Preview
FILED: NEW YORK COUNTY CLERK 01/09/2019 05:46 PM INDEX NO. 652336/2018
NYSCEF DOC. NO. 30 RECEIVED NYSCEF: 01/09/2019
ADDRESS: 306-332 NASSAU ROAD, ROOSEVELT NEW YORK 11575
PREM1SES: 332 Nassau Road. Roosevelt. New York 11575
SEROTA ROOSEVELT LLC (LANDLORD)
TO
WESTERN BEEF RETAIL, INC. (TENANTS)
STANDARD FORM OF
STORE
LEASE
DATED: 3_, 2004
RENT PER YEAR : AS SET FORTH IN RIDER ATTACHED HERETO
RENT PER MONTH: AS SET FORTH IN RIDER ATTACEfED HERETO
TERM: nVE 5 YEARS
FROM :
TO :
DRAWNBY ....................................... .. ... . ............... CHECKRDBY ........................................................................
ENTENEDRY....................................,,......................... APPROVED
BY ........................---.......................---..................
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$TANDARD FORM OF STORE LEASE
The Real Estate Board of New Vork, Inc.
AGREEMENT OF LEASE, made as ofthis ( _ day of 04, between
SEROTA ROOSEVELT LLC a Delaware limited liability company having an office at 70 East Sunrise Highway, Valley
Stream, New York 11581 party of the first part, hereinafter referred to as OWNER, and
WESTERN REEF RETAIL, INC., a New York corporation having an office at 47-05 Metropolitan Avenuc party of the
second part, hereinafter referred to collectively as TENANT,
WITNESSETH: Owner hereby leases to Tenant and Tenant hereby hires from Owner those certain
premises known as 332 Nassau Road, Roosevelt, New York 1I575 consisting of 25,400 deemed rentable square
feet
in the building (as said term is de&ned herein) known as 306-332 Nassau Road, Roosevelt, New York 11575
in the Town of HEMPSTEAD, COUNTY of NASSAU, for the term of FIVE (5) YEARS
(or until such terrn shall sooner cease and expire as hereinafter provided) to commence
AS SET FORTH IN THE RIDER ATTACHED HERETO and to end
AS SET FORTH IN THE RIDER ATTACHED ITFRETO
both dates inclusive, at an annual rental rate AS SET FORTH IN THE RTDER ATTACWED ILERETO
which Tenant agrees to pay in lawful money of the United States which shall be legal tender in payment of all debts and
dues, public and private, at the time of payment, in equal monthly installments in advance on the first day of each month
during said term, at the office of Owner or such other place as Owner may designate, without any set off or deduction
whatsoever, except that Tenant shall pay the first ONE (A monthly installment(s) on the execution hcreof (unless this
lease be a renewal).
The parties hereto, for themselves, their heirs. distributees, administrators, legal representatives, successors and
assigns, hereby covenant as follows:
Rent: l. Tenant shall pay the rent as above and as hereinafter provided.
Ocenpancy: 2. Tenant shall use and occupy demised premises as a retail supermarket for the preparation, storage,
display and sale of all food products and other merchandise customarily sold in major supermarket chain stores located
in the counties of Nassau and Suffolk, and the sale of beer, winc and liquors, if legally licensed to do so.
and for no other purpose. In connection with the foregoing Owner represents that it shall not lease any other space in the
Shopping Center to an individual or entity whose primary use thereof shall directly compete with the use of the Demised
Premises by Tenant hereunder. Tenant shall at all times conduct its business in a high grade and reputable manner, shall
not violate Article 37 hereof, and shall keep show windows and signs in a neat and clean condition.
Alterations: 3. Tenant shall make no changes in or to the demised premises of any nature without Owner's prior
written consent. Subject to the prior written consent of Owner, and to the provisions of this article, Tenant at Tenant's
expense, may make alterations, instaUation, additions or improvements which are non-structural and which do not affect
utility s ervices or p lumbing and e lectrical lines, in or t o t he interior of the demised p rennses b y u sing c ontractors a r
mechanics first approved by Owner. Tenant shall, before making any alterations, additions, installations or
improvements, at its expense, obtain all permits, approvals and certificates required by any govemmental or quasi-
govemmental hodies and (upon completion) certificates of final approval thereof and shall deliver promptly duplicates of
all such permits, approvals and certificates to Owner and Tenant agrees to catry and will cause Tenant's contractors and
sub-contractors to carry such workman's compensation, general liability, personal and property damage insurance as
Owner may require. If any mechanic's lien is filed against the demised premises, or the building of which the same forms
a part, for work claimed to have done for, or materials fumished to, Tenant, whether or not done pursuant to this article,
the same shall be discharged by Tenant within ten days thereafter, at Tenant's expense, by filing the bond required by law.
All fixtures and all pancling, partitions, railings and like installations, installed in the premises at any time, either by
Tenant or by Owner in Tenant's behalf, shall, upon installation, become the property of Owner and shall remain upon and
be surrendered with the demised premises unless Owner, by notice to Tenant no later than twenty days prior to the date
fixed as the terrnination of this lease, elects to relinquish Owner's rights thereto and to have them removed by Tenant, in
which event, the same shall be removed from the premises by Tenant prior to the expiration of the lease, at Tenam's
expense. Nothing in this article shall be construed to give Owner title to or to prevent Tenant's removal of trade fixtures,
moveable office furniture and equipment, but upon removal of any such from the premises or upon removal of other
installations as may be required by Owner, Tenant shall immediately and at its expense, repair and restore the premises to
the condition existing prior to installation and repair any damage to the demises 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 pmmises
after Tenant's removal shall be deemed abandoned and may, at the election of Owner, either be retained as Owner's
property or may he removed from the premises by Owner at Tenant's expense.
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Repairs: 4. If Owner allows Tenant to crcet on the o utside o f the building a sign or s igns, or a hoist, lift or
sidewalk elevator for the exclusive use of Tenant, Tenant shall maintain such exterior instanations in good appearance and
shall cause the same to be operated in a good and workmanlike manner and shall make all repairs thereto necessary to
keep same in good order and condition, at Tenant's own cost and expense, and shall cause the same to be covered by the
insurance provided for hereafter in Article 8. Tenant shall, throughout the term of this lease, take good care of the
demises premises and the fixtures and appmtenances therein, and the sidewalks adjacent thereto, and its sole cost and
expense, make all non-structural repairs thereto as and when needed to preserve them in good working order and
condition, reasonable wear and tear, obmlescence and damage from the elements, fire or other casually, excepted. If the
demised premises be or become infested with vennin, Tenant shall at Tenant's expense, cause the same to be
exterminated from time to time to the satisfaction of Owner. Except as specifically provided in Article 9 or elsewhere in
this lease, there shall he no allowance to the Tenant for the diminuation 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 tepairs, alterations, additions or improvements in or to any portion of the building or the demised
premises or in and to the fixtures, appurtenances or equipment thereof. The provisions of this article 4 with respect to the
malang of repairs shall not apply in the case of fire or other casualty which are dealt with in article 9 hereof.
Window
Clenning: 5. Tenant will not clean nor require, permit, suffer or allow any window in the demised premises to be
cleaned from the from the outside in violation of Section 202 of the New York State Labor Law or any other applicable
law or of the Rules ofthe Board of Standards and Appeals, or of any other Board or body having or asserting jurisdiction.
Tenant shall at Owner's election, use a window cleaning company designated by Owner whose rates shall be competitive.
Requirements
of Law, Fire
Insurnnce: 6. Prior to the commeneument of the lease term, if Tenant is then in possession. and at all times
thereafter, Tenant at Tenant's sole cost and expense, shall promptly comply with all present and future laws, orders and
regulations of all state, federal, municipal and local güvemiiients, departments, commissions and boards and any direction
of any public officer pursuant to law, and all order, rules and regtdations 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 tot he demised premises, and with respect to the portion of the sidewalk adjacent to the premises, if the
premises are on the street level, whether or not arising out of 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 premises or the building (including the use pennitted under
the lease). Except as provided in Article 29 hereof, nothing herein shall require Tenam 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 permit any act
or thing to be done in or to the demised premises which is contrary to law, or which will invalidate or be in conflict with
public liability, fire or other policies of insurance at any time carried by or for the benefit of Owner. Tenant shall pay all
costs, expenses, fines, penalties or damages, which may be imposed upon Owner by reason of Tenant's failure to comply
with the provisions of this article. If the fire insurance rate shall, at the beginning of the 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, to
comply with the terms of this article. In any action or proceeding wherein Owner and Tenant are parties, a schedule or
"make-up"
of rate for the building or demised premises issued by a body making tire insurance rates applicable to said
premises shall be conclusive evidence of the facts therein stated and of the several items and charges in the fire insurance
rate then applicable to said premises.
Sub-
ordination: 7. This lease is subject and subordinate to all ground or underlying leases and to all mortgages which
may now or hereafter affect such leases or the real property of which demised premises are a part and to all renewals,
modifications, consolidations, replacements and extensions of any such underlying leases and mortgages. This clause
shall be self-operative and no further instrument of subordination shall be required by any ground or underlying lease or
by any mortgagee, affecting any lease or the real property of which the demised premises are a part. in confirmation of
such subordination, Tenant shall execute promptly any certificate that Owner may request. Owner shall within sixty (60)
days of the mutual execution and delivery of this Lease obtain a Subordination Non-Disturbance and Attornment
Agreement from the lender holding the existing mortgage on the building of which the Demised Premises form a part.
Tenant's
Liability
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 propetty of Tenant by theft or otherwise, nor for any injury or
damage to persons or property resulting from any cause of whatsoever nature, unless caused by or due to the negligence of
Owner,'its agents, servants or employees. Owner or its agents will not be liable for any such damage caused by other
tenants or persons in, upon or about said building or caused by operations in construction of any private, public or quasi
public work. Tenant agrees, at Tenant's sole cost and expense, to maintain general public liability insurance in standard
fonn in favor of Owner and Tenant against claims for bodily injury or death or property damage occurring in or upon the
demised premises, effective from the date Tenant enters into possession and during the term of this lease. Such insurance
shall be in an amount and with carriers acceptable to the Owner. Such policy or policies shall be delivered to the owner.
On Tenant's default in obtaining or delivering any such policy or policies or failure to pay the charges therefor, Owner
may secure or pay the charges for any such policy or policies and charge the Tenant as additional rent therefor. Tenant
shall indemnify and save harmless Owner against and from all liabilities, obligations, damages, penalties, claims, costs
and expenses for which Ovmer shall not be reimbursed by insurance, including reasonable attorneys fees, paid, suffered or
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incurred as a result of any breach by Tenant, Tenant's agents, contractors, employees, invitces, or licensees, of any
covenant on condition of this lease, or the carelessness, negligence or improper conduct of the Tenant, Tenant's agents,
contractors, employees, or licensees. Tenant's liability under this lease extends to the acts and ouüssions of any
subtenant, 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 an d
Other
Casualty: 9. (a) If the demised premises or any part thereof shall be damaged by fire or other casualty, Tenant shall
give inunediate notice thereof to Owner and this lease shall continue in full force and effect except as hereinafter set forth.
(b) If the demised premises are partially damaged or rendered partially unusable by fire or other casualty, the damages
thereto shall be repaired by and at the expense of Owner and the rent, until such repair shall be substantially completed,
shall be apportioned from the day following the casualty according to the part of the premises which is usable. (c) If the
demised premises are totally damaged or rendered wholly unusable by fire or other casualty, then the rent shall be
proportionately paid up to the time of the casualty and thenceforth shall cease until the date when the premises shall have
been repaired and restored by Owner, subject to Owner's right to elect not to restore the same as hereinafter provided. (d)
If the demised premises are rendered wholly unusable or (whether or not the demised premises are damaged in whole or
in parr) if the building shall be so damaged that Owner shall decide to demolish it or to rebuild it, then, in any of such
events, Owner may elect to terminate this lease by written notice to Tenant given within 90 days after such fire or casualty
specifying a date for the expiration of the lease, which date shall not be more than 60 days after the giving of such notice,
and upon the date specified in such notice the term of this lease shall expire as fully and completely as if such date were
the date set forth above for the termination of this lease and Tenant shall forthwith quit, surrender and vacate the premises
without prejudice however, to 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 n:asonable 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, each party shall look first to
any insurance in its Evor before making any elaim against the other party for recovery for loss or damage resulting from
fire or other casualty, and to the extent that such insurance is in force and collectible and to the extent permitted by law,
Owner and Tenant each hereby releases and waives all right of recovery against the other or uny one claiming through or
under each of them by way of subrogation or otherwise. The foregoing release and waiver shall he in force only if both
releasors'
insurance policies contain a clause providing that such a release or waiver shall not invalidate the insurance and
also, provided that such a policy can be obtained without additional premiums. Tenant acknowledges that Owner will not
carry insurance on Tenant's furniture and/or furnishings or any tix1nres or equipment, improvements, or appurtenances
removable by Tenant and agrees that Owner will not be obligated to repair any damage thereto or replace the same. (f)
Tenant hereby waives the provisions of Section 227 of the Real Property f aw and agrees that the provisions of this article
shall govern and control in lieu thereof.
Eminent
Domain: 10. If the whole or any part of the demised premises shall be acquired or condenmed 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.
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 pri9or written consent of Owner in cach
instance. If this lease be assigned, or if the demised premised or any part thereof be underlet or occupied by anybody
other than Tenant, Owner may, after default by Tenant, collect rent from the assignee, under-tenant or occupant, and apply
the net amount collected to the rent herein reserved, but no such assignment, underletting, occupancy or collection shall be
deemed a waiver of the covenant, or the acceptance of the assignee, under-tenant or occupant as tenant, or a release of
Tenant from the further performance by Tenant of covenants on the part of Tenant herein contained. The consent by
Owner to an assignment or underletting shall not in any wise be construed to relieve Tenant from obtaining the express
consent in writing of Owner to any further assignment or underletting.
Electric
Current: 12. Rates and conditions in respect to submetering or rent inclusion, as the case may be, to be added in
RIDER attached hereto. Tenant covenants and agrees that at all times its use of electric current shall not exceed the
capacity of existing feeders to the building or the risers or wiring installation and Tenant may not use any clectrical
equipment which, in Owner's opinion, reasonably exercised, will overload such installations orinterfere with the use
thereof by other tenants of the building. The change at any time of the character of electric service shall in no wise mak.e
Owner liable or responsible to Tenant, for any loss, damages or expenses which Tenant may sustain.
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Access to
Premises: 13. Owner or Owner's agents shall have the right (but shall not be obligated) to enter the demised
premises in any emergency at any time, and, at other reasonable times, to examine the same and to make such repairs.
replacements and improvements as Owner may deem necessary and reasonably desirable to any portion of the building or
which Owner may elect to perform, in the premises, following Tenant s failure to make repairs or perform any work
which Tenant is obligated to perform under this lease, or for the purpose of complying with laws, regulations and other
directions of governmental authorities. Tenant shall permit Owner to use and maintain and replace pipes and conduits
therein, provided they are within the walls, Owner may, during the progress of any work in the demised premises, take all
necessary materials and equipment into said premises without the same constituting an eviction nor shall the Tenant be
entitled to any abatement of rent while such work is in progress nor to any damages by reason of loss or interruption of
business or otherwise. In connection with the foregoing Owner shall take all reasonable efforts so a s to minimize any
interference with Tenant's business as permitted hereunder as the result of same. 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 of mortgages of the building, and during the last six months of the term for the purpose of showing the same to
prospective tenants, If Tenant is not present to open and permit an entry into the premises. Owner or Owner's agents
may enter the same whenever such entry may be necessary or permissible by master key or forcibly and provided
reasonable care is exercised to safeguard Tenant's property and such entry shall not render Owner or its agents liable
therefor, nor in any event shall the obligations of Tenant hereunder be affected. If during the last month of the term
Tenant shall have removed all or substantially all of Tenant's property therefrom, Owner may immediately enter, alter,
renovate or redecorate the demised premises without limitation or abatement of rent, or incurring liability to Tenant for
any compensation and such acts shall have no effect on this lease or Tenant's obligations hereunder. Owner shall have the
right at any time, without the same constituting an eviction and without incurring liability.to Tenant therefor to change the
arrangement and/or location of public entrances, passageways, doors, doorways, corridors, elevators, stairs, toilets, or
other public parts of the building and to change the same, number or designation by which the building may be known.
Vault
Vault Space,
Area: 14. No Vaults, vault space or area, whether or not enclosed or covered, not within the property line of the
building is leased hereunder, anything contained in or indicated on any sketch, blue print or plan, or anything contained
clsewhere in this lease to the contrary notwithstanding. Owner makes no representation as to the location of the property
line of the building. All vaults and vault space and all such areas not within the property line of the building, which
Tenant may be permitted to use and/or occupy, is to be used and/or occupied under a revocable license, and if any such
license be revoked, or if the amount of such space or area be diminished or required by any federal, state or municipal
authority or public utility, Owner shall not be subject to any liability nor shall Tenant be entitled to any compensation or
diminution or abatement of rent, nor shall such revocation, diminution or requisition be deemed constructive or actual
eviction. Any tax, fee or charge of municipal authorities for such vault or area shall be paid by Tenant.
Occupancy: 15. Tenant will not at any time use or occupy the demised premises in violation of, articles 2 or 37
hereof, or of, the certificate of occupancy issued for the building of which the demised premises are a part. Tenant has
inspected the premises and accepts them as is, subject to the riders annexed hereto with respect ro owner's work, if any.
In any event, Owner makes no representation as to the condition of the premises and Tenant agrees to accept the same
subject to violations whether or not of record.
Bankruptcy: 16. (a) Anything clsewhere in this lease to the contrary notwithstanding, this lease may be cancelled by
Landlord by the sending of a written notice to Tenant within a reasonable time after the happening of any one or more of
the following events: (1) the commencement of a case in bankruptcy or under the laws of any state naming Tenant as the
debtor; or (2) the making by Tenant of an assignment or any other arrangement for the benefit of creditors under any state
statute. Neither Tenant nor any person claiming through or under Tenant, or by reason of any statute or order of court,
shall thereafter be entitled to possession of the premises demised but shall forthwith quit and surrender the premises. If
this lease shall be assigned in accordance with its terms, the provisions of the 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
liquidation damages an amount equal to the difference between the rent mscrved hereunder for the unexpired portion of
the term demised and the fair and reasonable rental value of the demised premises for the same period. In the
computation of such damages the diiTerence between any installment of rent becoming due hercunder after the date of
termination and the fair and reasonable rental value of the demised premises for the period for which such installment was
payable shall be discounted to the date of tennination at the rate of our per cent (4%) per annum. If such premises or any
part thereof be re-let by the Owner for the unexpired term of said lease, or any part thereof, before presentation of proof of
such liquidated damages to any court, commission or tribunal, the amount of rent reserved upon such re-letting shall be
deemed to be the fair and reasonable rental value for the part or the whole of the premises so re-let during the term of the
re-letting. Nothing herein contained shall limit or prejudice the right of the Owner to prove for and obtain us 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 he
greater, equal to, or less than the amount of the difference referred to above.
Default: 17. (1) If die Tenant defaults in fulfilling any of the covenants of this lease; or if the demised premises
become vacant or deserted; or if any execution or attachment shall be issued against Tenant or any of Tenant's property
whereupon the demised premises shall be taken or occupied by someone other than Tenant; of if this lease be rejected
under Section365 of Title 11 of the U.S. Code (Bankruptcy Code); of if Tenant shall fail to move into or take possession
of the premises within fif1een (15) days after the commencement of the term of this lease, of which fact Owner shan be
the sole judge; then, in any one or more of such events, upon Owner serving a written five (5) days notice upon Tenant
specifying the nature of said default and upon the expiration of said (5) days notice upon tenant specifying the nature of
said default and upon the expiration of said five (5) days, if Tenant shall have failed to comply with or remedy such
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default, or if the said default or omission complained of shall be of a nature that the same cannot be completely cured or
remedied within said five (5) day period, and if Tenant shall not have diligently commenced curing such default within
such five (5) day period, and shall not thereafter with reasonab1c diligence and in good faith proceed to remedy or cure
such default, the Owner may serve a written three (3) days notice of cancellation of this lease upon tenant, and upon the
expiration of said three (3) days, this lease and the term thereunder shall end and expire as fully and completely as if the
expiration of such three (3) day period where 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
1cgal representative of Tenant or other occupant of demised premises and remove their effects and hold the premises as if
this lease had not been made, and Tenant hereby waives the service of notice of intention to re-enter or to institute legal
proceedings to that end.
Remedies if
Owner and
Waiver of
Redemption: 18. In case of any such default, re-enny, expiration and/or dispossess by summary proceedings or
otherwise, (a) the r ent, and a dditional rent, shall become due t hereupon and be p aid up to the time o f such re-entry,
dispossess and/or expiration. (b) Owner may rc-let the premises or any part or parts thereof, either in the name of Owner
or otherwise, for a term or terms, which rnay at Owner's option be less than or exceed the period which would otherwise
have constituted the balance of the term of this lease and may grant concessions or free rent or charge a higher rental than
that in this lease, and/or 9c) Tenant or the legal representatives of Tenant shall also pay Owner as liquidated damages for
Tenant'
the failure of Tenant to observe and perform said 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 Icase 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 pmmises 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 1cgal expenses, attorneys fees,
brokerage, advertising and for keeping the demised premises in good order or for preparing the same for re-letting. Any
such liquidated damages shall be paid in monthly installments by Tenant on the rent day specifted in this lease. thmer, in
putting the demised premises in good order or preparing the same for re-rental may, at Owner's option, make such
alterations, repairs, replacements, and/or decorations in the demised premises as Owner. in Owner's sole judgement,
considers advisable and necessary for the purpose of re-letting the demised premises, and the niaking of such alterations,
repairs, replacements, and/or decorations shall not operate or be construed to release tenant from liability. Owner shall in
no event be liable in any way whatsoever for failure to re-let the demised premiscs, 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 suchnet rent collected over the sums payable by Tenant to Owner hereunder. in the event of
a beach or threatened breach by Tenant or any o f the covenants or provisions hereof, O wner shall h are the r ight o f
injunction and the right to invoke any remedy allowed at law or in equity as if re-entry, sutnmary proceedings and other
remedies were not herein provided for. Mention in this lease of any particular remedy, shall not preclude Owner from any
other remedy, in law or in equity. Tenant hereby expressly waives any and all rights of redemption granted by or tuider
any present or future laws.
Fees and
Expenses: 19. If Tenant shall default in the observance or performance of any term or covenant on Tenant's part to
be observed or performed under or by virtue of any terms or provisions in any article of this lease, then, unless otherwise
provided elsewhere in this lease, Owner may inunediately or at any time thereafter and without notice perform the
obligation of Tenant thereunder, and if Owner, m connection therewith or in connection with any default by Tenant in the
covenant to pay rent hereunder, makes an expenditures or incurs any obligams for the payment of money, including but
not limited to attorney's fees, in instituting, pmsecuting or defending any actions or proceeding, such sums so paid or
obligations incurred with interest and costs shall be deemed to be additional rent hercunder and shall be paid by Tenant to
Owner within five (5) days of rendition of any bill or statement to Tenant thenfor, and if Tenant's lease tenn shall have
expired at the time of making of such expenditures or incurring of such obligations, such sums shall be recoverable by
Owner as damages.
No Repre-
Sentations by
Owner: 20. Neither Owner nor Owner's agents have made any representations or promises with respect to the
physical condition of the huildmg, 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 premises except as herein expressly set forth and no
rights, e asements or 1icenses are acquired by Tenant by implication or otherwise except a s expressly set forth in the
provision of this lease. Tenant has inspected the building the demised premises and is thoroughly acquainted with their
is" and
condition, and agrees to take the same "as 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 for 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 ftdly and completely
expresses the agreement between Owner and Tenant and any executory agreement hereafter made shall be ineffective to
change, modify, d ischarge o r e ffect a n abandonment o f i t in w hole o r in p art, u nless such e xecutory a greement i s in
writing and signed by the party against whom enforcement of the change, modification, discharge or abandonment is
sought.
FILED: NEW YORK COUNTY CLERK 01/09/2019 05:46 PM INDEX NO. 652336/2018
NYSCEF DOC. NO. 30 RECEIVED NYSCEF: 01/09/2019
End of
Term: 21. Upon the expiration or other termination of the tenn of this lease, Tenant shall quit and surrender to
Owner of the clemised premises, broom clean, in good order and c ondition, ordinary wear e xcepted, and tenant s hall
remove all its property. Tenant's obligation to observe or perform this covenant shall survive the expiration or other
termination of this lease. If the last day of the tenn of this lease or any renewal thereof, falls on Sunday, this lease shall
expire at noon on the preceding Saturday unless it be a legal holiday in which case it shall expire at noon on the preceding
business day.
Quiet
Enjoyment: 22. Owner covenants and agrees with Tenant that upon Tenant paying the rent and additional rent and
observing and performing 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 33 hereof and to the ground leases, underlying leases and mortgages
hereinbefore mentioned.
Failure
To Give
Possession: 23. If Owner is unable to give possession of the demised premises on the date of the commencement of
the term hereof, because of the holding-over or retention of possession of any tenant, undertenant or occupants, or if the
premises arc located in a building being constructed, because such building has not been sufficiently completed to make
the premises ready for occupancy or because of the fact that a certificate of occupancy has not been procured or for any
other reason. Owner shall not be subject to any I.iability 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 hercunder shall be abated (provided Tenant is not responsible for the inability to obtain
possession) until after Owner shall have given Tenant written notice that the premises arc substantially ready for Tenant's
occupancy. TTpermission is given to Tenant to enter into the possession of the demised premises or to occupy premises
other than the demised premises prior to the date specified as the commencement of the term of this lease. Tenant
covenants and agrees that such occupancy shall be deemed to be under all the terms, covenants conditions and provisions
of this lease, except as to the covenant to pay rent. The provisions of the article are intended to constitute "an express
contrary"
provision to the within the meaning of Scetion 223-a ofthe New York Real Property Law.
No Waiver: 24, The failure of Owner to seek redress for violation of, or to insist upon the strict perforrnance 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 or any check or any letter accompanying any check or payment as rent be deemed an accord and satisfaction,
Owner"
and Owner may accept such check or payment without prejudice to right to recover the balance as such rent or
pursue any other remedy in this lease provided. No act or thing done by owner or Owner's agents during the term hereby
demised shall be deemed in acceptance of a surrender of said premises an no agreement to accept such surrender shall be
valid unless in writing signed by Owner, No employee of Owner
Preview
FILED: NEW YORK COUNTY CLERK 01/09/2019 05:46 PM INDEX NO. 652336/2018 NYSCEF DOC. NO. 30 RECEIVED NYSCEF: 01/09/2019 ADDRESS: 306-332 NASSAU ROAD, ROOSEVELT NEW YORK 11575 PREM1SES: 332 Nassau Road. Roosevelt. New York 11575 SEROTA ROOSEVELT LLC (LANDLORD) TO WESTERN BEEF RETAIL, INC. (TENANTS) STANDARD FORM OF STORE LEASE DATED: 3_, 2004 RENT PER YEAR : AS SET FORTH IN RIDER ATTACHED HERETO RENT PER MONTH: AS SET FORTH IN RIDER ATTACEfED HERETO TERM: nVE 5 YEARS FROM : TO : DRAWNBY ....................................... .. ... . ............... CHECKRDBY ........................................................................ ENTENEDRY....................................,,......................... APPROVED BY ........................---.......................---.................. FILED: NEW YORK COUNTY CLERK 01/09/2019 05:46 PM INDEX NO. 652336/2018 NYSCEF DOC. NO. 30 RECEIVED NYSCEF: 01/09/2019 $TANDARD FORM OF STORE LEASE The Real Estate Board of New Vork, Inc. AGREEMENT OF LEASE, made as ofthis ( _ day of 04, between SEROTA ROOSEVELT LLC a Delaware limited liability company having an office at 70 East Sunrise Highway, Valley Stream, New York 11581 party of the first part, hereinafter referred to as OWNER, and WESTERN REEF RETAIL, INC., a New York corporation having an office at 47-05 Metropolitan Avenuc party of the second part, hereinafter referred to collectively as TENANT, WITNESSETH: Owner hereby leases to Tenant and Tenant hereby hires from Owner those certain premises known as 332 Nassau Road, Roosevelt, New York 1I575 consisting of 25,400 deemed rentable square feet in the building (as said term is de&ned herein) known as 306-332 Nassau Road, Roosevelt, New York 11575 in the Town of HEMPSTEAD, COUNTY of NASSAU, for the term of FIVE (5) YEARS (or until such terrn shall sooner cease and expire as hereinafter provided) to commence AS SET FORTH IN THE RIDER ATTACHED HERETO and to end AS SET FORTH IN THE RIDER ATTACHED ITFRETO both dates inclusive, at an annual rental rate AS SET FORTH IN THE RTDER ATTACWED ILERETO which Tenant agrees to pay in lawful money of the United States which shall be legal tender in payment of all debts and dues, public and private, at the time of payment, in equal monthly installments in advance on the first day of each month during said term, at the office of Owner or such other place as Owner may designate, without any set off or deduction whatsoever, except that Tenant shall pay the first ONE (A monthly installment(s) on the execution hcreof (unless this lease be a renewal). The parties hereto, for themselves, their heirs. distributees, administrators, legal representatives, successors and assigns, hereby covenant as follows: Rent: l. Tenant shall pay the rent as above and as hereinafter provided. Ocenpancy: 2. Tenant shall use and occupy demised premises as a retail supermarket for the preparation, storage, display and sale of all food products and other merchandise customarily sold in major supermarket chain stores located in the counties of Nassau and Suffolk, and the sale of beer, winc and liquors, if legally licensed to do so. and for no other purpose. In connection with the foregoing Owner represents that it shall not lease any other space in the Shopping Center to an individual or entity whose primary use thereof shall directly compete with the use of the Demised Premises by Tenant hereunder. Tenant shall at all times conduct its business in a high grade and reputable manner, shall not violate Article 37 hereof, and shall keep show windows and signs in a neat and clean condition. Alterations: 3. Tenant shall make no changes in or to the demised premises of any nature without Owner's prior written consent. Subject to the prior written consent of Owner, and to the provisions of this article, Tenant at Tenant's expense, may make alterations, instaUation, additions or improvements which are non-structural and which do not affect utility s ervices or p lumbing and e lectrical lines, in or t o t he interior of the demised p rennses b y u sing c ontractors a r mechanics first approved by Owner. Tenant shall, before making any alterations, additions, installations or improvements, at its expense, obtain all permits, approvals and certificates required by any govemmental or quasi- govemmental hodies and (upon completion) certificates of final approval thereof and shall deliver promptly duplicates of all such permits, approvals and certificates to Owner and Tenant agrees to catry and will cause Tenant's contractors and sub-contractors to carry such workman's compensation, general liability, personal and property damage insurance as Owner may require. If any mechanic's lien is filed against the demised premises, or the building of which the same forms a part, for work claimed to have done for, or materials fumished to, Tenant, whether or not done pursuant to this article, the same shall be discharged by Tenant within ten days thereafter, at Tenant's expense, by filing the bond required by law. All fixtures and all pancling, partitions, railings and like installations, installed in the premises at any time, either by Tenant or by Owner in Tenant's behalf, shall, upon installation, become the property of Owner and shall remain upon and be surrendered with the demised premises unless Owner, by notice to Tenant no later than twenty days prior to the date fixed as the terrnination of this lease, elects to relinquish Owner's rights thereto and to have them removed by Tenant, in which event, the same shall be removed from the premises by Tenant prior to the expiration of the lease, at Tenam's expense. Nothing in this article shall be construed to give Owner title to or to prevent Tenant's removal of trade fixtures, moveable office furniture and equipment, but upon removal of any such from the premises or upon removal of other installations as may be required by Owner, Tenant shall immediately and at its expense, repair and restore the premises to the condition existing prior to installation and repair any damage to the demises 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 pmmises after Tenant's removal shall be deemed abandoned and may, at the election of Owner, either be retained as Owner's property or may he removed from the premises by Owner at Tenant's expense. FILED: NEW YORK COUNTY CLERK 01/09/2019 05:46 PM INDEX NO. 652336/2018 NYSCEF DOC. NO. 30 RECEIVED NYSCEF: 01/09/2019 Repairs: 4. If Owner allows Tenant to crcet on the o utside o f the building a sign or s igns, or a hoist, lift or sidewalk elevator for the exclusive use of Tenant, Tenant shall maintain such exterior instanations in good appearance and shall cause the same to be operated in a good and workmanlike manner and shall make all repairs thereto necessary to keep same in good order and condition, at Tenant's own cost and expense, and shall cause the same to be covered by the insurance provided for hereafter in Article 8. Tenant shall, throughout the term of this lease, take good care of the demises premises and the fixtures and appmtenances therein, and the sidewalks adjacent thereto, and its sole cost and expense, make all non-structural repairs thereto as and when needed to preserve them in good working order and condition, reasonable wear and tear, obmlescence and damage from the elements, fire or other casually, excepted. If the demised premises be or become infested with vennin, Tenant shall at Tenant's expense, cause the same to be exterminated from time to time to the satisfaction of Owner. Except as specifically provided in Article 9 or elsewhere in this lease, there shall he no allowance to the Tenant for the diminuation 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 tepairs, alterations, additions or improvements in or to any portion of the building or the demised premises or in and to the fixtures, appurtenances or equipment thereof. The provisions of this article 4 with respect to the malang of repairs shall not apply in the case of fire or other casualty which are dealt with in article 9 hereof. Window Clenning: 5. Tenant will not clean nor require, permit, suffer or allow any window in the demised premises to be cleaned from the from the outside in violation of Section 202 of the New York State Labor Law or any other applicable law or of the Rules ofthe Board of Standards and Appeals, or of any other Board or body having or asserting jurisdiction. Tenant shall at Owner's election, use a window cleaning company designated by Owner whose rates shall be competitive. Requirements of Law, Fire Insurnnce: 6. Prior to the commeneument of the lease term, if Tenant is then in possession. and at all times thereafter, Tenant at Tenant's sole cost and expense, shall promptly comply with all present and future laws, orders and regulations of all state, federal, municipal and local güvemiiients, departments, commissions and boards and any direction of any public officer pursuant to law, and all order, rules and regtdations 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 tot he demised premises, and with respect to the portion of the sidewalk adjacent to the premises, if the premises are on the street level, whether or not arising out of 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 premises or the building (including the use pennitted under the lease). Except as provided in Article 29 hereof, nothing herein shall require Tenam 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 permit any act or thing to be done in or to the demised premises which is contrary to law, or which will invalidate or be in conflict with public liability, fire or other policies of insurance at any time carried by or for the benefit of Owner. Tenant shall pay all costs, expenses, fines, penalties or damages, which may be imposed upon Owner by reason of Tenant's failure to comply with the provisions of this article. If the fire insurance rate shall, at the beginning of the 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, to comply with the terms of this article. In any action or proceeding wherein Owner and Tenant are parties, a schedule or "make-up" of rate for the building or demised premises issued by a body making tire insurance rates applicable to said premises shall be conclusive evidence of the facts therein stated and of the several items and charges in the fire insurance rate then applicable to said premises. Sub- ordination: 7. This lease is subject and subordinate to all ground or underlying leases and to all mortgages which may now or hereafter affect such leases or the real property of which demised premises are a part and to all renewals, modifications, consolidations, replacements and extensions of any such underlying leases and mortgages. This clause shall be self-operative and no further instrument of subordination shall be required by any ground or underlying lease or by any mortgagee, affecting any lease or the real property of which the demised premises are a part. in confirmation of such subordination, Tenant shall execute promptly any certificate that Owner may request. Owner shall within sixty (60) days of the mutual execution and delivery of this Lease obtain a Subordination Non-Disturbance and Attornment Agreement from the lender holding the existing mortgage on the building of which the Demised Premises form a part. Tenant's Liability 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 propetty of Tenant by theft or otherwise, nor for any injury or damage to persons or property resulting from any cause of whatsoever nature, unless caused by or due to the negligence of Owner,'its agents, servants or employees. Owner or its agents will not be liable for any such damage caused by other tenants or persons in, upon or about said building or caused by operations in construction of any private, public or quasi public work. Tenant agrees, at Tenant's sole cost and expense, to maintain general public liability insurance in standard fonn in favor of Owner and Tenant against claims for bodily injury or death or property damage occurring in or upon the demised premises, effective from the date Tenant enters into possession and during the term of this lease. Such insurance shall be in an amount and with carriers acceptable to the Owner. Such policy or policies shall be delivered to the owner. On Tenant's default in obtaining or delivering any such policy or policies or failure to pay the charges therefor, Owner may secure or pay the charges for any such policy or policies and charge the Tenant as additional rent therefor. Tenant shall indemnify and save harmless Owner against and from all liabilities, obligations, damages, penalties, claims, costs and expenses for which Ovmer shall not be reimbursed by insurance, including reasonable attorneys fees, paid, suffered or FILED: NEW YORK COUNTY CLERK 01/09/2019 05:46 PM INDEX NO. 652336/2018 NYSCEF DOC. NO. 30 RECEIVED NYSCEF: 01/09/2019 incurred as a result of any breach by Tenant, Tenant's agents, contractors, employees, invitces, or licensees, of any covenant on condition of this lease, or the carelessness, negligence or improper conduct of the Tenant, Tenant's agents, contractors, employees, or licensees. Tenant's liability under this lease extends to the acts and ouüssions of any subtenant, 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 an d Other Casualty: 9. (a) If the demised premises or any part thereof shall be damaged by fire or other casualty, Tenant shall give inunediate notice thereof to Owner and this lease shall continue in full force and effect except as hereinafter set forth. (b) If the demised premises are partially damaged or rendered partially unusable by fire or other casualty, the damages thereto shall be repaired by and at the expense of Owner and the rent, until such repair shall be substantially completed, shall be apportioned from the day following the casualty according to the part of the premises which is usable. (c) If the demised premises are totally damaged or rendered wholly unusable by fire or other casualty, then the rent shall be proportionately paid up to the time of the casualty and thenceforth shall cease until the date when the premises shall have been repaired and restored by Owner, subject to Owner's right to elect not to restore the same as hereinafter provided. (d) If the demised premises are rendered wholly unusable or (whether or not the demised premises are damaged in whole or in parr) if the building shall be so damaged that Owner shall decide to demolish it or to rebuild it, then, in any of such events, Owner may elect to terminate this lease by written notice to Tenant given within 90 days after such fire or casualty specifying a date for the expiration of the lease, which date shall not be more than 60 days after the giving of such notice, and upon the date specified in such notice the term of this lease shall expire as fully and completely as if such date were the date set forth above for the termination of this lease and Tenant shall forthwith quit, surrender and vacate the premises without prejudice however, to 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 n:asonable 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, each party shall look first to any insurance in its Evor before making any elaim against the other party for recovery for loss or damage resulting from fire or other casualty, and to the extent that such insurance is in force and collectible and to the extent permitted by law, Owner and Tenant each hereby releases and waives all right of recovery against the other or uny one claiming through or under each of them by way of subrogation or otherwise. The foregoing release and waiver shall he in force only if both releasors' insurance policies contain a clause providing that such a release or waiver shall not invalidate the insurance and also, provided that such a policy can be obtained without additional premiums. Tenant acknowledges that Owner will not carry insurance on Tenant's furniture and/or furnishings or any tix1nres or equipment, improvements, or appurtenances removable by Tenant and agrees that Owner will not be obligated to repair any damage thereto or replace the same. (f) Tenant hereby waives the provisions of Section 227 of the Real Property f aw and agrees that the provisions of this article shall govern and control in lieu thereof. Eminent Domain: 10. If the whole or any part of the demised premises shall be acquired or condenmed 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. 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 pri9or written consent of Owner in cach instance. If this lease be assigned, or if the demised premised or any part thereof be underlet or occupied by anybody other than Tenant, Owner may, after default by Tenant, collect rent from the assignee, under-tenant or occupant, and apply the net amount collected to the rent herein reserved, but no such assignment, underletting, occupancy or collection shall be deemed a waiver of the covenant, or the acceptance of the assignee, under-tenant or occupant as tenant, or a release of Tenant from the further performance by Tenant of covenants on the part of Tenant herein contained. The consent by Owner to an assignment or underletting shall not in any wise be construed to relieve Tenant from obtaining the express consent in writing of Owner to any further assignment or underletting. Electric Current: 12. Rates and conditions in respect to submetering or rent inclusion, as the case may be, to be added in RIDER attached hereto. Tenant covenants and agrees that at all times its use of electric current shall not exceed the capacity of existing feeders to the building or the risers or wiring installation and Tenant may not use any clectrical equipment which, in Owner's opinion, reasonably exercised, will overload such installations orinterfere with the use thereof by other tenants of the building. The change at any time of the character of electric service shall in no wise mak.e Owner liable or responsible to Tenant, for any loss, damages or expenses which Tenant may sustain. FILED: NEW YORK COUNTY CLERK 01/09/2019 05:46 PM INDEX NO. 652336/2018 NYSCEF DOC. NO. 30 RECEIVED NYSCEF: 01/09/2019 Access to Premises: 13. Owner or Owner's agents shall have the right (but shall not be obligated) to enter the demised premises in any emergency at any time, and, at other reasonable times, to examine the same and to make such repairs. replacements and improvements as Owner may deem necessary and reasonably desirable to any portion of the building or which Owner may elect to perform, in the premises, following Tenant s failure to make repairs or perform any work which Tenant is obligated to perform under this lease, or for the purpose of complying with laws, regulations and other directions of governmental authorities. Tenant shall permit Owner to use and maintain and replace pipes and conduits therein, provided they are within the walls, Owner may, during the progress of any work in the demised premises, take all necessary materials and equipment into said premises without the same constituting an eviction nor shall the Tenant be entitled to any abatement of rent while such work is in progress nor to any damages by reason of loss or interruption of business or otherwise. In connection with the foregoing Owner shall take all reasonable efforts so a s to minimize any interference with Tenant's business as permitted hereunder as the result of same. 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 of mortgages of the building, and during the last six months of the term for the purpose of showing the same to prospective tenants, If Tenant is not present to open and permit an entry into the premises. Owner or Owner's agents may enter the same whenever such entry may be necessary or permissible by master key or forcibly and provided reasonable care is exercised to safeguard Tenant's property and such entry shall not render Owner or its agents liable therefor, nor in any event shall the obligations of Tenant hereunder be affected. If during the last month of the term Tenant shall have removed all or substantially all of Tenant's property therefrom, Owner may immediately enter, alter, renovate or redecorate the demised premises without limitation or abatement of rent, or incurring liability to Tenant for any compensation and such acts shall have no effect on this lease or Tenant's obligations hereunder. Owner shall have the right at any time, without the same constituting an eviction and without incurring liability.to Tenant therefor to change the arrangement and/or location of public entrances, passageways, doors, doorways, corridors, elevators, stairs, toilets, or other public parts of the building and to change the same, number or designation by which the building may be known. Vault Vault Space, Area: 14. No Vaults, vault space or area, whether or not enclosed or covered, not within the property line of the building is leased hereunder, anything contained in or indicated on any sketch, blue print or plan, or anything contained clsewhere in this lease to the contrary notwithstanding. Owner makes no representation as to the location of the property line of the building. All vaults and vault space and all such areas not within the property line of the building, which Tenant may be permitted to use and/or occupy, is to be used and/or occupied under a revocable license, and if any such license be revoked, or if the amount of such space or area be diminished or required by any federal, state or municipal authority or public utility, Owner shall not be subject to any liability nor shall Tenant be entitled to any compensation or diminution or abatement of rent, nor shall such revocation, diminution or requisition be deemed constructive or actual eviction. Any tax, fee or charge of municipal authorities for such vault or area shall be paid by Tenant. Occupancy: 15. Tenant will not at any time use or occupy the demised premises in violation of, articles 2 or 37 hereof, or of, the certificate of occupancy issued for the building of which the demised premises are a part. Tenant has inspected the premises and accepts them as is, subject to the riders annexed hereto with respect ro owner's work, if any. In any event, Owner makes no representation as to the condition of the premises and Tenant agrees to accept the same subject to violations whether or not of record. Bankruptcy: 16. (a) Anything clsewhere in this lease to the contrary notwithstanding, this lease may be cancelled by Landlord by the sending of a written notice to Tenant within a reasonable time after the happening of any one or more of the following events: (1) the commencement of a case in bankruptcy or under the laws of any state naming Tenant as the debtor; or (2) the making by Tenant of an assignment or any other arrangement for the benefit of creditors under any state statute. Neither Tenant nor any person claiming through or under Tenant, or by reason of any statute or order of court, shall thereafter be entitled to possession of the premises demised but shall forthwith quit and surrender the premises. If this lease shall be assigned in accordance with its terms, the provisions of the 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 liquidation damages an amount equal to the difference between the rent mscrved hereunder for the unexpired portion of the term demised and the fair and reasonable rental value of the demised premises for the same period. In the computation of such damages the diiTerence between any installment of rent becoming due hercunder after the date of termination and the fair and reasonable rental value of the demised premises for the period for which such installment was payable shall be discounted to the date of tennination at the rate of our per cent (4%) per annum. If such premises or any part thereof be re-let by the Owner for the unexpired term of said lease, or any part thereof, before presentation of proof of such liquidated damages to any court, commission or tribunal, the amount of rent reserved upon such re-letting shall be deemed to be the fair and reasonable rental value for the part or the whole of the premises so re-let during the term of the re-letting. Nothing herein contained shall limit or prejudice the right of the Owner to prove for and obtain us 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 he greater, equal to, or less than the amount of the difference referred to above. Default: 17. (1) If die Tenant defaults in fulfilling any of the covenants of this lease; or if the demised premises become vacant or deserted; or if any execution or attachment shall be issued against Tenant or any of Tenant's property whereupon the demised premises shall be taken or occupied by someone other than Tenant; of if this lease be rejected under Section365 of Title 11 of the U.S. Code (Bankruptcy Code); of if Tenant shall fail to move into or take possession of the premises within fif1een (15) days after the commencement of the term of this lease, of which fact Owner shan be the sole judge; then, in any one or more of such events, upon Owner serving a written five (5) days notice upon Tenant specifying the nature of said default and upon the expiration of said (5) days notice upon tenant specifying the nature of said default and upon the expiration of said five (5) days, if Tenant shall have failed to comply with or remedy such FILED: NEW YORK COUNTY CLERK 01/09/2019 05:46 PM INDEX NO. 652336/2018 NYSCEF DOC. NO. 30 RECEIVED NYSCEF: 01/09/2019 default, or if the said default or omission complained of shall be of a nature that the same cannot be completely cured or remedied within said five (5) day period, and if Tenant shall not have diligently commenced curing such default within such five (5) day period, and shall not thereafter with reasonab1c diligence and in good faith proceed to remedy or cure such default, the Owner may serve a written three (3) days notice of cancellation of this lease upon tenant, and upon the expiration of said three (3) days, this lease and the term thereunder shall end and expire as fully and completely as if the expiration of such three (3) day period where 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 1cgal representative of Tenant or other occupant of demised premises and remove their effects and hold the premises as if this lease had not been made, and Tenant hereby waives the service of notice of intention to re-enter or to institute legal proceedings to that end. Remedies if Owner and Waiver of Redemption: 18. In case of any such default, re-enny, expiration and/or dispossess by summary proceedings or otherwise, (a) the r ent, and a dditional rent, shall become due t hereupon and be p aid up to the time o f such re-entry, dispossess and/or expiration. (b) Owner may rc-let the premises or any part or parts thereof, either in the name of Owner or otherwise, for a term or terms, which rnay at Owner's option be less than or exceed the period which would otherwise have constituted the balance of the term of this lease and may grant concessions or free rent or charge a higher rental than that in this lease, and/or 9c) Tenant or the legal representatives of Tenant shall also pay Owner as liquidated damages for Tenant' the failure of Tenant to observe and perform said 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 Icase 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 pmmises 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 1cgal expenses, attorneys fees, brokerage, advertising and for keeping the demised premises in good order or for preparing the same for re-letting. Any such liquidated damages shall be paid in monthly installments by Tenant on the rent day specifted in this lease. thmer, in putting the demised premises in good order or preparing the same for re-rental may, at Owner's option, make such alterations, repairs, replacements, and/or decorations in the demised premises as Owner. in Owner's sole judgement, considers advisable and necessary for the purpose of re-letting the demised premises, and the niaking of such alterations, repairs, replacements, and/or decorations shall not operate or be construed to release tenant from liability. Owner shall in no event be liable in any way whatsoever for failure to re-let the demised premiscs, 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 suchnet rent collected over the sums payable by Tenant to Owner hereunder. in the event of a beach or threatened breach by Tenant or any o f the covenants or provisions hereof, O wner shall h are the r ight o f injunction and the right to invoke any remedy allowed at law or in equity as if re-entry, sutnmary proceedings and other remedies were not herein provided for. Mention in this lease of any particular remedy, shall not preclude Owner from any other remedy, in law or in equity. Tenant hereby expressly waives any and all rights of redemption granted by or tuider any present or future laws. Fees and Expenses: 19. If Tenant shall default in the observance or performance of any term or covenant on Tenant's part to be observed or performed under or by virtue of any terms or provisions in any article of this lease, then, unless otherwise provided elsewhere in this lease, Owner may inunediately or at any time thereafter and without notice perform the obligation of Tenant thereunder, and if Owner, m connection therewith or in connection with any default by Tenant in the covenant to pay rent hereunder, makes an expenditures or incurs any obligams for the payment of money, including but not limited to attorney's fees, in instituting, pmsecuting or defending any actions or proceeding, such sums so paid or obligations incurred with interest and costs shall be deemed to be additional rent hercunder and shall be paid by Tenant to Owner within five (5) days of rendition of any bill or statement to Tenant thenfor, and if Tenant's lease tenn shall have expired at the time of making of such expenditures or incurring of such obligations, such sums shall be recoverable by Owner as damages. No Repre- Sentations by Owner: 20. Neither Owner nor Owner's agents have made any representations or promises with respect to the physical condition of the huildmg, 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 premises except as herein expressly set forth and no rights, e asements or 1icenses are acquired by Tenant by implication or otherwise except a s expressly set forth in the provision of this lease. Tenant has inspected the building the demised premises and is thoroughly acquainted with their is" and condition, and agrees to take the same "as 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 for 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 ftdly and completely expresses the agreement between Owner and Tenant and any executory agreement hereafter made shall be ineffective to change, modify, d ischarge o r e ffect a n abandonment o f i t in w hole o r in p art, u nless such e xecutory a greement i s in writing and signed by the party against whom enforcement of the change, modification, discharge or abandonment is sought. FILED: NEW YORK COUNTY CLERK 01/09/2019 05:46 PM INDEX NO. 652336/2018 NYSCEF DOC. NO. 30 RECEIVED NYSCEF: 01/09/2019 End of Term: 21. Upon the expiration or other termination of the tenn of this lease, Tenant shall quit and surrender to Owner of the clemised premises, broom clean, in good order and c ondition, ordinary wear e xcepted, and tenant s hall remove all its property. Tenant's obligation to observe or perform this covenant shall survive the expiration or other termination of this lease. If the last day of the tenn of this lease or any renewal thereof, falls on Sunday, this lease shall expire at noon on the preceding Saturday unless it be a legal holiday in which case it shall expire at noon on the preceding business day. Quiet Enjoyment: 22. Owner covenants and agrees with Tenant that upon Tenant paying the rent and additional rent and observing and performing 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 33 hereof and to the ground leases, underlying leases and mortgages hereinbefore mentioned. Failure To Give Possession: 23. If Owner is unable to give possession of the demised premises on the date of the commencement of the term hereof, because of the holding-over or retention of possession of any tenant, undertenant or occupants, or if the premises arc located in a building being constructed, because such building has not been sufficiently completed to make the premises ready for occupancy or because of the fact that a certificate of occupancy has not been procured or for any other reason. Owner shall not be subject to any I.iability 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 hercunder shall be abated (provided Tenant is not responsible for the inability to obtain possession) until after Owner shall have given Tenant written notice that the premises arc substantially ready for Tenant's occupancy. TTpermission is given to Tenant to enter into the possession of the demised premises or to occupy premises other than the demised premises prior to the date specified as the commencement of the term of this lease. Tenant covenants and agrees that such occupancy shall be deemed to be under all the terms, covenants conditions and provisions of this lease, except as to the covenant to pay rent. The provisions of the article are intended to constitute "an express contrary" provision to the within the meaning of Scetion 223-a ofthe New York Real Property Law. No Waiver: 24, The failure of Owner to seek redress for violation of, or to insist upon the strict perforrnance 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 or any check or any letter accompanying any check or payment as rent be deemed an accord and satisfaction, Owner" and Owner may accept such check or payment without prejudice to right to recover the balance as such rent or pursue any other remedy in this lease provided. No act or thing done by owner or Owner's agents during the term hereby demised shall be deemed in acceptance of a surrender of said premises an no agreement to accept such surrender shall be valid unless in writing signed by Owner, No employee of Owner