EXHIBIT 10.9
LEASE BETWEEN
HOLLAND CENTER, L.L.C., LANDLORD
AND
YOU TOOLS CORPORATION, TENANT
FOR COMMERCIAL SPACE IN
HOLLAND CENTER
TABLE OF CONTENTS
1. PREMISES..................................................................1
2. TERM......................................................................1
3. RENT......................................................................2
4. SECURITY DEPOSIT..........................................................2
5. ADDITIONAL RENT...........................................................2
6. UTILITIES AND SERVICES....................................................3
7. RENEWALS AND OPTIONS......................................................3
8. PREPARATION OF THE PREMISES...............................................3
9. ACCEPTANCE OF THE PREMISES................................................4
10. USE OF THE PREMISES.......................................................4
11. MAINTENANCE AND REPAIRS...................................................4
12. ALTERATIONS AND IMPROVEMENTS..............................................5
13. TENANT'S EQUIPMENT, FURNITURE AND TRADE FIXTURES..........................6
14. ASSIGNMENT AND SUBLETTING.................................................6
15. COMPLIANCE WITH LAWS......................................................8
16. RULES AND REGULATIONS.....................................................8
17. DAMAGE CAUSE..............................................................8
18. CONDEMNATION AND EMINENT DOMAIN...........................................9
19. DEFAULT..................................................................10
20. LANDLORD'S RIGHT AND REMEDIES............................................11
21. LANDLORD'S REMEDIES CUMULATIVE; EXPENSES.................................13
22. USE OF SECURITY DEPOSIT..................................................13
23. ESTOPPEL CERTIFICATES....................................................13
24. MECHANIC'S LIENS.........................................................14
25. NOTICES..................................................................14
26. RESERVATION OF RIGHTS BY LANDLORD........................................14
27. LANDLORD'S RIGHT OF ENTRY................................................15
28. ATTORNMENT...............................................................16
29. MORTGAGE PRIORITY........................................................16
30. QUIET ENJOYMENT..........................................................16
31. ABANDONMENT..............................................................16
32. SURRENDER................................................................16
33. HOLDING OVER.............................................................17
34. WAIVER OF CLAIMS AND LANDLORD'S LIABILITY................................17
35. LANDLORD'S OBLIGATIONS...................................................18
36. INDEMNIFICATION OF LANDLORD..............................................18
37. TENANT'S INSURANCE.......................................................19
38. NO WAIVER................................................................21
39. ENVIRONMENTAL LAWS.......................................................21
40. JURY TRIAL WAIVER........................................................22
41. FORCE MAJEURE............................................................22
42. INTERPRETATION...........................................................22
43. RECORDING OF LEASE.......................................................23
44. SALE OR LEASE OF PREMISES................................................23
45. BROKERAGE COMMISSIONS....................................................23
46. AMENDMENT TO LEASE.......................................................24
47. APPROVAL OF LEASE BY LANDLORD............................................24
48. EXISTING LEASE...........................................................24
49. ENTIRE AGREEMENT.........................................................24
ACKNOWLEDGMENTS...............................................................24
EXHIBIT A - DIAGRAMMATIC FLOOR PLAN...........................................25
EXHIBIT B - LEASE SUMMARY.....................................................26
EXHIBIT C - FLOOR PLAN SKETCH..................................................
EXHIBIT D - WORK TO BE DONE BY LANDLORD REGARDING TENANT IMPROVEMENTS........ 28
EXHIBIT E - RULES & REGULATIONS...............................................29
EXHIBIT F - TENANT'S OPTION TO RENEW LEASE....................................34
THIS LEASE AGREEMENT made this 15 day of June 1999 between Holland Center
L.L.C., a limited liability company existing by virtue of the laws of the State
of New Jersey, and having an address c/o ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇-▇▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, hereinafter called the Landlord, and You Tools
Corporation having an address of Two ▇▇▇▇▇▇▇▇ Place, Suite 130, ▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, hereinafter called the Tenant:
WITNESSETH
For and in consideration of the covenants herein contained, and upon the terms
and conditions herein set forth, Landlord and Tenant hereby agree as follows:
1. PREMISES. Landlord hereby leases to Tenant and Tenant hereby hires
from Landlord, subject to all terms and conditions of this Lease, those certain
premises set forth on the floor plan attached hereto as Exhibit "A" and by this
reference made a part hereof as fully as if set forth herein (hereinafter called
the "Leased Premises"). Said Leased Premises are located in that certain
building (hereinafter called the "Building") which is situated on that certain
parcel of land (said parcel of land together with the Building and all other
improvements located thereon are hereinafter referred to as the "Parcel")
located at and known as
2. TERM.
2.1. The Term of this Lease shall be as set forth in the Lease
Summary and shall commence on the earlier to occur of (I) the date Landlord
delivers possession of the Leased Premises to Tenant or (ii) the Target
Commencement Date set forth in the Lease Summary (hereinafter referred to as the
"commencement date") which Lease Summary is attached hereto as Exhibit B and by
this reference made a part hereof as fully as if set forth herein. Landlord
shall give notice to Tenant of the commencement date, said notice to be made at
least seven (7) days prior to the commencement date set forth in such notice.
The parties hereto acknowledge and agree that the Term of this Lease shall not
commence until possession of the Leased Premises is delivered to Tenant. The
term of this Lease shall terminate on the earlier of (i) five (5) years from the
commencement date, or (ii) the earlier termination of this Lease pursuant to the
terms and conditions of this Agreement.
2.2. The parties hereto agree to execute a memorialization, to
be prepared by Landlord, setting forth (I) the name and address of the parties
hereto; (ii) the exact date on which the term of this Lease commenced; and (iii)
the termination date of this Lease.
2.3. If the Landlord, for any reason whatsoever, cannot deliver
possession of the Leased Premises within six (6) months from the Target
Commencement Date as set forth in the Lease Summary, then either party shall
have the right to terminate this Agreement and neither party shall be liable to
other for any harm or damage suffered or alleged to be suffered as a result
thereof.
3. RENT.
3.1. Tenant shall pay rent (hereinafter called "Basic Rent")
for the Leased Premises to the Landlord in accordance with the provisions of the
Lease Summary. Said Basic Rent to be due and payable on the first day of each
month during the Term of this Lease, except that if the commencement date occurs
on a day other than the first day of a month, then the Basic Rent for the
fraction of the month starting with the commencement date shall be paid on said
commencement date prorated on the basis of the actual number of days in said
month. The Basic Rent shall be payable to Landlord, without deduction or offset
in lawful money of the United States of America at the address for Landlord set
forth in the Lease Summary or to such other person or such other place as
Landlord may from time to time designate in writing.
3.2. If Tenant shall fail to make any payments required to be
paid by Tenant hereunder within five (5) days after such payments are due and
payable, including but not limited to payments of Rent, Additional Rent (as set
forth in Article 5 herein) and replenishment of Security, the Tenant shall be
charged and shall be obligated to pay interest on such monies at the rate of ten
(10%) percent per annum.
4. SECURITY DEPOSIT. Tenant shall deposit with Landlord such amount as
set forth in the Lease Summary as a security deposit for the faithful
performance and observance by Tenant of the terms, provisions and conditions of
this Lease satisfactory to the Landlord. Said security deposit shall be returned
to the Tenant, without interest, after the expiration of the Lease term,
provided the Tenant has fully and faithfully performed all such conditions and
covenants. Landlord shall have the right to use such security deposit to cure
any default of the Tenant. If Landlord so applies any part of said deposit,
Tenant shall, on demand, promptly restore said security to its original amount.
5. ADDITIONAL RENT.
5.1. Tenant hereby acknowledges that in addition to the payment
of Basic Rent, Tenant shall pay as additional rent ("Additional Rent") an amount
equal to Tenant's proportionate share of common area expenses and all charges
for, inter alia, services and utilities charged, assessed to, or used by Tenant,
and any other charges as shall become due and payable hereunder.
5.2. Tenant's "proportionate share" of common area expenses
shall mean and refer to that percentage arrived at by dividing the number of
rentable square feet leased by the Tenant by the total rentable square feet
within the Parcel. The parties hereto acknowledge that Tenant's proportionate
share at the execution of this Lease is as set forth in the Lease Summary.
5.3. "Common area expenses" shall mean and refer to the total
of all costs and expenses paid or incurred by Landlord with respect to, inter
alia, the management, operation, insurance (including but not limited to rent
abatement insurance and hazard and liability insurance), supplies, wages,
professional fees, maintenance and repair, taxes, assessments and improvements
in regard to the Parcel (excepting those charges directly attributable to a
particular Tenant). For those costs and expenses incurred by Landlord which the
Landlord must expense over a period of years, the common area expense chargeable
to the Tenant shall be an amount equal to the amount expensed during the term of
this Lease as such costs and expenses are expensed by the Landlord.
5.4. Tenant shall pay Additional Rent on the first day of each
month in accordance with the provisions of the Lease Summary.
5.5. Within ninety (90) days following the end of each year of
the Lease Term, and at the end of the Lease term, a fair and equitable
adjustment shall be made with respect to any payments due from Tenant for the
preceding period, on the basis of the actual cost to the Landlord of such items
of Additional Rent.
6. UTILITIES AND SERVICES.
6.1. The Tenant shall arrange with the provider or supplier
thereof for all utilities required or needed to service the Leased Premises.
6.2. The Landlord shall have no liability for any disruption or
delay in any of the utilities or services provided to Tenant or the Leased
Premises for any reason whatsoever. Landlord shall have no liability for any
damage or personal injury caused by the disruption or delay of such utilities or
services, for any reason whatsoever.
7. RENEWALS AND OPTIONS. Provided no default of Tenant under the Lease
has previously occurred, Tenant is hereby granted and shall have an option to
extend the term of this Lease as set forth in Exhibit "F" - Tenant's Option to
Renew Lease, and to lease additional space as set forth in Exhibit "G" Tenant's
Option to Lease Additional Space, which Exhibits F and G are by this reference
made a part hereof as fully as if set forth herein.
8. PREPARATION OF THE PREMISES. Before the commencement date, Landlord
will prepare the Leased Premises for the Tenant's occupancy to substantially
conform with the floor plan and suite layout sketch attached hereto as Exhibit
"C" and by this reference made a part hereof as fully as if set forth herein.
The Landlord will furnish and install at its cost and expense those improvements
shown on the Schedule of Tenant Improvements annexed hereto as Exhibit "D" and
by this reference made a part hereof as fully as if set forth herein. Any
additional improvement work desired by the Tenant shall be performed in
accordance with Exhibit "D". The Tenant shall submit to the Landlord for
approval any proposed improvement
work to be done by the Tenant, and no such alterations or improvements shall be
made in the Leased Premises without the Landlord's prior written consent.
9. ACCEPTANCE OF THE PREMISES. Tenant acknowledges that neither
Landlord nor any agent of Landlord has made any representation or warranty with
respect to the Leased Premises, Building or the Parcel or with respect to the
suitability or fitness of them for the conduct of Tenant's business or for any
other purposes. The taking of possession or use of the Leased Premises by Tenant
shall conclusively establish that the Leased Premises and the Landlord's
Building were at such time in satisfactory condition and in conformity with the
provisions of this Lease in all respects.
It is further understood that usual and necessary construction
activity by Landlord in completion or alteration of the Parcel and improvements
thereto do not and will not invalidate or affect this Lease or any rights
hereunder, nor be grounds for Tenant asserting constructive eviction.
10. USE OF THE PREMISES. Tenant shall use the Leased Premises only for
those purposes set forth in Exhibit "E" - Rules and Regulations, attached hereto
and by this reference made a part hereof as fully as if set forth herein.
11. MAINTENANCE AND REPAIRS.
11.1. BY TENANT. The Tenant covenants and agrees throughout the
term of the Lease, at Tenant's own cost and expense, to keep and maintain the
Leased Premises in good substantial order, state, and condition as at the
commencement date, reasonable wear and tear excepted, and shall, at its own cost
and expense, make all repairs and perform all maintenance necessary to keep the
Leased Premises in good condition and repair. The term "repairs" shall include
all necessary replacements, alterations, and additions. All repairs shall be
equal in quality and class to the original work. The necessity for, and adequacy
of, repairs pursuant to this Section shall be measured by the standard which is
appropriate for buildings of similar construction and class. Said repairs and
maintenance shall include, but necessarily be limited to, the following:
11.1.1. PAINTING AND DECORATING. The Tenant shall
do all painting and decorating necessary to keep the Leased Premises in good
condition and repair.
11.1.2. GLASS. The Tenant shall replace at the
Tenant's own expense any and all glass in the Leased Premises which may become
damaged or destroyed.
11.1.3. LIGHTING FIXTURES. The Tenant shall
replace the lamps and fluorescent tubes, and shall maintain and/or replace all
defective blasts, in all interior lighting
fixtures, whether provided by the Landlord or the Tenant, and in all exterior
fixtures provided by the Tenant.
11.2. BY LANDLORD. Landlord shall be responsible for the
performance of all maintenance and repairs to the common areas of the Parcel and
all building structures and exteriors, roofs, parking areas, paving and
landscaping.
12. ALTERATIONS AND IMPROVEMENTS.
12.1. Tenant shall make no alterations, changes, or
improvements in or to the Leased Premises without the prior written consent of
the Landlord. Tenant shall be responsible for the total cost and expense of all
alterations, changes and improvements made by or on behalf of the Tenant. Any
such alterations, changes or improvements shall not interfere with the
mechanical, electrical, air conditioning and plumbing systems and fixtures,
serving any portions of the Leased Premises or Building. At least thirty (30)
days prior to making any alteration, change or improvements, Tenant shall supply
to Landlord a detailed drawing and specifications of the alteration, change or
improvement to be made. Tenant shall, at its sole cost and expense, obtain all
required permits, approvals, and certificates required by all Governmental
authorities in regard to such alterations, changes or improvements. Tenant shall
deliver to Landlord promptly upon its receipt duplicates of all such approvals.
Tenant shall carry and will cause Tenant's contractors and subcontractors to
carry such ▇▇▇▇▇▇▇'▇ compensation, general liability, personal and property
damage insurance as required by law and in amounts no less than may be
reasonably required by Landlord. Tenant agrees to do such work in such manner as
not to interfere with or impair the use of other portions of the Parcel by
Landlord and other Tenants of the Parcel, and if necessary to prevent such
interference or impairment, to do work after business hours even though more
expense may be incurred thereby. Contractors and subcontractors doing Tenant's
work may be of Tenant's choice but subject to Landlord's prior written approval,
which approval Landlord agrees not to unreasonably withhold or delay. Tenant
will inform Landlord, in writing, of the names of such contractors and
subcontractors at least one week prior to the commencement of such work.
12.2. All alterations, changes and improvements shall, upon
installation, become the property of Landlord and shall remain upon and be
surrendered with the Leased Premises. All property permitted or required to be
removed by Tenant at the end of the Term remaining on the Leased Premises after
the termination date shall be deemed abandoned and may, at the election of
Landlord, either be retained as Landlord's property or may be removed from the
Leased Premises by Landlord at Tenant's expense.
13. TENANT'S EQUIPMENT, FURNITURE AND TRADE FIXTURES.
13.1. Tenant shall have the right to install, at its own
expense, such equipment, furniture, and trade fixtures, as it considers
necessary or advisable in the conduct of
its business. Provided the Tenant is not in default hereunder, Tenant shall have
the right to remove all such equipment, furniture, and trade fixtures.
13.2. In the event that Tenant removes any or all of said
equipment, furniture, and trade fixtures, Tenant shall pay all cost and expenses
of any such removal and shall leave the Leased Premises in as good a state and
condition as they were at the commencement of the initial Term of this Lease,
reasonable wear and tear excepted. If Tenant fails to make such repairs,
Landlord shall have the right to do so for and on behalf of and at the expense
of Tenant, and Tenant covenants and agrees to forthwith fully pay on demand to
the Landlord the cost of all such expenditures so made by Landlord.
13.3. In the event that Tenant abandons any such equipment,
furniture, and trade fixtures, such equipment, furniture, and trade fixtures so
abandoned shall, at the election of Landlord, become the property of the
Landlord, or in the event that Landlord elects not to retain said equipment,
furniture or trade fixtures, Landlord shall have the right to remove the same or
any part thereof and charge Tenant the reasonable costs of such removal and or
storage.
14. ASSIGNMENT AND SUBLETTING.
14.1. Tenant expressly covenants that it shall not by operation
of law or otherwise assign, sublet, mortgage, or encumber this Lease, or any
part thereof, or permit the Leased Premises to be used by others without the
prior written consent of Landlord in each instance. Any attempt to do so by
Tenant shall be void. The consent by Landlord to any assignment, mortgage,
encumbrance, subletting or use of the Leased Premises by others shall not
constitute a waiver of Landlord's right to withhold its consent to any
subsequent assignment, mortgage, encumbrance or use of the Leased Premises by
others. Without the prior written consent of Landlord, this Lease and the
interest of Tenant herein or any assignee of Tenant herein, shall not pass by
operation of law, and shall not be subject to garnishment or sale under
execution in any suit or proceeding which may be brought against or by Tenant or
any assignee of Tenant.
14.2. In no event shall any assignment or subletting to which
Landlord may consent, release or relieve Tenant from its obligations to fully
perform all of the terms, covenants, and conditions of its Lease on its part to
be performed.
14.3. If Tenant requests Landlord's consent to an assignment of
this Lease or a subletting of all or any part of the Leased Premises, Tenant
shall submit to Landlord:
(a) the name of the proposed assignee or subtenant;
(b) a copy of the proposed assignment or subletting
agreement;
(c) the nature of the proposed Tenant's business; and
(d) such information as to its financial
responsibility and general reputation as Landlord may reasonably require.
14.4. Upon the receipt of such request and information from
Tenant, Landlord may approve same or;
(a) cancel and terminate this Lease, if the
request is to assign this Lease or to sublet all of the Lease Premises or, if
the request is to assign or sublet a portion of the Leased Premises only, to
cancel and terminate this Lease with request to such portion;
(b) to grant said request with the
understanding and agreement that any monies received by Tenant in excess of
the Basic Rent and Additional Rent (prorated to that portion of the Leased
Premises so sublet or assigned) set forth herein shall be paid to Landlord.
14.5. In the event Landlord shall cancel this Lease, Tenant
shall surrender possession of the Leased Premises, or the portion of the Leased
Premises which is the subject of the request in accordance with the provisions
of this Lease relating to surrender of the Leased Premises.
14.6. In the event that Landlord shall consent to a sublease or
assignment pursuant to the request from Tenant, Tenant shall cause to be
executed by its assignee or subtenant an agreement to perform faithfully and to
assume and be bound by all of the terms, covenants, conditions, provisions and
agreements of this Lease for the period covered by the assignment or sublease
and to the extent of the space sublet or assigned. An executed copy of each
sublease or assignment and assumption of performance by the sublessee or
assignee, on Landlord's standard form, shall be delivered to Landlord within
twenty (20) days prior to the commencement of occupancy set forth in such
assignment or sublease. No such assignment or sublease shall be binding on
Landlord, and the same shall be void, until Landlord has received and approved
such copies as required herein.
14.7. If this Lease is assigned or sublet with the consent of
Landlord, or occupied by anyone other than Tenant, Landlord may collect the
rents and the other sums to be paid as mentioned in this Lease from said
assignee, subtenant or occupant or anyone else, and apply the net amount
collected to the rents and other sums and payments to be paid by Tenant, and
Tenant shall be and remain liable for the payment of any deficiency arising
under the terms, covenants, conditions, agreements, and provisions as provided
in this Lease. The collection by Landlord from any assignee, subtenant, occupant
or anyone else, shall not be deemed a waiver of this covenant, or release or
discharge Tenant from its obligation to any said rents and other sums specified
in this Lease.
15. COMPLIANCE WITH LAWS. Tenant covenants that throughout the Term of
this Lease, at Tenant's sole cost and expense, Tenant shall promptly comply with
all present and future statutes and ordinances and orders, rules and
requirements of all Federal, State, County and Municipal governments, and all
legally constituted authorities and all appropriate departments, bureaus,
commissions, boards and offices thereof, and with any directions or orders of
any public officer or offices, which shall impose any duty or obligation upon
the Tenant with respect to the Leased Premises or the use or occupancy thereof.
Tenant further covenants that throughout the Term of this Lease, at Tenant's
sole cost and expenses, Tenant shall promptly comply with the orders, rules and
regulations of the Board of Fire Underwriters where the Leased Premises are
situate, or any other governmental body now or hereafter constituted, exercising
similar functions. Tenant will likewise observe and comply with the requirements
of all policies of public liability, fire and all other policies of insurance at
any time in force with respect to the Parcel.
16. RULES AND REGULATIONS. The rules and regulations regarding the
Leased Premises, affixed to this lease "Exhibit E" attached hereto and by this
reference made a part hereof as fully as if set forth herein, as well as any
other and further reasonable rules and regulations which shall be made by the
Landlord, shall be observed by the Tenant and by the Tenant's employees, agents,
invitees and licensees. The Landlord reserves the right to rescind any presently
existing rules applicable to the Parcel, and to make such other and further
reasonable rules and regulations as in its judgment may from time to time be
desirable for the safety, care and cleanliness of the Parcel and its Tenants and
for the preservation of good order therein, which rules, when so made and notice
thereof given to the Tenant, shall have the same force and effect as if
originally made a part of this Lease.
17. DAMAGE CAUSE.
17.1. If during the term hereof the Leased Premises shall be
partially damaged (as distinguished from "substantially damaged", as that term
is hereinafter defined) by fire or other casualty, Tenant shall immediately
notify Landlord, and provided such damage is not caused by Tenant and subject to
receipt by Landlord of insurance proceeds, Landlord shall forthwith proceed to
repair such damage and restore the Leased Premises to substantially their
condition at the time of such damage, but Landlord shall not be responsible for
any delay which may result from any cause beyond Landlord's reasonable control.
Landlord shall not have any obligation to repair or restore improvements,
fixtures including trade fixtures), floor coverings, furnishing or decorative
feature furnished by Tenant.
17.2. If during term hereof the Leased Premises shall be
substantially damaged or destroyed by fire or other casualty, the Landlord shall
have the option to cancel and terminate this Lease or to elect to have the Lease
remain in full force and effect, and if Landlord so elects and provided such
damage is not caused by Tenant and subject to receipt by Landlord of insurance
proceeds, Landlord shall proceed with all reasonable dispatch to repair or
rebuild the
Leased Premises to substantially their condition at the time of such damage or
destruction (subject, however, to zoning laws and building codes then in
existence), but Landlord shall not be responsible for any delay which may result
from any cause beyond the Landlord's reasonable control. Landlord shall not have
any obligation to repair or restore improvements, fixtures (including trade
fixtures), floor coverings, furnishings or decorative features furnished by
Tenant.
17.3. If Landlord's right of termination is exercised, this
Lease and the term hereof shall cease and come to an end as of the date of said
notification of election.
17.4. The terms "substantially damaged" and "substantial
damage", as used in this Article, shall have reference to damage of such a
character as cannot reasonably be expected to be substantially repaired within
ninety (90) days from the time that such repair or restoration work would be
commenced.
17.5. Notwithstanding anything herein to the contrary, the
Tenant shall not be entitled to any credit, rebate, or adjustment in the Basic
Rent or Additional Rent, unless and to the extent of rent abatement insurance
proceeds received by Landlord.
17.6. Notwithstanding any provision herein to the contrary,
Landlord shall not be obligated to repair the Leased Premises, Building or
Parcel if the proceeds from any insurance award are insufficient to restore the
Leased Premises, Building or Parcel to its condition as it existed immediately
prior to such casualty.
18. CONDEMNATION AND EMINENT DOMAIN.
18.1. If the whole of the premises shall be condemned or taken
either permanently or temporarily for any public or quasi-public use or purpose,
under any statute or by right of eminent domain, or by private purchase in lieu
thereof, then in that event the term of this Lease shall cease and terminate
from the date when possession is taken thereunder pursuant to such proceeding or
purchase and Tenant shall have no claim against Landlord for the value of any
unexpired term of said Lease, and shall release unto Landlord any such claim it
may have against the condemnor. In the event a portion only of the Leased
Premises shall be so taken Landlord may elect to terminate this Lease from the
date when possession is taken thereunder pursuant to such proceeding or purchase
or Landlord may elect to repair and restore, at its own expense, the portion not
taken and this Lease shall remain in effect but the rent shall be adjusted
accordingly.
18.2. In the event of any total or partial taking of the Leased
Premises or the Building or any portion of the Parcel, Landlord shall be
entitled to receive the entire award in any such proceeding and Tenant hereby
assigns any and all right, title and interest in or to any such award or any
part thereof and hereby waives all right against Landlord and the condemning
authority, except that Tenant shall have the right to claim and prove in any
such proceeding and
to receive any award which may be made for Tenant's fixtures, equipment and
relocation expenses.
18.3. If the Leased Premises or the building are declared
unsafe by any duly constituted authority having the power to make such
determination or are the subject of a violation notice or notice requiring
repair or reconstruction, Landlord, at its option, may terminate this Lease and
in such event, Tenant shall immediately surrender said premises to Landlord and
thereupon this Lease shall terminate.
19. DEFAULT. Each of the following, whether occurring before or after
the commencement date, shall be deemed a Default by Tenant and a breach of this
Lease:
(a) the filing of a petition by or against Tenant for
adjudication as a bankrupt, or for reorganization, or for arrangement under any
bankruptcy act;
(b) The commencement of any action or proceeding for the
dissolution or liquidation of Tenant, whether instituted by or against Tenant,
or for the appointment of a receiver or trustee of the property of Tenant under
any state or federal statute for relief of debtors;
(c) The making by Tenant of an assignment for the benefit of
creditors;
(d) The suspension of business by Tenant or any act by Tenant
amounting to a business failure;
(e) The filing of a tax lien or a mechanic's lien against any
property of Tenant;
(f) Tenant's causing or permitting the Leased Premises to be
vacant, or abandonment of the Leased Premises by Tenant for a period in excess
of ten (10) days;
(g) failure by Tenant to pay Landlord when due the Basic Rent or
Additional Rent or any other sum by the time required by the terms of this
Lease;
(h) The assignment, subletting, mortgaging, or encumbering by
Tenant of the Leased Premises without the prior written consent of Landlord;
(I) failure by Tenant to perform or comply with any of the terms,
covenants, agreements, or conditions of this Lease on the part of Tenant to be
performed, or if any representations of Tenant are untrue.
20. LANDLORD'S RIGHT AND REMEDIES. Upon the occurrence of any such
event of default set forth above and without any additional notice except as may
be set forth in this Article:
20.1. Landlord may, on behalf of Tenant, cure any such default of
Tenant and immediately recover as additional rent any expenditures made and the
amount of any obligations incurred in connection therewith, plus eighteen (18%)
percent per annum interest from the date of any such expenditure.
20.2. Landlord may accelerate all Basic rent and Additional rent
due for the balance of the term of this Lease and declare the same to be
immediately due and payable.
20.3. Landlord, at its option, may serve notice upon Tenant that
this Lease and the then unexpired term hereof shall cease and expire and become
absolutely void on the date specified in such notice, to be not less than five
(5) days after the date of such notice without any right on the part of the
Tenant to save the forfeiture by payment of any sum due or by the performance of
any term, provision, covenant, agreement or condition broken; and, thereupon and
at the expiration of the time limit in such notice, this Lease and the term
hereof granted, as well as the right, title and interest of the Tenant
hereunder, shall wholly cease and expire and become void in the same manner and
with the same force and effect (except as to Tenant's liability) as if the date
fixed in such notice were the date herein granted for expiration and the term of
this Lease. Thereupon, Tenant shall immediately quit and surrender to Landlord
the Leased Premises, and Landlord may enter into and repossess the Leased
Premises and remove all occupants thereof, and, at Landlord's option, any
property thereon without being liable to indictment, prosecution or damages
therefor. No such expiration or termination of this Lease shall relieve Tenant
of its liability and obligations under this Lease, including but not limited to
Tenant's obligation to pay Basic Rent and Additional Rent, whether or not the
Leased Premises shall be relet.
20.4. Landlord may, at any time after occurrence of any event of
default, re-enter the Leased Premises with or without due process of law, take
possession of all building, improvements, additions, alterations, equipment and
fixtures thereon, and eject all parties in possession thereof therefrom, using
such force for that purpose as may be necessary including the changing of the
locks, without being liable to any prosecution for said re-entry or the use of
such force, and, without terminating this Lease, at any time and from time to
time to relet the Leased Premises or any part or parts thereof for the account
of Tenant or otherwise, receive and collect the rents therefor, applying the
same first to the payment of such expenses as Landlord may have paid, assumed or
incurred in recovering possession of the Leased Premises, including costs,
expenses and attorneys' fees, and for placing the same in good order and
condition or preparing, altering or repairing the same for reletting, and all
other expenses, commissions and charges, including attorneys' fees and
brokerage, paid, assumed or incurred by Landlord in connection with reletting
the Leased Premises, and then to the fulfillment of the covenants of Tenant.
20.5. Landlord shall have the right, as agent for Tenant, to take
possession of any furniture or fixtures of Tenant found upon the Leased Premises
after taking possession of same pursuant to this Section and sell the same at
any private or public sale and apply the proceeds to any amount due Landlord.
Tenant waives any notice, execution or levy in connection therewith.
20.6. Landlord shall have the right of injunction, in the event
of a breach or threatened breach by Tenant of any of the agreements, conditions,
covenants or terms hereof, to restrain the same and the right to invoke any
remedy allowed by law or in equity, whether or not other remedies, indemnity or
reimbursements are herein provided, and if the Landlord shall become compelled
to commence any action or proceeding prior to such default being remedied by the
Tenant, all sums paid by the Landlord for expenses of any such action or
proceeding, including reasonable counsel fees, shall be paid by the Tenant to
the landlord on demand and may be collectable by Landlord as rent hereunder.
20.7. Landlord may retain, as partial damages, any Basic Rent,
Additional Rent, Security Deposit, or monies received by it from Tenant or
others on behalf of Tenant.
20.8. No act or thing done by Landlord shall be deemed to be an
acceptance of Tenant's surrender of the Leased Premises, unless Landlord shall
execute a written agreement of surrender with Tenant. Tenant's liability
hereunder shall not be terminated by the execution of a new lease of the Leased
Premises by Landlord. Tenant agrees to pay to Landlord, upon demand, the amount
of damages herein provided after the amount of such damages for any month shall
have been ascertained. Separate actions may be maintained each month by Landlord
against Tenant to recover the damages then due, without waiting until the end of
the term to determine the aggregate amount of such damages. Tenant hereby
expressly waives any and all rights of redemption granted by or under present or
future laws in the event of the eviction of Tenant or Tenant being dispossessed
for any cause, or in the event of Landlord obtaining possession of the Leased
Premises by reason of the violation by Tenant of any of the covenants or
conditions of this Lease.
21. LANDLORD'S REMEDIES CUMULATIVE; EXPENSES.
21.1. All rights and remedies of Landlord herein shall be
cumulative, and none shall exclude any other right or remedy allowed by law. The
failure of Landlord to insist in any one or more instance upon a strict
performance of any covenant of this Lease or to exercise any option or right
herein contained, shall not be construed as a waiver or relinquishment for the
future of any such covenant, right or option, but the same shall remain in full
force and effect. For the purpose of any suit brought or based hereon, this
Lease shall be construed to be a divisible contract, to the end that successive
actions may be maintained on this Lease as successive periodic sums which mature
hereunder.
21.2. Tenant shall pay, upon demand, all of the Landlord's costs,
charges, and expenses, including the fees of counsel, agents, and others
retained by Landlord, incurred in enforcing Tenants' obligations and/or
Landlord's rights hereunder.
22. USE OF SECURITY DEPOSIT.
22.1. In the event of a Default by Tenant in respect any of the
terms, covenants or conditions of this Lease, Landlord may use, apply or retain
the whole or any part of the Security Deposit to the extent required for the
payment of any Basic Rent, Additional Rent or any other sum as to which Tenant
is in Default or for any sum which Landlord may expend or may be required to
expend by reason of Tenant's Default in respect of any of the terms, covenants
or conditions of this Lease, including but not limited to, any damages or
deficiency accrued before or after summary proceedings or other re-entry by
Landlord.
22.2. In the event of a sale or lease of the Parcel, Landlord
shall have the right to transfer the Security Deposit to the vendee or lessee,
as the case may be, and Landlord shall thereupon be released by Tenant from all
liability for the return of such Security Deposit. Tenant agrees to look to the
new landlord solely for the return of the Security Deposit. It is agreed that
the provisions hereof shall apply to every transfer or assignment made of the
Security Deposit to a new landlord. Tenant further covenants that it will not
assign or encumber or attempt to assign and encumber the Security Deposit and
that neither Landlord nor its successors or assigns shall be bound by any such
assignment, encumbrance, attempted assignment or attempted encumbrance.
23. ESTOPPEL CERTIFICATES. Tenant shall, from time to time, upon not
less than ten (10) days prior written request by Landlord execute, acknowledge
and deliver to Landlord a written statement certifying that this Lease Agreement
is unmodified and in full force and effect (or that same is in full force and
effect as modified, listing the instruments of modification), the dates to which
the rent and other charges have been paid, and whether or not to the best of
Tenant's knowledge Landlord is in default hereunder (and if so, specifying the
nature
of the default), it being intended that any such statement delivered pursuant to
this Article may be relied upon by a prospective purchaser of Landlord's
interest or mortgagee of Landlord's interest or assignee of any mortgage of
Landlord's interest in any underlying lease or in the Building or the Leased
Premises or Parcel. Failure of the Tenant to so execute such a certificate shall
be a default of Tenant, and Landlord may then execute same on Tenant's behalf as
Tenant's attorney-in-fact.
24. MECHANIC'S LIENS. Tenant covenants and agrees, at its own cost and
expense, to have any mechanic's notice of intention or mechanic's lien filed
against the Parcel for work claimed to have been done for, or materials claimed
to have been furnished to, Tenant, discharged of record or bonded within thirty
(30) days after the filing or recording of same. In addition, Landlord may
discharge the same either by paying the amount claimed to be due, by procuring
the discharge of such notices or liens by deposit in court, by giving security,
or in such other manner as is or may be prescribed by law. Any amounts paid by
Landlord for any of the aforesaid purposes, and all reasonable counsel fees
expended in procuring the discharge of such notices or liens, shall be repaid by
Tenant to Landlord on demand, and if unpaid, shall be treated as Additional
Rent. Nothing herein contained shall imply any consent or agreement on the part
of Landlord to subject the Landlord's estate to liability under any mechanic's
or construction lien law.
25. NOTICES. Notices by either party to the other shall be in writing
and shall be delivered personally or sent by registered or certified mail or
overnight courier addressed to Landlord or Tenant at their respective addresses
hereinabove set forth, or to such other address as either party shall hereafter
designate by notice as aforesaid. All notices sent by registered or certified
mail properly addressed shall be deemed served three (3) days after the date of
mailing, except that notice of change of address shall not deemed served until
received by the addressee. Notices sent by overnight courier or personal
delivery shall be effective when delivered.
26. RESERVATION OF RIGHTS BY LANDLORD.
26.1. Landlord hereby reserves to itself any and all rights
available to it by statute, law, rule, ordinance or under this Lease including,
but not limited to, the following rights which are reserved to Landlord for its
purpose in operating the Parcel:
(a) the exclusive right to the use of the name of the Building for all purposes,
except that Tenant may use the name as its business address and for no other
purpose;
(b) the right to change the name or street address of the
Building without notice or liability to Tenant by Landlord;
(c) the right to install and maintain a sign or signs on the
exterior of the Building for any purpose whatsoever, including offering the
premises for sale or for rent;
(d) the exclusive right to use the roof of the Building;
(e) after the Tenant vacates the Leased Premises, the right to
alter or otherwise prepare the Leased Premises for re-occupancy;
(f) the right to lease space in the Building to anyone, or the
right to grant to anyone the right to conduct any business or undertaking in the
Building.
26.2. The exercise by Landlord of said rights hereinabove
reserved shall not render Landlord guilty of an eviction or disturbance of
Tenant's use and possession, and Landlord shall not be liable therefore in any
matter to Tenant.
27. LANDLORD'S RIGHT OF ENTRY.
27.1. Tenant agrees to permit Landlord and Landlord's agents,
employees and representatives to enter the Leased Premises at all reasonable
times during normal business hours for the purposes of:
(a) inspecting the Leased Premises;
(b) making any repairs to the Leased Premises that Landlord is
obligated or permitted to make under this Lease, and to perform any work therein
that may be necessary to comply with any laws, ordinances, rules, regulations or
requirements of any public authority or of the Board of Fire Underwriters or any
similar body, or that the Landlord may reasonably deem necessary to prevent
waste or deterioration in connection with the Leased Premises;
(c) showing the Leased Premises to prospective buyers of the
property;
(d) showing the Leased Premises to prospective Tenants;
(e) placing notices on or within the Leased Premises and to
maintain the same, without hindrance or molestation.
27.2. Landlord shall give Tenant reasonable prior notice before
commencing any non-emergency repair or alteration to the Leased Premises.
27.3. Nothing herein shall imply any duty upon the part of
Landlord to do any such work.
27.4. Landlord may, during the progress of any work in the Leased
Premises, keep and store all necessary materials, tools and equipment in such
manner upon the Leased Premises as not to unreasonably interfere with Tenant's
business operations. Landlord shall not in any event be liable for
inconvenience, annoyance, disturbance, loss of business or any damages that
Tenant may suffer or sustain by reason of making any repairs or the performance
of any work in the Leased Premises in accordance with the provisions of
Paragraph 27 hereof, or on account of bringing or storing any materials,
supplies, and equipment into or upon the Leased Premises during usual business
hours.
27.5. Landlord or Landlord's authorized agents may enter upon the
Leased Premises at any time in case of emergency without prior notice to Tenant.
27.6. Landlord, in exercising any of its rights under this
Section, shall not be deemed guilty of an eviction, partial eviction or
disturbance of Tenant's use or possession of the Leased Premises and shall not
be liable to Tenant for same.
28. ATTORNMENT. Tenant covenants and agrees that if the leasehold
interest of Landlord in the Parcel or any part thereof is terminated, Tenant
will attorn to the then holder of the reversionary interest in the Parcel or
such part thereof and will recognize such holder as Tenant's landlord under this
Lease.
29. MORTGAGE PRIORITY. This Lease shall not be a lien against the
premises in respect of any mortgages that may now or hereafter be placed upon
the property. The recording of such mortgage or mortgages shall have preference
and precedence and be superior and prior in lien to this Lease by virtue hereof,
and the Tenant agrees to execute any instruments, without cost, which further
effect the subordination of this Lease to any such mortgage or mortgages. A
refusal by the Tenant to execute such instruments shall entitle the Landlord to
the option of canceling this Lease, and the term hereof is hereby expressly
limited accordingly.
30. QUIET ENJOYMENT. Landlord covenants and agrees that, upon the
performance by Tenant of all of the covenants, agreements, and provisions hereof
on Tenant's part to be kept and performed, Tenant shall have, hold, and enjoy
the Leased Premises, subject to the terms and conditions of this Lease.
31. ABANDONMENT. The Tenant shall not vacate or abandon the Leased
Premises at any time during the Lease term.
32. SURRENDER. Upon the termination of the Term or prior expiration of
this Lease, Tenant shall peaceably and quietly quit and surrender to Landlord
the Leased Premises, broom clean, in as good condition as they were on the
commencement date, ordinary wear and tear excepted.
33. HOLDING OVER. If Tenant holds possession of the Leased Premises
beyond the termination date of the lease term, tenant shall become a Tenant from
month-to-month at DOUBLE the monthly Basic Rent and Additional Rent Payable
hereunder in the final month of the Lease Term, and upon all other terms and
conditions of this lease, and shall continue to be such month-to-month Tenant
until such tenancy shall be terminated by landlord or tenant and such possession
shall cease. Nothing contained in this Lease shall be construed as a consent by
Landlord to the occupancy or possession by Tenant of the Leased Premises beyond
the expiration of the term, and Landlord, upon said expiration of the term shall
be entitled to the benefit of all legal remedies that now may be in force or may
be hereafter enacted relating to the speedy repossession of the Leased Premises.
34. WAIVER OF CLAIMS AND LANDLORD'S LIABILITY.
34.1. Landlord shall not be liable for, and Tenant hereby
releases and relieves Landlord from all liability in connection with any and all
loss of life, personal injury, damage to or loss of property, or loss or
interruption of business occurring to Tenant, in or about or arising out of the
Parcel including but not limited to the following:
(a) any fire, other casualty, accident, occurrence or condition
in or upon the Parcel;
(b) any defect in or failure of plumbing, sprinkling, electrical
heating or air conditioning systems or equipment, or any other systems and
equipment of the Leased Premises,
(c) any steam, gas, oil, water, rain or snow that may leak into,
issue or flow from any part of the Leased Premises or the Building from the
drains, pipes or plumbing, sewer or other installation of same, or other
installation of same, or from any other place or quarter;
(d) the breaking or disrepair of any installations and
equipment;
(e) the falling of any fixture or any wall or ceiling materials;
(f) broken glass;
(g) latent or patent defects;
(h) the exercise of any rights by Landlord under the terms and
conditions of this Lease;
(I) any acts or omissions of the other Tenants or occupants of
the Building or of nearby buildings;
(j) any acts or omissions of the other persons;
(k) any acts or omissions of Landlord, its agents, servants and
employees; and
(l) theft, Act of God, public enemy, injunction, riot, strike,
national emergency, insurrection, war, court order, or any order of any
governmental authorities having jurisdiction over the Leased Premises.
34.2. For the purposes of this Article, the terms "Landlord" and
"Tenant" shall mean and refer to their respective agents, employees, invitees,
guests and representatives.
34.3. Landlord shall have no personal liability under any of the
terms, conditions or covenants of this Lease and Tenant shall look solely to the
equity of the Landlord in the Building of which the Leased Premises form a part
for the satisfaction of any claim, remedy or cause of action accruing to Tenant
as a result of the breach of any condition of this Lease by Landlord.
35. LANDLORD'S OBLIGATIONS. Landlord's obligations under this Lease
Agreement shall be binding upon Landlord only for the period of time that
Landlord is in ownership of the building; and, upon termination of that
ownership, Tenant, except as to any obligations which have then matured, shall
look solely to Landlord's successor in interest in the Building for the
satisfaction of each and every obligation of Landlord hereunder.
36. INDEMNIFICATION OF LANDLORD.
36.1. Tenant shall indemnify, hold harmless and defend Landlord
from and against any and all costs, expenses (including reasonable counsel
fees), liabilities, losses, damages, suits, actions, fines, penalties, claims,
or demands of any kind and asserted by or on behalf of any person or
governmental authority, arising out of or in anyway connected with, and Landlord
shall not be liable to Tenant on account of;
(a) any failure by Tenant, its agents, servants, employees,
invitees or licensees, to perform any of the agreements, terms, covenants, or
conditions of this Lease required to be performed by Tenant;
(b) any failure by Tenant, its agents, servants, employees,
invitees or licensees, to comply with any statutes, ordinances, regulations or
orders of any governmental authority;
(c) any damage to persons or property caused by moving property
in or out of the Building, or by the installation or removal of furniture or
other property in or out of the Building, or by the installation of removal or
furniture or other property caused by Tenant, its agents, servants, employees,
invitees or licensees;
(d) any accident, death or personal injury, damage or loss or
theft of property, which shall occur in or about the Parcel as the result of the
occupancy, use, or presence in such Parcel by Tenant, or its agents, servants,
employees, invitees and licensees, except as same may be caused solely by the
willful act or gross negligence of the Landlord, its employees and agents.
36.2. Any such expense shall be deemed Additional Rent, due on
the first day of the next calendar month after it is incurred.
37. TENANT'S INSURANCE. Tenant covenants, at its sole cost and
expense, but for the mutual benefit of Landlord and Tenant, to maintain
throughout the Lease Term:
37.1. LIABILITY. Personal injury and property damage liability
insurance against claims for bodily injury, death, or property damage occurring
on, in, or about the Leased Premises, Building, and Parcel. Such insurance shall
afford minimum protection, during the term of this Lease, of not less than
$500,000 in respect of bodily injury or death to any one person, of not less
than $1,000,000 in respect of any one accident, and of not less than $500,000
for property damages.
37.2. CASUALTY. Tenant shall obtain fire and casualty insurance
on the Leased Premises in an amount of not less than Two Hundred Thousand
Dollars ($200,000.00) and in form and from an insurer acceptable to Landlord.
37.3. Tenant shall furnish to the Landlord or its mortgagee such
evidence of insurance, as called for herein, as the Landlord or its mortgagee
may, from time to time, request. Upon failure at any time on the part of Tenant
to procure and deliver to Landlord evidence of such insurance indicating the
premium has been paid and the insurance is in effect, Landlord shall be at
liberty, from time to time, as often as such failure shall occur, to procure
such insurance and to pay the premium therefor. Any sums paid for insurance by
Landlord shall be and become, and are hereby declared to be Additional Rent
hereunder for the collection of which Landlord shall have all the remedies
provided for in this Lease or by law for the collection of rent. Payment by
Landlord of such premium or the carrying by Landlord of any such policy
shall not be deemed to waive or release the default of Tenant with respect
thereto. Tenant's failure to provide and keep in force the aforementioned
insurance shall be regarded as a default hereunder entitling Landlord to
exercise any or all of the remedies as provided in this Lease in the event of
default.
37.4. All policies of insurance provided for in this Section
hereof shall name Landlord as an additional named insured. If required by
mortgagee, such policies shall also be payable to the mortgagee as the interest
of such mortgagee may appear. The loss, if any, under any such insurance
policies shall be adjusted with the insurance companies by Landlord, and its
mortgagee, if any. Each such policy shall contain a provision, if available and
obtainable, that no act or omission of Tenant shall affect or limit the
obligations of the insurance company to pay to Landlord the amount of any loss
sustained. Such policy shall further contain a provision that the policy may not
be canceled without ten (10) days prior written notice to the Landlord and ten
(10) days written notice to any mortgagee, to whom a loss thereunder may be
payable.
37.5. At least fifteen (15) days prior to commencement of the
Term, a certificate evidencing coverage of such policies therefor shall be
delivered by Tenant to Landlord and at least thirty (30) days before each of
such policies shall expire, Tenant shall deliver a certificate evidencing
renewal of such coverage.
37.6. NEGATIVE COVENANTS OF TENANT. Tenant agrees that it will
not do or suffer to be done, any act, matter or thing objectionable to fire,
hazard or liability insurance companies whereby the fire insurance or any other
insurance now in force or hereafter to be placed on the Parcel or any part
thereof, shall become void or suspended, or whereby the same shall be rated as a
more hazardous risk than at the date when Tenant receives possession hereunder.
In case of a breach of this covenant, in addition to all other remedies of
Landlord hereunder, Tenant agrees to pay to Landlord as additional rent, any and
all increase or increases or premiums on insurance carried by Landlord on the
Leased Premises, or any part thereof, or on the Building of which the Leased
Premises may be a part, caused in any way by the occupancy of Tenant.
37.7. MUTUAL WAIVER OF SUBROGATION. Landlord hereby waives any
and all rights of recovery against Tenant for or arising out of damage to or
destruction of the Parcel and any other property of Landlord from causes then
insured under standard fire and extended coverage insurance policies or
endorsements to the extent that its insurance policies then in effect permit
such waiver. If at any time during the Term any insurance carrier which shall
have issued a policy to either of the parties covering the Leased Premises or
any of the property of Tenant, shall refuse to consent to the waiver of the
right of recovery with respect to any loss payable under such policy, or if such
carrier shall consent to such waiver only upon the payment of an additional
premium (unless such additional premium is voluntarily paid by one of the
parties hereto), or shall cancel a consent previously given, or shall cancel or
threaten to cancel any policy previously issued and then in full force and
effect, then in any such event, the waiver in
this Section shall thereupon be of no further force and effect as to the loss,
damage or destruction covered by such policy except as hereinafter provided. If,
however, at any time thereafter such consent shall be obtained therefor from any
existing or any substitute insurance carrier, the waiver hereinabove provided
for shall again become effective.
38. NO WAIVER.
38.1. Failure of either party to complain of any act or omission
on the part of the other party, no matter how long same may continue, shall not
be deemed a waiver by said party of any of its rights hereunder. No waiver by
either party at any time expressed or implied, of a breach of any provision of
this Lease shall be deemed waiver of a breach of any other provision or a
consent to any subsequent breach of the same or any other provision. The consent
to or approval of any action on any one occasion by either party hereto shall
not be deemed a consent to or approval of said action on any subsequent occasion
or a consent to or approval of any other action on the same or any subsequent
occasion. Any and all rights and remedies which either party may have under this
Lease or by operation of law by reason of a breach by the other party shall be
distinct, separate, and cumulative, and shall not be deemed inconsistent with
any other right or remedy and any two or more or all of such rights and remedies
may be exercised at the same time. Acceptance by either party of any of the
benefits of this Lease with knowledge of any breach thereof by the other party
shall not be deemed a waiver by the party receiving the benefit of any rights or
remedies to which it is entitled hereunder by law.
38.2. The receipt by Landlord of the Basic Rent and Additional
Rent with knowledge of the breach of any covenant of this Lease shall not be
deemed a waiver of such breach. No payment by Tenant or receipt by Landlord of a
lesser amount than the monthly Basic Rent or a lesser amount of the Additional
Rent then due shall be deemed to be other than on account of the earliest
stipulated amount then due, nor shall any endorsement or statement on any check
or any letter or other instrument accompanying any check or payment as Basic
Rent or Additional Rent be deemed an accord and satisfaction, and Landlord may
accept such check or payment without prejudice to Landlord's right to recover
the balance of such Basic Rent or Additional Rent or pursue any other remedy
provided in this Lease.
38.3. The failure of Landlord to enforce any of the Rules and
Regulations as may be set by Landlord from time to time against Tenant or
against any other Tenant in the Building shall not be deemed waiver of any such
Rule or Regulation.
39. ENVIRONMENTAL LAWS.
39.1. Tenant shall, at Tenant's own expense, comply with any
and all applicable environmental laws, including but not limited to the New
Jersey Spill Compensation and Control Act and Industrial Site Recovery Act.
Tenant shall comply with the Industrial Site
Recovery Act, N.J.S.A. 13:1K-6 et seq. and the regulations promulgated
thereunder ("ISRA") in line with the closing, termination or transfer of
Tenant's operation at the Premises. Tenant shall also provide all information
within Tenant's control requested by Landlord or the Bureau of Industrial
Site Evaluation (the "Bureau") of the New Jersey Department of Environmental
Protection ("NJDEP") and Tenant shall promptly execute any affidavits
requested by Landlord should the information contained therein be found by
Tenant to be complete and accurate. Tenant shall only bear that part of the
costs of ISRA compliance which are applicable to Tenant's or Tenant's
employees, agents, invitees, licensees, or contractors or any of their
discharges of hazardous substances or wastes at the Premises during the Lease
Term and any extensions or renewals hereof. Tenant shall defend, indemnify
and hold harmless Landlord from and against any and all costs, expenses and
liability arising out of the provisions of this Article, which obligation
shall survive the termination of this Lease.
40. JURY TRIAL WAIVER. Landlord and Tenant do hereby waive trial by
jury in any action, proceeding or counterclaim brought by either of the parties
hereto against the other on any matter whatsoever arising out of or in any
connection with this Lease, the relationship of Landlord and Tenant, Tenant's
use or occupancy of the Leased Premises, and/or any claim, injury or damage, or
any emergency or statutory remedy.
41. FORCE MAJEURE. If the Landlord is prevented from performing any of
its obligations hereunder by reason of any Act of God or any other reason beyond
the reasonable control of the Landlord including, but not limited to,
governmental preemption in connection with a national emergency or any rule,
order or regulation, weather, strikes, unavailability of materials, building
moratorium or governmental approvals or the absence thereof, this Lease and
Tenant's obligation to pay Basic Rent and Additional Rent hereunder shall in no
way be affected, impaired or excused, and the Landlord's time to perform shall
be extended by a time equal to the amount of such delay.
42. INTERPRETATION.
42.1. Whenever in this Lease any words of obligation or duty are
used, such words or expressions shall have the same force and effect as though
made in the form of covenants.
42.2. No remedy or election given by any provision in this Lease
shall be deemed exclusive unless so indicated, but each shall, wherever
possible, be cumulative with all other remedies in law or equity as otherwise
specifically provided.
42.3. The parties mutually agree that the headings and captions
contained in this Lease are inserted for convenience of reference only, and are
not be deemed part of or to be used in construing this Lease.
42.4. The covenants, agreements, obligations and representations,
herein contained shall, subject to the provisions of this Lease, bind and inure
to the benefit of Landlord, its successors and assigns, and, where appropriate,
its agents, servants, invitees, employees and guests and Tenant, its successors
and assigns and, where appropriate, its agents, servants, invitees, employees
and guests except as otherwise provided herein; provided, however, that no
rights shall inure to the benefit of any successors of Tenant unless Landlord's
written consent for the transfer to such successor has first been obtained.
42.5. This Lease has been executed and delivered in the State of
New Jersey and shall be construed in accordance with the laws of the State of
New Jersey.
42.6. Landlord has made no representations or promises with
respect to the Leased Premises or the Parcel except as expressly contained
herein. Tenant has inspected the Leased Premises and agrees to take the same in
an "as is" condition, except as otherwise expressly set forth. Landlord shall
have no obligation, except as herein set forth, to do any work in and to the
Leased Premises to render them ready for occupancy and use by Tenant.
42.7. If any part or provision of this Lease is found to be void
or unenforceable, the remaining provisions shall, nevertheless, be binding with
the same effect as though the void or unenforceable provision was deleted.
43. RECORDING OF LEASE. Tenant shall not record this Lease or a
memorandum thereof.
44. SALE OR LEASE OF PREMISES. It is agreed that, if any time the
Landlord shall sell or lease the Parcel, Landlord shall be entirely free,
relieved, released, and discharged of all future obligations and liabilities for
the performance of the terms, covenants, conditions, and provisions of this
Lease, for the balance of the Term of this Lease and any renewals or extensions
thereof, and of and under the covenant of quiet enjoyment, effective from the
date of said sale or lease and the assumption in writing by the purchaser or
lessee of Landlord's obligations under this Lease, a copy of which assumption
document shall be provided to Tenant, and the said purchaser or lessee does
hereby covenant and agree to perform all the terms, covenants and conditions of
this Lease that the Landlord hereunder has agreed to perform under the terms of
this Lease.
45. BROKERAGE COMMISSIONS. Tenant and Landlord warrant to each other
that the only real estate broker involved in the within Lease is the real estate
broker set forth in Paragraph 10 of the Lease Summary. If any claim for
brokerage commission or other compensation on account of this Lease herein shall
be made by any other broker, the party dealing with such other broker shall
either pay such claim promptly or shall give written notice of its intention to
defend such claim. Such defense shall be made by such party at its own expense
and such party shall thereafter promptly pay any final judgment rendered in
favor of a
claimant on account of brokerage commissions or other compensation in connection
with this Lease.
46. AMENDMENT TO LEASE. No change, modification, extension or
termination of any of the terms, provisions, covenants, promises or conditions
of this Lease Agreement shall be effective unless made in writing and signed by
all parties thereto.
47. APPROVAL OF LEASE BY LANDLORD. This Lease is unenforceable unless
approved in writing by Landlord within ten (10) days of the date hereof.
48. EXISTING LEASE. Upon execution of this Lease by both parties, the
existing Lease between Xanadu Associates, L.L.C., Landlord, and You Tools
Corporation, Tenant, for space Holland Center, dated 28 March 1997, shall become
null and void.
49. ENTIRE AGREEMENT. This Lease contains the entire agreement between
the parties. No representative, agent or employee of the Landlord has been
authorized to make any representations or promises with reference to the within
letting or to vary, alter or modify the terms thereof. No additions, changes or
modifications, renewals or extensions hereof shall be binding unless reduced to
writing and signed by the Landlord and the Tenant.
IN WITNESS WHEREOF, the parties hereto have executed this Lease on the date
first written.
WITNESS: LANDLORD:
HOLLAND CENTER, L.L.C.
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
------------------------------- ------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Manager
TENANT:
YOU TOOLS CORPORATION
/s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇ ▇▇▇▇
------------------------------- ------------------------------
▇▇▇▇▇ ▇▇▇▇, President
/s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------------------- ------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Secretary
EXHIBIT A - DIAGRAMMATIC FLOOR PLAN
EXHIBIT B - LEASE SUMMARY
1. Tenant: You Tools Corporation
2. Leased Premises: ▇▇▇▇ ▇ + Telephone Room in Holland Center
County Route 519 and Spring Garden Road, Holland Twp., New Jersey
(See Exhibit A to Lease)
3. Total Rentable Area of Leased Premises: 1689 sq. ft.
4. Proportion of Tenant's Rentable Area to Total Building Rentable Area:
1689 sq. ft./ 10,812 sq. ft. = 15.62%.
5. Lease Term: Five (5) years.
6. Annual Basic Rent: $[*] monthly) increasing annually at the rate of
inflation as measured by the Consumer Price Index (CPI). As used
herein, the CPI shall be the Index published by the U.S. Dept. of
Labor, Bureau of Labor Statistics, for All Urban Consumers, New
York-Northeastern New Jersey, All Items. On each annual anniversary
date, the Basic Rent shall be increased by [*], which increase shall
be adjusted upon publication of the CPI for the appropriate month. In
no case shall the Annual Basic rent be less than $[*].
Additional Rent: Payments against Additional rent shall be paid
monthly and in accordance with Section 5 of the Lease. Payments
against Additional Rent for the first year of the Lease Term shall be
$[*] monthly). At the end of each calendar year the Landlord shall
determine its expenses for the prior year in accordance with Section 5
of the Lease and the Additional rent for the past calendar year shall
be adjusted accordingly. Payments against Additional rent for each
subsequent year of the Lease Term shall be at the adjusted rate of the
previous year.
7. Occupancy Date: At execution of the Lease Agreement by both parties.
Rent Commencement Date, Additional Rent: The first day of the month
following the Occupancy Date.
Rent Commencement Date, Basic Rent: The first day of the month following
the commencement of Additional Rent.
8. Security Deposit; $[*] + $[*] = $[*] x [*] = $[*] - $[*] = $[*].
9. Tenant's Option to Renew Lease: One (1) @ Five (5) years. See Exhibit F
to Lease.
10. Real Estate Broker: None.
[*] We are seeking confidential treatment of these terms, which have been
omitted. The confidential portion has been filed separately with the
Securities and Exchange Commission.
11. Addresses for Payments and Notices:
Landlord: Holland Center, L.L.C., c/o ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇-▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Tenant: You Tools Corporation, c/o ▇▇▇▇▇ ▇▇▇▇, President
Two ▇▇▇▇▇▇▇▇ Place, Suite 130, ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
Landlord: Tenant:
Holland Center, L.L.C. You Tools Corporation
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇ ▇▇▇▇
------------------------- ---------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Manager ▇▇▇▇▇ ▇▇▇▇, President
MEMORANDUM OF ACTUAL OCCUPANCY, RENT COMMENCEMENT AND
EXPIRATION DATES:
Date of Occupancy: 15 June 1999
--------------------
Date of Commencement of Additional Rent: 1 July 1999
--------------------
Date of Commencement of Basic Rent: 1 August 1999
--------------------
Date of Expiration of Lease: _______________________ 14 June 2004
EXHIBIT D - WORK TO BE DONE BY LANDLORD REGARDING TENANT
IMPROVEMENTS.
None.
EXHIBIT E - RULES & REGULATIONS
The following Rules and Regulations are in addition to and supplementary to any
rules and regulations set forth elsewhere in the text of the Lease Agreement:
1. USE OF PREMISES.
1.1 The Tenant shall only use the leased premises for the installation and
maintenance of communications equipment, office space, and related retail use
and shall not permit the premises to be used for any other purpose without
Landlord's prior written consent, which may be withheld for any reason or for no
reason.
1.2 All uses and purposes are to be subject to and in compliance with all
Federal, State, County, Township and Municipal statutes, laws, ordinances,
codes, and orders.
1.3 The Tenant shall not use, or permit the use of, any part of the leased
premises for any purpose which will increase existing insurance rates, or cause
a cancellation of any insurance policy, on the building or any part of the
building in which the leased premises are located, nor shall the Tenant permit
any article about the leased premises which may be prohibited by the standard
extended coverage form of fire insurance policy. Tenant, at its sole expense,
shall comply with all insurance company requirements necessary to maintain
reasonable fire insurance. Tenant shall not bring in, store, test or use any
materials which could cause or produce fire, explosion, fumes or vapor.
1.4 Tenant shall not cause any part of the leased premises to be used in any
manner so as to impair the structural strength of the building or suffer to be
installed in the building any machinery or apparatus the weight or vibration of
which could tend to injure or impair the structure or foundation thereof.
1.5 No portion of the leased premises shall be used as a dwelling, habitation or
sleeping quarters by Tenant or any other person or persons, nor shall Tenant or
any other person or persons permit the presence or maintenance about the leased
premises of any bird or animal. Cooking within or about the leased premises is
prohibited.
1.6 Tenant shall not conduct, or permit any other person or persons to conduct,
any auction upon the leased premises; manufacture or store goods, wares or
merchandise upon the leased premises without the prior written approval of the
Landlord, excepting the usual supplies and inventory to be used by Tenant in the
conduct of its business; permit the leased premises to be used for gambling;
make any unusual noises or permit to be played any musical instrument, radio,
television, recorded or wired music in such manner as to disturb or annoy other
tenants; or permit any unusual or annoying odors to be produced upon the leased
premises.
1.7 Waterclosets and urinals shall not be used for any purpose other than those
for which they were constructed, and no sweepings, rubbish, ashes, paper or any
other substances of any kind shall be placed in them.
2. ELECTRIC WIRING. All electric wiring done by the Tenant shall be connected as
directed by Landlord, and no stringing or cutting of wires shall be allowed,
except with prior written consent of Landlord. All wiring shall be performed
only by licensed contractors approved by Landlord. If Tenant requires telephone,
cable, wireless, burglar alarm or signal service, Landlord shall direct where
and how all such connections and wiring for such service shall be introduced and
run. Without such direction, no boring, cutting or installation of wires or
cables is permitted. All wiring, whether exposed, concealed, in partitions,
below floor, or above ceiling shall conform to any and all applicable codes.
3. ACCESS TO MECHANICAL AND ELECTRICAL EQUIPMENT. Whenever and wherever required
by Landlord, Tenant shall provide to Landlord, its employees, agents and
contractors, access to all mechanical and/or electrical equipment located in, or
accessible from, the leased premises. Landlord shall make a reasonable effort to
assure that such access does not interfere unduly with Tenant's use of the
premises, but Landlord makes no guarantees and accepts no responsibility for
loss or damage as the result of such interference unless due to Landlord's gross
negligence.
4. SIGNS AND ADVERTISING.
4.1 Tenant shall not place or permit to be placed on the windows, doors or
exterior of the premises any sign, decoration, lettering, advertising matter or
other thing of any kind without first obtaining Landlord's written approval
therefor. Landlord's approval shall be based on drawings and documents submitted
by the Tenant which fully describe the size, design, color, materials and
methods of attachment. Landlord's approval may be withheld for any reasonable
reason, including the impact of such sign, etc., on the other tenants in the
building. Tenant further agrees to maintain such sign, decoration, lettering,
advertising matter or other thing as may be approved in good condition and
repair at all times.
4.2 All signs, etc., and lighting thereof shall be in compliance with applicable
statutes, ordinances, codes and regulations. The Tenant shall be responsible for
obtaining all required permits and approvals for the installation of such signs,
etc., and lighting.
5. PROJECTIONS. No awnings or other projections shall be attached to the
outside walls or roof of the Building without the prior written consent of the
Landlord.
6. SIDEWALKS. The Tenant shall maintain the sidewalks in front of and adjacent
to the demised premises, and the entryways to the demised premises, at all times
free of all trash, debris, obstructions, ice and snow.
7. TRASH DISPOSAL. Tenant shall not dispose of trash other than by use of the
dumpsters provided by the Landlord without Landlord's prior written consent.
Trash shall be kept within the demised premises prior to being placed in the
dumpsters. All trash shall be completely segregated in accordance with
instructions and/or regulations issued by the Landlord and/or public authorities
having jurisdiction, and shall be placed only in the dumpsters designated for
each type of trash. All crates, boxes and cartons not used for the purpose of
containing other trash shall be compacted prior to being placed in the
dumpsters. No trash shall be placed on the ground surrounding the dumpsters,
which area shall be kept neat and clean at all times. Any and all fines or other
penalties imposed by the Township, ▇▇▇▇▇▇ County, or the trash hauler retained
by the Landlord because of failure by the Tenant to satisfactorily maintain the
dumpsters and the surrounding areas shall be the responsibility of the Tenant.
Any and all such fines and/or penalties, if paid by the Landlord, shall be
reimbursed to the Landlord by the Tenant as Additional Rent.
8. RESPONSIBILITY FOR LOSS.
8.1 Landlord shall not be responsible to Tenant for any loss of property from
the Leased Premises however occuring, or for any damage done to the effects of
Tenant by any of Landlord's employees, or by any other person or any other
cause.
8.2 Tenant assumes full responsibility for: (i) protecting the Leased Premises
from theft, robbery and pilferage, (ii) keeping the Leased Premises secure, and
(iii) locking the doors in and to the Leased Premises. Any damage resulting from
neglect of this clause shall be paid for by Tenant. All property belonging to
Tenant, or any person in the Leased Premises, which is in the Building or the
Leased Premises, shall be there at the risk of Tenant or other person only, and
Landlord, Landlord's agents and employees shall not be liable for damage thereto
or theft or misappropriation thereof.
9. PARKING.
9.1 Tenant shall have the non-exclusive right to use in common with Landlord and
other tenants of the Building and their employees and invitees the parking area
provided by Landlord for the parking of passenger automobiles. Tenant agrees
that it and its employees and invitees shall comply with such rules and
regulations for use of the parking area as Landlord may from time to time
prescribe. Landlord shall not be responsible for any damage to or theft of any
vehicle in the parking area and shall not be require to keep parking spaces
clear of unauthorized vehicles or to otherwise supervise the use of the parking
area. Landlord reserves the right to change any existing or future parking area,
roads or driveways, and may make any repairs or alterations it deems necessary
to the parking area, roads and driveways, and to temporarily revoke or modify
the parking rights granted to Tenant hereunder.
9.2 Tenant shall have no exclusive right to any parking spaces at the present
time. However, if in the future the Landlord assigns a parking space or spaces
to any other Tenant, the Landlord shall assign to Tenant a parking space or
spaces on the same ratio of parking spaces to rental area that have been
assigned to such other tenants.
10. TENANT'S ACCESS TO PREMISES. Tenant shall have access to the leased premises
at all times. Landlord, however, shall have no obligation to provide services to
the extent that such services by Landlord are not otherwise required to be
provided outside of normal business hours or which conflict with applicable
regulations. (Example: hours of operation of parking lot lighting.) However, in
no case shall Landlord's failure to provide such services prevent Tenant's
access to the leased premises.
11. ROOF RIGHTS. Tenant shall have the right to use the roof of the building of
which the leased premises form a part for the installation and maintenance of an
antenna and/or other related communications equipment. Such use shall be
confined to the back (west) slope of the roof and to the roof area directly over
the leased premises. Such roof-mounted equipment shall be of a size and location
such that it will not be visible from routes 519 and 614. All roofing work shall
be performed at the Tenant's expense by a roofing contractor specified by the
Landlord. All work shall be performed in accordance with drawings and
specifications approved in advance in writing by the landlord, such approval not
to unreasonably withheld.
12. EMERGENCY GENERATOR.
12.1 Tenant shall have the right to install a gas-fired emergency generator
within the leased premises, at Tenant's sole cost and expense. Fuel shall be
provided by the existing gas utility through the Tenant's existing meter. Such
generator shall be located adjacent to the rear (west) exterior wall of the
leased premises and shall be properly vented for combustion air and exhaust.
Such generator shall be located in an enclosure with 2-hour fire-rated walls and
ceiling (2 layers of 5/8" Firecode gypsum wall board on each side of wood or
metal studs) with 2-hour rated hollow metal door and frame. Spaces between wall
studs and ceiling joists shall be filled with sound-attenuation ▇▇▇▇▇. No
demising wall shall form a part of generator enclosure. Generator installation
shall be in accordance with all applicable codes and regulations, and in
accordance with drawings and specifications approved in advance in writing by
the Landlord, such approval not to unreasonably withheld. Any and all increase
in the cost of Landlord's casualty insurance as the result of such generator
installation shall be reimbursed by Tenant to Landlord annually as such increase
become due and payable.
12.2 Operation of emergency generator shall be limited solely to the duration of
power outages of the public electric utility serving the building of which the
leased premises form a part. Operation of the emergency generator for
maintenance purposes shall be for the shortest possible duration and shall be
conducted only outside normal business hours. Tenant shall supply Landlord with
its schedule of maintenance operation.
13. AIR CONDITIONING EQUIPMENT. Tenant shall have the right to install
additional air-conditioning equipment at Tenant's sole cost and expense. Such
equipment shall be floor-mounted within the leased premises. Additional electric
capacity to serve such equipment, if required, shall be at the sole cost of the
Tenant. Installation of such equipment shall be in accordance with all
applicable codes and regulations, and in accordance with drawings and
specifications approved in advance in writing by the landlord, such approval not
to be unreasonably withheld.
14. WATER CONSERVATION.
14.1 Tenant acknowledges that water consumption is limited by prior Municipal
approvals. Tenant agrees to make every reasonable effort to conform to every
reasonable request by Landlord to conserve water. All fixtures installed by
Tenant requiring the use of water shall be of the most water-conserving type,
regardless of expense. Tenant shall install no refrigeration, ice-making, or
other equipment of any sort requiring water for cooling.
14.2 If requested by Landlord, Tenant shall install at its sole cost and expense
a water meter to meter Tenant's total water consumption. Tenant shall limit its
use of water to 3000 gallons per month (100 gallons per day). Water consumption
in excess of this amount shall constitute a default under the terms of the
Lease.
EXHIBIT F - TENANT'S OPTION TO RENEW LEASE.
Tenant is hereby granted and shall, provided no default under the Lease has
previously occurred, have an option to extend the term of this Lease for an
additional five (5) year term. No such option shall exist if any default under
the Lease has previously occurred. Such option shall only be exercised by
written notification of the Landlord at least one (1) year prior to the
expiration of the original lease term.
Basic Rent for the first year of the Renewal Term shall be equal to the Basic
Rent for the last year of the original lease term, increased by the percentage
increase in the Consumer Price Index (CPI) between the first month of the last
year of the original lease term and the first month of the first year of the
Renewal Term. For the Renewal Term the Basic Rent shall increase annually in
accordance with the CPI as noted in Exhibit B, Item 6. In no case shall the
Annual Basic Rent be less than $[*].
Additional Rent for the Renewal Term shall be adjusted annually in accordance
with Exhibit B, Item 6.
All other terms and conditions of this Lease shall apply equally to the Renewal
Term.
[*] We are seeking confidential treatment of these terms, which have been
omitted. The confidential portion has been filed separately with the
Securities and Exchange Commission.
RIDER NO. 1 TO LEASE BETWEEN HOLLAND CENTER, LLC, LANDLORD, AND
YOU TOOLS CORPORATION, TENANT:
This Rider to the Lease made this 15 day of June, 1999, by and between Holland
Associates, LLC, whose mailing address is c/o ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇
▇▇▇▇▇▇▇▇-▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, hereinafter referred to as "Landlord",
and You Tools Corporation, whose mailing address is Two ▇▇▇▇▇▇▇▇ Place, Suite
130, ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, hereinafter referred to as
"Tenant", Witnesseth: Landlord and Tenant hereby agree as follows:
1. In Section 2.2, line 2, after "Landlord" add: "and in conformity with this
Lease Agreement".
2. In Section 2.3, line 2, delete "six (6) months" and substitute: "one
(1) month". In line 4, delete "either party" and substitute: "Tenant". In
line 4, delete "right" and substitute "option".
3. In Section 3.2, line 2, delete "five (5)" and substitute "ten (10".
4. In Section 4, lines 4 & 5, delete "satisfactory to the Landlord". In line 9,
after "Tenant" add: "after 30 days prior written notice of same, unless default,
in the opinion of Landlord, has created a real or potential threat to persons or
property or is the result of a monetary breach of the Lease by the Tenant". In
line 9, after "Landlord" add: "properly".
5. In Section 5.1, line 4, delete "inter alia". In line 5, after "utilities"
add: "properly".
6. In Section 8, at the end of this Section add: "which shall not be
unreasonably withheld".
7. In Section 9, at the end of the first paragraph, add: "Notwithstanding the
above, however, Landlord represents and covenants that it is not aware of any
condition relating to the leased premises such as would make premises unfit for
Tenant's business and/or interfere with Tenant's business operations, as such
business has been described in writing by Tenant to Landlord prior to the
execution of this Lease Agreement."
8. In Section 9, at the end of the second paragraph, add: "Landlord agrees to
take reasonable steps and actions to minimize any interference with Tenant's
business."
9. In Section 10, at the end of this Section, add: "...herein, and any and all
purposes reasonably related thereto, which do not conflict with applicable codes
and regulations or with the business activities of existing tenants. Landlord
represents that there is not such conflict between the businesses of other
tenants and the business of the Tenant as described herein, to the best of
landlord's knowledge and belief."
10. In Section 11.1, in line 3, delete "substantial".
11. In Section 11.2, at the end of this Section, add: "Any and all repairs,
including without limitation, structural repairs hereunder, shall be completed
by landlord as soon as reasonably possible so as to minimize interference with
Tenant's business."
12. In Section 12.1, in line 3, at the end of the first sentence, add
"...Landlord, but if such alterations conform to applicable codes and
regulations and do not unreasonably interfere with the operations of other
tenants or of the shopping center of which the leased premises form a part, and
if such alterations are reasonably related to Tenant's business, the written
consent of Landlord shall not be unreasonably withheld."
13. In Section 12.1, in line 15, at the end of the fifth sentence, add:
"...improvements, and Landlord will cooperate with Tenant to obtain same."
14. In Section 12.2, in line 2, after "installation", add: "and if they become
non-removable fixtures".
15. In Section 12.2, in line 5, after "Leased Premises", add: "ten (10) days".
16. In Section 13.2, in line 9, before "cost", add: "reasonable". In line 9,
after "such", add: "necessary".
17. In Section 13.3, in line 2, after "fixtures", add: "and after written notice
fails to remove within 10 (ten) days".
18. In Section 14.1, in line 5 at the end of the first sentence, add: "which
shall not be unreasonably withheld. Landlord and Tenant agree that reasonable
causes for withholding of consent by Landlord include, but are not necessarily
limited to, a) conflict with the business uses of other Tenants, whether or not
such uses are exclusive by lease, b) interference with the activities and quiet
enjoyment of other tenants and/or neighbors, c) the creation of possible danger
to persons or property, d) the creation of problems of obtaining insurance or of
insurance premium increase, e) conflict with applicable codes, regulations and
authorities, including but not limited to municipal Zoning and Planning Boards."
19. In Section 14.1, in line 15 at the end of this Section, add" "However, for
purpose of this Section, Tenant shall be free to assign the Lease or any part
thereof, without restriction except as noted above, to a subsidiary, successor
corporation, merged corporation and/or affiliate."
20. In Section 14.4, in line 2 after "or", add: "deny same if the Landlord's
consent may be reasonably withheld or if there are substantial financial and
economic reasons for Landlord's refusal."
21. In Sections 14.4 (a) and (b), omit these sections in their entirety.
22. In Section 14.5, line 1, delete "In the event Landlord shall cancel" and
substitute "Upon Landlord's cancellation of".
23. In Section 15, at the end of this Section, add, "Landlord covenants that,
with regard to the Leased premises, as of the date of signing of this Agreement
and to the best of Landlord's knowledge and belief, it is in full compliance
with any local, state and federal laws, rules, requirements and regulations."
24. In Section 16, at the end of this Section, add: "Notwithstanding the above,
however, any such reasonable rules and regulations may not interfere with
Tenant's quiet enjoyment of the leased premises."
25. In Section 17.1, in line 10 after "control", add: "provided Landlord has
acted diligently."
26. In Section 17.2, in lines 3 and 5, after "Landlord" add "or Tenant".
27. In Section 17.3, in line 1, after "Landlord's" add "or Tenant's".
28. In Section 17.5, at the end of this Section, add: "...and Landlord
represents that Landlord shall maintain such insurance throughout the term of
the Lease."
29. In Section 17.6, add: "In the case of substantial destruction, Landlord
shall give Tenant written notice within 60 days of Landlord's intent to rebuild
or not. Landlord shall carry a minimum of $715,000 casualty insurance on the
property throughout the term of the Lease."
30. In Section 19, in lines 1 & 2, delete: "...whether occurring before or...".
In line 3, and the end of this Section, add: "...provided that, if such default
poses no threat to persons or property or if such default is for non-payment of
rent or other charges due under this Lease, Landlord gives written notice to
Tenant of such default and provided that Tenant fails to cure such default
within ten (10) days."
31. In Section 19.(d), add: "...for a period of thirty (30) days and for no
valid business reason."
32. In Section 19.(e), add: "...that is not removed within sixty (60) days."
33. In Section 19.(f), add: "... for no valid business reason."
34. In Section 19.(h), add: "...which shall not be unreasonably withheld.
Landlord and Tenant agree as noted in Item 18 above."
35. In Section 19.(I), add: "... and same result in a breach in the material
terms of the lease."
36. In Section 20, line 2, after "forth", add: "in Section 19".
37 In Section 20.1, in line 4, delete "eighteen (18%)" and substitute "ten
(10%)".
▇▇.▇▇ Section 20.2, add: "However, any such accelerated amount shall be
reduced by Landlord's mitigation of damages, if any."
39. In Section 20.3, in lines 1 through 9, delete: "Landlord, at.....such
notice" and substitute "Upon default".
40. In Section 20.3, in lines 22 and 23, delete: "whether or not the Leased
premises are relet" and substitute: "subject, however, to Landlord's mitigation
of damages, if any."
41. In Section 20.4, at the end of this Section, add: "and to the reduction of
any and all payments, including accelerated payments, due by Tenant under the
Lease after default."
42. In Section 20.5, add: "However, landlord shall give Tenant reasonable notice
of any such disposition of Tenant's property."
43. In Section 21, in the title between "LANDLORD'S" and "REMEDIES" add: "AND
TENANT'S".
44. In section 21.1, in line 1, after "Landlord" add: "and Tenant". In line 3
after "Landlord" add "or Tenant".
45. In Section 21.2, in line 1, before "Tenant", add: "If Tenant defaults". In
line 2, after "Landlord's" add: "reasonable and necessary".
46. In Section 26.1.(a), in line 3 after "address", add: "and for any and all
reasonable purposes related to its business".
47. In Section 26.1.(b), in line 2, delete "notice or". At the end of this
Section, add: "provided Landlord gives Tenant sixty (60) days advance written
notice of such change;".
48. In Section 26.1.(f), at the end of this Section, add: "provided same does
not interfere with Tenant's quiet enjoyment and occupancy."
49. In Section 27.1, delete lines 1 through 4 and substitute: "Tenant agrees to
permit Landlord and Landlord's agents, employees and representatives to enter
the Leased premises as
necessary during normal business hours with Tenant's escort, provided that 24
hours notice shall have first been given so do so, and provided that such notice
or escort shall not be required if such entry in necessary, in the opinion of
the Landlord, to prevent injury to persons or damage to property, for the
purposes of:".
50. In Section 27.1.(d), at the beginning of this Section, add: "after default
or during the last year of the Lease term,".
51. In Section 27.1.(e), at the end of this Section, add: "provided same does
not interfere with Tenant's business".
52. In Section 27.2, delete this Section in its entirety.
53. In Section 27.3, at the beginning of this Section, add: "Unless otherwise
stated herein,".
54. In Section 27.4, in line 5 before "Landlord", add: "Provided Landlord is not
grossly negligent and exercises due diligence,"
55. In Section 27.5, in line 1 before "Landlord", add: "If necessary,". At the
end of this Section, add: "provided, however, that a reasonable effort shall be
made to give such prior notice."
56. In Section 29, at the end of this Section, add: "However, there shall be no
interference with Tenant's quiet enjoyment or breach of this Lease by virtue or
result of such subordination.
57. In Section 31, at the end of this Section, add: "accept as otherwise
stated".
58. In Section 32, in line 4, delete "as good" and substitute "reasonably
similar".
59. In Section 34.1, in line 1, before "Landlord", add: "Unless due to the gross
negligence of Landlord and/or its agents,".
60. In Section 37.2, in line 3, after "($200,00.00)", add: "or up to the
allowable insurable amount".
61. In Section 38.2, in line 3, after "breach", add: "unless otherwise agreed to
in writing by Landlord and Tenant."
62. In Section 38.3, at the end of this Section, add: "unless otherwise agreed
to in writing by Landlord and Tenant."
63. In Section 41, at the end if this Section, add: "provided Landlord acts with
due diligence to correct and remedy such problems."
64. In Section 42.4, at the end of this Section, add: "which consent shall not
be unreasonable withheld."
65. In Exhibit E - Rules and Regulations, in Section 1.4, add: "It is understood
that Tenant has the right to make interior repairs and changes, and to install
fixtures or improvements as may be necessary for Tenant's business, subject to
obtaining the required building and occupancy permits and subject to the prior
written approval of the Landlord, based upon documents completely describing the
proposed repairs, changes, fixtures and/or improvements, which approval shall
not be unreasonably withheld."
In Witness Whereof, the parties hereto have executed this Rider on the date
first written:
Witness: Landlord: Holland Center, L.L.C.
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Manager
Tenant: You Tools Corporation
/s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇, President
