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Exhibit 10.34
LEASE AGREEMENT
Section I
Parties
This lease if made between Xxxxxxx Xxxxx of 00 Xxx Xxxxxx, Xxxxxxx, Xxx
Xxxxxx, as landlord, and Alfin, Inc., of 00 Xxxxx Xxxxxx, Xxxxxxx, Xxx Xxxxxx,
as tenant.
Section II
Description of Leased Premises
Landlord leases to tenant the space as presently constituted known as a
portion of 00 Xxxxx Xxxxxx, Xxxxxxx, Xxx Xxxxxx, consisting of approximately
15,000 square feet within the structure at that address, referred to below as
the warehouse/office.
Section III
Term
The space is leased for a term to commence on the transfer of title of
the premises at 00 Xxxxx Xxxxxx, Xxxxxxx, Xxx Xxxxxx, from the tenant herein to
the landlord herein, and continuing thereafter for a period of two years or on
such earlier date as the parties may agree.
Section IV
Rent
The total annual rent is the sum of $107,250.00, which sum is payable
in equal monthly installments of $8,937.50, in advance, on the first day of each
calendar month during the term. This rent is a gross rent.
Section V
Security Deposit
Landlord acknowledges receipt of $8,937.50, which he is to retain as a
security deposit for tenant's faithful performance of this lease. Landlord is
not obliged to apply the deposit on rents or other charges in arrears or on
damages for tenant's failure to perform the lease. However, landlord may so
apply the security at his option and his right to possession of the premises for
nonpayment of rent or for any other reason shall not in any event be affected by
reason of the fact that landlord holds this security. The security deposit, if
not applied toward payment of arrearages or damages, is to be returned to the
tenant when this lease is terminated, after tenant has vacated the premises and
delivered possession to landlord.
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Exhibit 10.34
If landlord repossesses the premises because of tenant's default or
breach, landlord may apply the deposit on all damages suffered to the date of
the repossession and may retain the remainder to apply on such damages as may be
suffered thereafter by reason of the default or breach.
Section VI
Use and Occupancy
Tenant shall use and occupy the premises as a warehouse/office and for
no other purpose. Landlord represents that, to the bet of landlord's knowledge,
the premises may lawfully be used for such a purpose. The tenant shall not be
permitted to store toxic, hazardous or flammable material on or in the premises.
Section VII
Place for Payment of Rent
Tenant shall pay rent, and any additional rent as provided below, to landlord at
landlord's above-stated address, or at such other place as landlord may
designate in writing, without demand and without counterclaim, deduction, or
setoff.
Section VIII
Care and Repair of Premises
Tenant shall commit no act of waste and shall take good care of the
premises and the fixtures and appurtenances on the premises, and shall, in the
use and occupancy of the premises, conform to all laws, orders, and regulations
of the federal, state, and municipal governments or any of their departments,
including all environmental laws and regulations applicable to the leased
property. Landlord shall make all necessary repairs to the premises, except
where the repair has been made necessary by misuse or neglect by tenant or
tenant's agents, servants, visitors or licensees. All improvements made by
tenant to the premises which are so attached to the premises that they cannot be
removed without material injury to the premises, shall become the property of
landlord upon installation.
Not later than the last day of the term tenant shall, at tenant's
expense, remove all of tenant's personal property and those improvements made by
tenant which have not become the property of landlord, including trade fixtures,
cabinet work, movable paneling, partitions and the like; repair all injury done
by or in connection with the installation or removal of the property and
improvements; and surrender the premises in as good condition as they were at
the beginning of the term, reasonable wear, and damage by fire, the elements,
casualty, or other cause not due to the misuse or neglect by tenant or tenant's
agents, servants, visitors or licensees, excepted. All property of tenant
remaining on the premises after the last day of the term of this lease shall be
conclusively deemed abandoned and may be removed by landlord, and tenant shall
reimburse landlord for the cost of such removal. Landlord may have any such
property stored at tenant's risk and expense.
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Section IX
Alterations, Additions or Improvements
Tenant shall not, without first obtaining the written consent of
landlord, make any alterations, additions or improvements in, to or about the
premises.
As a condition of the payment of the rent hereunder, landlord shall
undertake the following at landlord's cost and expense: (1) install one loading
dock and one entrance door into the premises; (2) erect and sheetrock a dividing
wall to separate the rented premises from the balance of the building; and (3)
provide access doors to the bathrooms.
Section X
Accumulation of Waste or Refuse Matter
Tenant shall not permit the accumulation of waste or refuse matter on
the leased premises or anywhere in or near the building.
Section XI
Heat
Landlord agrees to furnish tenant heat on business days adequate and
reasonable for the leased premises, or when and as required by law.
Section XII
Water
Landlord agrees to furnish hot and cold water for lavatory purposes
without charge. If a further supply or water is required by tenant, tenant
shall, at tenant's expense, install, and subsequently shall maintain at tenant's
expense, a water meter to register tenant's consumption of water, and tenant
shall pay as additional rent, when and as bills are rendered, for water
consumed, at the cost to landlord, and for sewer rents and all other rents and
charges based upon the consumption of water.
XIII
Air Conditioning
Landlord agrees to furnish air cooling during the appropriate season.
Section XIV
Electricity
Landlord agrees to furnish electricity for usual office and warehouse
requirements; however, tenant shall not use any electrical equipment which in
landlord's reasonable opinion will overload the wiring installations or
interfere with reasonable use of such installations by landlord or other tenants
in the building.
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Section XV
Damages to Building
If the building is damaged by fire or any other cause to such extent
that the cost of restoration, as reasonably estimated by landlord, will equal or
exceed fifty percent of the replacement value of the building (exclusive of
foundations) just prior to the occurrence of the damage, then landlord may, no
later than the tenth day following the damage, give tenant a notice of election
to terminate this lease, or if the premises shall not be reasonably usable for
the purposes for which they are leased under this agreement, then tenant may, no
later than the tenth day following the damage, give landlord a notice of
election to terminate this lease. In event of either election this lease shall
be deemed to terminate on the fifth day after the giving of notice, and tenant
shall surrender possession of the premises within a reasonable time thereafter,
and the rent, and any additional rent, shall be apportioned as of the date of
the surrender and any rent paid for any period beyond the date shall be repaid
to tenant. If the cost of restoration as estimated by landlord shall amount to
less than fifty percent of the replacement value of the building, or if, despite
the cost, landlord does not elect to terminate this lease, and provided tenant
does not elect to terminate this lease, landlord shall restore the building and
the premises with reasonable promptness, subject to delays beyond landlord's
control and delays in the making of insurance adjustments between landlord and
his insurance carrier, and tenant shall have no right to terminate this lease
except as provided in this agreement. Landlord need not restore fixtures and
improvements owned by tenant.
In any case in which use of the premises is affected by any damage to
the building, there shall be either an abatement or an equitable reduction in
rent depending on the period for which and the extent to which the premises are
not reasonably usable for the purpose for which they are leased under this
agreement. The words "restoration" and "restore" as used in this Section shall
include repairs. If the damage results from the fault of the tenant, or tenant's
agents, servants, visitors, or licensees, tenant shall not be entitled to any
abatement or reduction of rent, except to the extent, if any, that landlord
receives the proceeds of rent insurance in lieu of such rent.
Section XVI
Insurance; Waivers of Subrogation
Tenant shall maintain insurance against personal injury to any person
or persons in a limit of not less than $1,000,000.00, and for loss or damage to
property in a limit of not less than $50,000.00. A copy of the insurance policy
shall be delivered to the landlord prior to the commencement of occupancy by the
tenant. In any event of loss or damage to the building, the premises and/or any
contents, each party shall look first to any insurance in its favor before
making any claim against the other party; and, to the extent possible without
additional cost, each party shall obtain, for each policy of such insurance,
provisions permitting waiver of any claim against the other party for loss or
damage within the scope of the insurance, and each party, to the extent
permitted, for itself and its insurers waives all such insured claims against
the other party.
Section XVII
Eminent Domain
If the premises or any part of the premises or any estate in the
premises, or any other part of the building materially affecting tenant's use of
the premises, be taken by eminent domain, this lease shall terminate on the date
when title vests pursuant to such a taking. The rent, and any additional rent,
shall be apportioned as of the termination date and any rent paid for any period
beyond such date shall be repaid to tenant. Tenant shall not be entitled to any
part of the award for such a taking or any payment in lieu of the award, but
tenant may file a claim for any taking of fixtures and improvements owned by
tenant, and for moving expenses.
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Section XVIII
Landlord's Remedies on Default
If tenant defaults in the payment of rent, or any additional rent, or
defaults in the performance of any of the other covenants or conditions of this
agreement, landlord may give tenant notice of such a default, and if tenant does
not cure any rent, or additional rent, default within ten days, or other default
within thirty days, after the giving of notice (or if another default is of such
a nature that it cannot be completely cured within that period, if tenant does
not commence the curing within thirty days and thereafter proceed with
reasonable diligence and in good faith to cure the default), then landlord may
terminate this lease on not less than ten days' notice to tenant. On the date
specified in the notice the term of this lease shall terminate and tenant shall
then quit and surrender the premises to landlord, but tenant shall remain liable
as provided in Section XIX. If this lease shall have been so terminated by
landlord, landlord may at any subsequent time resume possession of the premises
by any lawful means and remove tenant or other occupants and their effects.
Section XIX
Deficiency
In any case where landlord has recovered possession of the premises by
reason of tenant's default, landlord may, at landlord's option, occupy the
premises or cause the premises to be redecorated, altered, divided, consolidated
with other adjoining premises, or other wise changed or prepared for reletting,
and may relet the premises or any part of the premises as agent of tenant or
otherwise, for a term or terms to expire prior to, at the same time as, or
subsequent to, the original expiration date of this lease, at landlord's option,
and receive the rent. Rent so received shall be applied first to the payment of
expenses as landlord may have incurred in connection with the recovery of
possession, redecorating, altering, dividing, consolidating with other adjoining
premises, or otherwise changing or preparing for reletting, and the reletting,
including brokerage and reasonable attorneys' expenses of performance of the
other covenants or tenant as provided in this agreement. Tenant agrees, in any
such case, whether or not landlord has relet, to pay to landlord damages equal
to the rent and other sums agreed to be paid by tenant, less the net proceeds of
the reletting, if any, and the damages shall be payable by tenant on the several
rent days above specified. In reletting the premises, landlord may grant rent
concessions, and tenant shall not be credited with such concessions. No such
reletting shall constitute a surrender and acceptance or be deemed evidence of a
surrender and acceptance. If landlord elects, pursuant to this agreement,
actually to occupy and use the premises or any part of the premises during any
part of the balance of the term as originally fixed or since extended, there
shall be allowed against tenant's obligation for rent or damages as defined in
this agreement, during the period of landlord's occupancy, the reasonable value
of such occupancy, not to exceed in any event the rent reserved and such
occupancy shall not be construed as a relief of tenant's liability under this
agreement.
Tenant waives all right of redemption to which tenant or any person
claiming under tenant might be entitled by any law now or hereafter in force.
Landlord's remedies under this agreement are in addition to any remedy allowed
by law.
Section XX
Effect of Failure To Insist on Strict Compliance
With Conditions
The failure of either party on insist on strict performance of any
covenant or condition of this agreement, or to exercise any option contained,
shall not be construed as a waiver of such covenant, condition, or option in any
other instance. This lease cannot be changed or terminated orally.
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Section XXI
Assignment
Tenant shall not assign this lease, or any interest in this lease, or
sublet the leased premises, or any part of the premises, or any right or
privilege appurtenant to it, or allow any person other than tenant and tenant's
agents and employees to occupy or use the premises or any part of them, without
first obtaining landlord's written consent. Landlord expressly covenants that
such consent shall not be unreasonably or arbitrarily refuse. Landlord's consent
to one assignment, sublease, or use shall not be a consent to any subsequent
assignment or sublease, or occupancy or use by another person. Any unauthorized
assignment or sublease shall be void, and shall terminate this lease at the
landlord's option. Tenant's interest in this lease is not assignable by
operation of law without landlord's written consent.
Section XXII
Collection of Rent from Any Occupant
If the premises are sublet or occupied by anyone other than tenant and
tenant is in default under this agreement, or if this lease is assigned by
tenant, landlord may collect rent from the assignee, subtenant, or occupant, and
apply the net amount collected to the rent reserved. No such collection shall be
deemed a waiver of the covenant against assignment and subletting, or the
acceptance of such assignee, subtenant, or occupant as tenant, or a release of
tenant from further performance of the covenants contained in this agreement.
Section XXIII
Subordination of Lease
This lease shall be subject and subordinate to all underlying leases
and to mortgages and trust deeds which may now or subsequently affect such
leases or the real property of which the premises form a part, and also to
renewals, modifications, consolidations, and replacements of the underlying
leases and the mortgages and trust deeds. Although no instrument or act on the
part of tenant shall be necessary to effectuate such a subordination, tenant
will, nevertheless, execute and deliver further instruments confirming the
subordination of this lease as may be desired by the holders of the mortgages
and trust deeds or by any of the landlords under such underlying leases. Tenant
appoints landlord attorney in fact, irrevocably, to execute and deliver any such
instrument for tenant. If any underlying lease to which this lease is subject
terminates, tenant shall, on timely request, attorn to the owner of the
reversion.
Section XXIV
Landlord's Right To Cure Tenant's Breach
If tenant breaches any covenant or condition of this lease, landlord
may, on reasonable notice to tenant (except that no notice need be given in case
of emergency), cure such a breach at the expense of tenant and the reasonable
amount of all expenses, including attorneys' fees, incurred by landlord in so
doing, whether paid by landlord or not, shall be deemed additional rent payable
on demand.
Section XXV
Mechanics' Liens
Tenant shall within thirty days after notice from landlord discharge
any mechanics' liens for materials or labor claimed to have been furnished to
the premises on tenant's behalf.
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Section XXVI
Notices
Any notice by either party to the other shall be in writing and shall
be deemed to have been duly given only if delivered personally or sent by
registered or certified mail in an addressed postpaid envelope; if to tenant, at
the above-described building; if to landlord, at landlord's address as set forth
above; or, to either, at such other address as tenant or landlord, respectively,
may designate in writing. Notice shall be deemed to have been duly given, if
delivered personally, upon delivery, and if mailed, upon the third day after the
mailing of such notice.
Section XXVII
Landlord's Right to Inspection, Repair, and Maintenance
Landlord may enter the premises at any reasonable time, upon adequate
notice to tenant (except that no notice need be given in case of emergency) for
the purpose of inspection or the making of such repairs, replacements, or
additions in, to, on and about the premises or the building, as landlord deems
necessary or desirable.
Section XXVIII
Interruption of Services or Use
Interruption or curtailment of any service maintained in the building,
if caused by strikes, mechanical difficulties, or any causes beyond landlord's
control whether similar or dissimilar to those enumerated, shall not entitle
tenant to any claim against landlord or to nay abatement in rent, and shall not
constitute constructive or partial eviction, unless landlord fails to take such
measures as may be reasonable in the circumstance to restore the service without
undue delay. If the premises are rendered untenantable in whole or in part, for
a period of five business days, by the making of repairs, replacements, or
additions, other than those made with tenant's consent or caused by misuse or
neglect by tenant or tenant's agents, servants, visitors, or licensees, there
shall be a proportionate abatement of rent during the period of such
untenantability.
Section XXIX
Conditions of Landlord's Liability
Tenant shall not be entitled to claim a constructive eviction from the
premises unless tenant shall have first notified landlord in writing of the
condition or conditions giving rise to such an eviction, and, if the complaints
be justified, unless landlord shall have failed within a reasonable time after
receipt of such notice to remedy such conditions.
Section XXX
Landlord's Right To Show Premises
Landlord may show the premises to prospective purchasers and mortgagees
and, during the three months prior to termination of this lease, to prospective
tenants, during business hours upon reasonable notice to tenant.
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Section XXXI
Effect of Other Representations
No representations or promises shall be binding on the parties to this
agreement except those representations and promises contained in this agreement
or in some future writing signed by the party making such representations or
promises.
Section XXXII
Quiet Enjoyment
Landlord covenants that if, and so long as, tenant pays the rent, and
any additional rent as provided in this agreement, and performs the covenants of
this lease, tenant shall peaceably and quietly have, hold, and enjoy the
premises for the term mentioned, subject to the provisions of this lease.
Section XXXIII
Section Headings
The section headings in this lease are intended for convenience only
and shall not be taken into consideration in any construction or interpretation
of this lease or any of its provisions.
Section XXXIV
Binding Effect on Successors and Assigns
The provisions of this lease shall apply to, bind, and insure to the
benefit of landlord and tenant, and their respective heirs, successors, legal
representatives, and assigns. It is understood that the term "landlord" as used
in this lease means only the owner, a mortgagee in possession, or a term tenant
of the building, so that in the event of any sale of the building or of any
lease of the building, or if a mortgagee shall take possession of the premises,
the landlord named in this agreement, shall be entirely freed and relieved of
all covenants and obligations of landlord subsequently accruing under this
agreement. It shall be deemed without further agreement that the purchase, the
term tenant of the building, or the mortgagee in possession has assumed and
agreed to carry out any and all covenants and obligations of the landlord under
this agreement.
Dated June 13, 1997
Witness
S/Xxxxxxxx Leidedit S/Xxxxxxx Xxxxx
Xxxxxxx Xxxxx, Landlord
Attest: Alfin, Inc., by:
S/Xxxxxxx X. Xxxxx S/Xxxxxxxxx Xxxxx
Xxxxxxx X. Xxxxx, Assistant Secretary Xxxxxxxxx Xxxxx, President
Alfin, Inc. Alfin, Inc.
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