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EXHIBIT 10.5.n
THIS LEASE made the 6th day of December 2000, between 160 Oser Avenue
Associates, a partnership maintaining offices at 684 Broadway, Massapequa, New
York 11758, hereinafter referred to as LANDLORD, and MANCHESTER EQUIPMENT CO.,
INC., 50 Marcus Boulevard, Hauppauge, New York, hereinafter jointly, severally
and collectively referred to as TENANT.
WITNESSETH, that the Landlord hereby leases to the Tenant, and the Tenant
hereby hires and takes from the Landlord building and premises known as 160 Oser
Avenue, Hauppauge, New York as more particularly shown on the survey annexed
hereto and made a part hereof, to be used and occupied by the Tenant for general
office use, warehouse, sales, service and assembly of computers, computer
hardware and any and all items related thereto, and for no other purpose, for a
term to commence on November 1, 2000, and to end on October 31, 2005, unless
sooner terminated as hereinafter provided, at the ANNUAL RENT of
(See Rider paragraph 34).
all payable in equal monthly instalments in advance on the first day of each and
every calendar month during said term, except the first instalment, which shall
be paid upon the execution hereof.
THE TENANT JOINTLY AND SEVERALLY COVENANTS:
FIRST.--That the Tenant will pay the rent as above provided.
REPAIRS SECOND.--That, throughout said term the Tenant will take
good care of the demised premises, including structure and
environs, fixtures and appurtenances, and all alterations,
additions and
ORDINANCES improvements to either; make all repairs in and about the
AND same necessary to preserve them in good order and
VIOLATIONS condition, which repairs shall be, in quality and class,
equal to the original work; promptly pay the expense of
such repairs; suffer no waste or injury; give prompt
ENTRY notice to the Landlord of any fire that may occur; execute
and comply with all laws, rules, orders, ordinances and
regulations at any time issued or in force (except those
requiring structural alterations), applicable to the
demised premises or to the Tenant's occupation thereof,
INDEMNIFY any of the Federal, State and Local Governments, and of
LANDLORD each and every department, bureau and official thereof,
and of the New York Board of Fire Underwriters; permit at
all times during usual business hours, the Landlord and
representatives of the Landlord to enter the demised
premises for the purpose of inspection, and to exhibit them
for purposes of sale or rental; suffer the Landlord to make
repairs and improvements to all parts of the building , and
to comply with all orders and requirements of governmental
authority applicable to said building or to any occupation
thereof; suffer the Landlord to erect, use, maintain,
repair and replace pipes and conduits in the demised
premises and to the floors above and below; forever
indemnify and save harmless the Landlord for and against
any and all liability, penalties, damages, expenses and
judgments arising from injury during said term to person or
property of any nature, occasioned wholly or in part by any
acts or acts, omission or omissions of the Tenant, or of
the employees, guest, agents, assigns or undertenants of
the Tenant and also for any matter or thing growing out of
the occupation of the demised premises or of the streets,
sidewalks or vaults adjacent thereto; permit, during the
six months next prior to the expiration of the term the
usual notice "To Let" to be placed and to remain unmolested
in a conspicuous place upon the exterior of the demised
premises; repair, at or before the end of the term, all
injury done by the installation or removal of furniture and
property; and at the end of the term, to quit and surrender
the demised premises with all alterations, additions and
improvements in good order and condition.
THIRD.--That the Tenant will not disfigure or deface
MOVING any part of the building, or suffer to be done, except so
INJURY far as may be necessary to affix such trade fixtures as
SURRENDER are herein consented to by the Landlord; the Tenant will
not obstruct, or permit the obstruction of the street or
the sidewalk adjacent thereto; will not do anything, or
suffer anything to be done upon the demised premises which
will increase the rate of fire insurance upon the building
or any of its contents, or be liable to cause structural
NEGATIVE injury to said building; will not permit the accumulation
COVENANTS of waste or refuse matter, and will not, without the
written consent of the Landlord first obtained in each
case, either sell, assign, mortgage or transfer this lease,
underlet the demised premises or any part thereof,
OBSTRUCTION permit the same or any part thereof to be occupied by
SIGNS anybody other than the Tenant and the Tenant's employees,
make any alterations in the demised premises, use the
demised premises or any part thereof for any purpose other
than the one first above stipulated, or for any purpose
deemed extra hazardous on account of fire risk, nor in
violation of any law or ordinance. That the Tenant will not
obstruct or permit the obstruction of the light, halls,
stairway or entrances to the building, and will not erect
or inscribe and sign, signals or advertisements unless and
until the style and location thereof have been approved by
the Landlord; and if any be erected or inscribed without
such approval, the Landlord may remove the same. No water
cooler, air conditioning unit or system or other apparatus
AIR shall be installed or used without the prior written
CONDITIONING consent of Landlord.
IT IS MUTUALLY CONVENANTED AND AGREED, THAT
FOURTH.-If the demised premises shall be partially
damaged by fire or other cause without the fault or neglect
of Tenant, Tenant's servants, employees, agents, visitors or
licensees, the damages shall be repaired by and at the
expenses of Landlord and the rent until such repairs shall
be made shall be apportioned according to the part of the
demised premises which is usable by Tenant. But if such
partial damage is due to the fault or neglect of Tenant,
Tenant's servants, employees, agents, visitors or licensees,
without prejudice to any other rights and remedies of
Landlord and without prejudice to the rights of subrogation
of Landlord's insurer, the damages shall be repaired by
Landlord but there shall be no apportionment or abatement of
rent. No penalty shall accrue for reasonable delay which may
arise by reason of adjustment of insurance on the part of
Landlord and/or Tenant, and for reasonable delay on account
of "labor troubles", or any other cause, beyond Landlord's
control. If the demised premises are totally damaged or are
FIRE CLAUSE rendered wholly untenantable by fire or other cause, and if
Landlord shall decide not to restore or not to rebuild the
same, or if the building shall be so damaged that Landlord
shall decide to demolish it or to rebuild it, then or in any
of such events Landlord may, within ninety (90) days after
such fire or other cause, give Tenant a notice in writing of
such decision, which notice shall be given as in Paragraph
Twelve hereof provided, and thereupon the term of this lease
shall expire by lapse of time upon the third day after such
notice is given, and Tenant shall vacate the demised
premises and surrender the same to Landlord. If Tenant shall
not be in default under this lease then, upon the
termination of this lease under the conditions provided for
in the sentence immediately preceding, Tenant's liability
for rent shall cease as of the day following the casualty.
Tenant hereby expressly waives the provisions of Section 227
of the Real Property Law and agrees that the foregoing
provisions of this Article shall govern and control in lieu
thereof. If the damage or destruction be due to the fault or
neglect of Tenant the debris shall be removed by, and at the
expense of, Tenant.
FIFTH.-If the whole or any part of the premises hereby
demised shall be taken or condemned by any competent
EMINENT authority for any public use or purpose then the term hereby
DOMAIN granted shall cease from the time when possession of the
part so taken shall be required for such public purpose and
without apportionment of award, the Tenant hereby assigning
to the Landlord all right and claim to any such award, the
current rent, however, in such case to be apportioned.
LEASE NOT SIXTH.-If, before the commencement of the term, the
IN EFFECT Tenant be adjudicated a bankrupt, or make a "general
assignment," or take the benefit of any insolvent act, or
if, a Receiver or Trustee be appointed for the Tenant's
property, or if this lease or the estate of the Tenant
hereunder be transferred or pass to or devolve upon any
other person or corporation, or if the Tenant shall default
in the performance of any agreement by the Tenant contained
in any other lease to the Tenant by the Landlord or by any
corporation of which an officer of the Landlord is a
Director, this lease shall thereby, at the
DEFAULTS option of the Landlord, be terminated and in that case,
neither the Tenant nor anybody claiming under the Tenant
shall be entitled to go into possession of demised
premises,. If after the commencement of the term, any of
the events mentioned above in this subdivision shall occur,
or if Tenant shall make default in fulfilling any
of the covenants of this leases, other than the covenants
for the payment of rent or "additional rent" or if the
demised premises become vacant or deserted, the Landlord may
give to the Tenant ten days' notice of intention to end the
term of this lease, and thereupon at the expiration of said
ten days' (if said condition which was the basis of said
TEN DAY notice shall continue to exist) the term under this lease
NOTICE shall expire as fully and completely as if that day were the
date herein definitely fixed for the expiration of the term
and the Tenant will then quit and surrender the demised
premises to the Landlord, but the Tenant shall remain liable
as hereinafter provided.
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RE-POSSESSION If the Tenant shall make default in the payment of the
BY LANDLORD rent reserved hereunder, or any item of "additional rent"
herein mentioned, or any part of either or in making any
other payment herein provided for, or if the notice last
above provided for shall have been given and if the
condition which was the basis of said notice shall exist at
the expiration of said ten days' period, the Landlord may
immediately, or at any time thereafter, re-enter the
demised premises and remove all persons and all or any
property therefrom, either by summary dispossess
proceedings, or by any suitable action or proceeding at
law, or by force or otherwise, without being liable to
indictment, prosecution or damages therefor, and
RE-LETTING re-possess and enjoy said premises together with all
additions, alterations and improvements. In any such case
or in the event that this lease be "terminated" before the
commencement of the term, as above provided, the Landlord
may either re-let the demised premises or any part or
parts thereof for the Landlord's own account, or may, at
the Landlord's option, re-let the demised premises or any
part or parts thereof as the agent of the Tenant, and
receive the rents therefor, applying the same first to the
payment of such expenses as the Landlord may have
incurred, and then to the fulfillment of the covenants of
the Tenant herein, and the balance, if any, at the
expiration of the term first above provided for, shall be
paid to the Tenant. Landlord may rent the premises for a
term extending beyond the term hereby granted without
releasing Tenant from any liability. In the event that the
term of this lease shall expire as above in this
WAIVER subdivision "Sixth" provided, or terminate by summary
BY TENANT proceedings or otherwise, and if the Landlord shall not
re-let the demised premises for the Landlord's own account,
then, whether or not the premises be re-let, the Tenant
shall remain liable for, and the Tenant hereby agrees to
pay to the Landlord, until the time when this lease would
have expired but for such termination or expiration, the
equivalent of the amount of all of the rent and "additional
rent" reserved herein, less the avails of reletting, if
any, and the same shall be due and payable by the Tenant to
the Landlord on the several rent days above specified, that
is, upon each of such rent days the Tenant shall pay to the
Landlord the amount of deficiency then existing. The Tenant
hereby expressly waives any and all right of redemption in
case the Tenant shall be dispossessed by judgment or
warrant of any court or judge, and the Tenant waives and
will waive all right to trial by jury in any summary
proceedings hereafter instituted by the Landlord against
the Tenant in respect to the demised premises. The words
"re-enter" and "re-entry" as used in this lease are not
restricted to their technical legal meaning.
In the event of a breach or threatened breach by the
Tenant of any of the covenants or provisions hereof, the
REMEDIES ARE Landlord shall have the right of injunction and the right to
CUMULATIVE invoke any remedy allowed at law or in equity, as if
re-entry, summary proceedings and other remedies were not
herein provided for.
SEVENTH.--If the Tenant shall make default in the
performance of any covenant herein contained, the Landlord
may immediately, or at any time thereafter, without notice,
perform the same for the account of the Tenant. If a notice
of mechanic's lien be filed against the demised premises or
LANDLORD against premises of which the demised premises are part,
MAY PERFORM for, or purporting to be for, labor or material alleged to
have been furnished, or to be furnished to or for the Tenant
at the demised premises, and if the Tenant shall fail to
take such action as shall cause such lien to be discharged
within fifteen days after the filing of such notice, the
Landlord may pay the amount of such lien or discharge the
same by deposit or by bonding proceedings, and in the event
of such deposit or bonding proceedings, the Landlord may
require the lienor to prosecute an appropriate action to
enforce the lienor's claim. In such case, the Landlord may
pay any judgment recovered on such claim. Any amount paid or
expense incurred by the Landlord as in this subdivision of
this lease provided, and any amount as to which the Tenant
shall at any time be in default for or in respect to the use
of water, electric current or sprinkler supervisory service,
and any expense incurred or sum of money paid by the
Landlord by reason of the failure of the Tenant to comply
with any provision hereof, or in defending any such action,
shall be deemed to be "additional rent" for the demised
premises, and shall be due and payable by the Tenant to the
Landlord on the first day of the next Following month,
ADDITIONAL or, at the option of the Landlord, on the first day of any
RENT succeeding month. The receipt by the Landlord of any
instalment of the regular stipulated rent hereunder or any
of said "additional rent" shall not be a waiver of any other
"additional rent" then due.
EIGHTH.--The failure of the Landlord to insist, in any
one or more instances upon a strict performance of any of
the covenants of this lease, or to exercise any option
AS TO herein contained, shall not be construed as a waiver or a
WAIVERS relinquishment for the future of such covenant or option,
but the same shall continue and remain in full force and
effect. The receipt by the Landlord of rent, with knowledge
of the breach of any covenant hereof, shall not be deemed a
waiver of such breach and no waiver by the Landlord of any
provision hereof shall be deemed to have been made unless
expressed in writing and signed by the Landlord. Even though
the Landlord shall consent to an assignment hereof no
further assignment shall be made without express consent in
writing by the Landlord.
NINTH.--If this lease be assigned, or if the demised
premises or any part thereof be underlet or occupied by
anybody other than the Tenant the Landlord may collect rent
from the assignee, under-tenant or occupant, and apply the
COLLECTION net amount collected to the rent herein reserved, and no
OF RENT such collection shall be deemed a waiver of the covenant
FROM OTHERS herein against assignment and under-letting, or the
acceptance of the assignee, under-tenant or occupant as
tenant, or a release of the Tenant from the further
performance by the Tenant of the covenants herein contained
on the part of the Tenant.
TENTH.--This lease shall be subject and subordinate at
all times, to the lien of the mortgages now on the demised
MORTGAGES premises, and to all advances made or hereafter to be made
upon the security thereof, and subject and subordinate to
the lien of any mortgage or mortgages which at any time may
be made a lien upon the premises. The Tenant will execute
and deliver such further instrument or instruments
subordinating this lease to the lien of any such mortgage or
mortgages as shall be desired by any mortgagee or proposed
mortgagee. The Tenant hereby appoints the Landlord the
attorney-in-fact of the Tenant, irrevocable, to execute and
deliver any such instrument or instruments for the Tenant.
ELEVENTH.--All improvements made by the Tenant to or
upon the demised premises, except said trade fixtures, shall
IMPROVEMENTS when made, at once be deemed to be attached to the freehold,
and become the property of the Landlord, and at the end or
other expiration of the term, shall be surrendered to the
Landlord in as good order and condition as they were when
installed, reasonable wear and damages by the elements
excepted.
TWELFTH.--Any notice or demand which under the terms of
this lease or under any statute must or may be given or made
NOTICES by the parties hereto shall be in writing and shall be given
or made by mailing the same by certified or registered mail
addressed to the respective parties at the addresses set
forth in this lease.
THIRTEENTH.--The Landlord shall not be liable for any
failure of water supply or electrical current, sprinkler
damage, or failure of sprinkler service, nor for injury or
damage to person or property caused by the elements or by
NO LIABILITY other tenants or persons in said building, or resulting from
steam, gas, electricity, water, rain or snow, which may leak
or flow from any part of said buildings, or from the pipes,
appliances or plumbing works of the same, or from the street
or sub-surface, or from any other place, nor for
interference with light or other incorporeal hereditaments
by anybody other than the Landlord, or caused by operations
by or for a governmental authority in construction of any
public or quasi-public work, neither shall the Landlord be
liable for any latent defect in the building.
FOURTEENTH.--No diminution or abatement of rent, or
other compensation shall be claimed or allowed for
inconvenience or discomfort arising from the making of
repairs or improvements to the building or to its
appliances, nor for any space taken to comply with any law,
ordinance or order of a governmental authority. In respect
to the various "services," if any, herein expressly or
NO impliedly agreed to be furnished by the Landlord to the
ABATEMENT Tenant, it is agreed that there shall be no diminution or
abatement of the rent, or any other compensation, for
interruption or curtailment of such "service" when such
interruption or curtailment shall be due to accident,
alterations or repairs desirable or necessary to be made or
to inability or difficulty in securing supplies or labor for
the maintenance of such "service" or to some other cause,
not gross negligence on the part of the Landlord. No such
interruption or curtailment of any such "service" shall be
deemed a constructive eviction. The Landlord shall not be
required to furnish, and the Tenant shall not be entitled to
receive, any of such "services" during any period wherein
the Tenant shall be in default in respect to the payment of
rent. Neither shall there be any abatement or diminution of
rent because of making of repairs, improvements or
decorations to the demised premises after the date above
fixed for the commencement of the term, it being understood
that rent shall, in any event, commence to run at such date
so above fixed.
FIFTEENTH.--The Landlord may prescribe and regulate the
placing of safes, machinery, quantities of merchandise and
other things. The Landlord may also prescribe and regulate
which elevator and entrances shall be used by the Tenant's
employees, and for the Tenant's shipping. The Landlord may
RULES, ETC. make such other and further rules and regulations as, in the
Landlord's judgment, may from time to time be needful for
the safety, care or cleanliness of the building, and for the
preservation of good order therein. The Tenant and the
employees and agents of the Tenant will observe and conform
to all such rules and regulations.
SIXTEENTH.--In the event that an excavation shall be
made for building or other purposes upon land adjacent to
the demised premises or shall be contemplated to be made,
the Tenant shall afford to the person or persons causing or
to cause such excavation, license to enter upon the demised
SHORING premises for the purpose of doing such work as said person
OF WALLS or persons shall deem to be necessary to preserve the wall
or walls, structure or structures upon the demised premises
from injury and to support the same by proper foundations.
SEVENTEENTH.--No vaults or space not within the
property line of the building are leased hereunder. Landlord
makes no representation as to the location of the property
line of the building. Such vaults or space as Tenant may be
permitted to use or occupy are to be used or occupied under
VAULT SPACE a revocable license and if such license be revoked by the
Landlord as to the use of part or all of the vaults or space
Landlord shall not be subject to any liability; Tenant shall
not be entitled to any compensation or reduction in rent nor
shall this be deemed constructive or actual eviction. Any
tax, fee or charge of municipal or other authorities for
such vaults or space shall be paid by the Tenant for the
period of the Tenant's use or occupancy thereof.
EIGHTEENTH.--That during seven months prior to the
expiration of the term hereby granted, applicants shall be
admitted at all reasonable hours of the day to view the
premises until rented; and the Landlord and the Landlord's
agents shall be permitted at any time during the term to
visit and examine them at any reasonable hour of the day,
and workmen may enter at any time, when authorized by the
ENTRY Landlord or the Landlord's agents, to make or facilitate
repairs in any part of the building; and if the said Tenant
shall not be personally present to open and permit an entry
into said premises, at any time, when for any reason an
entry therein shall be necessary or permissible hereunder,
the Landlord or the Landlord's agents may forcibly enter the
same without rendering the Landlord or such agents liable to
any claim or cause of action for damages by reason thereof
(if during such entry the Landlord shall accord reasonable
care to the Tenant's property) and without in any manner
affecting the obligations and covenants of this lease; it
is, however, expressly understood that the right and
authority hereby reserved, does not impose, nor does the
Landlord assume, by reason thereof, and responsibility or
liability whatsever for the care or supervision of said
premises, or any of the pipes, fixtures, appliances or
appurtenances therein contained or therewith in any manner
connected.
NINETEENTH.--The Landlord has made no representations
or promises in respect to said building or to the demised
NO premises except those contained herein, and those, if any,
REPRESENTATIONS contained in some written communication to the Tenant,
signed by the Landlord. This instrument may not be
changed, modified, discharged or terminated orally.
TWENTIETH.--If the Tenant shall at any time be in
default hereunder, and if the Landlord shall institute an
action or summary proceeding against the Tenant based upon
such default, then the tenant will reimburse the Landlord
ATTORNEY'S for the expense of attorneys' fees and disbursements thereby
FEES incurred by the Landlord, so far as the same are reasonable
in amount. Also so long as the Tenant shall be a tenant
hereunder the amount of such expenses shall be deemed to be
"additional rent" hereunder and shall be due from the Tenant
to the Landlord on the first day of the month following the
incurring of such respective expenses.
TWENTY-FIRST.--Landlord shall not be liable for failure
to give possession of the premises upon commencement date by
reason of the fact that premises are not ready for
occupancy, or due to a prior tenant wrongfully holding over
POSSESSION or any other person wrongfully in possession or for any
other reason: in such event the rent shall not commence
until possession is given or is available, but the term
herein shall not be extended.
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THE TENANT FURTHER COVENANTS:
TWENTY-SECOND.--If the demised premises or any part
thereof consist of a store, or of a first floor, or of any
IF A FIRST part thereof, the Tenant will keep the sidewalk and curb in
FLOOR front thereof clean at all times and free from snow and ice,
and will keep insured in favor of the Landlord, all plate
glass therein and furnish the Landlord with policies of
insurance covering the same.
TWENTY-THIRD.--If by reason of the conduct upon the
demised premises of a business not herein permitted, or if
by reason of the improper or careless conduct of any
business upon or use of the demised premises, the fire
INCREASED insurance rate shall at any time be higher than it otherwise
FIRE INSURANCE would be, then the Tenant will reimburse the Landlord, as
RATE additional rent hereunder, for that part of all fire
insurance premiums hereafter paid out by the Landlord which
shall have been charged because of the conduct of such
business not so permitted, or because of the improper or
careless conduct of any business upon or use of the demised
premises, and will make such reimbursement upon the first
day of the month following such outlay by the Landlord; but
this covenant shall not apply to a premium for any period
beyond the expiration date of this lease, first above
specified. In any action or proceeding wherein the Landlord
and Tenant are parties, a schedule or "make up" of rate for
the building on the demised premises, purporting to have
been issued by New York Fire Insurance Exchange, or other
body making fire insurance rates for the demised premises,
shall be prima facie evidence of the facts therein stated
and of the several items and charges included in the fire
insurance rate then applicable to the demised premises.
WATER RENT TWENTY-FOURTH.--If a separate water meter be installed
for the demised premises, or any part thereof, the Tenant
will keep the same in repair and pay the charges made by the
municipality or water supply company for or in respect to
the consumption of water, as and when bills therefor are
rendered. If the demised premises, or any part thereof, be
supplied with water through a meter which supplies other
premises, the Tenant will pay to the Landlord, as and when
bills are rendered therefor, the Tenant's proportionate part
of all charges which the municipality or water supply
company shall make for all water consumed through said
meter, as indicated by said meter. Such proportionate part
shall be fixed by apportioning the respective charge
according to floor area against all of the rentable floor
area in the building (exclusive of the basement) which shall
have been occupied during the period of the respective
charges, taking into account the period that each part of
such area was occupied. Tenant agrees to pay as additional
SEWER rent the Tenant's proportionate part, determined as
aforesaid, of the sewer rent or charge imposed or assessed
upon the building of which the premises are a part.
TWENTY-FIFTH.--That the Tenant will purchase from the
ELECTRIC Landlord, if the Landlord shall so desire, all electric
CURRENT current that the Tenant requires at the demised premises,
and will pay the Landlord for the same, as the amount of
consumption shall be indicated by the meter furnished
therefor. The price for said current shall be the same as
that charged for consumption similar to that of the Tenant
by the company supplying electricity in the same community.
Payments shall be due as and when bills shall be rendered.
The Tenant shall comply with like rules, regulations and
contract provisions as those prescribed by said company for
a consumption similar to that of the Tenant.
TWENTY-SIXTH.--If there now is or shall be installed in
SPRINKLER said building a "sprinkler system" the Tenant agrees to keep
SYSTEM the appliances thereto in the demised premises in repair and
good working condition, and if the New York Board of Fire
Underwriters or the New York Fire Insurance Exchange or any
bureau, department or official of the State or local
government requires or recommends that any changes,
modifications, alterations or additional sprinkler heads or
other equipment be made or supplied by reason of the
Tenant's business, or the location of partitions, trade
fixtures, or other contents of the demised premises, or if
such changes, modifications, alterations, additional
sprinkler heads or other equipment in the demised premises
are necessary to prevent the imposition of a penalty or
charge against the full allowance for a sprinkler system in
the fire insurance rate as fixed by said Exchange, or by any
Fire Insurance Company, the Tenant will at the Tenant's own
expense, promptly make and supply such changes,
modifications, alterations, additional sprinkler heads or
other equipment. As additional rent hereunder the Tenant
will pay to the Landlord, annually in advance, throughout
the term $..............., toward the contract price for
sprinkler supervisory service.
SECURITY TWENTY-SEVENTH.--The sum of .....NONE..........Dollars
is deposited by the Tenant herein with the Landlord herein
as security for the faithful performance of all the
covenants and conditions of the lease by the said Tenant. If
the Tenant faithfully performs all the covenants and
conditions on his part to be performed, then the sum
deposited shall be returned to said Tenant.
NUISANCE TWENTY-EIGHTH.--This lease is granted and accepted on
the especially understood and agreed condition that the
Tenant will conduct his business in such a manner, both as
regards noise and kindred nuisances, as will in no wise
interfere with, annoy, or disturb any other tenants, in the
conduct of their several businesses, or the landlord in the
management of the building; under penalty of forfeiture of
this lease and consequential damages.
TWENTY-NINTH.--The Landlord hereby recognizes as the
BROKERS broker who negotiated and consummated this lease with the
COMMISSIONS Tenant herein, and agrees that if, as, and when the Tenant
exercises the option, if any, contained herein to renew this
lease, or fails to exercise the option, if any, contained
therein to cancel this lease, the Landlord will pay to said
broker a further commission in accordance with the rules and
commission rates of the Real Estate Board in the community.
A sale, transfer, or other disposition of the Landlord's
interest in said lease shall not operate to defeat the
Landlord's obligation to pay the said commission to the said
broker. The Tenant herein hereby represents to the Landlord
that the said broker is the sole and only broker who
negotiated and consummated this lease with the Tenant.
THIRTIETH.--The Tenant agrees that it will not require,
WINDOW permit, suffer, nor allow the cleaning of any window, or
CLEANING windows, in the demised premises from the outside (within
the meaning of Section 202 of the Labor Law) unless the
equipment and safety devices required by law, ordinance,
regulation or rule, including, without limitation, Section
202 of the New York Labor Law are provided and used, and
unless the rules, or any supplemental rules of the
Industrial Board of the State of New York are fully complied
with; and the Tenant hereby agrees to indemnify the
Landlord, Owner, Agent, Manager and/or Superintendent as a
result of the Tenant's requiring, permitting suffering, or
allowing any window, or windows in the demised premises to
be cleaned from the outside in violation of the requirements
of the aforesaid laws, ordinances, regulations and/or rules.
VALIDITY THIRTY-FIRST.--The invalidity or unenforceability of
any provision of this lease shall in no way affect the
validity or enforceability of any other provision hereof.
EXECUTION & THIRTY-SECOND.--In order to avoid delay, this lease has
DELIVERY been prepared and submitted to the Tenant for signature with
OF LEASE the understanding that it shall not bind the Landlord unless
and until it is executed and delivered by the Landlord.
EXTERIOR OF THIRTY-THIRD.--The Tenant will keep clean and polished
PREMISES all metal, trim, marble and stonework which are a part the
exterior of the premises, using such materials and methods
as the Landlord may direct, and if the Tenant shall fail to
comply with the provisions of this paragraph, the Landlord
may cause such work to be done at the expense of the Tenant.
PLATE GLASS THIRTY-FOURTH.--The Landlord shall replace at the
expense of the Tenant any and all broken glass in the
skylights, doors and walls in and about the demised
premises. The Landlord may insure and keep insured all plate
glass in the skylights, doors and walls in the demised
premises, for and in the name of the Landlord and bills for
the premiums therefor shall be rendered by the Landlord to
the Tenant at such times as the Landlord may elect, and
shall be due from and payable by the Tenant when rendered,
and the amount thereof shall be deemed to be, and shall be
paid as, additional rent.
THIRTY-FIFTH.--This lease and the obligation of Tenant
WAR to pay rent hereunder and perform all of the other covenants
EMERGENCY and agreements hereunder on part of Tenant to be performed
shall in nowise be affected, impaired or excused because
Landlord is unable to supply or is delayed in supplying any
service expressly or impliedly to be supplied or is unable
to make, or is delayed in making any repairs, additions,
alterations or decorations or is unable to supply or is
delayed in supplying any equipment or fixtures if Landlord
is prevented or delayed from so doing by reason of
governmental preemption in connection with a National
Emergency declared by the President of the United States or
in connection with any rule, order or regulation of any
department or subdivision thereof of any government agency
or by reason of the conditions of supply and demand which
have been or are affected by war or other emergency.
THE LANDLORD COVENANTS
QUIET FIRST.--That if and so long as the Tenant pays the rent
POSSESSION and "additional rent" reserved hereby, and performs and
observes the covenants and provisions hereof, the Tenant
shall quietly enjoy the demised premises, subject, however,
to the terms of this lease, and to the mortgages above
mentioned, provided however, that this covenant shall be
conditioned upon the retention of title to the premises by
Landlord.
AND IT IS MUTUALLY UNDERSTOOD AND AGREED that the
covenants and agreements contained in the within lease shall
be binding upon the parties hereto and upon their respective
successors, heirs, executors and administrators.
IN WITNESS WHEREOF, the Landlord and Tenant have
respectively signed and sealed these presents the day and
year first above written.
160 OSER AVENUE ASSOCIATES,
By: /s/ Joel Stemple [L.S.]
-----------------------
Landlord
MANCHESTER EQUIPMENT CO., INC.,
By: /s/ BARRY STEINBERG [L.S.]
-----------------------
Tenant
In presence of:
/s/ Veronica Laskowski
4
State of New York, County of ss:
On , before me the undersigned, a Notary Public in and for
said State, personally appeared , personally known to me
or proved to me on the basis of satisfactory evidence to
be the individual(s) whose
name(s) is (are) subscribed to the within instrument and acknowledged to me that
he/she/they executed the same in his/her/their capacity(ies), and that by
his/her/their signature(s) on the instrument, the individual(s), or the person
upon behalf of which the individual(s) acted, executed the instrument.
--------------------------------------
(signature and office of person taking acknowledgement)
State of New York County of ss.:
On before me, the undersigned, a Notary Public in and for said
State, personally appeared The subscribing witness(es) to the
foregoing instrument, with whom I am personally acquainted,
who, being by me
duly sworn, did depose and say that he/she/they reside(s) in (if the place of
residence is in a city, include the street and street number, if any, thereof):
that he/she/they know(s)
to be the individual(s) described in and who executed the foregoing instrument;
that said subscribing witness(es) was (were) present and saw said
execute the same: and that said witness(es) at the same time subscribed
his/her/their name(s) as a witness(es) thereto.
-------------------------------------
(signature and office of person taking acknowledgment)
BUILDING
PREMISES
Landlord
to
Tenant
LEASE
GUARANTY
In consideration of the letting of the premises within mentioned to the
Tenant within named, and of the sum of One Dollar, to the undersigned in hand
paid by the Landlord within named, the undersigned hereby guarantees to the
Landlord and to the heirs, successors and/or assigns of the Landlord, the
payment by the Tenant of the rent, within provided for, and the performance by
the Tenant of all of the provisions of the within lease. Notice of all defaults
is waived, and consent is hereby given to all extensions of time that any
Landlord may grant.
Dated,
L.S.
State of New York County of ss:
On , before me, the undersigned, a Notary Public in and for
said State, personally appeared
Personally known to me or proved to me on the basis of satisfactory evidence to
be the individual(s) whose name(s) is (are) subscribed to the within instrument
and acknowledged to me that he/she/they executed the same in his/her/their
capacity(ies), and that by his/her/their signature(s) on the instrument, the
individual(s), or the person upon behalf of which the individual(s) acted,
executed the instrument.
------------------------------------- (signature and office of person taking
acknowledgment)
4
{ 15 }
RIDER TO LEASE dated December 6, 2000 between 160 Oser Avenue Associates,as
----- -- -----
Landlord, and Manchester Equipment Co., Inc., as Tenant.
--------------------------------------------------------------------------------
1. Anything herein, to the contrary notwithstanding, Tenants shall, at
Tenants' own cost and expense, secure and pay for all interior repairs,
replacements, utilities, maintenance and services required by Tenants or for
preservation of the demised premises, including, but not limited to: gas,
electricity, telephone, light, janitorial services, plumbing, wiring, carpentry,
mechanical, plate glass, electrical, air-conditioning, store front, painting,
decorating and maintenance services, heat, fuel, garbage and waste disposal,
snow removal, water, hot water and sewer rent. Any fees or deposits for permits
or licenses for machinery, meters, signs or any other equipment or usage, shall
be made, secured, and/or paid for by Tenants at Tenants' own cost and expense.
Except as expressly provided in this Lease, Landlord shall have no obligation to
furnish or perform interior repairs, maintenance or services; provided however,
that Landlord shall be responsible for so-called "structural" repairs, defined
as exterior walls, structural members and foundation. As designated in the
within paragraph, "utilities" refers solely to those utilities consumed by the
within Tenant; i.e. the within Tenant shall have no responsibility for the
utilities consumed by other Tenants in the building in which the demised
premises are located.
2. Anything herein to the contrary notwithstanding, Tenants are hereby
given permission to erect any sign or signs in and about the demised premises at
Tenant's own cost and expense, provided: (a) Any such sign shall comply with all
rules and regulations of any governmental authority having jurisdiction thereof;
(b) Said sign or signs shall be installed without damage to Landlord's building
including signs on each exterior wall; (c) Upon the removal of any such signs,
all damage occasioned thereby shall be repaired by Tenants at Tenants' own cost
and expense.
3. Tenants shall secure, pay for and maintain during the term of this
Lease, a policy of general liability insurance, (having limits:
$1,000,000/2,000,000 for bodily injury; $100,000 for property damage) from a
financially responsible insurer licensed to do business in the State of New
York; which said policy shall name as protected, the Tenants and Landlord as the
fee owner, as their respective interests shall appear, and any other parties
designated by Tenants, and shall contain a waiver of subrogation as against the
Landlord as fee owner. Tenants shall deliver to the Landlord a certificate of
such insurance policy on or before the beginning of the term of this Lease. In
any such policy, the bodily injury coverage shall be written on an "Occurrence"
basis and shall include personal injury coverage; and shall also provide that no
modification, termination or cancellation thereof shall be effective until after
ten (10) days prior written notice has been given to Landlord by the insurance
carrier, to be forwarded by Certified or Registered Mail, Return Receipt
Requested. In the event of the failure of the Tenant to secure, maintain and pay
for such policy and to provide a certificate thereof to Landlord, Landlord may,
in Landlord's sole discretion, order such policy and the premium cost thereof
shall be due from Tenant as additional rent hereunder or Landlord may elect to
treat such failure as a default hereunder, in which case, Tenant agrees such
default is a material default of the Lease.
1
4. Tenant, at its cost, shall maintain a policy of standard fire and
extended coverage insurance with vandalism and malicious mischief endorsements
to the extent of at least eighty [80%] percent of full replacement value as to
the demised structure and its environs, defined as follows: $1,000,000.00. The
insurance policy shall be issued in the name of Landlord, Tenant and Landlord's
lender, if any, now or in the future, as their interests appear. The insurance
policy shall provide that any proceeds shall be made payable to the Landlord or
Landlord's lender, as Landlord may designate. The Tenant agrees to assign and
deliver at the commencement of this Lease said insurance policy to the Landlord
and the said policy and renewal thereof shall be held by said Landlord. In the
event the Tenants do not pay the premiums as they fall due on said policy,
Landlord shall have the option of paying said premiums on behalf of Tenants, and
adding the cost thereof to the next month's rent due Landlord under the terms of
this Lease as additional rent and to collect same as "additional rent".
The foregoing insurance policy shall provide that no modification,
termination or cancellation thereof shall be effective until after thirty [30]
days prior written notice has been given to the Landlord by the insurance
carrier, certified mail, return receipt.
If any extraordinary or excessive insurance premium cost is charged to
Landlord as the result of the nature of Tenant's business, or its use and
occupancy of the demised premises or an installation, condition or alteration
made or maintained by Tenant therein, the full cost of such excess premium or
extraordinary charge shall be borne by and paid by Tenant. The finding or
"make-up" of rate established by the New York Fire Rating Organization [or such
other agency having jurisdiction and responsibility for rating the building for
insurance purposes] shall be admissible as evidence in any action and proceeding
and shall be deemed conclusive evidence of the facts therein stated and of the
items and charges then applicable to the building and the demised premises
located therein. The total costs of insurance and the totality of coverage shall
not exceed that which is reasonable and customary.
2
5. The Tenants agree to indemnify the Landlord, as fee owner, and the
respective officers, directors, agents, servants and employees thereof against
and to defend, save and hold them harmless of and from, any and all liability,
cost and damage for or arising by reason of any and all claims, suits or causes
of action for bodily injury, personal injury, death or property damage to any
and all persons in any manner caused by acts, negligence or omissions of, or any
condition created, caused, permitted or suffered by, the Tenants, its officers,
directors, agents, servants, and employees.
6. Except for injury, loss or damage occasioned directly and specifically
as the result of the Landlord's negligence, the Landlord shall not be liable or
responsible to the Tenants for the safekeeping of any goods or other property of
the Tenant, nor for injury to any person or persons or any damage to or loss of
merchandise or other property of the Tenants occasioned by theft, fire, water,
power failure, accident or the bursting, leaking or running in the demised
premises of any plumbing, heating, electrical apparatus, gas, steam or pipes of
any nature, or from any other cause whatsoever; and except for injury, loss or
damage due to Landlord's negligence, anything herein to the contrary
notwithstanding, the Tenant, for itself and its insurers, releases Landlord of
and from any and all such liability and responsibility.
7. It is understood and agreed that under any and all circumstances, the
liability of the Landlord shall not be personal and whenever Tenants, their
agents, servants or employees seek or recover any money judgment or other award
of damages against the Landlord from any Court, administrative body or tribunal
of competent jurisdiction, that satisfaction thereof shall be solely and
expressly limited to levy of execution against and collection out of the
interest of the Landlord in and to the demised premises and/or the land and
building of which the demised premises forms a part, and the Tenants for
themselves, their agents, servant and employees, heirs, successors and assigns,
expressly and specifically relinquishes, waives and releases any and all rights
to seek, secure, recover or collect any portion of such judgment, damages or
award against or from the Landlord personally or from any other property, assets
or estate of the Landlord, its heirs, successors, officers, directors,
shareholders, legal representatives, agents, servant, employees or assigns.
8. In lieu of the Landlord not requiring the Tenant to maintain a policy of
plate glass insurance, it is specifically agreed that the Tenant shall be solely
responsible for the replacement of any and all plate glass damage at the
Tenant's cost and expense. In the event the Tenant fails to replace and or
repair plate glass within a reasonable time after damage thereto, the Landlord
shall have the right to repair said plate glass damage, and in such event, the
landlord is hereby authorized to add the cost of such repair to any regular
installment of rent thereafter becoming due, as additional rent.
9. Tenants shall bear and pay to the Landlord as additional rent during
each Lease year, the cost to Landlord of the following:
3
A. Commencing with the rental due November 1, 2000, the fixed annual rent
hereinbefore set forth for each fiscal year of this Lease (hereinafter a "lease
year") shall be increased by additional rental in an amount equal to one hundred
[100%] percent of the amount expended for taxes, [as hereinafter defined], in
such Lease year.
Such additional rental shall be paid by the Tenants within fifteen (15)
days after the Landlord shall have served upon Tenants a written statement
thereof. The Tenants or their authorized representative shall have the right to
inspect the books of the Landlord during its regular business hours for the
purpose of verifying the information set forth in the statement submitted by the
Landlord pursuant to this paragraph provided that written request for such
inspection shall be made by the Tenants within ten (10) days after the receipt
of such statement. For purposes of this paragraph, the term "Taxes" means real
estate taxes, transfer taxes, vault charges and other governmental taxes or
charges, special, ordinary or extraordinary, foreseen or unforeseen (but not
income, franchise, inheritance or capital stock taxes) which may now or
hereafter be levied or assessed against the lands and buildings of which the
demised premises form a part thereof. In the event the tax year does not
correspond with a Lease year, equitable proration shall be made in determining
the amount expended in respect of such period.
(a) Every "lease year" during the term hereof shall be for a period of
twelve (12) full calendar months, except that the last Lease year shall
terminate on the date this Lease expires or is otherwise terminated.
(b) In the event that as the result of changes in the laws, enabling
statutes or other code, rules or regulations, including but not limited to the
Internal Revenue Code, taxes or other levies or assessments against gross rental
income shall be substituted in whole or in part for any real property taxes or
assessments presently applicable to real property, then and to the extent that
such taxes shall be and constitute a substitute for the real property taxes
against the premises of which the demised premises forms a part, such substitute
tax or assessment shall be included in and considered part of the real property
taxes for the purposes of calculating the portion thereof to be paid by Tenants
as additional rent hereunder.
10. A. The amount of all such additional rent shall be due and payable with
the next regular monthly installment of rent following the submission to Tenants
of a bill, together with the calculation of additional rent due, therefor by
Landlord.
B. A copy of the official tax bill, insurance premium bill or other
statement or invoice for a charge or expense to Landlord shall be deemed
sufficient and conclusive evidence of the amount of such charge or expense, a
percentage of which is payable by Tenant to Landlord as additional rent.
4
C. If any extraordinary or excessive insurance premium cost is charged to
Landlord as the result of the nature of Tenant's business, or its use and
occupancy of the demised premises or an installation, condition or alteration
made or maintained by Tenant therein, the full cost of such excess premium or
extraordinary charge shall be borne by and paid by Tenants. The finding or
"make-up" of rate established by the New York Fire Rating Organization (or such
other agency having jurisdiction and responsibility for rating the building for
insurance purposes) shall be admissible as evidence in any action and proceeding
and shall be deemed conclusive evidence of the facts therein stated and of the
items and charges then applicable to the building and the demised premises
located therein. The total costs of insurance and the totality of coverage shall
not exceed that which is reasonable and customary.
D. The portion of the Landlord's costs or charges payable as additional
rent by Tenants shall be apportioned on the basis that the first Lease year, the
last Lease year or any Lease year does not coincide with the fiscal year to
which any such charge is applicable.
11. It is specifically agreed that in the event of the default by Tenants
in the performance of this Lease or the payment when due of any installment of
rent or additional rent or any other sum due under this Lease, the Landlord is
expressly authorized, empowered, directed and entitled to use, apply or retain
as Landlord's sole property that portion or all of the security deposited by
Tenants on the signing of this Lease to the extent necessary to cure such
default or to reimburse Landlord for any sum which he may expend or be required
to expend by reason of Tenant's default. All or any portion of the said security
deposit thus used or applied by Landlord shall be made up and redeposited by
Tenants forthwith on demand to the original amount of the security deposit
required under this Lease. The security deposit to be made hereunder and any
additions thereto, shall be deposited by the Landlord in a separate interest
bearing savings account, and all interest accruing thereon shall be deemed as
additional security, and held by the Landlord pursuant to the security
provisions of the within Lease.
12. Tenants agree that if Landlord shall pay or be compelled to pay a sum
of money or to perform any act that requires the payment of money, by reason of
the failure of the Tenant to keep, observe, or perform any of the terms,
covenants and provisions herein contained to be kept, observed or performed by
the Tenants, other than the payment of rent, then and in such event, the sum or
sums so paid by the Landlord shall, upon Landlord's demand, be paid by Tenants
to Landlord as additional rent, with interest thereon at the maximum rate of
interest allowable on the date of such demand, together with the installment of
the monthly base rent next due from date of said demand.
5
13. Any and all notices, consents and other communications which either
party may desire or be required to give to the other shall be in writing and,
except as otherwise herein specifically provided, shall be sent by Certified
Mail, Return Receipt Requested, addressed to the party for whom intended at the
address first herein above set forth or at such other address as such party may
designate for such purpose by notice duly given to the other. All such notices
shall be deemed to have been duly given on the third business day following the
date of the deposit thereof, securely enclosed in a postpaid wrapper addressed
as above, in an official depository maintained for mailing purposes by the U. S.
Post Office Department (or its successor postal agency).
14. If any term, condition or provision of the printed portion of this
Lease shall be inconsistent with a provision of this Rider, then the
inconsistent portions of the printed Lease form shall be deemed superseded by
the provisions set forth in this Rider. Wherever appropriate for good usage or
meaningful interpretation, terms expressed in the neuter, masculine or feminine
gender shall be deemed interchangeable, as shall terms expressed in the singular
or plural be deemed interchangeable.
15. In the event that any payment provided to be made hereunder shall
become overdue in excess of ten (10) days as additional rent, Tenant shall pay
to the Landlord a late charge of five (.05) cents for each dollar so overdue to
compensate Landlord for expenses incurred in handling such delinquent payment or
payments. The charges hereunder shall be due and owing regardless of application
of security pursuant to paragraph "10".
16. On the written request of either party, the Landlord and the Tenants
each covenant and agree to execute, seal, acknowledge and deliver unto the
other, within ten (10) days of written request, a certificate attesting: (a)
Whether this Lease is current and in full and continuing force and effect; (b)
Whether there are any defaults, arrears, set-offs, claims, counter-claims or
defenses to or against the full enforcement of any of the terms, covenants and
conditions to be paid and performed hereunder; (c) To the amount of the rent
then being paid and the dates of the commencement and expiration of the term
hereof; (d) To the period for which and the amount of the rent which has then
been prepaid; and (e) Whether the other party has fully performed all
obligations on its part to be performed.
17. It is specifically understood and agreed that any item required to be
paid by Tenants, including additional rent or payments for defaults, shall be
deemed rent, and upon the failure of Tenants to pay the same when due, it shall
be deemed equivalent to a default in the payment of rent and shall entitle
Landlord to invoke any and all remedies as in the case of non-payment of rent.
6
18. In any case where Landlord brings any action or summary proceeding for
any default of the Tenants hereunder, whether for the non-payment of rent or
additional rent or any other default, Landlord shall be entitled to reasonable
attorney's fees if successful; plus filing fees, sheriff's fees, if any, for any
one action or proceeding. Parties each waive trial by jury in any summary
proceeding.
19. The Tenants shall have the right to contest any real estate tax,
special assessments or other governmental charges levied against the real
property of which the demised premises are a part, by writ of certiorari, or
otherwise, in the same manner as provided by law for the owner of the property
to contest the same upon condition that the Tenants shall pay, immediately upon
billing, such real estate taxes, special assessments or other government charges
(looking to the taxing authorities for a refund thereafter), and upon the
further condition that the cost of such proceeding shall be borne solely by the
Tenants and the Tenants shall hold the Landlord free and harmless from any cost,
penalties, interest, damages or other liability otherwise incurred as the result
thereof. Landlord shall, at Tenant's request, execute such documents as are
reasonably necessary to carry out the foregoing. In the event the Tenant should
be successful in contesting as aforesaid, the result of which creates a refund
to the landlord, the following shall apply:
Upon receipt by the Landlord of such refund, the Landlord shall return to
the Tenant the costs and expenses incurred by the Tenant in obtaining such
refund. The Tenants shall have a similar right to contest insurance costs and
any other costs charged pursuant to paragraphs "8" and "9".
20. Ceiling lighting fixtures shall not be deemed trade fixtures, and upon
installation, the same shall become, be and remain Landlord's sole property. All
light bulbs, tubes, ballasts, starters, switches, lenses and grills for such
ceiling fixtures, and the servicing and maintenance thereof shall at all times
be solely the obligation of Tenant.
21. A. Tenant covenants and agrees that it will occupy the entire demised
premises, and will conduct its business in the regular and usual manner,
throughout the term of this Lease. Tenants acknowledge that Landlord is
executing this Lease in reliance upon these covenants, and that these covenants
are a material element of consideration inducing the Landlord to execute this
Lease. Tenant further agrees that if it vacates the demised premises or fails to
so conduct its business therein, at any time during the term of this Lease,
without the prior written consent of the Landlord, then all rent and additional
rent reserved in this Lease from the date of such breach to the expiration date
of this Lease, shall become immediately due and payable to Landlord.
7
B. The parties recognize and agree that the damage to Landlord resulting
from any breach of the covenants in subdivision (a) hereof will be substantial
and will be greater than the rent payable for the balance of the term of this
Lease, and will be impossible of ascertainment. The parties, therefore, agree as
follows:
1. In the event of a breach or threatened breach of the said covenants, in
addition to all of Landlord's other rights and remedies, at law or in equity or
otherwise, Landlord shall have the right of injunction to preserve Tenant's
occupancy and use. The words "become vacant or deserted" as used elsewhere in
this Lease shall include Tenant's failure to occupy or use as by this Article
required.
2. If Tenants breach either of the covenants in subdivision (a) above, and
this Lease be terminated because of such default, then, anything in this Lease
as to the contrary notwithstanding:
(a) Landlord shall have the right to re-enter the demised premises, and to
alter, reconstruct and rent all or any part of the premises, at any rental to
which Landlord shall agree, for any portion of or beyond the original term of
this Lease.
(b) Any income received by Landlord on any such re-rental shall be the
property of the Landlord alone, as compensation for the expenses in connection
with the preparation and re-renting of the demised space, and, together with the
rents and additional rents payable as aforesaid, as liquidated damages for the
breach of Tenants, which damages cannot be computed, as aforesaid. Tenants shall
have no right to any portion of such income.
22. In any action or summary proceeding brought by Landlord against Tenants
under this Lease (or any renewal, extension, holdover or modification thereof),
for non-payment of rent or additional rent, the Tenant hereby waives the right
to interpose, and expressly covenants and agrees not to interpose, any
counterclaim or set-off of whatever nature or description. The foregoing,
however, shall not be deemed or constitute a waiver of the Tenant's right to
commence and prosecute a separate action against Landlord on a bona-fide claim.
23. Every "Lease Year" during the term hereof shall be for a period of
twelve (12) full calendar months, except that the last Lease year shall
terminate on the date this Lease expires or is otherwise terminated.
8
24. The fixed annual rent hereinafter provided is intended to be and shall
be absolutely net to Landlord. It is the intention of the parties hereto that
all expenses, costs and obligations of the parties hereto, all expenses, costs
and obligations of every kind and nature whatsoever relating to the demised
premises, (with the exception of the base real estate taxes and structural
repairs as defined herein), shall be paid by Tenants either directly or as
additional rent so that this Lease shall yield to Landlord the net fixed annual
rent specified during the term of this Lease.
25. If any term or provision of this Lease or the application thereof to
any person or circumstances shall, to any extent, be invalid or unenforceable,
the remainder of this Lease, or the application of such term or provision to
persons or circumstances other than those as to which it is held invalid or
unenforceable, shall not be affected thereby, and each term and provision of
this Lease shall be valid and be enforced to the fullest extent permitted by
law.
26. Tenants agree not to allow or permit during the demised term, any
mechanic's or other lien for work, labor and services and/or materials furnished
or otherwise to attach to and become a lien upon the premises as a result of any
work done by or on behalf of Tenants. If such lien shall so attach, Tenants
shall within thirty (30) days after notice thereof, either pay or satisfy the
same or procure the discharge thereof of record in such manner as may be
permitted or provided by law. Should Tenants fail or refuse to discharge any
such lien within the period herein provided, then Landlord is hereby authorized
to add the amount of the said lien to any regular installment of rent thereafter
becoming due as additional rent.
27. During the entire term of this Lease, the Tenants shall be required to
keep in full force and effect all necessary Certificates of Occupancy for the
purposes for which the demised premises are rented, permits and other approvals
or consents required by any governmental authority having jurisdiction over the
business conducted by the Tenants as set forth in the purpose clause of this
Lease. The Landlord represents that the present zoning of the demised premises
is "C8".
28. Should any conflict in language or interpretation occur between the
printed provisions of this Lease, the parties agree that the provisions in the
Rider shall prevail. All reference to paragraphs as set forth in the Rider shall
refer to paragraphs so indicated in the Rider and not to paragraphs in the
printed portion of this Lease, unless so designated or unless the context of the
Rider is intended to designate the printed portion of this Lease.
29. This Lease contains all of the agreements and understandings of the
parties and cannot be amended or modified except by a written agreement.
30. The unenforceability, invalidity or illegality of any provision of the
Lease shall not render the other provisions unenforceable, invalid or illegal.
31. This Lease shall not be recorded. No Memorandum shall be recorded
without the express written consent of the Landlord.
9
32. Tenants covenant that the demised premises will not be used so as to
interfere with other Tenants in the same building.
33. In the event the Tenants do not vacate the premises upon the expiration
date of this Lease, then and in that event, the Tenants shall remain as month to
month Tenants at a monthly rental 100% greater than the last monthly rental paid
during the term of the Lease. Nothing herein shall grant the Tenants a right to
holdover after the expiration of the Lease term.
34. The annual base rent for the years of the term of the within Lease
shall be as follows:
Annual
------
Nov, 1, 2000 to Oct. 31, 2001 $336,000.00 - monthly $28,000.00,
Nov. 1, 2001 to Oct. 31, 2002 $352,800.00 - monthly $29,400.00,
Nov. 1, 2002 to Oct. 31, 2003 $370,440.00 - monthly $30,870.00,
Nov. 1, 2003 to Oct. 31, 2004 $388,962.00 - monthly $32,413.50,
Nov. 1, 2004 to Oct. 31, 2005 $408,410.00 - monthly $34,034.17.
35. Notwithstanding any provision of the within Lease to the contrary,
written consent of the Landlord to an assignment of the within Lease, and/or
sub-Lease of a portion of the demised premises, shall be required. The Landlord
shall not unreasonably withhold its consent to such assignment or sub-Lease
provided the then Tenant has complied with the following terms and conditions:
(a) The within Tenants shall not be in default as to any of the terms and
conditions of the within Lease, and the Lease shall be in full force and effect.
(b) The within Tenants shall notify the Landlord of the proposed
assignment, or sub-Lease, which notice shall be forwarded to the Landlord by
Certified Mail, Return Receipt. Said notice shall be mailed to the Landlord no
less than thirty (30) days prior to the proposed assignment or sub-Lease. Said
notice shall contain the name and address of the proposed assignee or
sub-lessee, and if said assignee or sub-lessee is a corporation, the name of the
principal of said corporation, the date of the proposed assignment or sub-Lease,
and the proposed use of the premises by the assignee.
(c) The use of the demised premises by the proposed assignee or sub-lessee
shall be substantially similar to the Tenant's use and purpose provided for in
the within Lease.
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(d) The assignment of Lease or sub-Lease shall be delivered to the Landlord
accompanied by an Assumption Agreement, if an assignment, both in proper form
for recording, said delivery to the Landlord to be mailed Certified mail, Return
Receipt, within one (1) week of such assignment.
(e) Such assignment or sub-Lease shall in no manner discharge the Tenant or
any subsequent Tenants herein from any liability or obligation whatsoever
created by the within Lease, and such liability and obligation shall continue
for the remainder of the within Lease.
(f) If Tenants are a corporation, any dissolution, merger, consolidation or
reorganization of Tenant or the sale or other transfer of fifty (50%) percent or
more of the capital stock of the Tenant shall be deemed an assignment under the
terms of this paragraph subject to all of the terms and conditions specified
herein; provided, however, that transfers of capital stock of the Tenant between
presently existing shareholders of the Tenant, or transfers of capital stock to
members of the immediate family of the present shareholders of the Tenant, shall
not be deemed an assignment pursuant to the terms of the within paragraph.
(g) If the Tenants are a corporation, or this Lease is subsequently
assigned to a corporation, the Tenant shall furnish the Landlord with a true
copy of a resolution duly adopted by the board of directors of such corporation
authorizing the corporation to enter into this Lease.
(h) The Tenants shall be responsible for the payment of reasonable
attorney's fees to the Landlord's attorney for review of all documents and the
preparation of any additional documents, if necessary, which attorney's fees
will not exceed $750.00, plus any and all disbursements incurred.
(i) That simultaneously with said assignment there shall be paid to the
Landlord, as additional security, a sum equal to two (2) months of the then
applicable rent, and same shall be held by the Landlord pursuant to the same
terms as the security recited herein in Lease paragraph "27". This provision
shall apply to each and every assignment or sub-Lease of the within Lease.
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36. Defaults and remedies. A. If (1) Tenants default in the payment of any
rent or any additional rent and such default continues for five (5) days after
written notice from Landlord or its agent or (2) Tenant defaults in fulfilling
any of the covenant or agreements or any rules or regulations of this Lease on
its part to be kept or performed and such default is not made good within ten
(10) days after written notice from Landlord or its agent, or within such
additional time as Tenant may be prevented from making good the default as is
caused by delays attributable to strikes, labor troubles, acts of God,
governmental prohibitions and similar causes beyond Tenant's control, or (3) If
this Lease is transferred to or devolve upon any person or corporation other
than Tenant, except as may be specifically permitted by this Lease, or if this
Lease is mortgaged or assigned without the written consent of the Landlord, then
and in any of such events mentioned in this subparagraph "A" the term thereof,
shall thereupon ipso facto expire and come to an end as if such expiration was
so fixed by the terms of this Lease on the fifth (5th) or tenth (10th) day of
such default as mentioned in (1) and (2) above and upon the occurrence mentioned
in (3) above and Landlord may re-enter upon the demised premises either with or
without process of law and remove all persons therefrom and Tenant shall quit
and surrender the same to Landlord and Tenants shall remain liable as
hereinafter provided. In the event Tenants shall fail, neglect or refuse to quit
and surrender the demised premises upon receipt of notice from Landlord
declaring the term hereof at an end, then Landlord may commence a summary
proceeding to remove Tenant from the premises as a holdover. If pursuant to (2)
the default is of such a nature that it cannot be cured within ten (10) days, if
Tenant commences to cure such default within ten (10) days and proceeds
diligently to remedy such default, the Landlord shall not have the right to
terminate this Lease.
B. If Tenants shall abandon the demised premises or if the premises become
and remain vacant or deserted for a period of fifteen (15) days, or if the term
of this Lease shall expire as hereinabove provided, or if Tenant fails to take
possession of the demised premises within forty-five (45) days after
commencement of the term of this Lease, Landlord may re-enter the demised
premises and remove Tenant or its legal representatives or other occupant by
summary proceedings or otherwise and Tenant hereby waives the service of notice
of intention or to institute legal proceedings to that end.
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C. In case of any re-entry, expiration and/or dispossess by summary
proceedings or otherwise, the rent shall become due thereupon and be paid up to
the time of such re-entry, dispossess and/or expiration, together with such
expenses as Landlord may incur for legal expenses, attorneys fees, brokerage
and/or putting the demised premises in good order, or for preparing the same for
re-rental; Landlord may relet the premises or any part or parts thereof either
in the name of Landlord or otherwise, for a term or terms which may at the
Landlord's option be less than or exceed the period which may otherwise have
constituted the balance of the term of this Lease and may grant reasonable
concessions, or free rent; and Tenant or the legal representatives of Tenant
shall also pay Landlord as liquidated damages for the failure of Tenant to
observe and perform said Tenant's covenants herein contained, and deficiency
between all rent or additional rent hereby reserved and/or covenanted to be
paid, with percentage rental computed for the balance of the term for the
purpose of this article at the average annual percentage rent for the two (2)
full Lease years preceding the default or re-entry and the net amount, if any,
of the rents collected on account of the Lease of the demised premises, for each
month of the period which would otherwise have constituted the balance of the
terms of this Lease. In computing such liquidated damages there shall be added
to the said deficiency such expenses as Landlord may incur in connection with
reletting, such as reasonable legal expenses, attorneys fees, brokerage and for
keeping the demised premises in good order or for preparing the same for
reletting. Any such liquidated damages shall be paid in monthly installments by
Tenant on the rent days specified in this Lease. Any suit brought to collect the
amount of the deficiency for any month shall not prejudice in any way the rights
of Landlord to collect the deficiency for any subsequent month by a similar
proceeding. Landlord at Landlord's option may make such alterations, repairs,
replacements and/or decorations in the demised premises; and the making of such
alterations, repairs, replacement and/or decorations shall not operate or be
construed to release Tenant from liability hereunder as aforesaid. Landlord
shall not be liable for failure to relet the demised premises. The words
"re-enter" or "re-entry" as used in this Lease shall not be restricted to their
technical legal meaning. Any rents or other income received by Landlord on any
such re-rental shall be the property of Landlord alone and Tenant shall have no
right to any portion of such income. In the event that the Tenant is successful
in any proceeding brought pursuant to the provisions hereof, it shall be
entitled to its reasonable legal fees.
D. In the event of a breach or threatened breach by Tenants of any of the
covenants or provisions of this Lease, Landlord shall have the right of
injunction and the right to invoke any remedy allowed at law or 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 Landlord from
any other remedy, in law or in equity. Tenants hereby expressly waive any and
all rights of redemption granted by order or any present or future laws in the
event of Tenants being evicted or dispossessed, or in the event of Landlord
obtaining possession of the demised premises by reason of Tenant's violation of
the provisions of this Lease. Tenants further waive the provisions of Section
749, Subparagraph 3 of the Real Property Actions and Proceedings Law and any
successor statute thereto.
E. In the event Tenants shall default in the payment of any rent or
additional rent as above provided, and such default shall continue for ten (10)
days after written notice from Landlord, or its agent and not be made good
within said ten (10) day period, then and in such event, Landlord may, at its
election, and in addition to any other remedy herein afforded, declare this term
at an end and accelerate the rent due for the entire Lease period. In such
event, the balance of the minimum rent reserved from the date of such default
until the last day of the Lease period, shall thereupon be forthwith due and
payable. Failure by Landlord to relet the premises shall not be deemed an offset
or defense to recovery of the aforesaid minimum rent due for the balance of the
term accelerated by reason of Tenant's default above mentioned. Landlord shall
be required to give the notice provisions contained in paragraph "12" hereof.
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F. If Tenants shall default in the performance of any provision, covenant
or condition on its part to be performed under this Lease, Landlord may, at its
option, perform the same for the account and at the expense of Tenants. If
Landlord at any time shall be compelled to pay or elected to pay any sum of
money by reason of the failure of the Tenant to comply with any provision of
this Lease, or if Landlord incurs any expense, including reasonable attorney's
fees in prosecuting or defending any action or proceeding by reason of any
default of Tenant under this Lease, the sums so paid by Landlord with legal
interest, costs, and damages shall be due from and be paid by Tenant to Landlord
on demand. All such sums, including all payments required to be made by Tenants
of any kind under this Lease, shall be deemed additional rent and Landlord shall
have all remedies for the collection thereof that Landlord may have for
non-payment of minimum rent. In the event that the Tenants are successful in any
proceedings brought pursuant to the provisions hereof, it shall be entitled to
its reasonable legal fees and costs.
37. The Tenants represent, warrant and declare that they have been afforded
the opportunity to make exterior and interior inspection of the premises which
are the subject of this Lease, that they have either made such inspection of the
said premises, or has caused such inspection of the said premises to be made,
and the Tenants distinctly understand that the premises are being leased in
their present condition and state of repair, and tenants agree that at the time
of closing Tenants will accept the premises in their present condition and state
of repair.
38. Prior to the commencement of any alterations contemplated by the
Tenants during the term of this Lease, the Tenants shall furnish written plans
and specifications therefor to the Landlord and obtain the Landlord's written
consent thereto, which consent will not be unreasonably withheld.
(a) The Tenants will apply for and obtain any and all permits therefor as
same may be required by any municipal agency or authority having jurisdiction,
prior to the commencement of such alterations, and will apply for and secure any
and all requisite certificates of occupancy or certificates of completion
therefor.
(b) The Landlord and Tenant acknowledge that the Tenant contemplates
causing extensive alterations and renovations to the demised premises, at the
Tenants' sole cost and expense.
The Tenant shall notify the Landlord upon the completion of the foregoing
alterations and renovations. Upon inspection by the Landlord that same have been
performed in a workmanlike and satisfactory manner, and of all requisite
permits, completion certificates and/or Certificates of Occupancy, are to be
furnished to the Landlord.
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39. Tenant represents and warrants that Tenant did not consult with any
broker with regard to this transaction, and the Tenant agrees to indemnify and
save harmless the Landlord of any and all liability, expense, loss, cost or
damage that may arise by reason of any brokerage claims or demands by reason of
Tenant's acts, and makes this covenant as an express inducement to the Landlord,
intending that Landlord shall rely thereon entering into this Lease. This
covenant and representation is irrevocable, and shall survive the execution of
the within Lease.
40. If any provision of this Rider shall be in conflict with any provision
of the printed form of this lease, the provisions of this Rider shall control.
In the Presence of: 160 Oser Avenue Associates,
BY:_____________________________________
___________________ , Landlord
Manchester Equipment Co., Inc.,
-------------------
BY:_____________________________________
Barry Steinberg, Tenant