner of rent from anyone other than Tenant shall not be deemed to operate as
an attornment to Owner by the payor of such rent or as a consent by Owner to an
assignment or subletting by Tenant of the demised premises to such payor, or as
a modification of the provisions of this lease. 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.
26. Waiver of Trial by Jury:
(Text Omitted)
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,
fixtures or other materials if Owner is prevented or delayed from doing so by
reason of strike or labor troubles or any cause whatsoever beyond Owner's sole
control including, but not limited to, government preemption or restrictions 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 which have been
or are affected, either directly or indirectly, 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 rendered 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.
Water Charges:
29. If Tenant requires, uses or consumes water for any purpose in addition to
ordinary lavatory purposes Owner may install a water meter and thereby
reasonably and proportionately measure Tenant's water consumption for all other
purposes. Tenant shall pay Owner for the cost of the meter and the cost of the
installation, thereof and throughout the duration of Tenant's occupancy Tenant
shall keep said meter and installation equipment in good working order and
repair at Tenant's own cost and expense in default of which Owner may cause such
meter and equipment to be replaced or repaired and collect the cost thereof from
Tenant, as additional rent. Tenant agrees to pay for water consumed, as shown on
said meter as and when bills are rendered, and on default in making such payment
Owner may pay such charges and collect the same from Tenant, as additional rent.
Tenant agrees to pay for water consumed, as shown on said meter as and when
bills are rendered, and on default in making such payment Owner may pay such
charges and collect the same from Tenant, as additional rent. Tenant covenants
and agrees to pay, as additional rent, the sewer rent, charge or any other tax,
rent, levy or charge which now or hereafter is assessed, imposed or a lien upon
the demised premises or the realty of which they are part pursuant to law, order
or regulation made or issued in connection with the use, consumption,
maintenance or supply of water, water system or sewage or sewage connection or
system. If the building or the demised premises or any part thereof is supplied
with water through a meter through which water is also supplied to other
premises Tenant shall pay to Owner, as additional rent, on the first day of each
month, % ($ ) of the total meter charges as Tenant's portion. Independently of
and in addition to any of the remedies reserved to Owner hereinabove or
elsewhere in this lease, Owner may sue for and collect any monies to be paid by
Tenant or paid by Owner for any of the reasons or purposes hereinabove set
forth.
Sprinklers:
30. Anything elsewhere in this lease to the contrary notwithstanding, if the New
York Board of Fire Underwriters or the New York Fire Insurance Exchange or any
bureau, department or official of the federal, state or city government
recommend or require the installation of a sprinkler system or that any changes,
modifications, alterations, or additional sprinkler heads or other equipment be
made or supplied in an existing sprinkler system by reason of Tenant's business,
or the location of partitions, trade fixtures, or other contents of the demised
premises, or if any such sprinkler system installations, modifications,
alterations, additional sprinkler heads or other such equipment, become
necessary to prevent the imposition of a penalty or charge against the full
allowance for a sprinkler system in the fire insurance rate set by any said
Exchange or by any fire insurance company, due to Tenant's tenancy or use of the
demised premises Tenant shall, at Tenant's expense, promptly make such sprinkler
system installations, changes, modifications, alterations, and supply additional
sprinkler heads or other equipment as required whether the work involved shall
be structural or non-structural in nature. Tenant shall pay to Owner as
additional rent the sum of $___, on the first day of each month during the term
of this lease, as Tenant's portion of the contract price for sprinkler
supervisory service.
Elevators, Heat, Cleaning:
31. As long as Tenant is not in material or material monetary default under any
of the covenants of this lease beyond the applicable grace period provided in
this lease for the curing of such defaults, Owner shall: (a) provide necessary
passenger elevator facilities on business days from 8 a.m. to 6 p.m. and on
Saturdays from 8 a.m. to 1 p.m. and have at least one (1) passenger elevator in
service at all other times; (b) if freight elevator service is provided, same
shall be provided only on regular business days Monday through Friday inclusive,
and on those days only between the hours of 9 a.m. and 12 noon and between 1
p.m. and 5 p.m.; (c) furnish heat, water and other services supplied by Owner to
the demised premises, when and as required by law, on business days from 8 a.m.
to 6 p.m. and on Saturdays from 8
<PAGE>
a.m. to 1 p.m.; (d) clean the public halls and public portions of the building
which are used in common by all tenants. Tenant shall, at Tenant's expense, keep
the demised premises, including the windows, clean and in order, to the
reasonable satisfaction of Owner, and for that purpose shall employ the person
or persons, or Corporation approved by Owner. Tenant shall pay to Owner the
reasonable cost of removal of any of Tenant's refuse and rubbish from the
building. Bills for the same shall be rendered by Owner to Tenant at such time
as Owner may elect and shall be due and payable hereunder, and the amount such
bills shall be deemed to be, and be paid as, additional rent. Tenant shall,
however, have the option of independently contracting for the removal of such
rubbish and refuse in the event that Tenant does not wish to have same done by
employees of Owner. Under such circumstances, however, the removal of such
refuse and rubbish by others shall be subject to such rules and regulations as,
in the judgment of Owner, are necessary for the proper operation of the
building. Owner reserves the right to stop service of the heating, elevator,
plumbing and electric systems, when necessary, by reason of accident, or
emergency, or for repairs, alterations, replacements or improvements, in the
judgment of Owner necessary to be made, until said repairs, alterations,
replacements or improvements shall have been completed. If the building of which
the demised premises are a part supplies manually operated elevator service,
Owner may proceed diligently with alterations necessary to substitute automatic
control elevator service without in any way affecting the obligations of Tenant
hereunder.
Security:
32. Tenant has deposited with Owner the sum of $18,333.32 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 material
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 material rent and
additional rent or any other sum to which Tenant is in material default or for
any sum which Owner may expend or may be required to expend by reason of
Tenant's default with respect of any of the terms, covenants and conditions of
this lease, including, but not limited to, any damages or deficiency in the
reletting of the premises, whether such damage or deficiency accrued before or
after summary proceedings or other re-entry by Owner. In the event that Tenant
shall comply with all of the terms, provisions, covenants and conditions of this
lease, the security shall be returned to Tenant within fourteen (14) days 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 the 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
such security; and Tenant agrees to look to the new Owner solely for the return
of said security, and it is agreed that the provisions hereof shall apply to
every transfer or assignment made of the security to a new Owner. Tenant further
convenants 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.
Captions:
33. 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
or any provision thereof.
Definitions:
34. The term "Owner" as used in this lease means only the owner of the fee or of
the leasehold of the building, 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 "rent"
includes the annual rental rate whether so expressed or expressed in monthly
installments, and "additional rent." "Additional rent" means all sums which
shall be due to Owner from Tenant under this lease, in addition to the annual
rental rate. The term "business days" as used in this lease, shall exclude
Saturdays, Sundays and all days observed by the State or Federal Government as
legal holidays and those designated as holidays by the applicable building
service union employees service contract or by the applicable Operating
Engineers contract with respect to HVAC service. Wherever it is expressly
provided in this lease that consent shall not be unreasonably withheld, such
consent shall not be unreasonably delayed.
Adjacent Excavation-Shoring:
35. 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:
36. Tenant and Tenant's servants, employees, agents, visitors, and licensees
shall observe faithfully, and comply with, the Rules and Regulations annexed
hereto 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 any additional 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 fifteen (15) days after the giving of
notice thereof. Nothing in this lease contained shall be construed to impose
upon Owner any duty or obligation to enforce the Rules and Regulations or terms,
covenants or conditions in any other lease, as against any other tenant and
Owner shall not be liable to Tenant for violation of the same by any other
tenant, its servants, employees, agents, visitors or licensees.
Glass:
37. Owner shall replace, at the expense of the Tenant, any and all plate and
other glass damaged or broken from any cause whatsoever in and about the demised
premises. Owner may insure, and keep insured, all plate and other glass in the
demised premises for and in the name of Owner. Bills for the premiums therefor
shall be rendered by Owner to Tenant at such times as Owner may elect, and shall
be due from, and payable by, Tenant within thirty (30) days of receipt of such
amount thereof shall be deemed to be, and be paid, as additional rent.
Estoppel Certificate:
38. Tenant, at any time, and from time to time, upon at least 10 days' prior
notice by Owner, shall execute, acknowledge and deliver to Owner, and/or to any
other person, firm or corporation specified by Owner, a statement certifying
that this Lease is unmodified 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.
Directory Board Listing:
39. If, at the request of and as accommodation to Tenant, Owner shall place
upon the directory board in the lobby of the building, one or more names of
persons other than Tenant, such directory board listing shall not be construed
as the consent by Owner to an assignment or subletting by Tenant to such person
or persons.
Successors and Assigns:
40. 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. Tenant shall look only to Owner's estate
and interest in the land and building for the satisfaction of Tenant's remedies
for the collection of a judgement (or other judicial process) against Owner in
the event of any default by Owner hereunder, and no other property or assets of
such Owner (or any partner, member, officer or director thereof, disclosed or
undisclosed), shall be subject to levy, execution or other enforcement procedure
for the satisfaction of Tenant's remedies under or with respect to this lease,
the relationship of Owner and Tenant hereunder, or Tenant's use and occupancy of
the demised premises.
----------
>Space to be filled in or deleted.
ATTACHED hereto is Rider containing Articles No. 41 to 56 incl., which are
incorporated with and made a part of this lease.
In Witness Whereof, Owner and Tenant have respectively signed and sealed this
lease as of the day and year first above written.
WILLIAM COLAVITO, INC., AAF
Witness for Owner: 149 FIFTH AVENUE CORPORATION
(CORP. SEAL)
/s/ ILLEGIBLE BY: /s/ STEVEN T. COLAVITO [L.S.]
------------------------------ ---------------------------
Steven T. Colavito, Vice President
Witness for Tenant iVILLAGE, INC.
Steve Elkes, VP. Finance/legal
(CORP. SEAL)
/s/ Aimee Feuer BY: /s/ Steve Elkes [L.S.]
------------------------------ ---------------------------
Please print name & title
<PAGE>
--------------------------------------------------------------------------------
ADDITIONAL CLAUSES attached to and forming a part of lease dated March 5, 1998
between 149 FIFTH AVENUE CORPORATION, Owner
and-
iVILLAGE INC. Tenant,
Westerly portion of the second floor 149 FIFTH AVENUE, NEW YORK
--------------------------------------------------------------------------------
41. It is mutually understood and agreed that Tenant herein will obtain its
electricity for the demised premises through the presently existing wiring and
equipment servicing the demised premises, either on a "submetering" basis or on
a "rent inclusion" basis. Initially, the parties agree, electricity distribution
shall be on a "submetering" basis, utilizing existing submeter(s) serving the
Floor, however if for any reason beyond the Owner's control, including action by
government or other authority asserting jurisdiction over the matter tenant can
no longer obtain its electricity supply on a "submetering" basis, then and in
such events Owner will redistribute to Tenant the electricity for the demised
premises, on a "rent inclusion" basis, as hereinafter provided for in this
article.
(A) Submetering: If and so long as Landlord provides electricity to the
demised premises on a submetering basis, Tenant covenants and agrees to purchase
the same from Landlord or Landlord's designated agent at Landlord's Cost (as
hereinafter defined), for Tenant's submetered electricity consumption plus 10%
thereof. Where more than one meter measures the service of Tenant in the
Building, the KWHR and the KW recorded by each meter shall be added, and billed
as if billed from a single meter. Bills therefor shall be rendered at such time
as Landlord may elect and the amount, as computed from a meter or meters and
determined by Landlord's electrical consultant, in accordance with this Article,
shall be deemed to be, and be paid as, additional rent
Landlord's Cost for such redistributed electricity shall be equal to Landlord's
Cost Rates (as hereinafter defined) for the relevant billing period multiplied
by Tenant's electricity consumption (i.e., energy and demand) based on the meter
readings as herein provided.
(B) Landlord's Cost Rates Shall be determined as follows:
Landlord's Electricity Consumption Cost", (Landlords' cost per KWHR) for any
given Utility Billing Period, shall mean the amount arrived at by dividing (i)
Landlord's KWHR cost, as indicated on the applicable utility bill (inclusive of
any taxes, including any taxes included in the computation of said utility bill)
for Landlord's Electricity Consumption for said Utility Billing Period,
inclusive of any fuel adjustments or rate adjustments contained in said utility
bill allocable to Landlord's Electricity Consumption (provided that same have
not been included in the computation of Landlord's Electricity Demand Cost), by
(ii) Landlord's Electricity Consumption as indicated on said bill.
"Landlord's Electricity Demand Cost", (Landlord's cost per KW) for any given
Utility Billing Period, shall mean the amount arrived at by dividing (i)
Landlord's KW cost, as indicated on the applicable utility bill (inclusive of
any taxes, including any taxes included in the computation of said utility bill)
for Landlord's Electricity Demand for said Utility Billing Period, inclusive of
any rate adjustments contained in said utility bill allocable to Landlord's
Electricity Demand (provided that same have not been included in the computation
of Landlord's Electricity Consumption cost), by (ii) Landlord's Electricity
Demand as indicated on said bill. For purposes of determining Landlord's
Electricity Consumption Cost and Landlord's Electricity Demand Cost, each amount
appearing on any utility bill for demand, energy, fuel or rate adjustments shall
be taken into account (where it cannot be determined from the utility bill
whether such amount related to consumption or to demand, it shall be deemed to
relate to demand).
"Utility Billing Period" shall mean the respective period of electricity
consumption and demand for which Landlord is charged on each successive bill
from the utility company furnishing electricity to the Building.
For purposes of this Article, the following terms shall have the following
meanings:
================================================================================
TO BE SIGNED BY THE LANDLORD AND TENANT
================================================================================
LANDLORD TENANT
WILLIAM COLAVITO, INC., AS AGENT FOR IVILLAGE, INC.
149 FIFTH AVENUE CORPORATION
BY: /s/ Steven T. Colavito BY: /s/ Steve Elkes
-------------------------------- ----------------------------
Steven T. Colavito, Vice President
--------------------------------------------------------------------------------
<PAGE>
--------------------------------------------------------------------------------
ADDITIONAL CLAUSES attached to and forming a part of lease dated March 5, 1998
between 149 FIFTH AVENUE CORPORATION, Owner
and-
iVILLAGE INC. Tenant,
Westerly portion of the second floor 149 FIFTH AVENUE, NEW YORK
--------------------------------------------------------------------------------
"Landlord's Electricity Consumption", for any given Utility Billing Period,
shall mean the number of kilowatt hours of electricity consumed in and for the
Building (including common areas, tenantable areas and mechanical areas) during
said Utility Billing Period, as indicated on the applicable utility bill.
"Landlord's Electricity Demand", for any given Utility Billing Period, shall
mean the number of kilowatts of electricity demanded in and for the Building
(including common areas, tenantable areas and mechanical areas) during said
Utility Billing Periods, as indicated on the applicable utility bill.
C) Rent inclusion: If and so long as Landlord provides electricity to the
demised premises on a rent inclusion basis. Tenant agrees;
1. The fixed annual rent shall be increased by the amount of the
Electricity Rent Inclusion Factor ("ERIF"), as hereinafter defined. Tenant
acknowledges and agrees (i) that the fixed annual rents hereinabove set forth
in this lease do not yet but are to include an ERIF to compensate Landlord for
electrical wiring and other installations necessary for, and for its obtaining
and making available to tenant, the redistribution of, electric current as an
additional service; and (ii) that such ERIF, which is a portion of the fixed
annual rent, shall be subject to periodic adjustments as herein provided..
2. The ERIF shall be based on a survey of Tenant's consumption of
redistributed electricity, made as hereinafter provided, and shall be equal to a
sum equal to Landlord's cost ("Landlord's Cost") for such electricity, plus ten
percent (10%) thereof. (Landlords Cost for such redistributed electricity shall
be equal to Landlord's Cost Rates (as hereinabove defined ) for the relevant
billing period (s) multiplied by Tenant's electricity consumption (i.e. .,
energy and demand) based on the most recent survey thereof, all as hereinafter
provided.) If after the start of the relevant billing period, the cost to
Landlord of electricity shall be increased or decreased, by change in Landlord's
electric rates or service classifications, or by electricity charges, including
changes to in market prices, or by changes in fuel adjustments, or by taxes or
charges of any kind imposed on Landlord's electricity purchases, or on
Landlord's electricity redistribution, then the ERIF, based on the most recent
survey, shall be redetermined, effective as of the date of such change in rates,
etc., by Landlord's electrical consultant, in accordance with the provisions
hereof.
3. The parties agree that a reputable, independent electrical consultant,
mutually selected by Landlord and Tenant ("electrical consultant") shall by
survey determine an estimate of Tenant's demand and energy in order to calculate
the ERIF in accordance with this article, and that electrical
consultant shall from time to time make surveys in the demised premises of the
electrical equipment and fixtures and the use of current in and for such space.
The ERIF portion of the fixed annual rent shall theft be appropriately
adjusted, effective as of the date of each said survey, and in accordance with
the provisions hereof.
Pending the results of the first survey and determination to be made by
Landlord's consultant, as herein provided, Tenant shall pay to Landlord a
temporary ERIF at the rate of $2.50 per rentable square foot per year (which
temporary charge shall thereafter be adjusted by survey and computations as
hereinafter provided), for any portion of the demised premises receiving
electricity on a rent inclusion basis. Said temporary payments shall be adjusted
between Landlord and Tenant, by appropriate payments thereafter or by rent
credits, retroactive to Tenant's commencement of being provided electricity on a
rent inclusion basis, Landlord will cause such a survey and determination to be
made of the electricity consumption in and for said space: the initial survey's
ERIF shall be payable from the date of the start of rent inclusion thereunder.
Thereafter, the ERIF shall be adjusted in accordance with surveys and
determinations by Landlord's electrical consultant, retroactive to the date of
such survey subsequent to the initial survey of the demised premises.
================================================================================
TO BE SIGNED BY THE LANDLORD AND TENANT
================================================================================
LANDLORD TENANT
WILLIAM COLAVITO, INC., AS AGENT FOR IVILLAGE, INC.
149 FIFTH AVENUE CORPORATION
BY: /s/ Steven T. Colavito BY: /s/ Steve Elkes
-------------------------------- ----------------------------
Steven T. Colavito, Vice President
--------------------------------------------------------------------------------
<PAGE>
--------------------------------------------------------------------------------
ADDITIONAL CLAUSES attached to and forming a part of lease dated March 5, 1998
between 149 FIFTH AVENUE CORPORATION, Owner
and-
iVILLAGE INC. Tenant,
Westerly portion of the second floor 149 FIFTH AVENUE, NEW YORK
--------------------------------------------------------------------------------
The parties understand and agree that in any survey of Tenant's electricity
consumption in and for the demised premises, the consultant's survey results
shall be calculated to reflect a proper demand (diversity) factor.
42. SORTING AND SEPARATION OF REFUSE AND TRASH
(1) Tenant covenants and agrees, at its sole cost and expense, to comply with
all present and future laws, orders, and regulations of all state, federal,
municipal, and local governments, departments, commissions, and boards regarding
the collection, sorting, separation, and recycling of waste products, garbage,
refuse, and trash. Tenant shall sort and separate such waste products, garbage,
refuse and trash into such categories as provided by law. Each separately sorted
category of waste products, garbage, refuse, and trash shall be placed in
separate receptacles reasonably approved by the Owner. Such separate receptacles
may, at the Owner's option, be removed from the demised premises in accordance
with a collection schedule prescribed by law.
(2) The Owner reserves the right to refuse to collect or accept from Tenant any
waste products, garbage, refuse, or trash that is not reasonably separated and
sorted as required by law, and to require Tenant to arrange for such collection
at Tenant's sole cost and expense, utilizing a contractor reasonably
satisfactory to the Owner. Tenant shall pay all costs, expenses, fines,
penalties, or damages that may be imposed on the Owner or Tenant by reason of
Tenant's failure to comply with the provisions of this Article, and at Tenant's
sole cost and expense, shall indemnify, defend, and hold the Owner harmless
(including legal fees and expenses) from and against any actions, claims, and
suits arising from such noncompliance, utilizing counsel reasonably satisfactory
to the Owner.
43. The Owner shall in no event be responsible for the maintenance or upkeep of
any existing installation in the demised premises and/or any installation to be
made by the Tenant in the demised premises, except for otherwise provided for
herein.
44. The Tenant has examined the demised premises, knows its physical condition,
and agrees to accept same "as is"., except the owner shall, at its sole cost and
expense do the following work:
1.] Paint the demised premise ( Excluding the ceiling ), as well as the common
hallway and bathrooms in a building standard color and manner.
2.] Shampoo and stretch the existing carpet.
3.] Deliver the two (2) existing finished bathrooms in good working order and
repair any broken bathroom fixtures.
4.] Deliver the existing ten (10) ton air conditioning unit in good working
order and the Owner shall maintain same at its sole cost and expense throughout
the term of this lease.
45. In the event that any monthly installment of rent, or any other payment
required to be made by Tenant under this Lease shall be overdue, on the tenth
(lOth) day a late charge of two cents ($0.02) for each dollar so overdue may be
charged by the Owner for each month, or fraction of each month, from its due
date until paid, for the purpose of defraying the expense (exclusive of legal
costs) incurred in handling delinquent payments.
46. (a) Tenant covenants and agrees that it will indemnify and save the Owner
free and harmless from and against any and all claims, liability, loss or
damage, whether for injury to persons or loss of life or damage to property
arising out of Tenant's use or occupancy of the demised premises during the term
of this Lease caused by or arising out of Tenant's negligence only. Tenant
further covenants and agrees that throughout the term of this Lease, it will
carry general public liability insurance for the benefit of the Owner, Owner's
Agent and Tenant in single limits of $1,000,000.00 .
================================================================================
TO BE SIGNED BY THE LANDLORD AND TENANT
================================================================================
LANDLORD TENANT
WILLIAM COLAVITO, INC., AS AGENT FOR IVILLAGE, INC.
149 FIFTH AVENUE CORPORATION
BY: /s/ Steven T. Colavito BY: /s/ Steve Elkes
-------------------------------- ----------------------------
Steven T. Colavito, Vice President
--------------------------------------------------------------------------------
<PAGE>
--------------------------------------------------------------------------------
ADDITIONAL CLAUSES attached to and forming a part of lease dated March 5, 1998
between 149 FIFTH AVENUE CORPORATION, Owner
and-
iVILLAGE INC. Tenant,
Westerly portion of the second floor 149 FIFTH AVENUE, NEW YORK
--------------------------------------------------------------------------------
(b) All policies of insurance provided for herein, or certificates, thereof,
shall be delivered to the Owner forthwith upon issuance and at least thirty (30)
days prior to the expiration of any such policy, Tenant shall deliver to the
Owner from time to time throughout the Lease term, new policies or certificates
of insurance in renewal or replacement thereof, all at Tenant's own cost and
expense. If the Tenant shall fail to obtain and deliver such policies and
renewals or certificates thereof to the Owner, after fifteen (15) business days
notice in writing by the Owner and/or its agent to the Tenant, Owner may procure
such insurance and collect from the Tenant the amount of any premiums paid
therefor as additional rent payable upon demand.
(c) The Owner shall at no time be responsible for the payment of any
insurance premiums on any of the abovementioned policies and it shall be so
stated in any certificates of insurance supplied to the Owner.
47. The Tenant herein has been made aware that the Building is included within
the boundaries of the Ladies Mile Historic District, and therefore any
alteration or work requiring a Building Department Permit, whether exterior or
interior, must receive a Landmark Permit before the Building Department Permit
can be issued. The Tenant herein agrees to obtain said permit at its sole cost
and expense and Landlord agrees to cooperate with Tenant in connection
therewith.
48. Wherever the word "Landlord" shall appear in this Lease, it shall mean
"Owner and Landlord".
49. This Lease shall not be binding upon the Owner unless and until same is
approved and executed by the Owner.
50. Notwithstanding any other provisions of this lease or any rule or regulation
of the building, the Tenant shall not engage any contractor to do demolition,
construction or alterations or similar work in the demised premises without the
Owner's written approval, which will not be unreasonably withheld.
51. It shall be the Tenants obligation to obtain ail necessary certificates and
approvals from all City, State or Governmental agencies having jurisdiction
thereof, and/or the New York Board of Fire Underwriters, Fire Insurance Rating
Organization as to all work being performed and completed by the Tenant.
52. The Tenant agrees that prior to the commencement of alterations, the Tenant
will arrange to have the contractor and /or contractors who arc to perform the
alteration, obtain and deliver to the Owner and/or Owner's representative a
certificate of insurance indicating that the contractor and/or contractors are
insured against bodily injury and property damage, and further the contractor
and/or contractors will name the Owner as additional insured without cost to the
Owner.
53. Tenant shall have access to the demised premises 24 hours a day, 7 days a
week throughout the term hereof.
54. It is mutually understood and agreed that provided the tenant herein is not
in material or material monetary default of any of the terms, covenants, and
conditions of the Lease, Tenant shall have one (1) option to extend the Term of
this Lease effective 4/1/2000 upon giving to the Owner at least six (6) months
prior written notice by registered or certified mail, return receipt requested
of its intention to extend the term for one (1) year commencing April 1, 2000,
and ending March 31, 2001. All other provision of said lease shall continue to
be applicable to said extended term including the base rent.
55. Provided the Tenant is not in material or material monetary default of any
of the terms, covenants, and conditions of the within lease the Tenant shall
have the right of first refusal to lease the balance of the Second (2nd) Floor
known as the Easterly Portion of the Second (2nd) Floor (hereinafter referred to
as the "Expansion Premises"), representing approximately 4,500 square feet.
================================================================================
TO BE SIGNED BY THE LANDLORD AND TENANT
================================================================================
LANDLORD TENANT
WILLIAM COLAVITO, INC., AS AGENT FOR IVILLAGE, INC.
149 FIFTH AVENUE CORPORATION
BY: /s/ Steven T. Colavito BY: /s/ Steve Elkes
-------------------------------- ----------------------------
Steven T. Colavito, Vice President
--------------------------------------------------------------------------------
<PAGE>
--------------------------------------------------------------------------------
ADDITIONAL CLAUSES attached to and forming a part of lease dated March 5, 1998
between 149 FIFTH AVENUE CORPORATION, Owner
and-
iVILLAGE INC. Tenant,
Westerly portion of the second floor 149 FIFTH AVENUE, NEW YORK
--------------------------------------------------------------------------------
The Tenant's Right of First Refusal to lease the "Expansion Premises" shall be
in accordance with the following terms and conditions:
1.) The Tenant's Right of First Refusal to lease the "Expansion Premises" shall
be applicable only to the first (1st) six (6) months of the term of this lease
and pursuant to the terms of this agreement, thereafter, the Owner shall have no
obligation to the Tenant under this article.
2.) Should the Owner obtain a prospective Tenant to lease the "Expansion
Premises" within the six (6) month period as designated above the Owner agrees
to notify the within Tenant by certified mail, return receipt requested of its
intention to lease the "Expansion Premises". The Tenant must notify the Owner by
certified mail, return receipt requested within fifteen (15) days of receipt of
said notice stating the Tenant's intention to exercise its right to lease the
"Expansion Premises".
i.) Should the Tenant exercise its right to lease the "Expansion Premises"
then the Owner agrees to lease said "Expansion Premises" at a base rental
rate of $20.00 Per/Square/Foot and the Owner further agrees to paint and
carpet the "Expansion Premise" in building standard pain and carpet (Not to
exceed $13.75 Per/Sq/Yd installed).
ii.) All other terms, covenants, and conditions contained in this lease
shall be applicable to the lease covering the "Expansion Premise".
3.) Should the Tenant not exercise its right to lease the "Expansion Premises"
or fail to notify the Owner within the fifteen (15) day period of Owner's notice
as mentioned above, the Owner's obligation to the Tenant shall have been
fulfilled and the Owner shall be free to lease the "Expansion Premises" to
others.
It is mutually understood and agreed that if the Easterly Portion of the
second floor is leased to an entity, organization or party other than the Tenant
the Owner at its sole cost and expense reserves the right to modify and create a
public corridor to the passenger elevator, freight elevator and fire tower as
illustrated in red on the diagram attached hereto and forming a part of this
lease known as Exhibit B. In the event the Owner modifies and/or creates said
public corridor, owner will do the following:
i.) Give the Tenant 15 days notice of its intention to modify and or
create said public corridor.
ii.) Provide the Tenant with additional non-communal space as shown hatched
on Exhibit B attached hereto.
56. Tenant represents that they negotiated for the within lease solely with
Insignia/ Edward S. Gordon Co., Inc. as Broker and William Colavito, Inc.,
Managing Agent representing the Owner., and the Tenant further represents that
they did not hire or enlist the aid or negotiate with any other agent or broker
in connection with this lease and agrees to indemnify and hold the Owner
harmless from any and all suits arising from this transaction. If any such
claims are made, the Tenant herein further agrees, at its sole cost and expense
to defend the Owner.
57. The Tenant herein acknowledges that they have reviewed the Certificate of
Occupancy attached hereto and forming a part of this lease. It is mutually
understood and agreed by both parties of interest that in the event a violation
is issued because of the Tenant's use (office space) then the Owner shall have
the right but not the obligation, at its sole cost and expense within ten (10)
days of the issuance of said violation to hire the services of an expediter to
commence the process of amending the Certificate of Occupancy to include the use
of offices and to cure said violation.
================================================================================
TO BE SIGNED BY THE LANDLORD AND TENANT
================================================================================
LANDLORD TENANT
WILLIAM COLAVITO, INC., AS AGENT FOR IVILLAGE, INC.
149 FIFTH AVENUE CORPORATION
BY: /s/ Steven T. Colavito BY: /s/ Steve Elkes
-------------------------------- ----------------------------
Steven T. Colavito, Vice President
--------------------------------------------------------------------------------
<PAGE>
--------------------------------------------------------------------------------
ADDITIONAL CLAUSES attached to and forming a part of lease dated March 5, 1998
between 149 FIFTH AVENUE CORPORATION, Owner
and-
iVILLAGE INC. Tenant,
Westerly portion of the second floor 149 FIFTH AVENUE, NEW YORK
--------------------------------------------------------------------------------
In the event the Owner elects not to amend the Certificate of Occupancy then the
Tenant shall have the right but not the obligation, to amend said Certificate of
Occupancy at its sole cost and expense provided the Tenant commences the process
of amending the Certificate of Occupancy by hiring the services of an expediter
within ten (10) days of notification by the Owners of their decision not to
amend the Certificate of Occupancy which notice shall be sent to the Tenant by
certified mail return receipt requested.
If both the Owner and Tenant choose not to exercise their rights to amend the
Certificate of Occupancy then either party shall have the right to terminate the
within lease by giving (30) days prior written notice, certified mail receipt
requested, one to the other of its intention to terminate the within lease and
upon the date set forth in said notice this lease shall cease, terminate and
come to and end in the same manner and with the same force and effect as if such
date were the original expiration date of the lease and the Tenant shall
surrender complete possession of the demised premises leaving same in good broom
clean order and condition.
================================================================================
TO BE SIGNED BY THE LANDLORD AND TENANT
================================================================================
LANDLORD TENANT
WILLIAM COLAVITO, INC., AS AGENT FOR IVILLAGE, INC.
149 FIFTH AVENUE CORPORATION
BY: /s/ Steven T. Colavito BY: /s/ Steve Elkes
-------------------------------- ----------------------------
Steven T. Colavito, Vice President
--------------------------------------------------------------------------------
<PAGE>
Exhibit A
149 FIFTH AVENUE
SECOND FLOOR - "AS BUILT"
Floor Plan
<PAGE>
Exhibit B
149 FIFTH AVENUE
SECOND FLOOR - "AS BUILT"
Floor Plan
<PAGE>
ACKNOWLEDGEMENTS
CORPORATE TENANT
STATE OF NEW YORK, ss.:
County of
On this ______ day of ____________________, 19__, before me personally came
____________________________________ to me known, who being by me duly sworn,
did depose and say that he resides in _________________________________________
that he is the __________________________ of __________________________________
the corporation described in and which executed the foregoing instrument, as
TENANT; that he knows the seal of said corporation; that the seal affixed to
said instrument is such corporate seal; that it was so affixed by order of the
Board of Directors of said corporation, and that he signed his name thereto by
like order.
.....................................
INDIVIDUAL TENANT
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, as TENANT, executed the foregoing instrument
and acknowledged to me that _____________________ he executed the same.
.....................................
[GRAPHIC] IMPORTANT -- PLEASE READ [GRAPHIC]
RULES AND REGULATIONS ATTACHED TO AND
MADE A PART OF THIS LEASE IN
ACCORDANCE WITH ARTICLE 36.
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 or 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 purpose 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 of 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 a manner offensive or
objectionable to Owner or other occupants of the buildings by reason of noise,
odors, and or vibrations, or interfere in any way, with other Tenants or those
having business therein, nor shall any bicycles, vehicles, animals, fish, 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 the 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 of 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
fire 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 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 of which these Rules and Regulations are a part.
9. No Tenants shall obtain for use upon the demised premises ice, drinking
water, towel and other similar services, or accept barbering or bootblacking
services in the demised premises, except from persons authorized by Owner, and
at hours and under regulations fixed by Owner. 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 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 the 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. Notwithstanding the foregoing,
Owner shall not be required to allow Tenant or any person to enter or remain in
the building, except on business days from 8:00 a.m. to 6:00 p.m. and on
Saturdays from 8:00 a.m. to 1:00 p.m. Tenant shall not have a claim against
Owner by reason of Owner excluding from the building any person who does not
present such pass.
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 loft building, 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, or hazardous
fluid, material, chemical or substance, or cause or permit any odors of cooking
or other processes, or any unusual or other objectional odors to permeate in or
emanate from the demised premises.
13. Tenant shall not use the demised premises in a manner which disturbs
or interferes with other Tenants in the beneficial use of their premises.
Address 149-51 Fifth Ave. thru to
and incl. 921-5 Broadway
Premises Westerly portion of 2nd Floor
================================================================================
149 Fifth Avenue Corporation
TO
iVillage, Incorporated
================================================================================
STANDARD FORM OF
Loft
[LOGO] [LOGO]
Lease
The Real Estate Board of New York, Inc.
(c) Copyright 1994. All Rights Reserved.
Reproduction in whole or in part prohibited.
================================================================================
Dated March 5, 1998
Rent Per Year $110,000.00
(BASE)
Rent Per Month $9,166.66
(BASE)
Term 2 Years 1/2 Month
From 3-15-1998
To 3-31-2000
Drawn by ..................................................
Checked by ................................................
Entered by ................................................
Approved by ...............................................
================================================================================
<PAGE>
MODIFICATION AGREEMENT
Agreement made this 20th day of April, 1998 by and between
149 Fifth Avenue Corporation with offices in care of William Colavito, Inc.
located at 510 Madison Avenue, New York, New York 10022 (hereinafter called
"Owner") and iVillage, Inc., a Delaware Corporation located at 170 Fifth
Avenue, New York, New York 10010 (hereinafter called "Tenant").
WITNESSETH:
WHEREAS, by lease in writing (hereinafter called the
"Lease"), dated March 5th, 1998 made by and between the "Owner" and the
"Tenant", the "Owner" leased to the "Tenant" the Westerly Portion of the
Second (2nd) Floor (5,500 Sq. Ft.) in the building known as 149 Fifth Avenue
a/k/a 921/25 Broadway, New York, New York 10010 (hereinafter called the
"Premise") for a term of Two (2) Years and One-Half (1/2) Month commencing
March 15th, 1998 and ending March 31st, 2000; and
WHEREAS, the "Tenant" is presently in possession of the
"Premise" and
WHEREAS, the "Tenant" and the "Owner" have agreed to modify
and supplement the "Lease";
NOW, THEREFORE, it is mutually agreed that effective May
1st, 1998 the "Lease" shall be and the same is hereby modified in the
following respects:
A.) The "Premises" described in the "Lease" as the Westerly Portion of the
Second (2nd) Floor as shown in blue on the plan attached to and forming a
part of the "Lease" (5,500 Sq. Ft.) shall be deleted and in its stead shall
read the Entire Second (2nd) Floor, (10,000 Sq. Ft.) as indicated on the
plan attached to and forming a part of this Modification Agreement.
B.) The annual rental rate of One Hundred Ten Thousand ($110,000.00) Dollars
($9,1666.66 Per/Month) referenced in the "Lease" shall be deleted and in its
stead shall read at an annual rental rate of Two Hundred Thousand
($200,000.00) Dollars ($16,666.67 Per/Month).
C.) Article 32 - Security
On the signing of this Modification Agreement the Tenant deposits with
the Owner an additional $15,000.00 as lease security making the total lease
security on deposit with the Owner the sum of $33,333.33.
D.) Owner agrees that the Tenant, at its sole cost and expense may increase
the existing electrical service to the Second (2nd) Floor provided such
additional service does not exceed 200 Amps.
The "Lease" and this Modification Agreement are hereby ratified and
confirmed in all respects.
Neither the "Lease" nor this "Modification" can be changed,
supplemented, or terminated orally. There are no oral agreements or
understandings between the parties hereto and the
<PAGE>
Tenant further acknowledges that neither the Owner nor any representative of
the Owner has made any oral representations, warranties, or promises to the
Tenant of any kind, nature, or description.
IN WITNESS WHEREOF, THE PARTIES HERETO HAVE EXECUTED AND DELIVERED
THIS AGREEMENT AS OF THE DAY AND YEAR FIRST ABOVE WRITTEN.
WITNESS: WILLIAM COLAVITO, INC. AGENT FOR
149 FIFTH AVENUE CORPORATION
[illegible] BY: /s/ Steven T. Colavito
------------------------------- -----------------------------------
Steven T. Colavito - Vice President
iVillage, Inc.
/s/ Aimee Feuer BY: /s/ Steve Elkes
------------------------------- -----------------------------------
Steve Elkes - VP Finance/Legal
<PAGE>
================================================================================
STANDARD FORM OF LOFT LEASE
The Real Estate Board on New York, Inc.
================================================================================
Agreement of Lease, made as of this 30th day of June 1998, between 149 FIFTH
AVENUE CORPORATION, a New York Corporation with offices c/o William Colavito,
Inc., 510 Madison Avenue, New York, NY 10022 party of the first part,
hereinafter referred to as OWNER, and iVILLAGE, INCORPORATED a Delaware
Corporation, with offices at 170 Fifth Avenue NY, NY 10010 party of the second
part, hereinafter referred to as TENANT,
Witnesseth: Owner hereby leases to Tenant and Tenant hereby hires from Owner
The Entire Fifth (5th) Floor
in the building known as 149 Fifth Avenue thru to and including 921-5 in the
Borough of Manhattan, City of New York, for the term of TWO (2) YEARS
(or until such term shall sooner cease and expire as hereinafter provided) to
commence on the 1st day of July nineteen hundred and Ninety-Eight, and to end on
the 30th day of June TWO THOUSAND both dates inclusive, at an annual rental rate
of TWO HUNDRED THOUSAND ($200,000.00) DOLLARS
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 on such or such 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, executor,
administrators, legal representatives, successors and assigns, hereby covenant
as follows:
Rent Occupancy
1. Tenant shall pay the rent as above and as hereinafter provided.
2. Tenant shall use and occupy demised premises for offices for it's internet &
web site business.
provided such use is in accordance with the certificate of occupancy for the
building, if any, and for no other purpose.
Alterations:
3. Tenant shall make no changes in or to the demised premises of any nature
without Owner's prior written consent not to be unreasonably withheld or
delayed. Subject to 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 nonstructural and which do not affect
utility services or plumbing and electrical lines, in or to the interior of the
demised premises using contractors or mechanics first approved in each instance
by Owner. Tenant shall, at its expense, before making any alterations,
additions, installations or improvements obtain all permits, approval 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. 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 necessary and as Owner may require reasonably. 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
payment or filing the bond required by law or otherwise. All fixtures and all
paneling, partitions, railings and like installations, installed in the premises
at any time, either by Tenant or by Owner on 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 demised 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 and at its expense, taking into
regard ordinary wear and tear repair and restore the premises to the condition
existing prior to installation and repair any material 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 removed from the premises by Owner, at
Tenant's expense.
Repairs:
4. Owner shall maintain and repair the exterior of and the public portions of
the building. Tenant shall, throughout the term of this lease, take good care of
the demised premises including the bathrooms and lavatory facilities and the
windows and window frames and, the fixutres and appurtenances therein and at
Tenant's sole cost and expense promptly make all repairs thereto and to the
building, whether structural or non-strucutural in nature, caused by or
resulting from the carelessness, omission, neglect or improper conduct of
Tenant, Tenant's servants, employees, invitees, or licensees, and whether or not
arising from such Tenant conduct or omission, when required by other provisions
of this lease, including Article 6. Tenant shall also repair all damage to the
building and the demised premises caused by the moving of Tenant's fixtures,
furniture or equipment. All the aforesaid repairs shall be of quality or class
equal to the original work or construction. If Tenant fails, after ten days
notice, to proceed with due diligence to make repairs required to be made by
Tenant, the same may be made by the Owner at the expense of Tenant, and the
expenses thereof incurred by Owner shall be collectible, as additional rent,
after rendition of a bill or statement therefore. If the demised premises be or
become infested with vermin as a direct result of action or inaction by tenant.
Tenant shall, at its expense, cause the same to be exterminated. Tenant shall
give Owner prompt notice of any defective condition in any plumbing, heating
system or electrical lines located in the demised premises and following such
notice, Owner shall remedy the condition with due diligence and with best
efforts, but at the expense of Tenant, if repairs are necessitated by damage or
injury attributable to Tenant, Tenant's servants, agents, employees, invitees or
licensees as aforesaid not attributable to ordinary wear and tear. Except as
specifically provided in Article 9 or elsewhere in this lease, there shall be no
allowance to the Tenant for a diminution of rental value and no liability on the
part of Owner by reason of inconvenience, annoyance or injury to business
arising from Owner, Tenant or others making or failing to make any 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 set
off or reduction of rent by reason of any non-material failure of Owner to
comply with the covenants of this or any other article of this lease. Tenant
agrees that Tenant's sole remedy at law in such instance will be by way of any
action for damages for breach of contract. The provisions of this Article 4 with
respect to the making of repairs shall not apply in the case of fire or other
casualty with regard to which Article 9 hereof shall apply.
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 New York State Labor Law or any other applicable law or of the Rules of the
Board of Standards and Appeals, or of any other Board or body having or
asserting jurisdiction.
Requirements of Law, Fire Insurance:
6. Prior to the commencement of the lease term, if Tenant is then in possession,
and at all times thereafter Tenant shall, at Tenant's solo cost and expense,
promptly comply with all present and future laws, orders and regulations of all
state, federal, municipal and local govenments, departments, commissions and
boards and any direction of any public officer pursuant to law, and all orders,
rules and regulations of the New York Board of Fire Underwriters, or the
Insurance Services Office, or any similar body which shall impose any violation,
order or duty upon Owner or Tenant with respect to the demised premises, whether
or not arising out of Tenant's use or manner of use thereof, or, with respect to
the building, if arising out of Tenant's use or manner of use of the demised
premises of the building (including the use permitted under the lease). Except
as provided in Article 30 hereof, 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 shall not do or
<PAGE>
permit any act or thing to be done in or to the demised premises which is
contrary to law, or which will invalidate or be in conflict with public
liability, fire or other policies of insurance at any time carried by or for the
benefit of Owner. Tenant shall not keep anything in the demised premises except
as now or hereafter permitted by the Fire Department, Board of Fire
Underwriters, Fire Insurance Rating Organization and 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 substatially increase the insurance rate for the
building or any property located therein over that in effect prior to the
commencement of Tenant's occupancy. If by reason of failure to comply with the
foregoing the fire insurance rate shall, at the beginning of this lease or any
any time thereafter, be higher than it otherwise would be, then Tenant shall
reimburse Owner, as additional rent hereunder, for that portion of all fire
insurance premiums thereafter paid by Owner which shall have been charged
because of such failure by Tenant. Tenant shall be entitled to conduct an
independent audit to determine an increase in Owner's insurance rate, proposed
increase, if any, and if the audit reveals less than owner's proposed increase,
Tenant's independent audit rate shall apply to said increase, if any. In any
action or proceeding wherein Owner and Tenant are parties, a schedule or
"make-up" or rate for the building or demised premises issued by a body making
fire insurance rates applicable to said premises shall be conclusive evidence of
the facts therein stated and of the several items and charges in the fire
insurance 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 or 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 from time to time execute promptly any certificate that Owner may
reasonably request.
Tenant's Liability Insurance Property Loss, Damage, Indemnity:
8. Owner or its agents shall not be liable for any damage to property of Tenant
or of others entrusted to employees of the building, nor for loss of or damage
to any property of Tenant by theft or otherwise, nor for any injury or damage to
persons or property resulting from any cause of whatsoever nature, unless caused
by or due to the negligence of Owner, its agents, servants or employees; Owner
or its agents shall not be liable for any damage caused by other tenants or
persons in, upon or about said building or caused by operations in connection of
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 attorney's 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 repaired by and at the
expense of Owner and the rent and other items of additional rent as applicable
until such repair shall be completed, shall be apportioned from the day
following the casualty according to the part of the premises which is usable.
(c) If the demised premises are totally damaged or rendered wholly unusable by
fire or other casualty, then the rent and other items of additional rent as
hereinafter expressly provided shall be proportionately paid up to the time of
the casualty and thenceforth shall cease until the date when the premises shall
have been repaired and restored by Owner (or sooner reoccupied in part by Tenant
then rent shall be apportioned as provided in subsection (b) above), subject to
Owner's right to elect not to resote 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, or 30 days after adjustment of
the insurance claim for such fire or casualty, whichever is sooner, specifying a
date for the expiration of the lease, which date shall not be more than 60 days
after the giving of such notice, and upon the date specified in such notice the
term of the 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
Owner's rights and remedies against Tenant under the lease provisions in effect
prior to such termination, and any rent owing shall be paid up to such date and
any payments of rent made by Tenant which were on account 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. (c) Nothing contained hereinabove
shall relieve Tenant from liability that may exist as a result of damage from
fire or other casualty. Notwithstanding the foregoing, including Owner's
obligation to restore under subparagraph (b) above, 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 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 with respect to subparagraphs (b), (d) and (c) above, against the other
or any one claiming through or under each of them by way of subrogation or
otherwise. The release and waiver herein referred to shall be deemed to include
any loss or damage to the demised premises and/or to any personal property,
equipment, trade fixtures, goods and merchandise located therein. The foregoing
release and waiver shall be in force only if both releasors' insurance policies
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 appurtunances
removable by Tenant and agrees that Owner will not be obligated to repair any
damage thereto or replace the same.
Eminent Domain:
10. If the whole or any part of the demised premises shall be acquired or
condemned by Eminent Domain for any public or quasi public use or purpose, then
and in that event, the term of this lease shall cease and terminate from the
date of title vesting in such proceeding and Tenant shall have no claim for the
value of any unexpired term of said lease. Tenant shall have the right to make
an independent claim to the condemning authority for the value of Tenant's
moving expenses and personal property, trade fixtures and equipment, provided
Tenant is entitled pursuant to the terms of the lease to remove such property,
trade fixtures and equipment at the end of the term and provided further such
claim does not reduce Owner's award.
Assignment, Mortgage, Etc.:
11. Tenant, for itself, 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 not to be unreasonably
withheld or delayed. Transfer of the majority of the stock of a corporate Tenant
or the majority partnership interest of a partnership 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 my be, to be added in RIDER attached hereto. Tenant covenants and agrees
that at all times its use of electric current shall no 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 reasonable change at any time of the
character of electric service shall in no wise make Owner liable or responsible
to Tenant, for any loss, damages or expenses which Tenant may sustain.
Access to Premises:
13. Owner or Owner's agents shall have the right (but shall not be obligated) to
enter the demised premises in any emergency at any time, and, at other
reasonable times, to examine the same and to make such repairs, replacements and
improvements as Owner may deem necessary and reasonably desirable to any portion
of the building or which Owner may elect to perform in the premises after
Tenant's failure to make repairs or perform any work which Tenant is obligated
to perform under this lease, or for the purpose of complying with laws,
regulations and other directions of governmental authorities. Tenant shall
permit Owner to use and maintain and replace pipes and conduits in and through
the demised premises and to erect new pipes and conduits therein provided,
wherever possible, they are within walls or otherwise concealed. Owner may,
during the progress of any work in the demised premises, take all necessary
materials and equipment into said premises without the same constituting an
eviction nor shall the Tenant be entitled to any abatement of rent while such
work is in progress nor to any damages by reason of loss or interruption of
business or otherwise. However, the Owner agrees to make its best effort to
expedite such work and perform same in a diligent and unobtrusive manner.
Throughout the term hereof Owner shall have the right to enter the demised
premises at reasonable hours for the purpose of showing the same to prospective
purchasers or mortgagees of the building, and during the last six months of the
term for the purpose of showing the same to prospective tenants and may, during
said six months period, place upon
<PAGE>
the demised premises the usual notices "To Let" and "For Sale" which notices
Tenant shall permit to remain thereon without molestation. If Tenant is not
present to open and permit an entry into the demised 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 best efforts are 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 upon prior notice to
Tenant enter, alter, renovate or redecorate the demised premises without
limitation or abatement of rent, and such act shall have no effect on this lease
or Tenant's obligation 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
building, which Tenant may be permitted to use and/or occupy, is to be used
and/or occupied under a revocable license, and if any such license be revoked,
or if the amount of such space or area be diminished or required by any federal,
state or municipal authority or public utility, Owner shall not be subject to
any liability nor shall Tenant be entitled to any compensation or diminution or
abatement of rent, nor shall such revocation, diminution or requisition be
deemed constructive or actual eviction. Any tax, fee or charge of municipal
authorities for such vault or area shall be paid by Tenant, if used by Tenant,
whether or not specifically leased hereunder.
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. If any governmental license or permit shall be required for the proper
and lawful conduct of Tenant's business, Tenant shall be responsible for and
shall procure and maintain such license or permit. See Art. 57.
Bankruptcy:
16: (a) Anything elsewhere in this lease to the contrary notwithstanding, this
lease may be cancelled by either party by sending of a written notice to the
other party within a reasonable time after the happening of any one or more of
the following events: (1) the commencement of a case in bankruptcy or under the
laws of any state naming as the debtor, or (2) the making by the other party of
an assignment or any other arrangement for the benefit of creditors under any
state statute. Neither Tenant nor any person claiming through or under Tenant,
or by reason of any statute or order of court, shall thereafter be entitled to
possession of the premises demised but shall forthwith quit and surrender the
premises. If this lease shall be assigned in accordance with its terms, the
provisions of this Article 16 shall be applicable only to the party then owning
Tenant's interest in this 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 rental reserved hereunder for the unexpired
portion of the term demised and the fair and reasonable rental value of the
demised premises for the period for shich 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 thereof 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 fule of
law in effect at the time when, and governing the procedings in which, such
damages are to be proved, whether or not such amount be greater, equal to, or
less than the amount of the difference referred to above.
Default:
17. (1) If Tenant defaults in fulfilling any of the covenants of this lease
other than the covenants for the payment of rent or additional rent; or if the
demised premises becomes vacant or deserted" or if this lease be rejected under
ss. 235 of Title 11 of the U.S. Code (bankruptcy code);" 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 than
Tenant; or if Tenant shall make default with respect to any other lease between
Owner and Tenant; or if Tenant shall have failed, after five (5) days written
notice, to redeposit with Owner any portion of the security deposited hereunder
which Owner has applied to the payment of any rent and additional rent due and
payable hereunder or failed to move into or take possession of the premises
within thirty (30) days after the commencement of the term of this lease, of
which fact Owner shall be the sole judge; then in any one or more of such
events, upon Owner serving a written fifteen (15) days notice upon Tenant
specifying the nature of said default and upon the expiration of said fifteen
(15) days, if Tenant shall have failed to comply with or remedy such default, or
if the said default or omission complained of shall be of a nature that the same
cannot be completely cured or remedied within said fifteen (15) day period, and
if Tenant shall not have diligently commenced during such default within such
fifteen (15) day period, and shall not thereafter with reasonable diligence and
in good faith, proceed to remedy or cure such default, then Owner may serve a
written five (5) days' notice of cancellation of this lease upon Tenant, and
upon the expiration of said five (5) days this lease and the term thereunder
shall end and expire as fully and completely as if the expiration of such five
(5) day period were the day herein definitely fixed for the end and expiration
of this lease and the term thereof and Tenant shall then quit and surrender the
demised premises to Owner but Tenant shall remain liable as hereinafter
provided. (2) If the notice provided for in (1) hereof shall have been given,
and the term shall expire as aforesaid; or if Tenant shall make default in the
payment of the rent reserved herein or any item of additional rent herein
mentioned or any part of either or in making any other payment herein required;
then and in any of such events Owner may without notice, re-enter the demised
premises either by force or otherwise, and dispossess Tenant by summary
proceedings or otherwise, and the legal representative of Tenant or other
occupant of demised premises and remove their effects and hold the premises as
if this lease had not been made, and Tenant hereby waives the service of notice
of intention to re-enter or to institute legal proceedings to that end. 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, expiration and/or dispossess by
summary proceedings or otherwise, (a) the rent, and additional rent, shall
become due thereupon and be paid up to the time of such re-entry, dispossess
and/or expiration, (b) Owner may re-let the premises or any part or parts
thereof, either in the name of Owner or otherwise, for a term or terms, which
may at Owner's option be less than or exceed the period which would otherwise
have constituted the balance of the term of this lease and may grant concessions
or free rent or charge a higher rental than that in this lease, (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
subsequent 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 reasonable attorney's
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 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 by
Tenant of any of the covenants or provisions hereof, Owner may have the right of
injuction 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.
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, after reasonable notice
if required and upon expiration of any applicable grace period if any, (except
in an emergency), 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,
make any expenditures or incurs any obligations for the payment of money,
including but not limited to reasonable attorney's fees, in instituting,
prosecuting or defending any action or proceedings, and prevails in any such
action or proceeding, then Tenant will reimburse Owner for such sums so paid or
obligations incurred. 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 Owner within ten (10) 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 constituing an
eviction and without incurring liability to Tenant therefor to change the
arrangement and or location of public entrances, passageways, doors, doorways,
corridors, elevators, stairs, toilets or other public parts of the building and
to change the name, number or designation by which the building may be known.
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 Tenant making any repairs in the
building or any such alterations, additions and improvements. Furthermore,
Tenant shall not have any claim against Owner by reason of Owner's imposition of
any controls of the manner of access to the building by Tenant's social or
business visitors as the Owner may reasonably deem necessary for the security of
the building and its occupants. However, the Owner agrees to make it's best
efforts to expedite such work and perform same in a diligent and unobtrusive
manner.
<PAGE>
No Representations by Owner:
21. Neither Owner nor Owner's agents have made any representations or promises
with respect to the physical condition of the building, the land upon which it
is erected or the demised premises, the rents, leases, expenses of operation or
any other matter or thing affecting or related to the demised premises or the
building 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" on the date possession is tendered 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 understanding 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 agreemnt 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 from the demised premises. 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 this lease including, but not limited to, Article 34
hereof and to the ground leases, underlying leases and mortgages hereinbefore
mentioned.
Failure to Give Possession:
24. If Owner is unable to give possession of the demised premises on the date of
the commencement of the term hereof, because of the holding-over or retention of
possession of any tenant, undertenant or occupants or if the 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 if Owner has
not completed any work required to be performed by Owner, or for any other
reason, Owner shall not be subject to any liaiblity 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 or complete
any work required) until after Owner shall have given Tenant notice that Owner
is able to deliver possession in the condition required by this lease. 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 possession and/or occupancy shall be deemed to be under all the
terms, covenants, conditions and provisions of this lease, except the obligation
to pay the fixed annual rent set forth in page one of this lease. 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 deemd 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 lease provided. All checks tendered to Owner as and for the rent of the
demised premises shall be deemed payments for the account of Tenant. Acceptance
by Owner of rent from anyone other than Tenant shall not be deemed to operate as
an attornment to Owner by the payor of such rent or as a consent by Owner to an
assignment or subletting by Tenant of the demised premises to such payor, or as
a modification of the provisions of this lease. 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.
26. Waiver of Trial by Jury:
(Text Omitted)
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,
fixtures or other materials if Owner is prevented or delayed from doing so by
reason of strike or labor troubles or any cause whatsoever beyond Owner's sole
control including, but not limited to, government preemption or restrictions 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 which have been
or are affected, either directly or indirectly, 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 rendered 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.
Water Charges:
29. If Tenant requires, uses or consumes water for any purpose in addition to
ordinary lavatory purposes Owner may install a water meter and thereby measure
other Tenant's water consumption for all reasonably and proportionately
purposes. Tenant shall pay Owner for the cost of the meter and the cost of the
installation, thereof and throughout the duration of Tenant's occupancy Tenant
shall keep said meter and installation equipment in good working order and
repair at Tenant's own cost and expense in default of which Owner may cause such
meter and equipment to be replaced or repaired and collect the cost thereof from
Tenant, as additional rent. Tenant agrees to pay for water consumed, as shown on
said meter as and when bills are rendered, and on default in making such payment
Owner may pay such charges and collect the same from Tenant, as additional rent.
Tenant agrees to pay for water consumed, as shown on said meter as and when
bills are rendered, and on default in making such payment Owner may pay such
charges and collect the same from Tenant, as additional rent. Tenant covenants
and agrees to pay, as additional rent, the sewer rent, charge or any other tax,
rent, leevy or charge which now or hereafter is assessed, imposed or a lien upon
the demised premises or the realty of which they are part pursuant to law, order
or regulation made or issued in connection with the use, consumption,
maintenance or supply of water, water system or sewage or sewage connection or
system. If the building or the demised premises or any part thereof is supplied
with water through a meter through which water is also supplied to other
premises Tenant shall pay to Owner, as additional rent, on the first day of each
month, % ($ ) of the total meter charges as Tenant's portion. Independently of
an in addition to any of the remedies reserved to Owner hereinabove or elsewhere
in this lease, Owner may sue for and collect any monies to be paid by Tenant or
paid by Owner for any of the reasons or purposes hereinabove set forth.
Sprinklers:
30. Anything elsewhere in this lease to the contrary notwithstanding, if the New
York Board of Fire Underwriters or the New York Fire Insurance Exchange or any
bureau, department or official of the federal, state or city government
recommend or require the installation of a sprinkler system or that any changes,
modifications, alterations, or additional sprinkler heads or other equipment be
made or supplied in an existing sprinkler system by reason of Tenant's business,
or the location of partitions, trade fixtures, or other contents of the demised
premises, or if any such sprinkler system installations, modifications,
alterations, additional sprinkler heads or other such equipment, become
necessary to prevent the imposition of a penalty or charge against the full
allowance for a sprinkler system in the fire insurance rate set by any said
Exchange or by any fire insurance company, due to Tenant's tenancy or use of the
demised premises Tenant shall, at Tenant's expense, promptly make such sprinkler
system installations, changes, modifications, alterations, and supply additional
sprinkler heads or other equipment as required whether the work involved shall
be structural or non-structural in nature. Tenant shall pay to Owner as
additional rent the sume of $___, on the first day of each month during the term
of this lease, as Tenant's portion of the contract price for sprinkler
supervisory service.
Elevators, Heat, Cleaning:
31. As long as Tenant is not in material or material monetary default under any
of the covenants of this lease beyond the applicable grace period provided in
this lease for the curing of such defaults, Owner shall: (a) provide necessary
passenger elevator facilities on business days from 8 a.m. to 6 p.m. and on
Saturdays from 8 a.m. to 1 p.m.; (b) and have at least one (1) passenger
elevator in service at all other times if freight elevator service is provided,
same shall be provided only on regular business days Monday through Friday
inclusive, and on those days only between the hours of 9 a.m. and 12 noon and
between 1 p.m. and 5 p.m.; (c) furnish heat, water and other services supplied
by Owner to the demised premises, when and as required by law, on business days
from 8 a.m. and on Saturdays from 8
<PAGE>
a.m. to 1 p.m.; (d) clean the public halls and public portions of the building
which are used in common by all tenants. Tenant shall, at Tenant's expense,
keep the demised premises, including the windows, clean and in order, to the
reasonable satisfaction of Owner, and for that purpose shall employ the person
or persons, or Corporation approved by Owner. Tenant shall pay to Owner the cost
of reasonable removal of any of Tenant's refuse and rubbish from the building.
Bills for the same shall be rendered by Owner to Tenant at such time as Owner
may elect and shall be due and payable hereunder, and the amount such bills
shall be deemed to be, and be paid as, additional rent. Tenant shall, however,
have the option of independently contracting for the removal of such rubbish and
refuse in the event that Tenant does not wish to have same done by employees of
Owner. Under such circumstances, however, the removal of such refuse and rubbish
by others shall be subject to such rules and regulations as, in the judgment of
Owner, are necessary for the proper operation of the building. Owner reserves
the right to stop service of the heating, elevator, plumbing and electric
systems, when necessary, by reason of accident, or emergency, or for repairs,
alterations, replacements or improvements, in the judgment of Owner necessary
to be made, until said repairs, alterations, replacements or improvements shall
have been completed. If the building of which the demised premises are a part
supplies manually operated elevator service, Owner may proceed diligently with
alterations necessary to substitute automatic control elevator service without
in any way affecting the obligations of Tenant hereunder.
Security:
32. Tenant has deposited with Owner the sum of $33,333.34 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 material rent and additional rent or any other
sums 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 with respect of any of the
terms, covenants and conditions of this lease, including, but not limited to,
any damages or deficiency in the reletting of the premises, whether such damage
or deficiency accrued before or after summary proceedings or other re-entry by
Owner. In the event that Tenant shall comply with all of the terms, provisions,
covenants and conditions of this lease, the security shall be returned to Tenant
within fourteen (14) days 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
the 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 such security; and Tenant agrees to look to
the new Owner solely for the return of said security, and it is agreed that the
provisions hereof shall apply to every transfer or assignment made of the
security to a new Owner. Tenant further convenants 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.
Captions:
33. 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
or any provision thereof.
Definitions:
34. The term "Owner" as used in this lease means only the owner of the fee or of
the leasehold of the building, 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 "rent"
includes the annual rental rate whether so expressed or expressed in monthly
installments' and "additional rent." "Additional rent" means all sums which
shall be due to Owner from Tenant under this lease, in addition to the annual
rental rate. The term "business days" as used in this lease, shall exclude
Saturdays, Sundays and all days observed by the State or Federal Government as
legal holidays and those designated as holidays by the applicable building
service union employees service contract or by the applicable Operating
Engineers contract with respect to HVAC service. Wherever it is expressly
provided in this lease that consent shall not be unreasonably withheld, such
consent shall not be unreasonably delayed.
Adjacent Excavation-Shoring:
35. 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:
36. Tenant and Tenant's servants, employees, agents, visitors, and licensees
shall observe faith fully, and comply with, the Rules and Regulations annexed
hereto 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 any additional 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 fifteen (15) days after the giving of
notice thereof. Nothing in this lease contained shall be construed to impose
upon Owner any duty or obligation to enforce the Rules and Regulations or terms,
covenants or conditions in any other lease, as against any other tenant and
Owner shall not be liable to Tenant for violation of the same by any other
tenant, its servants, employees, agents, visitors or licensees.
Glass:
37. Owner shall replace, at the expense of the Tenant, any and all plate and
other glass damaged or broken from any cause whatsoever in and about the demised
premises. Owner may insure, and keep insured, all plate and other glass in the
demised premises for and in the name of Owner. Bills for the premiums therefor
shall be rendered by Owner to Tenant at such times as Owner may elect, and shall
be due from, and payable by, Tenant within thirty (30) days of receipt of such
amount thereof shall be deemed to be, and be paid, as additional rent.
Estoppel Certificate:
38. Tenant, at any time, and from time to time, upon at least 10 days' prior
notice by Owner, shall execute, acknowledge and deliver to Owner, and/or to any
other person, firm or corporation specified by Owner, a statement certifying
that this Lease is unmodified 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.
Directory Board Listing:
39. If, at the request of and as accommodation to Tenant, Owner shall place
upon the directory board in the lobby of the building, one or more names of
persons other than Tenant, such directory board listing shall not be construed
as the consent by Owner to an assignment or subletting by Tenant to such person
or persons.
Successors and Assigns:
40. 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. Tenant shall look only to Owner's estate
and interest in the land and building for the satisfaction of Tenant's remedies
for the collection of a judgment (or other judicial process) against Owner in
the event of any default by Owner hereunder, and no other property or assets of
such Owner (or any partner, member, officer or director thereof, disclosed or
undisclosed), shall be subject to levy, execution or other enforcement procedure
for the satisfaction of Tenant's remedies under or with respect to this lease,
the relationship of Owner and Tenant hereunder, or Tenant's use and occupancy of
the demised premises.
----------
>Space to be filled in or deleted.
ATTACHED hereto is Rider containing Articles No. 41 to 56 incl., which are
incorporated with a made part of this lease.
In Witness Whereof, Owner and Tenant have respectively signed and sealed this
lease as of the day and year first above written.
WILLIAM COLAVITO, INC. AAF
Witness for Owner: 149 FIFTH AVENUE CORPORATION
(CORP. SEAL)
/s/ ILLEGIBLE BY: /s/ STEVEN T. COLAVITO [L.S.]
------------------------------ ---------------------------
Steven T. Colavito, Vice President
Witness for Tenant iVILLAGE, INC.
(CORP. SEAL)
/s/ Aimee Feuer BY: /s/ Steve Elkes [L.S.]
------------------------------ ---------------------------
Please print name & title
<PAGE>
--------------------------------------------------------------------------------
ADDITIONAL CLAUSES attached to and forming a part of lease dated JUNE 30, 1998
between 149 FIFTH AVENUE CORPORATION, Owner
and-
iVILLAGE INC. Tenant,
Entire 5th floor 149 FIFTH AVENUE, NEW YORK
--------------------------------------------------------------------------------
41. It is mutually understood and agreed that Tenant herein will obtain its
electricity for the demised premises through the presently existing wiring and
equipment servicing the demised premises, either on a "submetering" basis or on
a "rent inclusion" basis. Initially, the parties agree, electricity distribution
shall be on a "submetering" basis, utilizing existing submeter(s) serving the
Floor, however if for any reason beyond the Owner's control, including action by
government or other authority asserting jurisdiction over the matter tenant can
no longer obtain its electricity supply on a "submetering" basis, then and in
such events Owner will redistribute to Tenant the electricity for the demised
premises, on a "rent inclusion" basis, as hereinafter provided for in this
article.
(A) Submetering: If and so long as Landlord provides electricity to the demised
premises on a submetering basis, Tenant covenants and agrees to purchase the
same from Landlord or Landlord's designated agent at Landlord's Cost (as
hereinafter defined), for Tenant's submetered electricity consumption plus 10%
thereof. Where more than one meter measures the service of Tenant in the
Building, the KWHR and the KW recorded by each meter shall be added, and billed
as if billed from a single meter. Bills therefor shall be rendered at such time
as Landlord may elect and the amount, as computed from a meter or meters and
determined by Landlord's electrical consultant, in accordance with this Article,
shall be deemed to be, and be paid as, additional rent.
Landlord's Cost for such redistributed electricity shall be equal to Landlord's
Cost Rates (as hereinafter defined) for the relevant billing period multiplied
by Tenant's electricity consumption (i.e., energy and demand) based on the meter
readings as herein provided.
(B) Landlord's Cost Rates Shall be determined as follows:
Landlord's Electricity Consumption Cost", (Landlords' cost per KWHR) for any
given Utility Billing Period, shall mean the amount arrived at by dividing (i)
Landlord's KWHR cost, as indicated on the applicable utility bill (inclusive of
any taxes. including any taxes included in the computation of said utility bill)
for Landlord's Electricity Consumption for said Utility Billing Period,
inclusive of any fuel adjustments or rate adjustments contained in said utility
bill allocable to Landlord's Electricity Consumption (provided that same have
not been included in the computation of Landlord's Electricity Demand Cost), by
(ii) Landlord's Electricity Consumption as indicated on said bill.
"Landlord's Electricity Demand Cost", (Landlord's cost per KW) for any given
Utility Billing Period, shall mean the amount arrived at by dividing (i)
Landlord's KW cost, as indicated on the applicable utility bill (inclusive of
any taxes, including any taxes included in the computation of said utility bill)
for Landlord's Electricity Demand for said Utility Billing Period, inclusive of
any rate adjustments contained in said utility bill allocable to Landlord's
Electricity Demand (provided that same have not been included in the computation
of Landlord's Electricity Consumption cost), by (ii) Landlord's Electricity
Demand as indicated on said bill. For purposes of determining Landlord's
Electricity Consumption Cost and Landlord's Electricity Demand Cost, each amount
appearing on any utility bill for demand, energy, fuel or rate adjustments shall
be taken into account (where it cannot be determined from the utility bill
whether such amount related to consumption or to demand, it shall be deemed to
relate to demand).
"Utility Billing Period" shall mean the respective period of electricity
consumption and demand for which Landlord is charged on each successive bill
from the utility company furnishing electricity to the Building.
For purposes of this Article, the following terms shall have the following
meanings:
================================================================================
TO BE SIGNED BY THE LANDLORD AND TENANT
================================================================================
LANDLORD TENANT
WILLIAM COLAVITO, INC., AS AGENT FOR IVILLAGE, INC.
149 FIFTH AVENUE CORPORATION
BY: /s/ Steven T. Colavito BY: /s/ Steve Elkes
-------------------------------- ----------------------------
Steven T. Colavito, Vice President
--------------------------------------------------------------------------------
<PAGE>
--------------------------------------------------------------------------------
ADDITIONAL CLAUSES attached to and forming a part of lease dated JUNE 30, 1998
between 149 FIFTH AVENUE CORPORATION, Owner
and-
iVILLAGE INC. Tenant,
Entire 5th floor 149 FIFTH AVENUE, NEW YORK
--------------------------------------------------------------------------------
"Landlord's Electricity Consumption", for any given Utility Billing Period,
shall mean the number of kilowatt hours of electricity consumed in and for the
Building (including common areas, tenantable areas and mechanical areas) during
said Utility Billing Period, as indicated on the applicable utility bill.
"Landlord's Electricity Demand", for any given Utility Billing Period, shall
mean the number of kilowatts of electricity demanded in and for the Building
(including common areas, tenantable areas and mechanical areas) during said
Utility Billing Periods, as indicated on the applicable utility bill.
C) Rent inclusion If and so long as Landlord provides electricity to the demised
premises on a rent inclusion basis, Tenant agrees;
1 The fixed annual rent shall be increased by the amount of the Electricity
Rent Inclusion Factor ("ERIF"), as hereinafter defined. Tenant acknowledges and
agrees (i) that the fixed annual rents hereinabove set forth in this lease do
not yet but are to include an ERIF to compensate Landlord for electrical wiring
and other installations necessary for, and for its obtaining and making
available to tenant, the redistribution of, electric current as an additional
service; and (ii) that such ERIF, which is a potion of the fixed annual rent,
shall be subject to periodic adjustments as herein provided..
2. The ERIF shall be based on a survey of Tenant's consumption of
redistributed electricity, made as hereinafter provided, and shall be equal to a
sum equal to Landlord's cost ("Landlord's Cost") for such electricity, plus ten
percent (10%) thereof. (Landlords Cost for such redistributed electricity shall
be equal to Landlord's Cost Rates (as hereinabove defined) for the relevant
billing period (s) multiplied by Tenant's electricity consumption (i.e. .,
energy and demand) based on the most recent survey thereof, all as hereinafter
provided.) If after the start of the relevant billing period, the cost to
Landlord of electricity shall be increased or decreased, by change in Landlord's
electric rates or service classifications, or by electricity charges, including
changes to in market prices, or by changes in fuel adjustments, or by taxes or
charges of any kind imposed on Landlord's electricity purchases, or on
Landlord's electricity redistribution, then the ERIF, based on the most recent
survey, shall be redetermined, effective as of the date of such change in rates,
etc., by Landlord's electrical consultant, in accordance with the provisions
hereof.
3. The parties agree that a reputable, independent electrical consultant,
mutually selected by Landlord and Tenant ("electrical consultant") shall by
survey determine an estimate of Tenant's demand and energy in order to calculate
the ERIF in accordance with this article, and that electrical consultant shall
from time to time make surveys in the demised premises of the electrical
equipment and fixtures and the use of current in and for such space. The ERIF
portion of the fixed annual rent shall then be appropriately adjusted, effective
as of the date of each said survey, and in accordance with the provisions
hereof.
Pending the results of the first survey and determination to be made by
Landlord's consultant, as herein provided, Tenant shall pay to Landlord a
temporary ERIF at the rate of $2.50 per rentable square foot per year (which
temporary charge shall thereafter be adjusted by survey and computations as
hereinafter provided), for any portion of the demised premises receiving
electricity on a rent inclusion basis. Said temporary payments shall be adjusted
between Landlord and Tenant, by appropriate payments thereafter or by rent
credits, retroactive to Tenant's commencement of being provided electricity on a
rent inclusion basis, Landlord will cause such a survey and determination to be
made of the electricity consumption in and for said space : the initial survey's
ERIF shall be payable from the date of the start of rent inclusion thereunder.
Thereafter, the ERIF shall be adjusted in accordance with surveys and
determinations by Landlord's electrical consultant, retroactive to the date of
such survey subsequent to the initial survey of the demised premises.
================================================================================
TO BE SIGNED BY THE LANDLORD AND TENANT
================================================================================
LANDLORD TENANT
WILLIAM COLAVITO, INC., AS AGENT FOR IVILLAGE, INC.
149 FIFTH AVENUE CORPORATION
BY: /s/ Steven T. Colavito BY: /s/ Steve Elkes
-------------------------------- ----------------------------
Steven T. Colavito, Vice President
--------------------------------------------------------------------------------
<PAGE>
--------------------------------------------------------------------------------
ADDITIONAL CLAUSES attached to and forming a part of lease dated JUNE 30, 1998
between 149 FIFTH AVENUE CORPORATION, Owner
and-
iVILLAGE INC. Tenant,
Entire 5th floor 149 FIFTH AVENUE, NEW YORK
--------------------------------------------------------------------------------
The parties understand and agree that in any survey of Tenant's electricity
consumption in and for the demised premises, the consultant's survey results
shall be calculated to reflect a proper demand (diversity) factor.
42. SORTING AND SEPARATION OF REFUSE AND TRASH
(1) Tenant covenants and agrees, at its sole cost and expense, to comply with
all present and future laws, orders, and regulations of all state, federal,
municipal, and local governments, departments, commissions, and boards regarding
the collection, sorting, separation, and recycling of waste products, garbage,
refuse, and trash. Tenant shall sort and separate such waste products, garbage,
refuse and trash into such categories as provided by law. Each separately sorted
category of waste products, garbage, refuse, and trash shall be placed in
separate receptacles reasonably approved by the Owner. Such separate receptacles
may, at the Owner's option, be removed from the demised premises in accordance
with a collection schedule prescribed by law.
(2) The Owner reserves the right to refuse to collect or accept from Tenant any
waste products, garbage, refuse, or trash that is not reasonably separated and
sorted as required by law, and to require Tenant to arrange for such collection
at Tenant's sole cost and expense, utilizing a contractor reasonably
satisfactory to the Owner. Tenant shall pay all costs, expenses, fines,
penalties, or damages that may be imposed on the Owner or Tenant by reason of
Tenant's failure to comply with the provisions of this Article, and at Tenant's
sole cost and expense, shall indemnify, defend, and hold the Owner harmless
(including legal fees and expenses) from and against any actions, claims, and
suits arising from such noncompliance, utilizing counsel reasonably satisfactory
to the Owner.
43. The Owner shall in no event be responsible for the maintenance or upkeep of
any existing installation in the demised premises and/or any installation to be
made by the Tenant in the demised premises, except for otherwise provided for
herein.
44. The Tenant has examined the demised premises, knows its physical condition,
and agrees to accept same "as is"., except the owner shall, at its sole cost and
expense do the following work:
1.] Paint the demised premise ( Excluding the ceiling), and bathrooms in a
building standard color and manner.
2.] Shampoo the existing carpet throughout the premises.
3.] Deliver the three (3) existing finished bathrooms in good working order and
repair any broken bathroom fixtures. thereafter the maintenance and upkeep
of the bathroom shall be the Tenant's responsibility
4.] Deliver the existing air conditioning unit, in good working order and the
Owner shall maintain same at its sole cost and expense throughout the term
of this lease.
45. In the event that any monthly installment of rent, or any other payment
required to be made by Tenant under this Lease shall be overdue, on the tenth
(10th) day a late charge of two cents ($0.02) for each dollar so overdue may be
charged by the Owner for each month, or fraction of each month, from its due
date until paid, for the purpose of defraying the expense (exclusive of legal
costs) incurred in handling delinquent payments.
46. (a) Tenant covenants and agrees that it will indemnify and save the Owner
free and harmless from and against any and all claims, liability, loss or
damage, whether for injury to persons or loss of life or damage to property
arising out of Tenant's use or occupancy of the demised premises during the term
of this Lease caused by or arising out of Tenant's negligence only. Tenant
further covenants and agrees that throughout the term of this Lease, it will
carry general public liability insurance for the benefit of the Owner, Owner's
Agent and Tenant in single limits of $1,000,000.00.
================================================================================
TO BE SIGNED BY THE LANDLORD AND TENANT
================================================================================
LANDLORD TENANT
WILLIAM COLAVITO, INC., AS AGENT FOR IVILLAGE, INC.
149 FIFTH AVENUE CORPORATION
BY: /s/ Steven T. Colavito BY: /s/ ILLEGIBLE
-------------------------------- ----------------------------
Steven T. Colavito, Vice President
--------------------------------------------------------------------------------
<PAGE>
--------------------------------------------------------------------------------
ADDITIONAL CLAUSES attached to and forming a part of lease dated JUNE 30, 1998
between 149 FIFTH AVENUE CORPORATION, Owner
and-
iVILLAGE INC. Tenant,
Entire 5th floor 149 FIFTH AVENUE, NEW YORK
--------------------------------------------------------------------------------
(b) All policies of insurance provided for herein, or certificates,
thereof, shall be delivered to the Owner forthwith upon issuance and at least
thirty (30) days prior to the expiration of any such policy, Tenant shall
deliver to the Owner from time to time throughout the Lease term, new policies
or certificates of insurance in renewal or replacement thereof, all at Tenant's
own cost and expense. If the Tenant shall fail to obtain and deliver such
policies and renewals or certificates thereof to the Owner, after fifteen (15)
business days notice in writing by the Owner and/or its agent to the Tenant,
Owner may procure such insurance and collect from the Tenant the amount of any
premiums paid therefor as additional rent payable upon demand.
(c) The Owner shall at no time be responsible for the payment of any
insurance premiums on any of the above-mentioned policies and it shall be so
stated in any certificates of insurance supplied to the Owner.
47. The Tenant herein has been made aware that the Building is included within
the boundaries of the Ladies Mile Historic District, and therefore any
alteration or work requiring a Building Department Permit, whether exterior or
interior, must receive a Landmark Permit before the Building Department Permit
can be issued. The Tenant herein agrees to obtain said permit at its sole cost
and expense and Landlord agrees to cooperate with Tenant in connection
therewith.
48. Wherever the word "Landlord" shall appear in this Lease, it shall mean
"Owner and Landlord".
49. This Lease shall not be binding upon the Owner unless and until same is
approved and executed by the Owner.
50. Notwithstanding any other provisions of this lease or any rule or regulation
of the building, the Tenant shall not engage any contractor to do demolition,
construction or alterations or similar work in the demised premises without the
Owner's written approval, which will not be unreasonably withheld.
51. It shall be the Tenants obligation to obtain all necessary certificates and
approvals from all City, State or Governmental agencies having jurisdiction
thereof, and/or the New York Board of Fire Underwriters, Fire Insurance Rating
Organization as to all work being performed and completed by the Tenant.
52. The Tenant agrees that prior to the commencement of alterations, the Tenant
will arrange to have the contractor and/or contractors who are to perform the
alteration, obtain and deliver to the Owner and/or Owner's representative a
certificate of insurance indicating that the contractor and/or contractors are
insured against bodily injury and property damage, and further the contractor
and/or contractors will name the Owner as additional insured without cost to the
Owner.
53. Tenant shall have access to the demised premises 24 hours a day, 7 days a
week throughout the term hereof.
54. It is mutually understood and agreed that provided the tenant herein is not
in material or material monetary default of any of the terms, covenants, and
conditions of the Lease, Tenant shall have one (1) option to extend the Term of
this Lease effective 7/1/2000 upon giving to the Owner at least six (6) months
prior written notice by registered or certified mail, return receipt requested
of its intention to extend the term for one (1) year commencing July 1, 2000,
and ending June 30, 2001. All other provision of said lease shall continue to be
applicable to said extended term including the base rent.
55. Tenant represents that they negotiated for the within lease solely with
Insignia/Edward S. Gordon Co., Inc. as Broker and William Colavito, Inc.,
Managing Agent representing the Owner., and the Tenant further represents that
they did not hire or enlist the aid or negotiate with any other agent or broker
in connection with this lease, and agrees to indemnify and hold the Owner
================================================================================
TO BE SIGNED BY THE LANDLORD AND TENANT
================================================================================
LANDLORD TENANT
WILLIAM COLAVITO, INC., AS AGENT FOR IVILLAGE, INC.
149 FIFTH AVENUE CORPORATION
BY: /s/ Steven T. Colavito BY: /s/ ILLEGIBLE
-------------------------------- ----------------------------
Steven T. Colavito, Vice President
--------------------------------------------------------------------------------
<PAGE>
--------------------------------------------------------------------------------
ADDITIONAL CLAUSES attached to and forming a part of lease dated JUNE 30, 1998
between 149 FIFTH AVENUE CORPORATION, Owner
and-
iVILLAGE INC. Tenant,
Entire 5th floor 149 FIFTH AVENUE, NEW YORK
--------------------------------------------------------------------------------
harmless from any and all suits arising from this transaction. If any such
claims are made, the Tenant herein further agrees, at its sole cost and expense
to defend the Owner.
56. The Tenant herein acknowledges that they have reviewed the Certificate of
Occupancy attached hereto and forming a part of this lease. It is mutually
understood and agreed by both parties of interest that in the event a violation
is issued because of the Tenant's use (office space) then the Owner shall have
the right but not the obligation, at its sole cost and expense within ten (10)
days of the issuance of said violation to hire the services of an expediter to
commence the process of amending the Certificate of Occupancy to include the use
of offices and to cure said violation.
In the event the Owner elects not to amend the Certificate of Occupancy then the
Tenant shall have the right but not the obligation, to amend said Certificate of
Occupancy at its sole cost and expense provided the Tenant commences the process
of amending the Certificate of Occupancy by hiring the services of an expediter
within ten (10) days of notification by the Owners of their decision not to
amend the Certificate of Occupancy which notice shall be sent to the Tenant by
certified mail return receipt requested.
If both the Owner and Tenant choose not to exercise their rights to amend the
Certificate of Occupancy then either party shall have the right to terminate the
within lease by giving thirty (30) days prior written notice, certified mail
return receipt requested, one to the other of its intention to terminate the
within lease and upon the date set forth in said notice this lease shall cease,
terminate and come to an end in the same manner and with the same force and
effect as if such date were the original expiration date of the lease and the
Tenant shall surrender complete possession of the demised premises leaving same
in good broom clean order and condition.
================================================================================
TO BE SIGNED BY THE LANDLORD AND TENANT
================================================================================
LANDLORD TENANT
WILLIAM COLAVITO, INC., AS AGENT FOR IVILLAGE, INC.
149 FIFTH AVENUE CORPORATION
BY: /s/ Steven T. Colavito BY: /s/ ILLEGIBLE
-------------------------------- ----------------------------
Steven T. Colavito, Vice President
--------------------------------------------------------------------------------
<PAGE>
ACKNOWLEDGEMENTS
CORPORATE TENANT
STATE OF NEW YORK, ss.:
County of
On this ______ day of ____________________, 19__, before me personally came
____________________________________ to me known, who being by me duly sworn,
did depose and say that he resides in _________________________________________
that he is the __________________________ of __________________________________
the corporation described in and which executed the foregoing instrument, as
TENANT; that he knows the seal of said corporation; that the seal affixed to
said instrument is such corporate seal; that it was so affixed by order of the
Board of Directors of said corporation, and that he signed his name thereto by
like order.
.....................................
INDIVIDUAL TENANT
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, as TENANT, executed the foregoing instrument
and acknowledged to me that _____________________ he executed the same.
.....................................
[GRAPHIC] IMPORTANT -- PLEASE READ [GRAPHIC]
RULES AND REGULATIONS ATTACHED TO AND
MADE A PART OF THIS LEASE IN
ACCORDANCE WITH ARTICLE 36.
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 or 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 purpose 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 in to any of
the corridors of 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 a manner offensive or
objectionable to Owner or other occupants of the buildings by reason of noise,
odors, and or vibrations, or interfere in any way, with other Tenants or those
having business therein, nor shall any bicycles, vehicles, animals, fish, 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 the 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 of 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
fire 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 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 of which these Rules and Regulations are a part.
9. No Tenants shall obtain for use upon the demised premises ice, drinking
water, towel and other similar services, or accept barbering or bootblacking
services in the demised premises, except from persons authorized by Owner, and
at hours and under regulations fixed by Owner, 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 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 the 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. Notwithstanding the foregoing,
Owner shall not be required to allow Tenant or any person to enter or remain in
the building, except on business days from 8:00 a.m. to 6:00 p.m. and on
Saturdays from 8:00 a.m. to 1:00 p.m. Tenant shall not have a claim against
Owner by reason of Owner excluding from the building any person who does not
present such pass.
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 loft building, 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, or hazardous
fluid, material, chemical or substance, or cause or permit any odors of cooking
or other processes, or any unusual or other objectional odors to permeate in or
emanate from the demised premises.
13. Tenant shall not use the demised premises in a manner which disturbs
or interferes with other Tenants in the beneficial use of their premises.
Address 149-51 Fifth Ave. thru to
and incl. 921-5 Broadway
Premises Entire 5th Floor
================================================================================
149 FIFTH AVENUE CORPORATION
TO
iVILLAGE, INCORPORATED
================================================================================
STANDARD FORM OF
Loft
[LOGO] [LOGO]
Lease
The Real Estate Board of New York, Inc.
(c) Copyright 1994. All Rights Reserved.
Reproduction in whole or in part prohibited.
================================================================================
Dated June 30, 1998
Rent Per Year $200,000.00 (BASE)
Rent Per Month $16,666.67 (BASE)
Term 2 Years
From 7-01-1998
To 6-30-2000
Drawn by ..................................................
Checked by ................................................
Entered by ................................................
Approved by ...............................................
================================================================================
WILLIAM COLAVITO
INC.
510 MADISON AVENUE TENANT'S COPY
CORNER E. 53rd STREET
NEW YORK, N.Y. 10022
<PAGE>
MODIFICATION AGREEMENT
Agreement made this 8th day of July, 1998 by and between 149 Fifth Avenue
Corporation with offices in care of William Colavito, Inc. located at 510
Madison Avenue New York, N.Y. 10022 (hereinafter called "Owner") and iVillage,
Inc., a Deleware Corporation located at 170 Fifth Avenue New York, N.Y. 10010
(hereinafter called "Tenant").
WITNESSETH:
WHEREAS, by lease in writing (hereinafter called the "Lease"), dated March
5th, 1998 made by and between the "Owner" and the "Tenant", as affected by
Modification Agreement dated April 20th, 1998 the "Owner" leased to the
"Tenant" the Entire Second (2nd) Floor (10,000 Sq. Ft.) in the building known as
149 Fifth Avenue a/k/a 921/25 Broadway New York, N.Y. 10010 (hereinafter called
the "Premise") for a term of Two (2) Years And One-Half (1/2) Month commencing
March 15th, 1998 and ending March 31st, 2000; and
WHEREAS, the "Tenant" is presently in possession of the "Premise" and
WHEREAS, the "Tenant" and the "Owner" have agreed to modify and supplement
the "Lease";
NOW, THEREFORE, it is mutually agreed that effective as of the date first
above written the "Lease" shall be and the same is hereby modified in the
following respects:
A.) The term of the "Lease" shall be extended for a Three (3) Month Period with
a new expiration date of June 3 0th, 2000.
B.) Article #54 of the "Lease" shall be deleted and in its stead the following
article is inserted:
"54. It is mutually understood and agreed that provided the Tenant herein
is not in material or material monetary default of any of the terms, covenants,
and conditions of the Lease the Tenant shall have one (1) option to extend the
term of this lease effective July 1st, 2000 upon giving to the Owner at least
six (6) months prior written notice by registered or certified mail, return
receipt requested of its intention to extend the term for one (1) year
commencing July 1st, 2000 and ending June 30th, 2001. All other provisions of
said lease shall continue to be applicable to said extended term including the
base rent"
The "Lease" and this Modification Agreement are hereby ratified and
confirmed in all respects.
Neither the "Lease" nor this "Modification Agreement" can be changed,
supplemented, or terminated orally. There are no oral agreements or
understandings between the parties hereto and the Tenant further acknowledges
that neither the Owner nor any representative of the Owner has made any oral
representations, warranties, or promises to the Tenant of any kind, nature, or
description.
(1)
<PAGE>
IN WITNESS WHEREOF, THE PARTIES HERETO HAVE EXECUTED AND DELIVERED THIS
AGREEMENT AS OF THE DAY AND YEAR FIRST ABOVE WRITTEN.
WITNESS:
WILLIAM COLAVITO, INC. AGENT FOR
149 FIFTH AVENUE CORPORATION
BY:
------------------- -----------------------------------
Steven T. Colavito - Vice President
iVillage, Inc.
BY: /s/ Steve Elkes
------------------- -----------------------------------
Steve Elkes - VP Finance/Legal
(2)