BUSINESS PREMISES LEASE AGREEMENT
This Agreement was entered into on October 27th, 1997 between GARDEN
WAY INCORPORATED, a corporation organized under the laws of the State of New
York having its principal place of business at Xxx Xxxxxx Xxx, Xxxx xx
Xxxxxxxxxx, Xxxxxx of Rensselaer, State of New York, referred to as Lessor, and
TRAK INTERNATIONAL, INC. a corporation organized under the laws of the State of
Delaware. having its principal place of business at 000 X. Xxxxxxx Xxxxxx, Xxxx
xx Xxxx Xxxxxxxxxx, Xxxxxx of Ozaukee, State of Wisconsin, referred to as
Lessee.
In consideration of the mutual covenants contained in this Agreement,
the parties agree as follows:
SECTION ONE
DESCRIPTION OF PREMISES
Lessor leases to Lessee the premises located at 000 Xxxxxx Xxxx, Xxxx
xx Xxxx Xxxxxxxxxx, Xxxxxx of Ozaukee, State of Wisconsin,, hereinafter
"Premises", more particularly described as the following:
High Bay 26,600 Square Feet
Low Bay 6,400 Square Feet
Total Shop Area 32,000 Square Feet
Office Area 5,000 Square Feet
SECTION TWO
TERM
The Term is one (1) year, beginning on October 30, 1997, and
terminating on October 31, 1998 (hereinafter ("Term")). In the event that Lessor
enters into a purchase contract with a third party for the sale of the Premises
during the Term, Lessee agrees that it shall vacate the Premises on ninety (90)
days advance written notice from the Lessor.
SECTION THREE
RENT
A. The total rent under this lease agreement is One Hundred Thirty One
Thousand Dollars ($131,000) for the Term.
B. Lessee shall pay Lessor the above-specified amount in installments
of Ten Thousand Nine Hundred Seventeen Dollars ($10,917) each month, beginning
on October 30, 1997 with succeeding payments due on the first day of each month
thereafter during the Term of the lease agreement. All Rental payments shall be
forwarded to:
GARDEN WAY INCORPORATED
Xxx Xxxxxx Xxx
Xxxxxxxxxx, Xxx Xxxx 00000
Attn: Xxxxx Xxxxxxx
SECTION FOUR
USE OF PREMISES
The Premises are to be used for the purposes of office light
manufacturing and warehouse. Lessee shall restrict its use to such purposes, and
shall not use or permit the use of the Premises for any other purpose without
the prior express and written consent of Lessor, or Lessor's authorized agent.
SECTION FIVE
RESTRICTIONS ON USE
A. Lessee shall not use the Premises in any manner that will increase
risks covered by insurance on the Premises and result in an increase in the rate
of insurance or a cancellation of any insurance policy, even if such use may be
in furtherance of Lessee's business purposes.
B. Lessee shall not keep, use, or sell anything prohibited by any
policy of fire insurance covering the Premises, and shall comply with all
requirements of the insurers applicable to the Premises necessary to keep in
force the fire and liability insurance.
SECTION SIX
WASTE, NUISANCE, OR UNLAWFUL ACTIVITY
Lessee shall not allow any waste or nuisance on the Premises, or use or
allow the Premises to be used for any unlawful purpose.
SECTION SEVEN
UTILITIES, TAXES
Lessee shall arrange and pay for all utilities furnished to the
Premises for the Term, including, but not limited to, electricity, gas, water,
sewer, and telephone service, and security/fire alarm system. Additionally,
Lessee shall be responsible for payment of real property taxes on the Premises
during the terms thereof. Lessor agrees to forward the original tax bills to the
attention of Lessee within five (5) business days of Lessor' receipt. Lessee to
pay such bills by the referenced due date and will incur and be responsible for
any and all late charges and interest in the event of late payment by Lessee
except for charges caused by Lessor's failure to timely forward the bills to
Lessee..
SECTION EIGHT
REPAIRS AND MAINTENANCE
Lessor warrants that the Premises and related systems at the
commencement of the lease agreement are in good, structural, mechanical
condition, reasonable wear and tear excepted. Lessee shall maintain the Premises
and keep them in good repair at its expense, except that side and rear exterior
walls and the roof will be maintained in good condition by Lessor. Lessee shall
maintain and repair windows, doors, skylights, adjacent sidewalks, the building
front, and the interior walls. Lessee shall be responsible for snow removal and
maintenance of the grounds within the driveway perimeter. Lessor shall be
responsible for grounds maintenance outside the driveway perimeter.
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SECTION NINE
DELIVERY, ACCEPTANCE, AND SURRENDER OF PREMISES
A. Lessor represents that the Premises are in fit condition for use by
Lessee. Acceptance of the Premises by Lessee shall be construed as recognition
that the Premises are in a good state of repair and in sanitary condition.
B. Lessee shall surrender the Premises at the end of the lease Term, or
any renewal of such Term, in the same condition as when Lessee took possession,
allowing for reasonable use and wear, and damage by acts of God, including fires
and storms. Before delivery, Lessee shall remove all business signs placed in
the Premises by Lessee and restore the portion of the Premises on which they
were placed in the same condition as when received.
SECTION TEN
PARTIAL DESTRUCTION OF PREMISES
A. Partial destruction of the Premises shall not render this lease
agreement void or voidable, nor Terminate it except as specifically provided in
this lease agreement. If the Premises are partially destroyed during the Term,
Lessor shall repair them when such repairs can be made in conformity with
governmental laws and regulations. Rent will be reduced proportionately to the
extent to which the repair operations interfere with the business conducted on
the Premises by Lessee. If the repairs cannot be made within the time specified
above, Lessor shall have the option to make them within a reasonable time and
continue this lease agreement in effect with proportional rent abatement to
Lessee as provided for in this lease agreement If the repairs cannot be made
within ninety (90) days, and if Lessor does not elect to make them within a
reasonable time, either party shall have the option to Terminate this lease
agreement.
B. Disputes between Lessor and Lessee relating to provisions of this
section shall be arbitrated. The parties shall each select an arbitrator, and
the two arbitrators selected shall together select a third arbitrator. The three
arbitrators shall determine the dispute, and their decisions shall be binding on
the parties. The parties shall divide the costs of arbitration equally between
them.
SECTION ELEVEN
ENTRY ON PREMISES BY LESSOR
A. Lessor and its designated agents reserve the right to enter the
Premises at all reasonable times upon not less than six hours prior notice to
inspect them, show the Premises to interested third parties, perform required
maintenance and repairs, or to make additions, alterations, or modifications to
any part of the building in which the Premises are located, and Lessee shall
permit Lessor to do so provided same does not interfere with Lessee's business
operation.
X. Xxxxxx may erect scaffolding, fences, and similar structures, post
relevant notices and place moveable equipment in connection with making
alterations, additions, or repairs, all without incurring liability to Lessee
for disturbance of quiet enjoyment of the Premises, or loss of occupation of the
Premises.
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SECTION TWELVE
SIGNS, AWNINGS, AND MARQUEES INSTALLED BY LESSEE
A. Lessee shall not construct or place signs, awnings, marquees, or
other structures projecting from the exterior of the Premises without the prior
express and written consent of Lessor.
B. Lessee shall remove signs, displays, advertisements, or decorations
it has placed on the premises that, in the opinion of Lessor, are offensive or
otherwise objectionable. If Lessee fails to remove such signs, displays,
advertisements, or decorations within ten (10) days after receiving written
notice from Lessor to remove them, Lessor reserves the right to enter the
Premises and remove them at the expense of Lessee.
SECTION THIRTEEN
BUSINESS SALE SIGNS
Lessee shall not conduct "Quitting Business," "Lost our Lease,"
"Bankruptcy," or other sales of that nature on the Premises without the written
consent of Lessor.
SECTION FOURTEEN
NONLIABILITY OF LESSOR FOR DAMAGES
Lessor shall not be liable for liability or damage claims for injury to
persons or property from any cause relating to the occupancy of the Premises by
Lessee, including those arising out of damages or losses occurring an sidewalks
and other areas adjacent to the Premises during the Term or any extension of
such Term. Lessee shall indemnify Lessor from any and all liability, loss, or
other damage claims or obligations resulting from any injuries or losses of this
nature.
SECTION FIFTEEN
LIABILITY INSURANCE
A. Lessee shall procure and maintain in force at its expense during the
Term and any extension of such Term general public liability insurance with
insurers and through brokers approved by Lessor. Such coverage shall be adequate
to protect against liability for damage claim through public use of or arising
out of accidents occurring in or around the Premises, in a minimum amount of Two
Million Dollars ($2,000,000) for bodily injury or death or any one person and
$2,000,000 for bodily injury or death to any number of persons in any one
occurrence, and Five Hundred ($500,000) for property damage, including water
damage and sprinkler leakage legal liability, fire and extended coverage. The
insurance certificate shall provide coverage for contingent liability of Lessor
on any claims or losses. The insurance policies shall be delivered to Lessor.
Lessee shall obtain a written obligation from the insurers to notify Lessor in
writing at least thirty (30) days prior to cancellation or refusal to renew any
policy.
B. If the insurance policies required by this section are not kept in
force during the entire Term of this lease agreement or any extension of such
Term, Lessor may procure the necessary insurance and pay the premium therefor,
and the premium shall be repaid to Lessor as an additional rent installment for
the month following the date on which the premiums were paid by Lessor.
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SECTION SIXTEEN
ASSIGNMENT, SUBLEASE, OR LICENSE
A. Lessee shall not assign or sublease the Premises, or any right or
privilege connected with the Premises, or allow any other person except agents
and employees of Lessee to occupy the Premises or any part of the Premises
without first obtaining the written consent of Lessor which shall not be
unreasonably withheld. A consent by Lessor shall not be a consent to a
subsequent assignment, sublease, or occupation by other persons.
B. An unauthorized assignment, sublease, or license to occupy by Lessee
shall be void and shall Terminate this lease agreement at the option of Lessor.
C. The interest of Lessee in this lease agreement is not assignable by
operation of law without the written consent of Lessor.
SECTION SEVENTEEN
BREACH
The appointment of a receiver to take possession of the assets of
Lessee, a general assignment for the benefit of the creditors of Lessee, any
action taken or allowed to be taken by Lessee under any bankruptcy act, or the
failure of Lessee to comply with each and every Term and condition of this lease
agreement shall constitute a breach of this lease agreement. Lessee shall have
ten (10) days after receipt of written notice from Lessor of any breach to
correct the conditions specified in the notice. If the corrections cannot be
made within the 10 day period, Lessee shall have a reasonable time to correct
the default if action is commenced by Lessee within thirty (30) days after
receipt of the notice.
SECTION EIGHTEEN
REMEDIES OF LESSOR FOR BREACH BY LESSEE
Lessor shall have the following remedies in addition to its other
rights and remedies in the event Lessee breaches this lease agreement and fails
to make corrections as set forth in Section Seventeen:
A. Lessor may reenter the Premises immediately and remove the property
and personnel of Lessee, store the property in a public warehouse or at a place
selected by Lessor, at the expense of Lessee.
B. After reentry, Lessor may Terminate this lease agreement on giving
thirty (30) days' written notice of Termination, to Lessee. Without such notice,
reentry will not Terminate this lease agreement. On Termination, Lessor may
recover from Lessee all damages proximately resulting from the breach,
including, but not limited to, the cost of recovering the Premises and the
balance of the rent payments remaining due and unpaid under this lease
agreement.
C. After reentering, Lessor may relet the Premises or any part of the
Premises for any Term without Terminating this lease agreement, at such rent and
on such Terms as it may choose. Lessor may make alterations and repairs to the
Premises. The duties and liabilities of the parties if the Premises are relet
shall be as follows:
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(1) In addition to Lessee's liability to Lessor for breach of this
lease agreement, Lessee shall be liable for all expenses of the reletting, for
the alterations and repair made, and for the difference the rent received by
Lessor under the new lease agreement and the rent installments that were due for
the same period under this lease agreement.
(2) Lessor at its option shall have the right to apply the rent
received from reletting the premises (a) to reduce Lessee's indebtedness to
Lessor under this lease agreement, not including indebtedness for rent (b) to
expenses of the reletting and alterations and repairs made, (e) to rent due
under this lease agreement, or (d) to payment of future rent under this lease
agreement as it becomes due.
If the new Lessee does not pay a rent installment promptly to Lessor,
and the rent installment has been credited in advance of payment to the
indebtedness of Lessee other than rent, or if rentals from the new Lessee have
been otherwise applied by Lessor as provided for in this section, and during any
rent installment period, are less than the rent payable for the corresponding
installment period under this lease agreement, Lessee shall pay Lessor the
deficiency, separately for each rent installment deficiency period, and before
the end of that period. Lessor may at any time after such reletting Terminate
this lease agreement for the breach on which Lessor based reentry and relet the
Premises.
SECTION NINETEEN
ATTORNEY FEES
If Lessor is successful in an action to enforce any agreement contained
in this lease agreement, or for breach of any covenant or condition, Lessee
shall pay Lessor reasonable attorney fees for the services of Lessor's attorney
in the action, all fees to be fixed by the court.
SECTION TWENTY
CONDEMNATION
Eminent domain proceedings resulting in the condemnation of a part of
the Premises, but leaving the remaining premises usable by Lessee for the
purposes of its business, will not Terminate this lease agreement unless Lessor,
at its option, Terminates this lease agreement by giving written notice of
Termination to Lessee. The effect of any condemnation, where the option to
Terminate is not exercised, will be to Terminate this lease agreement as to the
portion of the Premises condemned, and the lease of the remainder of the
Premises shall remain intact. The rental for the remainder of the lease Term
shall be reduced by the amount that the usefulness of the Premises has been
reduced for the business purposes of Lessee. Lessee hereby assigns and transfers
to Lessor any claim it may have to compensation for damages as a result of any
condemnation.
SECTION TWENTY-ONE
WAIVERS
Waiver by Lessor of any breach of any covenant or duty of Lessee under
this lease is not a waiver of a breach of any other covenant or duty of Lessee,
or of any subsequent breach of the same covenant or duty.
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SECTION TWENTY-TWO
GOVERNING LAW
It is agreed that this lease agreement shall be governed by, construed,
and enforced in accordance with the laws of the State of Wisconsin.
SECTION TWENTY-THREE
ENTIRE AGREEMENT
This lease agreement shall constitute the entire agreement between the
parties. Any prior understanding or representation of any kind preceding the
date of this lease agreement shall not be binding upon either party except to
the extent incorporated in this lease agreement.
SECTION TWENTY-FOUR
MODIFICATION OF AGREEMENT
Any modification of this lease agreement or additional obligation
assumed by either party in connection with this agreement shall be binding only
if evidenced in a writing signed by each party or an authorized representative
of each party.
SECTION TWENTY-FIVE
NOTICES
A. All notices, demands, or other writings in this lease agreement
provided to be given or made or sent, or which may be given or made or sent, by
either party to the other, shall be deemed to have been fully given or made or
sent when made in writing and faxed to the number indicated or deposited in the
United States mail registered and postage prepaid, and addressed as follows:
GARDEN WAY INCORPORATED
Xxx Xxxxxx Xxx
Xxxxxxxxxx, Xxx Xxxx 00000
Attn: Legal Department
Facsimile Number: (000)000-0000
TRAK INTERNATIONAL, INC.
000 X. Xxxxxxx Xxxxxx
Xxxx Xxxxxxxxxx, Xxxxxxxxx
Attn: Xxx Xxxx
Facsimile Number: (000) 000-0000
B. The address to which any notice, demand, or other writing may be
given or made or sent to any party as above provided may be changed by written
notice given by such party as above provided.
SECTION TWENTY-SIX
BINDING EFFECT
This lease agreement shall bind and inure to the benefit of the
respective heirs, personal representatives, successors, and assigns of the
parties.
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SECTION TWENTY-SEVEN
TIME OF THE ESSENCE
It is specifically declared and agreed that time is of the essence of
this lease agreement.
SECTION TWENTY-EIGHT
PARAGRAPH HEADINGS
The titles to the paragraph of this lease agreement are solely for the
convenience of the parties and shall not be used to explain, modify, simplify,
or aid in the interpretation of the provisions of this lease agreement.
SECTION TWENTY-NINE
LESSOR'S COVENANT OF QUIET EMPLOYMENT
So long as Lessee is not in default under the covenants and agreements of this
Lease, Lessee's quiet and peaceable enjoyment of the Premises shall not be
disturbed or interfered with by Lessor or by any person claiming by, through or
under Lessor, except that Lessor and its designated agents shall have the right
to show Premises as more fully described in Section 11.A.
SECTION THIRTY
ALTERATIONS AND IMPROVEMENTS
Upon the prior written consent and approval of Lessor, Lessee shall have the
right to make reasonable alterations, installations, modifications or other
improvements to the Premises in order to make the Premises appropriate for
Lessee's intended use as manufacturing and office facility, including moving
interior, non weight-bearing walls, installing overhead cranes, plumbing and
electrical wiring facilities (hereafter "Improvements"). Provided, however, that
such Improvements shall not disturb or in any way change any plumbing or wiring,
without in each and every of such cases the prior written consent of Lessor.
Lessors prior written approval of plans and specifications for Improvements
shall not constitute an assumption of the responsibility for the compliance of
such plans and specifications with applicable codes, regulations or statutes,
which responsibility shall be solely Lessee. All such improvements shall be made
at Lessee's sole cost and expense. All Improvements and all repairs required to
be made by Lessee shall be made in good and workmanlike manner and in compliance
with all governmental requirements and codes. Lessee shall hold Lessor harmless
and indemnified from all injury loss, claims or damage to any person or property
occasioned by, or in connection with the construction or installation of
Improvements. Lessee shall obtain all necessary permits from governmental
authorities. Lessee shall repair any damage and perform any necessary clean-up
to the Building or its contents resulting from any Improvements made by Lessee.
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SECTION THIRTY-ONE
TRADE FIXTURES
Upon the termination of this Lease Lessee may remove Lessee's trade fixtures and
all of Lessee's personal property and equipment provided that Lessee shall
repair any injury or damage to the Leased Premises that may result from such
removals.
SECTION THIRTY-TWO
OPTION TO RENEW
Lessee shall have the option to renew this lease for an additional 1 year terms
on the same terms and conditions, except as to negotiation of rental payments
applicable to each renewal Term for which Lessee exercises its option. Lessee
shall exercise its option by notice to Lessor in accordance with this agreement
and given at least one hundred and twenty (120) days prior to the expiration of
the then applicable Term of the Lease. Notwithstanding the above, Lessor
reserves the right to cancel this option at any time during the Term by giving
the Lessee thirty (30) days advance notice.
In witness whereof, each party to this lease agreement has caused it to
be executed at Port Washington on the date indicated below.
GARDEN WAY INCORPORATED TRAK INTERNATIONAL
By: /s/ Illegible Signature By: /s/ Xxx Xxxx
------------------------------- ------------------------------------
Print: Illegible Print: Xxx Xxxx
Title: President/CEO Title: Senior Director - Human Resources
--------------------------- ---------------------------------
Date: 10-27-97 Date: 10-27-97
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