EXHIBIT 10.6
LEASE AGREEMENT
1 PARTIES
THIS AGREEMENT, made this 20th day of March, 1997, by and between P.
D'XXXXXX, INC., a Pennsylvania corporation, having a mailing address of 00000
Xxxxxxxx Xxxx, Xxxxxxxxxxxx, XX 00000 (hereinafter called "Lessor"), and XXXX'X
CIGAR COMPANY, INC., a Pennsylvania corporation, and ASHTON DISTRIBUTORS, INC.,
a Pennsylvania corporation, both having a mailing address prior to the
"Commencement Date" of this Lease of 0000 Xxxxx Xxxxxx, Xxxxxxxxxxxx, XX 00000
(hereinafter together called "Lessee"), said parties intending to be legally
bound to the following.
2 DEMISED PREMISES
a. WITNESSETH THAT: Lessor does hereby demise and let unto Lessee a
portion of a building, containing approximately 21,360 square feet and more
particularly described on Exhibit "A" attached hereto, being part of the
premises situate at and commonly known as 00000 XXXXXXXX XXXX, XXXXXXXXXXXX,
XXXXXXXXXXXX, said space being hereinafter referred to as the "demised
premises". The building and ground of which the demised premises is a part is
hereinafter referred to as the "Property".
b. USE. The demised premises shall be used and occupied as and for
WHOLESALE DISTRIBUTION AND THE SALE AT WHOLESALE OF CIGARS AND ACCESSORIES;
INCIDENTAL SALE AT RETAIL OF CIGARS BY THE BOX (TO THE EXTENT PERMITTED BY
ZONING AND OTHER GOVERNMENTAL REGULATIONS); SALES AND ADMINISTRATIVE OFFICES;
AND OTHER OFFICE USE, and for no other purpose. Other uses of the demised
premises shall be subject to Lessor's consent, which shall not be unreasonably
withheld.
c. In the event that any other portion of the building shall become
available for leasing, Lessor covenants and agrees that it shall not lease any
portion of the building to a tobacconist, provided that Lessee is not in default
under this Lease Agreement and is operating a tobacconist business in the
demised premises. Said term, "tobacconist," shall be construed in its broadest
possible usage.
3 TERM
The term of this Lease shall be for a period of FIVE YEARS AND SIX
MONTHS, commencing on a date (the "Commencement Date") on which Lessor delivers
possession of the demised premises to Lessee (but not later than MARCH 15,
1997), and expiring AUGUST 31, 2002. Lessee shall have an option to extend the
term of this Lease, as more fully set forth in Section 32 hereof.
4 MINIMUM RENT
The minimum rental for the term of the Lease shall be as follows:
a. There is no minimum rent for the period from the Commencement Date
to AUGUST 31, 1997.
b. The minimum rent for the period SEPTEMBER 1, 1997 to AUGUST 31,
1999, shall be at a rate of SEVENTY-FOUR THOUSAND SEVEN HUNDRED SIXTY DOLLARS
($74,760.00) per annum; payable in equal, consecutive monthly installments of
SIX THOUSAND TWO HUNDRED THIRTY DOLLARS ($6,230.00).
c. The minimum annual rental for each lease year during the period from
SEPTEMBER 1, 1999 to AUGUST 31, 2002, shall be the total of i) the minimum
annual rental payable for each preceding lease year, plus ii) an amount computed
by multiplying such minimum annual rental by the smaller of (A) 0.05 (5.00%), or
(B) the percentage increase of the Bureau of Labor Statistics Consumer Price
Index, Urban Wage Earners and Clerical Workers, (Revised CPI-W), Philadelphia,
Pennsylvania, All Items Series A, (1967=100)(the "Consumer Price index"), for
the month which is three (3) months prior to the commencement date of the then
current lease year over the same index for the month which is three (3) months
prior to the commencement date of the preceding lease year. The percentage
increase in (B) above shall be determined by first obtaining the difference, if
any, between the more recent and earlier indices and then dividing such
difference by the earlier index. Such rental shall be payable in equal monthly
installments. In no event shall the minimum annual rental for any lease year
during the above mentioned period be less than the total minimum annual rental
payable for the preceding lease year. In the event the Consumer Price Index is
discontinued, it is agreed that the index taking its place shall be used.
Said minimum rent shall be paid in advance in equal, consecutive
monthly installments on the first day of each and every month during the term of
this Lease. The two installments shall be paid upon execution hereof. If the
Commencement date is not the first day of a calendar month, the first
installment of minimum rent shall be prorated accordingly.
5 INABILITY TO GIVE POSSESSION
Lessor or Lessee's Agent shall notify Tenant in writing of the date
when possession of the demised premises will be delivered to Lessee. If Lessor
is unable to give Lessee possession of the demised premises, as herein provided,
by reason of the holding over of a previous occupant, or by reason of any cause
beyond the control of the Lessor, the Lessor shall not be liable in damages to
the Lessee therefor. Lessor shall inform Lessee in writing of any such delay in
the commencement of the term so that Lessee can make appropriate interim
arrangements elsewhere. It is agreed and understood, however, that if Lessor is
unable to give Lessee possession of the demised premises by MARCH 1, 1997, then
Lessee, at its option and as its sole and exclusive remedy, may terminate this
Lease Agreement by written notice to Lessor given within ten (10) days following
MARCH 1, 1997.
6 ADDITIONAL RENT
The parties intend that the rent payable hereunder shall be an
absolutely net return to Lessor for the term of this Lease, undiminished by the
taxes or any of them or any part thereof, or any other carrying charges,
maintenance charges, repairs, third party management costs, or any other charges
of any kind or nature whatsoever, except Lessor's income taxes, and Lessor shall
not be required to furnish any utilities or perform any services of any kind or
nature whatsoever. Landlord represents, however, that the building is connected
to electricity, gas and water and sewer lines that are available to the demised
premises.
a. Damages for Default. Lessee agrees to pay as rent in addition to the
minimum rental herein reserved any sums which may become due by reason of the
failure of Lessee to comply with the covenants of this lease and any and all
damages, costs and expenses which the Lessor may suffer or incur by reason of
any default of the Lessee or failure on its part to comply
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with the covenants of this lease, and each of them, and also all damages to the
demised premises caused by any act or neglect of the Lessee.
b. Taxes. Lessee further agrees to pay as additional rent, in addition
to the minimum rental herein reserved, FORTY-THREE PERCENT (43%) of all
governmental charges, impositions, assessments and taxes assessed on or imposed
upon the land and building which constitute the Property. The amount due
hereunder on account of such taxes shall be apportioned for that part of the
first and last tax fiscal years covered by the term hereof. Lessor shall
promptly forward to Lessee with a xxxx for taxes payable hereunder copies of all
bills received by Lessor for taxes which shall be assessed or levied against the
Property. Lessee shall promptly, within TEN (10) DAYS after receipt of said xxxx
from Lessor, pay the amount specified in said xxxx to Lessor. Lessee agrees,
however, that any failure on the part of Lessor to submit to Lessee bills
received by Lessor for taxes shall not be deemed a waiver, abrogation or
limitation of Lessee's obligation to pay all taxes imposed on the demised
premises as above provided, but Lessor shall be responsible for all interest and
penalties incurred by reason of Lessor's delay in transmitting such bills to
Lessee.
If there are additional increases, additional and/or new taxes assessed
upon the demised premises and Lessor fails or refuses to appeal said assessment
or taxes, Lessee, after written notice to Lessor, may do so at Lessee's expense.
c. Insurance. Lessee further agrees to pay Lessor as additional rent
all increases in fire insurance premiums upon the demised premises and/or the
buildings of which the demised premises is a part, due to an increase in the
rate of fire insurance premiums in excess of the rate on the demised premises at
the time of making this lease, if said increase is caused by any act or neglect
of the Lessee or the nature of the Lessee's business. Lessee further agrees to
comply, at its own cost and expense, with any recommendation, rule or regulation
of any authorized insurance rating bureau which will enable the Lessor to effect
a reduction in the fire insurance rate on the building of which the herein
demised premises is a part or on the contents therein, so long as said
compliance does not adversely and materially affect the business of Lessee.
d. Utilities. Lessee shall pay for any and all utilities supplied to
and used and consumed upon the demised premises during the term of this Lease
and any renewal or extension thereof.
e. Cost of Operations. Lessee further agrees to pay as additional rent,
within TEN (10) DAYS of presentation of a xxxx therefor, FORTY-THREE PERCENT
(43%) of Lessor's cost for operating the common area of the Property, including,
but not limited to painting, lighting, policing, replacement, resurfacing,
maintenance, repair, cleaning, and landscaping of the parking area, walks and
ways, building exterior, signage, exterminating, inspections, management fees
and any other costs of operating and maintaining the Property, utility lines,
and local or municipal fire protection or hydrant charges, but not snow removal.
Lessee shall be responsible for its own snow removal, unless it desires to
engage Lessor's contractor, in which event it will pay as additional rent 43% of
Lessor's cost for snow removal. Lessor shall in no event charge as Lessee's
share of Lessor's cost of operations under this paragraph e for any one (1)
year an amount that exceeds by more than ten percent (10%) an amount equal to
forty-three percent (43%) of the average of Lessor's cost of operations
(computed in accordance with this paragraph e) for the previous three (3) years.
Lessor, within forty-five days following the end of each year of the
term of this Lease, shall supply to Lessee an annual reconciliation of all
additional rent charges. Lessee reserves the right to have its auditors review
the books and records of Lessee with respect to items of additional rent for the
purpose of verifying amounts of additional rent billed to Lessee, and if it is
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found by the auditors that additional rent is overstated by five percent (5%),
then the reasonable cost of the audit shall be borne by Lessor.
f. Payment of Rent. If Lessee disputes the amount of rent or additional
rent due under this Lease, Lessee agrees to pay the amount claimed by Lessor.
Lessee shall, however, have the right to proceed by law to recover any excess
payment.
7 PLACE OF PAYMENT
All rent shall be payable without prior notice or demand at the office
of Lanard & Axilbund, Inc., 000 Xxxxxx Xxxxxx, Xxxxxxxxxxxx, Xxxxxxxxxxxx, 00000
or at such other place as Lessor, or successor Lessor, may from time to time
designate by notice in writing. All rent paid under this paragraph to Lanard &
Axilbund as Lessor's agent shall be deemed to have been paid to Lessor so that
Lessor shall have no further claim against Lessee for any rent so paid.
8 AFFIRMATIVE COVENANTS OF LESSEE
Lessee covenants and agrees that it will without demand, during the
term of this lease or any renewal hereof:
a. Payment of Rent. Pay the rent and all other charges herein reserved
as rent on the days and times and at the place that the same are made payable,
and that if Lessor shall at any time or times accept said rent or rent charges
after the same shall have become due and payable, such acceptance shall not
excuse delay upon subsequent occasions, or constitute or be construed as a
waiver of any of Lessor's rights, except that Lessor's acceptance of payment in
full of the amount of a payment default shall constitute a cure of such default.
Lessee agrees that any charge or payment herein reserved, included, or agreed to
be treated or collected as rent and/or any other charges or taxes, expenses, or
costs herein agreed to be paid by the Lessee may be recovered by the Lessor by
distraint or other process in the same manner as rent due and in arrears.
b. Cleaning, Repairing, etc. Keep the demised premises clean and free
from all ashes, dirt and refuse matter, replace all broken glass, windows,
doors, etc. in the demised premises. Keep all waste and drainpipes from the
demised premises open; repair all damage to plumbing in the demised premises;
keep the demised premises in good order and repair, reasonable wear and tear
excepted. Lessee agrees to surrender the demised premises in the same condition
in which Lessee has herein agreed to keep them.
c. Plate Glass. Properly insure all plate glass, if any, in the demised
premises and immediately replace same, if damaged or broken, at Lessee's own
cost and expense.
d. Requirements of Public Authorities. Comply with any requirements of
any of the constituted public authorities, and with the terms of any State or
Federal statute or local ordinance or regulation applicable to Lessee or its use
of the demised premises, including without limitation the Americans with
Disabilities Act, if applicable, and save Lessor harmless from penalties, fines,
costs, or damages resulting from failure so to do.
e. Fire. Use every reasonable precaution against fire.
f. Rules and Regulations. Comply with rules and regulations of Lessor
promulgated as hereinafter provided, provided that such rules and regulations do
not have a material adverse effect on Lessee's business.
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g. Surrender of Possession. Peaceably deliver up and surrender
possession of the demised premises to the Lessor at the expiration or sooner
termination of this Lease, promptly delivering to Lessor at its office all keys
for the demised premises.
h. Notice of Fire. Give to Lessor prompt written notice of any
accident, fire or damage occurring on or to the demised premises.
i. Condition of Pavement. In the event that all or a portion of the
demised premises is at street or pavement level, Lessee shall be responsible for
the condition of the pavement, curb, cellar doors, awnings and other erections
in the pavement during the term of this lease or any renewal hereof, shall keep
the pavement free from snow and ice, and shall be, and hereby agrees, that
Lessee is solely liable for any accidents due or alleged to be due to their
defective condition, or to any accumulations of snow and ice.
9 NEGATIVE COVENANTS OF LESSEE
Lessee covenants and agrees that it will do none of the following
things without the consent in writing of Lessor first had and obtained:
a. Use of Demised Premises. Occupy the demised premises in any other
manner or for any other purpose than as above set forth.
b. Assignment and Subletting. Assign, mortgage or pledge this lease or
underlet or sublease the demised premises, or any part thereof, or permit any
other person, firm or corporation to occupy the demised premises, or any part
thereof; nor shall any assignee or sublessee assign, mortgage, or pledge this
lease or such sublease, without an additional written consent by the Lessor, and
without such consent no such assignment, mortgage or pledge shall be valid. If
the Lessee becomes insolvent, or makes an assignment for the benefit of
creditors, or if a petition in bankruptcy is filed by or against the Lessee or a
xxxx in equity or other proceeding for the appointment of a receiver for the
Lessee is filed, or if the real or personal property of the Lessee shall be sold
or levied upon by any Sheriff, Xxxxxxxx or Constable, the same shall be a
violation of this covenant. In the event Lessee is a corporation or partnership,
the sale of a controlling interest in the corporation or partnership shall be
deemed an assignment under this section.
c. Signs. Place or allow to be placed any stand, booth, sign or show
case upon the doorsteps, vestibules or outside walls or pavements of said
demised premises, or paint, place, erect, or cause to be painted, placed or
erected any sign, projection or device on or in any part of the demised
premises. Lessee shall remove any sign, projection or device painted, placed or
erected, if permission has been granted, and restore the walls, etc., to their
former conditions, at or prior to expiration of this lease. In case of the
breach of this covenant (in addition to ail other remedies given to Lessor in
case of the breach of any conditions or covenants of this lease} Lessor shall
have the privilege of removing said stand, booth, sign, show case, projection or
device, and restoring said walls, etc., to their former condition, and Lessee,
at Lessor's option, shall be liable to Lessor for any and all expenses so
incurred by Lessor.
d. Alterations/Improvements. Make any alterations, improvements or
additions to the demised premises. Lessor agrees, however, that it shall not
unreasonably withhold its consent to non-structural alterations and improvements
that do not adversely affect the building. Lessee, in requesting such consent,
shall submit for Lessor's review and approval plans and specifications for such
alterations and improvements. All alterations, improvements, additions, or
fixtures, whether installed before or after the execution of this lease, shall
remain upon the premises at the expiration or sooner termination of this lease
and become the property of Lessor, unless
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Lessor shall, prior to or in connection with the termination of this lease,
have given written notice to Lessee to remove the same, in which event Lessee
will remove such alterations, improvements and additions and repair any
resulting damage. Should Lessee fail so to do, Lessor may, at Lessor's option,
do so, and Lessee agrees to pay, as additional rent, the cost thereof. Subject
to the foregoing obligation to repair damage resulting from their removal, and
provided that Lessee is not in default under this Lease, Lessee may remove the
fixtures and improvements that are set forth in Exhibit "B", attached hereto and
made a part hereof.
e. Machinery. Use or operate any machinery that, in Lessor's opinion,
is harmful to the building or disturbing to Lessor or other tenants occupying
other parts thereof.
f. Weights. Place any weights in any portion of the demised premises
beyond the safe carrying capacity of the structure.
g. Fire Insurance. Do or suffer to be done, any act, matter or thing
objectionable to the fire insurance companies whereby the fire insurance or any
other insurance now in force or hereafter to be placed on the demised premises,
or any part thereof, or on the building of which the demised premises may be a
part, shall become void or suspended, or whereby the same shall be rated as a
more hazardous risk than at the date of execution of this Lease, or employ any
person or persons objectionable to the fire insurance companies or carry or have
any benzine or explosive matter of any kind in and about the demised premises.
In case of a breach of this covenant (in addition to all other remedies given to
Lessor in case of the breach of any of the conditions or covenants of this
Lease), Lessee agrees to pay to Lessor as additional rent any increase of
premiums on insurance carried by Lessor or by other tenants in the building of
which the demised premises is a part, on the demised premises, or any part
thereof, or on such building, caused in any way by the occupancy or conduct of
Lessee.
h. Removal of Goods. Remove, attempt to remove or manifest an intention
to remove all or substantially all of Lessee's goods or property from or out of
the demised premises otherwise than in the ordinary and usual course of
business, unless Lessee deposits with Lessor an additional security deposit in
the amount of five (5) times the then current monthly minimum rent and continues
to pay and perform all of its other obligations under this Lease.
i. Vacate Demised Premises. Vacate or desert said premises during the
term of this lease, or permit the same to be empty and unoccupied, unless Lessee
deposits with Lessor the additional security deposit referred to in paragraph h
above,
j. Wheeled Vehicles. Use or permit to be used on the demised premises
any handtrucks, dollies and/or any other wheeled vehicles unless they are
equipped with rubber or urethane tires, or the like. Lessee shall be responsible
for the repair and/or cleaning up of any marking, scoring or other damage to
floors caused by wheeled vehicles.
10 LESSOR'S RIGHTS
Lessee covenants and agrees that Lessor shall have the right to do the
following things and matters in and about the demised premises:
a. Inspection of Demised Premises: At all times by itself or its duly
authorized agents to go upon and inspect the demised premises and every part
thereof, with reasonable prior notice except in case of an emergency, and/or at
its option to make repairs, alterations and additions to the demised premises or
the building of which the demised premises is a part.
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b. Rules and Regulations. At any time or times and from time to time to
make such rules and regulations as in its judgment may from time to time be
necessary for the safety, care and cleanliness of the premises, and for the
preservation of good order therein, so long as such rules and regulations do not
materially adversely affect the business operation of Lessee. Such rules and
regulations shall, when written notice thereof is given to Lessee, form a part
of this lease.
c. Sale or Rent Sign, Prospective Purchasers or Tenants. For a period
not to exceed six (6) months prior to the expiration of the term of this Lease,
to display a "For Sale" sign at any time prior to the expiration of this lease
or a "For Rent", or both "For Rent" and "For Sale" signs; and all of said signs
shall be placed upon such part of the premises as Lessor may elect and may
contain such maker as Lessor shall require, except however, such signs will not
interfere with the business operations of Lessee. Prospective purchasers or
tenants authorized by Lessor may inspect the premises at reasonable hours at any
time. If, however, Lessee prohibits or refuses to permit Lessor or its agents or
any prospective purchasers or tenants authorized by Lessor to inspect the
demised premises as hereinabove mentioned, Lessee shall be in default under this
Lease and, in addition to all other damages payable to Lessor for default,
Lessee shall be held responsible for any loss of rent that may be incurred by
Lessor by reason of the fact that Lessee has prohibited Lessor or its agents,
prospective purchasers or tenants from inspecting the herein demised premises as
hereinabove set forth.
11 RESPONSIBILITY OF LESSEE
Lessee agrees to be responsible for and to release and hereby releases
and agrees to indemnify Lessor from all liability by reason of any injury or
damage, whether caused by a condition existing at the inception of this Lease or
occurring thereafter, to any person or property in the demised premises, whether
belonging to the Lessee or any other person caused by any fire, breakage or
leakage in any part or portion of the demised premises, or any part or portion
of the building of which the demised premises is a part, or from water, rain or
snow that may leak into, issue or flow from any part of the said demised
premises, or of the building of which the demised premises is a part, from the
drains, pipes, or plumbing work of the same, or from any place or quarter,
unless such breakage, leakage, injury or damage be caused by or result from the
negligence of Lessor or its servants or agents.
Lessee also agrees to be responsible for and to release and hereby
releases and agrees to indemnify Lessor from all liability by reason of any
damage or injury, whether caused by a condition existing at the inception of
this Lease or occurring thereafter, to any person or thing which may arise from
or be due to the use, misuse or abuse of all or any of the elevators, hatches,
openings, stairways, hallways of any kind whatsoever which may exist or
hereafter be erected or constructed on the demised premises, or from any kind of
injury which may arise from any other cause whatsoever on the said demised
premises or elsewhere on the Property, including without limitation, driveways,
parking areas and pavements, unless such damage, injury, use, misuse or abuse be
caused by or result from the negligence of Lessor, its servants or agents.
12 EVENT OF DESTRUCTION
a. Total. In the event that the demised premises or the building of
which the demised premises is a part is totally destroyed or so damaged by fire
or other casualty that the same cannot be repaired or restored within one
hundred twenty (120) days following the fire or casualty, this lease shall, at
Lessor's or, if the demised premises are damaged to such extent, at Lessee's
option, absolutely cease and determine, and the rent shall xxxxx for the balance
of the term.
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b. Partial. If the damage caused as above be only partial and such that
the demised premises can be restored to their then condition within a reasonable
time, as determined by Lessor, the Lessor may, at its option, restore the same
with reasonable promptness, reserving the right to enter upon the demised
premises for that purpose, or terminate this Lease. Lessor shall make such
election to restore the demised premises or terminate this Lease by giving
notice thereof to Lessee at the demised premises within thirty (30) days from
the date Lessor receives notice that the demised premises have been damaged. In
the event the demised premises cannot be or are not repaired, for whatever
reason, within one hundred twenty (120) days following the damage, Lessee shall
have the right to terminate this Lease Agreement and vacate the demised
premises, such right to be exercised by written notice to Lessor given within
ten (10) days following such one hundred twenty (120) day period. The Lessor
also reserves the right to enter upon the demised premises whenever necessary to
repair damage caused by fire or other casualty to the building of which the
demised premises is a part, even though the effect of such entry be to render
the demised premises or a part thereof untenantable. In either event the rent
shall be apportioned and suspended during the time the Lessor is in possession,
taking into account the proportion of the demised premises rendered untenantable
and the duration of the Lessor's possession. If a dispute arises as to the
amount of rent due under this section, Lessee agrees to pay the full amount
claimed by Lessor. Lessee, however, shall have the right to proceed by law to
recover the excess payment, if any.
c. Damage for Interruption of Use. Lessor shall not be liable for any
damage, compensation or claim by reason of inconvenience or annoyance arising
from the necessity of repairing any portion of the building, the interruption in
the use of the demised premises, or the termination of this Lease by reason of
the destruction of the demised premises.
13 MISCELLANEOUS AGREEMENTS AND COVENANTS
a. Representation of Condition of Demised Premises. The Lessor has let
the demised premises in their present condition and without any representations
on the part of the Lessor, its officers, employees, servants and/or agents. It
is understood and agreed that Lessor is under no duty to make repairs or
alterations at the time of letting or at any time thereafter, except as
expressly provided herein.
b. Zoning. It is understood and agreed that the Lessor does not warrant
or undertake that the Lessee shall be able to obtain a permit under any zoning
ordinance or regulation for such use as Lessee intends to make of the said
premises, and nothing in this lease contained shall obligate the Lessor to
assist Lessee in obtaining said permit; the Lessee further agrees that in the
event a permit cannot be obtained by Lessee under any zoning ordinance or
regulation, this lease shall not terminate without Lessor's consent, and the
Lessee shall use the premises only in a manner permitted under such zoning
ordinance or regulation.
c. Effect of Repairs on Rental. No contract entered into or that may be
subsequently entered into by Lessor with Lessee, relative to any alterations,
additions, improvements or repairs, nor the failure of Lessor to make such
alterations, additions, improvements or repairs as required by any such
contract, nor the making by Lessor or its agents or contractors of such
alterations, additions, improvements or repairs shall in any way affect the
payment of the rent or said other charges at the time specified in this lease.
d. Agency. It is expressly understood and agreed that Lanard &
Axilbund, Inc. shall act as Lessor's agent ("Agent") for the sole purpose of
collecting rent under this Lease and shall not in any event be held liable to
the Lessor or to the Lessee for the fulfillment or non-fulfillment of any of the
terms or conditions of this Lease; for the return to Lessee upon termination of
this Lease, or under any circumstances, of rent or of other sums received by it,
or by
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any error of omission or commission of the Agent or its employees or for any
action or proceeding that may be taken by the Lessor against the Lessee or by
the Lessee against the Lessor.
e. Waiver of Custom. It is hereby covenanted and agreed, any law, usage
or custom to the contrary notwithstanding, that Lessor shall have the right at
all times to enforce the covenants and provisions of this Lease in strict
accordance with the terms hereof, notwithstanding any conduct or custom on the
part of the Lessor in refraining from so doing at any time or times; and
further, that the failure of Lessor at any time or times to enforce its rights
under said covenants and provisions strictly in accordance with the same shall
not be construed as having created a custom in any way or manner contrary to the
specific terms, provisions and covenants of this Lease or as having in any way
or manner modified the same.
f. Conduct of Lessee. This lease is granted upon the express condition
that Lessee and/or the occupants of the premises herein leased, shall not
conduct themselves in a manner which, in the reasonable opinion of Lessor,
interferes with the use, occupancy, enjoyment or business activity of others
occupying the building or properties adjoining the Property, and that if at any
time during the term of this lease or any extension or continuation thereof,
Lessee or any occupier of the demised premises shall have conducted himself,
herself or themselves in such a manner, Lessee shall be taken to have broken the
covenants and conditions of this lease, and Lessor will be entitled to ail of
the rights and remedies granted and reserved herein, for the Lessee's failure to
observe any of the covenants and conditions of this lease.
g. Failure of Lessee to Repair. In the event of the failure of Lessee
promptly to perform the covenants of Section 8(b) hereof or any other section of
this Lease containing Lessee's repair and maintenance obligations following any
applicable notice, cure rights and grace periods, Lessor may go upon the demised
premises and perform such covenants, the cost thereof, at the sole option of
Lessor, to be charged to Lessee as additional and delinquent rent.
h. Mutual Waiver of Subrogation. Lessor shall not be liable to Lessee,
under the terms of this Lease or otherwise, for any loss or damage to Lessee's
property or interest to the extent that Lessee is insured against such loss or
damage or is required under the terms of this lease to be so insured. Lessee
shall not be liable to Lessor under the terms of this Lease or otherwise, for
any loss or damage to Lessor's property or interest to the extent that Lessor is
insured against such loss or damage. Each of the parties agrees that all
policies of property and/or casualty insurance maintained by that party, shall
contain a clause or endorsement providing in substance that the insurance shall
not be prejudiced if the insured has, prior to that date and time of loss or
damage, waived the right of recovery from any person or persons.
14 REMEDIES OF LESSOR
Subject to the notice and cure provisions set forth in Section 35 of
this lease, if the Lessee:
a. Does not pay in full when due any and all installments of rent
and/or any other charge or payment herein reserved, included, or agreed to be
treated or collected as rent and/or any other charge, expense, or cost herein
agreed to be paid by the Lessee; and/or
b. Violates and/or fails to perform or otherwise breaks any covenant or
agreement herein contained; and/or
c. Vacates the demised premises or removes or attempts to remove or
manifests an intention to remove any goods or property therefrom otherwise than
in the ordinary and usual course of business without having first paid and
satisfied the Lessor in full for all rent and
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other charges then due or that may thereafter become due until the expiration
of the then current term, above mentioned; and/or
d. Becomes insolvent, or makes an assignment for the benefit of
creditors, or if a petition in bankruptcy is filed by or against the Lessee, and
provided a petition against Lessee is not dismissed within sixty (60) days of
filing, or a xxxx in equity or other proceeding for the appointment of a
receiver for the Lessee is filed, or if proceedings for reorganization or for
composition with creditors under any State or Federal law be instituted by or
against Lessee, or if the real or personal property of the Lessee shall be sold
or levied upon by any Sheriff, Xxxxxxxx or Constable, then and in such event or
events, there shall be deemed to be a breach of this lease, and thereupon at the
option of the Lessor,
i. The rent for the entire unexpired balance of the term of
this lease, as well as all other charges, payments, costs and expenses herein
agreed to be paid by the Lessee, or at the option of Lessor any part thereof,
and also all costs and officers' commissions including watchmen's wages and
further including the five percent chargeable by Act of Assembly to the Lessor,
shall, in addition to any and all installments of rent already due and payable
and in arrears and/or any other charge or payment herein reserved, included or
agreed to be treated or collected as rent, and/or any other charge, expense or
cost herein agreed to be paid by the Lessee which may be due and payable in
arrears, be taken to be due and payable and in arrears as if by the terms and
provisions of this lease, the whole balance of unpaid rent and other charges,
payments, taxes, costs and expenses were on that date payable in advance; and if
this lease or any part thereof is assigned, or if the premises or any part
thereof is sublet, Lessee hereby irrevocably constitutes and appoints Lessor
Lessee's agent to collect the rents due from such assignee or sublessee and
apply the same to the rent due hereunder without in any way affecting Lessee's
obligation to pay any unpaid balance of rent due hereunder; or
ii. This lease and the term hereby created determine and
become absolutely void without any right on the part of the Lessee to save the
forfeiture by payment of any sum due or by other performance of any condition,
term or covenant broken; whereupon, Lessor shall be entitled to recover damages
for such breach in an amount equal to the amount of rent reserved for the
balance of the term of this lease, less the fair rental value of the said
demised premises, for the residue of said term.
15 FURTHER REMEDY OF LESSOR
In the event of any default as set forth in Section 14 and the exercise
by Lessor of its rights under subsection (d)(i) thereof, Lessor, or anyone
acting on Lessor's behalf, may, at Lessor's option, without terminating this
lease, re-enter and re-let, for Tenant's account, the demised premises or any
part or parts thereof to any person or persons, and on such terms and conditions
as may, in Lessor's discretion, seem best, and Lessee shall be liable for all
costs incurred in connection with such reletting (including without limitation
the cost of alterations and broker's commissions) and for any loss of rent for
the balance of the then current term.
16 CONFESSION OF JUDGMENT
If the rent and/or charges hereby reserved as rent shall remain unpaid
on any day when the same ought to be paid, Lessee hereby empowers any
Prothonotary or attorney of any Court of Record to appear for Lessee in any and
all actions which may be brought for rent and/or charges, payments, costs and
expenses reserved as rent, or agreed to be paid by the Lessee and/or to sign for
Lessee an agreement for entering in any competent Court an action or actions for
the recovery of rent or other charges or expenses, and in said suits or in said
action to confess judgment against
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Lessee for all or any part of the fees or charges specified in this Lease and
then unpaid including, at Lessor's option, additional charges, payments, costs
and expenses to be paid by Lessee hereunder, and for interests and costs
together with an attorney's fee of not less than five percent (5%) of all of the
foregoing, or Five Thousand Dollars ($5,000.00), whichever shall be the greater.
Such authority shall not be exhausted by one exercise thereof, but judgment may
be confessed as aforesaid from time to time as often as any of said additional
charges payable hereunder shall fall due or be in arrears, and such powers may
be exercised as well after the expiration of the original term and/or during any
extension or renewal of this Lease.
LESSEE ACKNOWLEDGES THAT SECTIONS 16 AND 17 OF THIS LEASE CONTAIN
AUTHORIZATION TO CONFESS JUDGMENT, THAT IT HAS CONSULTED LEGAL COUNSEL WITH
RESPECT THERETO AND THAT IT UNDERSTANDS THAT THE EXERCISE BY LESSOR OF THE
CONFESSIONS WILL RESULT IN THE ENTRY OF JUDGMENT AGAINST LESSEE AND THE SALE OR
ATTACHMENT OF, OR EXECUTION UPON, LESSEE'S PROPERTY (INCLUDING WITHOUT
LIMITATION PERSONAL PROPERTY, REAL PROPERTY AND BANK ACCOUNTS) WITHOUT PRIOR
NOTICE OR THE OPPORTUNITY FOR A HEARING.
17 EJECTMENT
When this Lease shall be determined by term, covenant or condition
broken either during the original term of this Lease or any renewal or extension
thereof, and also when and as soon as the term hereby created or any extension
thereof shall have expired, it shall be lawful for any attorney as attorney for
Lessee to file an agreement for entering in any competent Court an action or
judgment in ejection against Lessee and all persons claiming under Lessee for
the recovery by Lessor of possession of the demised premises, for which this
Lease shall be his sufficient warrant, whereupon, if Lessor so desires, a writ
of possession may issue forthwith, and provided that if for any reason after
such action shall have been commenced the same shall be determined and the
possession of the demised premises shall remain in or be restored to Lessee,
Lessor shall have the right upon any subsequent default or defaults, or upon
termination of this Lease as hereinbefore set forth, to bring one or more action
or actions as hereinbefore set forth to recover possession of the demised
premises.
18 AFFIDAVIT OF DEFAULT
In any action of ejectment and/or for additional charges in arrears,
Lessor shall first cause to be filed in any such action an affidavit made by it
or someone acting for it setting forth the facts necessary to authorize the
entry of judgment, of which facts such affidavit shall be conclusive evidence,
and if a true copy of this Lease (and of the truth of the copy such affidavit
shall be sufficient evidence) be filed in such action, it shall not be necessary
to file the original as a warrant of attorney, any rule of Court, custom of
practice to the contrary notwithstanding.
19 WAIVERS BY LESSEE
Lessee expressly waives the benefits of all laws, now or hereafter in
force, exempting any goods on the demised premises, or elsewhere from distraint,
levy or sale in any legal proceedings taken by the Lessor to enforce any rights
under this lease. Lessee further waives the right of inquisition on any real
estate that may be levied upon to collect any amount which may become due under
the terms and conditions of this lease, and does hereby voluntarily condemn the
same and authorizes the Prothonotary to enter a fieri facias or other process
upon Lessee's voluntary condemnation, and further agrees that the said real
estate may be sold on a fieri facias or other process. Lessee, however,
expressly does not waive any right it may have to seek judicial relief under law
in the event judgment is confessed against Lessee under this Lease. If
proceedings shall
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be commenced by Lessor to recover possession under the Acts of Assembly, either
at the end of the term or sooner termination of this lease, or for nonpayment of
rent or any other reason, Lessee specifically waives the right to the three
months' notice required by the Act of December 14, 1863, and to the fifteen or
thirty days' notice required by the Act of April 3, 1830, and agrees that five
days' notice shall be sufficient in either or any such case.
20 RIGHT OF ASSIGNEE OF LESSOR
The right to enter judgment against Lessee and to enforce all of the
other provisions of this Lease herein provided for may, at the option of any
assignee of this Lease, be exercised by any assignee of the Lessor's right,
title and interest in this Lease in his, her or their own name, notwithstanding
the fact that any or all assignments of the said right, title and interest may
not be executed or witnessed in accordance with the Act of Assembly of May 28,
1715, 1Sm. L. 99, and all supplements and amendments thereto that have been or
may hereafter be passed and Lessee hereby expressly waives the requirements of
said Act of Assembly and any and all laws regulating the manner and/or form in
which such assignment shall be executed and witnessed.
21 REMEDIES CUMULATIVE
All of the remedies hereinbefore given to Lessor and all rights and
remedies given to it by law and equity shall be cumulative and concurrent,
provided that the notice and grace periods set forth in Section 35 of this Lease
have been observed. No termination of this Lease or the taking or recovering of
the demised premises shall deprive Lessor of any of its remedies or actions
against the Lessee for rent due at the time or which, under the terms hereof,
would in the future become due as if there had been no termination, or for other
sums due at the time or which, under the terms hereof, would in the future
become due as if there had been no termination, nor shall the bringing of any
action for rent or breach of covenant, or the resort to any other remedy herein
provided for the recovery of rent be construed as a waiver of the right to
obtain possession of the demised premises.
22 CONDEMNATION
In the event that the premises demised or any part thereof is taken or
condemned for a public or quasi-public use, this lease shall, as to the part so
taken, terminate, or if ten percent (10%) or more of the demised premises are
taken, Lessee may terminate this Lease Agreement, any such termination to be
effective as of the date title shall vest in the condemnor, and rent, if this
Lease is not terminated, shall xxxxx in proportion to the square feet of leased
space taken or condemned or shall cease if the entire premises be so taken. In
either event the Lessee waives ail claims against the Lessor by reason of the
complete or partial taking of the demised premises. Nothing herein contained
shall be construed as a waiver of any rights Lessee may have under the Eminent
Domain Code or other law against the condemning authority for removal expenses,
business location damages, and/or moving expenses, providing however that this
shall in no way affect or detract from any award payable to Lessor by the
condemning authority.
23 SUBORDINATION
This lease and all its terms, covenants and provisions are and each of
them is subject and subordinate to any lease or other arrangement or right to
possession, under which the Lessor is in control of the demised premises, to the
rights of the owner or owners of the demised premises and of the land or
buildings of which the demised premises are a part, to all rights of the
Lessor's landlord and to any and all mortgages and other encumbrances now or
hereafter placed upon the demised premises or upon the land and/or the buildings
containing the same; and the Lessee
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expressly agrees that if Lessor's tenancy, control, or right to possession
shall terminate either by expiration, forfeiture or otherwise, then this lease
shall, at the option of the party to whose rights this lease has been
subordinated, thereupon immediately terminate and the Lessee shall, thereupon,
give immediate possession; and Lessee hereby waives any and all claims for
damages or otherwise by reason of such termination as aforesaid. Lessor
represents and warrants that as of the date of execution of this lease, there
are no mortgages affecting the Property. The subordination of this lease to any
future mortgage affecting the Property shall be subject to the express condition
that Lessee's rights under this lease shall not be disturbed so long as Lessee
is performing all of its obligations under this lease. Lessor and Lessee
acknowledge that Lessor holds the Property under a ground lease from Xxxxx
D'Xxxxxx and Xxxxx D'Xxxxxx (the "Ground Lease"), and Lessor warrants and
represents to Lessee that Lessor has the right under the Ground Lease to enter
into this lease.
24 RENEWAL
It is mutually agreed that either party hereto may terminate this Lease
at the end of the term by giving to the other party written notice thereof at
least THREE (3) MONTHS prior thereto, but in default of such notice this Lease
shall continue upon the same terms and conditions in force immediately prior to
the expiration of the term hereof as are herein contained, except only that the
minimum rent shall be adjusted by the percentage increase of the Bureau of Labor
Statistics Consumer Price Index, Urban Wage Earners and Clerical Workers,
(Revised CPI-W), Philadelphia, Pennsylvania, (All Items Series A), (1967 = 100),
over the period during which the last rent for the preceding term was in effect,
for a further period of ONE (1} YEAR, and so on from year to year unless or
until terminated by either party hereto, giving the other THREE (3) MONTHS
written notice for removal previous to expiration of the then current term;
provided, however, that should this Lease be continued for a further period
under the terms hereinabove mentioned, any allowances given Lessee on the rent
during the original term shall not extend beyond such original term, and further
provided, however, that if Lessor, prior to the last date hereunder for giving
notice of termination of the then current term, shall have given written notice
of its intention to change the terms and conditions of this Lease, and Lessee
shall not, within ten (10) business days of the date of such notice, notify
Lessor of Lessee's rejection of such changes, which rejection shall constitute
Lessee's notice of its intention to vacate the demised premises at the end of
the then current term, Lessee shall be considered as Lessee under this Lease as
modified by the terms and conditions mentioned in such notice for a further term
as above provided, unless said notice shall fix a different term, in which event
the term fixed in said notice shall apply; if Lessee shall give notice, as
stipulated above, of its intention to vacate the demised premises at the end of
the then current term, and shall fail or refuse so to vacate, then it is
expressly agreed that Lessor shall have the option either (a) to disregard the
notice so given as having no effect, in which event all the terms and conditions
of this Lease as modified by Lessor's notice shall continue thereafter with full
force precisely as if such notice from Lessee had not been given, or (b) to
regard this Lease as terminated, whereupon the Lessee expressly agrees to vacate
said premises within ten (10) business days of the date of written notice from
Lessor. If either party shall have given notice of termination in accordance
with the provisions of this Lease or this Lease shall otherwise by its terms
terminate, and Lessee shall refuse or fail to vacate the demised premises at the
end of the then current term, then it is expressly agreed that Lessor shall have
the option of (a) disregarding such notice of termination or provision for
termination as having no effect, and of regarding this Lease as having been
renewed on the same terms and conditions for a further period of one (1) year,
or (b) of regarding this Lease as terminated, whereupon the Lessee expressly
agrees to vacate the premises within ten (10) business days of the date of
written notice from Lessor. Nothing herein contained shall deprive Lessor of any
other rights or remedies afforded by this Lease or by law by reason of Lessee's
failure to vacate the demised premises at the expiration of the then current
term of this Lease.
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25 NOTICES
All notices required to be given by Lessor to Lessee shall be sent by
registered or certified mail, return receipt requested, and after the
Commencement Date shall be addressed to the demised premises. All notices given
by Lessee to Lessor must be given by registered or certified mail, and as
against Lessor the only admissible evidence that notice has been given by Lessee
shall be registry return receipt signed by Lessor or its agent. In the event
that Lessor shall mail notice to Lessee as aforesaid, the date of mailing shall
be the valid date of service.
26 LEASE CONTAINS ALL AGREEMENTS
It is expressly understood and agreed by and between the parties hereto
that this Lease and the Riders attached hereto and forming a part hereof set
forth all the promises, agreements, conditions and understandings between Lessor
or its Agent and Lessee relative to the demised premises, and that there are no
promises, agreements, conditions or understandings, either oral or written,
between them other than are herein set forth. It is further understood and
agreed that, except as herein otherwise provided, no subsequent alteration,
amendment, change or addition to this Lease shall be binding upon Lessor or
Lessee unless reduced to writing and signed by them.
27 BROKERAGE AGREEMENT
Lessor acknowledges that it has entered into an Exclusive Agency
Agreement (Lease) with Agent, dated October 4, 1995, and Lessor hereby agrees
that its obligations to Agent under said Agreement shall continue throughout the
term of this Lease and for the term of any renewal option while this Lease
remains in effect. It is agreed and understood by Lessor and Agent that the term
"gross rental" as used in the Exclusive Agency Agreement refers only to "minimum
rent" payable under Paragraph 4 of this Lease and not to any items of additional
rent payable under this Lease.
28 BROKERS; INDEMNIFICATION
Lessor and Lessee represent and warrant to each other that they have
dealt with no brokers in this transaction other than Lanard & Axilbund, who was
retained by Lessor and whose commission shall be paid by Lessor pursuant to the
Exclusive Agency Agreement referred to in Section 27 of this Lease. If any other
broker asserts a claim based on alleged dealings with Lessor or Lessee in
connection with this Lease Agreement, such party (Lessor or Lessee, as
applicable) shall indemnify and hold harmless the other from and against all
cost and liability arising out of such claim.
29 HEIRS AND ASSIGNEES
All rights and liabilities herein given to, or imposed upon, the
respective parties hereto shall extend to and bind the several and respective
heirs, executors, administrators, successors and assigns of said parties; and if
there shall be more than one Lessee, they shall all be bound jointly and
severally by the terms, covenants and agreements herein, and the word "Lessee"
shall be deemed and taken to mean each and every person or party mentioned as a
Lessee herein, be the same one or more; and if there shall be more than one
Lessee, any notice required or permitted by the terms of this Lease may be given
by or to any one thereof, and shall have the same force and effect as if given
by or to all thereof. No rights, however, shall inure to the benefit of any
assignee of Lessee unless the assignment to such assignee has been approved by
Lessor in writing as aforesaid.
30 HEADINGS NO PART OF LEASE
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Any headings preceding the text of the several sections or sub-sections
hereof are inserted solely for convenience of reference and shall not constitute
a part of this Lease, nor shall they affect its meaning, construction or effect.
31 SERVICES & UTILITIES
The Lessor shall not be held responsible or liable for its inability to
furnish, if any, heat, service and/or use of the passenger and freight elevators
and loading docks, electricity, steam, water, sprinkler system and/or any other
service supplied by Lessor, due to any breakdown or failure of the apparatus
supplying same and/or while undergoing repairs and/or through any rule or order
of any of the properly constituted authorities and/or through any other cause of
whatsoever nature. Lessee acknowledges that it has inspected the Demised
Premises and the utility and other services provided thereto and accepts the
same "AS IS."
32 OPTION TO RENEW
Provided that (a) at the time of exercise and at all times prior to the
commencement of this option Lessee shall not be in default under any of the
provisions of this Lease, and b) Lessee has not been TEN (10) DAYS or more days
late in the payment of rent more than a total of THREE (3) times during the
lease term and all preceding extensions, Lessee shall be granted an option to
extend the term hereof for a further period of FIVE (5) YEARS, commencing
SEPTEMBER 1, 2002 and expiring AUGUST 31, 2007, which option shall be
exercisable in the manner and at the time specified below. The minimum annual
rental payable during such extended period shall be as follows: the minimum
annual rental for the lease year from September 1, 2002 to August 31, 2003 shall
be the total of (i) the minimum annual rental payable for the lease year from
September 1, 1997 to August 31, 1998, plus (ii) an amount computed by
multiplying such annual rental by the percentage increase of the Consumer Price
Index, as defined in Xxxxxxxxx 0x of this Lease, for June, 2002 over the same
index for June 1997; and the minimum annual rental for each lease year during
the period from September 1, 2003 to August 31, 2007, shall be the total of i)
the minimum annual rental payable for each preceding lease year, plus ii) an
amount computed by multiplying such annual rental by the smaller of (A) 0.05
(5.00%), or (B) the percentage increase of the Consumer Price Index for the
month which is three (3) months prior to the commencement date of the then
current lease year over the same index for the month which is three (3) months
prior to the commencement date of the preceding lease year. The aforesaid
percentage increases shall be determined by first obtaining the difference, if
any, between the more recent and earlier indices and then dividing such
difference by the earlier index. Such rental shall be payable in equal monthly
installments. In no event shall the minimum annual rental for any lease year
during the above mentioned period be less than the total minimum annual rental
payable for the preceding lease year. In the event the Consumer Price Index is
discontinued, it is agreed that the index taking its place shall be used.
Lessee shall exercise said option by giving Lanard & Axilbund, Inc.,
Agent for Lessor, written notice of its intention to do so by registered or
certified mail, return receipt requested, on or before March 1, 2002.
Anything contained in this Lease to the contrary notwithstanding, in
the event Lessee shall not exercise the option herein granted, this Lease shall
terminate absolutely and without further notice from either party on the
expiration date of the original term, namely, August 31, 2002, subject however,
to the provisions of Paragraph 24 of this Lease, and except that in the event
Lessee shall occupy the demised premises for any period of time after the
expiration date of the
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original term without the consent of Lessor, then, at the option of Lessor,
exercisable by written notice within THIRTY {30) DAYS after the expiration date
of the original term, Lessee shall be deemed to have exercised this option by
its holdover and shall be bound by the terms and conditions of the option set
forth herein.
If the option herein granted is exercised or deemed to have been
exercised by Lessee's holdover as provided above, or if not exercised and the
parties hereto enter into an extension or renewal of this Lease Agreement,
Paragraph 24 shall become effective as of the first day of the renewal or
extension period, but not before. The said option may be exercised to extend the
term hereof one (1) time only. Except as expressly provided in this clause, upon
the exercise of the option herein granted all of the terms and provisions of
this Lease shall apply during the extended term.
33 SECURITY DEPOSIT
Upon the execution of the Lease, Lessee shall pay to Lanard & Axilbund,
Inc., Agent for Lessor ("Agent"), the sum of SIX THOUSAND TWO HUNDRED THIRTY
DOLLARS ($6,230.00), which sum shall be held by Agent as collateral security for
Lessee's faithful performance hereunder, receipt of which is hereby acknowledged
by Agent.
In the event Lessor should allege that Lessee is in default hereunder,
the security deposit and accrued interest shall be forthwith applicable on
account of sums which may be due Lessor by reason of such default and Agent,
without liability therefor, shall, upon written demand of Lessor setting forth
the basis of default, disburse to Lessor such amounts as Lessor requests, and
Lessor agrees to hold harmless, indemnify and defend Agent on account of such
disbursements. Such application of the security deposit shall be in addition to
all other rights and remedies accruing to Lessor hereunder. At the termination
of Lessee's tenancy and upon surrender of the demised premises as provided for
in the Lease, the unapplied balance of the security deposit, if any, shall be
returned to Lessee.
Agent shall place said security deposit in an interest bearing escrow
savings account, and Lessee, provided Lessee shall not be in default hereunder,
shall be entitled to the interest earned thereon at the termination of said
Lease. Agent shall be entitled to reasonable legal costs incurred as a result of
any lawsuit arising out of this section, said cost to be borne by the
non-prevailing party. If Lessee shall be in default, Lessee agrees that the
interest earned on said security deposit shall be applicable to any rent or
additional rent due under the Lease.
The party who, as provided above, is entitled at the termination of
this Lease to receive the interest on the security deposit not previously
applied on account of Lessee's default, is hereinafter referred to as the
"Interest Beneficiary". The Interest Beneficiary agrees, promptly upon request
from Agent, to provide its Tax I.D./Social Security number to Agent and to
execute a U.S. Government Form W-9. Agent shall have no obligation to place the
security deposit in a banking institution pending Interest Beneficiary's
compliance with the foregoing. However, at its election, escrowee may, until
such times as the Interest Beneficiary complies with the foregoing, place the
security deposit in a bank account of Agent's name and tax I.D. number, and any
interest accruing during such period shall be the sole property of Agent, who
shall also be responsible for payment of income taxes due thereon.
In the event of the sale or transfer of Lessor's interest in the
building, Lessor shall have the right to transfer the security deposit to such
purchaser or transferee, in which event Lessee shall look only to the new lessor
for the return of the security deposit, and Lessor shall thereupon be
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released from all liability to Lessee for the return of such security deposit.
It is understood that no part of the security deposit is to be considered as the
last rental due under the terms of the Lease.
34 LESSEE'S INSURANCE
Lessee hereby covenants and agrees, at its own cost and expense, to
take out and maintain in full force and effect at all times until the expiration
or earlier termination of the Lease, a comprehensive liability insurance policy
in the sum of Two Million Dollars ($2,000,000.00) aggregate insuring against
loss of life and bodily injury and Five Hundred Thousand Dollars ($500,000.00),
or such other limit as Lessor may from time to time specify, on an "occurrence"
basis, insuring against property damage in, on, about, or adjacent to the
demised premises, as well as business interruption insurance in an amount
comparable to that carried by other businesses of comparable size to Lessee's
business, and insurance covering loss and damage to Lessee's personal property,
contents, improvements and betterments in, on or about the demised premises, in
an amount equal to the full replacement value thereof. Such policy or policies
shall name Lessor and Agent as named insureds, without cross suits exclusion,
(except for Lessee's contents coverage), shall be non-cancelable without thirty
(30) days prior written notice to Lessor without exculpation of the insurer in
the event it fails to give such notice, and shall be satisfactory to Lessor in
form and content. Lessee shall deliver such policy or policies, or a certificate
of insurance evidencing same (Accord Form 27 with respect to Property
Insurance), to Lessor prior to Lessee's taking possession of the demised
premises, such delivery being a condition precedent to the commencement of the
Lease. Lessee hereby agrees to indemnify, defend and hold Lessor harmless of and
from any and all claims of whatever nature, including attorney's fees and costs,
arising from, or in connection with, Lessee's use and occupancy of the Property.
In clarification of the requirements set forth above, the coverage
obtained by Lessee shall be written on an "occurrence" basis, if available. If
an "occurrence" basis form is not available, Lessee must purchase "tail"
coverage for the most number of years available, and Lessee must also purchase
"tail" coverage if the retroactive date of an "occurrence" basis form is changed
so as to leave a gap in coverage for occurrences that might have occurred in
prior years. If a "claims made" policy is ever used, the policy must be endorsed
so that Lessor is given the right to purchase "tail" coverage should Lessee for
any reason not do so or if the policy is to be canceled for nonpayment of
premium. Any such payment by Lessor on behalf of Lessee shall be considered
Additional Rent.
35 DEFAULT
It is understood and agreed that twice per any twelve (12) month
period, but not more often, Lessor shall be obligated to give Lessee written
notice of Lessee's failure to pay rent after it shall become due, and FOURTEEN
(14) DAYS opportunity to cure such breach of Lease, prior to Lessee's being
considered in default by reason of the non-payment of rent. Further, twice per
any twelve (12) month period, but not more often, Lessor shall be obligated to
give Lessee written notice of Lessee's failure to do, or refrain from doing, any
act or thing required by Lessee under the Lease or under law (other than the
payment of monies or the covenants undertaken under Paragraphs 9(h), 9(i), 14(c)
and 14(d) hereof), and TWENTY (20) DAYS opportunity to cure such breach of
Lease, or, if same cannot be cured within said TWENTY (20) DAY period, to
commence to cure and proceed therewith diligently and continually prior to
Lessee's being considered in default by reason of such non-payment or
non-performance. Lessee shall have no right to the benefit of the grace periods
hereunder more than two (2) times during any twelve (12) month period.
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36 LEASE TAXES
If federal, state or local law now or hereafter imposes any tax,
assessment, levy, state and local realty transfer tax, or other charge (other
than any income tax) directly or indirectly upon Lessor with respect to this
Lease or the value thereof or upon the Lessee's use or occupancy of the demised
premises, or upon rent, additional rent or any other sums payable under this
Lease or upon this transaction (all of which are herein called "Lease Taxes"),
Lessee shall pay to Lessor, as additional rent and upon demand, the amount of
said Lease Taxes unless Lessee is prohibited by law from paying same, in which
event the minimum rent shall be increased by the amount of said taxes.
37 REPAIRS AND MAINTENANCE
Lessee agrees to accept the demised premises in the physical order and
condition existing on the date of commencement of the term of this Lease and
Lessee shall, except as specified in Sections 39 and 40 below, throughout the
term hereof, at Lessee's sole expense, make all necessary or appropriate
repairs, replacements and renewals, interior and exterior, structural and
non-structural, foreseen and unforeseen, ordinary and extraordinary, required to
keep and maintain the demised premises and all systems, equipment and apparatus
appurtenant thereto, or used in connection therewith, including the loading
docks, dock area and related equipment, in good order and condition, with the
express exception of the roof, exterior support walls, load bearing walls and
buried pipes which shall be the sole responsibility of Lessor, and Lessee shall
return the demised premises to Lessor in such good order and condition at the
expiration of this Lease, ordinary wear and tear not caused by the negligence of
Lessee, or those employed or acting for Lessee, alone excepted. Any repairs,
replacements and renewals and/or labor or materials performed and/or furnished
in, on or about the demised premises shall be performed or furnished in strict
compliance with all applicable laws, regulations, ordinances and requirements of
all duly constituted municipal authorities or other governmental bodies having
jurisdiction, and the requirements of any Board of Fire Underwriters having
jurisdiction. Lessee at its sole cost and expense, shall be responsible for its
snow removal, unless Lessee shall choose to use Lessor's snow removal
contractor, in which case Lessee shall pay forty-three percent (43%) of the cost
of all snow removal for the Property.
38 HVAC MAINTENANCE
Lessee shall be responsible to keep the heating, ventilation and
air-conditioning system presently in the demised premises in good operating
order, and Lessee agrees to take out and maintain in full force and effect,
throughout the term of this Lease and any extension or renewal thereof, a
standard maintenance contract for said HVAC system, providing a minimum of two
(2) inspections per year, at its own cost and expense. Any and all repairs
and/or maintenance requirements for said HVAC system not included as part of the
standard maintenance contract shall be the responsibility of Lessor. If,
however, Lessee installs any additional HVAC equipment in the demised premises,
Lessee shall be solely responsible for the maintenance, repair and replacement
of such additional equipment, which shall be Lessee's property and may be
removed by Lessee at the termination of this Lease, provided that Lessee repairs
all damage incident to the installation and removal of same.
39 ROOF AND STRUCTURAL
Lessor shall be responsible for the condition and continued repair of
all plumbing, drain pipes leaking from the pavement, curb or street to the
demised premises unless damage thereto is caused by Lessee's negligence or
non-permissible use of the demised premises. Lessor shall also be responsible
for the condition and repair of all structural and load bearing walls unless
damage
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thereto is caused by Lessee's negligence or non-permissible use of the demised
premises. The costs of repairs thereto shall be borne by Lessor and shall not
constitute part of operating costs of the Property. Upon receipt of written
notice from Lessee, Lessor agrees, at its expense, to repair, with due
diligence, allowing for delays on account of weather, availability of materials
and labor and force majeure, any leaks in the roof or make any repairs to the
exterior structural portions of the building on the demised premises, provided
such repairs are not made necessary by any act or neglect on the part of Lessee,
its servants, invitees, licensees, agents or contractors. In no event, however,
shall Lessor be liable to Lessee, its servants, invitees, licensees, agents or
contractors for any loss or damage due to, or alleged to be due to, any leaks
from the said roof and/or caused by failure to make repairs to the exterior
structural portions of the demised premises during the term of this Lease or any
renewal thereof.
40 ALTERATIONS AND IMPROVEMENTS
Lessee may, at its own cost and expense, make the following
non-structural alterations and improvements to the demised premises in
connection with Lessee's use thereof, provided such alterations and improvements
shall not adversely affect the structural soundness of the building of which the
demised premises is a part. Lessee's proposed alterations and improvements are
as follows:
a. construct approximately 6,000 to 8,000 sq. ft. of air conditioned,
heated space consisting of offices, a showroom, and an additional bathrooms; and
b. installation of a humidor for storage of its cigars.
All such alterations and improvements shall be in accordance with plans
and specifications to be supplied by Lessee, which plans shall in all instances
first be subject to Lessor's approval, which approval shall not be unreasonably
withheld. Lessee shall provide Lessor with evidence that each contractor has
adequate workers compensation insurance and general liability insurance in the
amount of at least $2,000,000.00 for injury or death to any person or persons in
any one occurrence and property damage to the limit of $100,000.00, together
with a certificate from the insurer, who shall be reasonably satisfactory to
Lessor, to the effect that such insurance may not be canceled or substantially
modified without at least ten (10) days prior written notice to Lessor. Lessee
shall furnish a guaranty by each of Lessee's prime contractors and materialmen,
for the benefit of Lessor, Lessee, and such other parties as Lessor shall
designate, that all work, materials and equipment will be provided in accordance
with the approved plans and specifications, and that they will promptly upon
notice correct and repair, at their own cost and expense, any deficiency,
defect, default or imperfection of materials, equipment or workmanship which
appears within one (1) year after completion of their work or installation.
No work or installation by Lessee at the demised premises shall be done
except after filing a waiver of the right to file any lien therefor (commonly
known as a "Mechanic's Lien") in the local Prothonotary's office or elsewhere as
provided by law, so as to constitute an effective waiver by anyone having a
right to file such lien. If any such mechanic's lien, claim or complaint on a
mechanic's lien is filed, Lessee shall cause it to be discharged or satisfied
within fifteen (15) days of service or upon notice of same, whichever shall be
sooner.
In making any approved alterations and improvements, Lessee shall
comply with any and all laws, statutes, ordinances, rules, regulations and
requirements of the municipal and other duly constituted governmental
authorities and insurance organizations, as well as the Americans with
Disabilities Act of 1990, as it may be amended from time to time.
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Unless Lessor, prior to the expiration of this Lease, gives notice to
Lessee to remove said alterations and improvements, or any portion of same, such
alterations and improvements shall remain upon the demised premises and become
part of the property of Lessor. If Lessee shall be permitted to remove any such
alterations and improvements at the expiration or earlier termination of the
Lease, Lessee shall, at its own expense, repair all damage resulting from such
removal. In the event Lessee shall fail to remove the said alterations and/or
improvements and restore the demised premises as herein provided, Lessor shall
have the right to go upon the demised premises to do so and Lessee agrees to pay
the cost thereof as additional rent. With respect to those alterations and
improvements which Lessor has elected to have remain upon the demised premises,
Lessee agrees that title to same shall vest in Lessor and Lessor agrees that
Lessee shall not be obligated to remove same.
If, as a result of any alteration and/or improvement which may be made
to the demised premises by Lessee either pursuant to this clause or without
authorization from the Lessor, any person and/or property shall be injured
and/or damaged, liability therefor shall be the sole responsibility of the
Lessee, and Lessee hereby agrees to indemnify and hold Lessor harmless of and
from any and all claims of whatever nature arising from, or in connection with,
any such alterations and/or improvements.
41 [INTENTIONALLY OMITTED.]
42 SIGN
Notwithstanding anything elsewhere herein contained to the contrary,
Lessee shall, at Lessee's sole cost and expense, have the privilege of placing
or erecting signs and/or plaques upon the herein demised premises and/or the
building of which it is a part, which signs and/or plaques shall be similar in
size, style, content and location to those of the other tenants and occupants of
the said building. The placing or erecting of such signs and/or plaques shall be
subject to and in compliance with any and all laws, statutes, ordinances, rules,
regulations and requirements of the municipal and other duly constituted
authorities and insurance organizations; provided however, the plans and
specifications therefor shall first be submitted to Lessor for written approval
as to size, character and location, which approval shall not be unreasonably
withheld; and further provided that upon the expiration of the within term or
any sooner determination of the Lease, or any renewal or extension thereof,
Lessee will, at its own cost and expense, remove such signs and/or plaques and
restore the premises as well as the building to its condition prior to the
erection thereof, reasonable wear and tear excepted. Lessee shall defend,
protect and save Lessor harmless of and from any claims for injuries to persons
or damage to property caused by the placing, maintenance, repair or removal of
said signs and/or plaques.
43 SUBLET
Original Lessee only may sublet all of the herein demised premises and
only provided the business of the sublessee shall be no more hazardous than that
of Lessee's present business and shall be consistent, in Lessor's opinion, with
other uses in the facility of which the demised premises is a part, and provided
further that Lessee shall obtain the prior written approval from Lessor, which
approval shall not be unreasonably withheld, but which may properly be withheld
if Lessor, in its sole discretion, deems the reputation of the proposed
sublessee or the nature of its business to be objectionable. Lessee shall not be
relieved of any responsibility or liability under the terms of this Lease by
reason of any subletting. Lessee shall not sublet the demised premises at a
rental higher than that as set forth in this Lease.
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44 LESSOR'S LIABILITY
There shall be no personal liability in respect to any of the covenants
or conditions of this Lease and same shall or may not be imposed upon Lessor, or
any officer, director, shareholder, partner, employee, or agent of Lessor
(hereinafter collectively referred to as "Lessor's Parties" for the purpose of
this Paragraph). Lessee shall look solely to the equity of the Lessor in the
Property for satisfaction of the remedies of Lessee in the event of a breach by
Lessor of any of the covenants or conditions of this Lease, and no other
property or assets of Lessor's Parties shall be subject to levy, execution or
other enforcement procedure for the satisfaction of Lessee's remedies in the
event of a violation by Lessor of any of the above specified provisions.
In case Lessor or any successor owner of the demised premises shall
convey or otherwise dispose of the demised premises or of the interest of Lessor
in and to this Lease, all liabilities and obligations on the part of Lessor, or
successor owner as Lessor, under this Lease accruing after such conveyance or
disposal shall thereafter terminate, and thereupon all such liabilities and
obligations shall be binding upon the new owner of the demised premises.
45 ESTOPPEL CERTIFICATES/FINANCIAL STATEMENTS
Lessee agrees at any time and from time to time, within five (5) days
after Lessor's written request, to execute, acknowledge and deliver to Lessor a
written instrument in recordable form certifying that this Lease Agreement is
unmodified and in full force and effect (or if there have been modifications,
that it is in full force and effect as modified and stating the modifications),
the expiration date and the dates to which rent, additional rent and other
charges have been paid in advance, if any, security deposit, if any, and stating
whether or not to the best knowledge of the signer of such certificate Lessor is
in default in the performance of any covenant, agreement or condition contained
in this Lease Agreement and, if so, specifying each such default of which the
signer may have knowledge, it being intended that any such statement delivered
pursuant to this section may be relied upon by any prospective purchaser of the
fee or any mortgagee thereof or any assignee of Lessor's interest in this Lease
Agreement or of any mortgage upon the fee of the premises, or any part thereof.
Lessee shall provide financial statements of Xxxx'x Cigar Company,
Inc., prepared by independent accountants, to be prepared and submitted to
Lessor in a form reasonably acceptable to Lessor no more than once each year,
within one hundred twenty (120) days after the close of each respective entity's
fiscal year. Lessor shall not, except in connection with the financing or sale
of the demised premises, furnish such reports to a third party. The first
statement due hereunder shall be provided at or before execution of this Lease.
Lessee shall not be required to submit financial statements of Ashton
Distributors, Inc. to Lessor.
46 LATE PAYMENT CHARGE
If Lessee does not pay rent on the day when same shall become due and
payable, and such failure shall continue for a period of ten (10) days, Lessee
shall pay to Lessor a service charge of three (3%) percent of the late payment,
and if not paid by the last day of the month, the late payment shall continue to
incur interest at the rate of one and one-half (1 1/2%) percent per month (or
part thereof) retroactive to the first of the month, (or such lesser charge as
may be the legal maximum for a debtor of the same nature and character as Lessee
in the jurisdiction in which the premises is located) on the amount of such rent
or additional rent or all of them, for each month or a portion of a month that
same shall remain unpaid; provided, however, that such service charge shall, in
no event, be less that Twenty-five Dollars ($25.00) for any month or a portion
of a month that rent or additional rent shall remain unpaid. Such service charge
shall be for the purpose of defraying administrative expenses of Lessor, and is
not intended as a penalty against Lessee. The
-21-
provisions of this paragraph shall not preclude Lessor from exercising its
options as set forth in any other section of this Lease or as provided by law.
47 HAZARDOUS SUBSTANCES
Lessee is on notice and hereby acknowledges the dangers and the
possibility of liens being placed on the Property in the event it places, causes
or allows to be placed on the Property hazardous substances as that term is
defined in Section 101(14) of the Comprehensive Environmental Response
Compensation and Liability Act (the "Act"), 42 U.S.C. Section 9601(14), or any
other governmental or agency act defining such material now or hereafter
promulgated. Lessee agrees to comply with all laws by any local, state or
federal authority or agency regarding the handling, generation, storage, use or
disposal of such hazardous substances, and to take all necessary precautions to
prevent spills of same on or about the Property. As used in this section,
hazardous substances shall also include petroleum and asbestos products and
medical waste. Furthermore, Lessee shall, at its own expense, comply with all
present and future "Environmental Cleanup" laws and the regulations promulgated
by the State of Pennsylvania, the United States Government and its agencies, and
shall make all submissions to, provide all information to, and comply with ail
requirements of, the bureau and agencies of the State of Pennsylvania and the
United States Government and, at Lessor's election, have an independent
inspection and report prepared at Lease termination.
Should such body or other department of the State of Pennsylvania
determine that a cleanup plan be prepared and that a cleanup be undertaken
because of any spills or discharges of hazardous substances or wastes at the
demised premises which occur during the term of this Lease, then Lessee shall,
at its own expense, prepare and submit the required plans and financial
assurances, and carry out the approved plans. At no expense to Lessor, Lessee
shall promptly provide all information requested by Lessor for preparation of
non-applicability affidavits when requested by Lessor. Lessee shall indemnify,
defend and save Lessor harmless from all fines, suits, procedures, claims and
actions of any kind or from any loss (including diminution in value and/or loss
of rents) arising out of or in any way connected with any spills or discharges
of hazardous substances or wastes at the demised premises which occur during the
term of this Lease or from any breach of this Lease; and from ail fines, suits,
procedures, claims and actions of any kind arising out of Lessee's failure to
provide all information, make all submissions and take all actions required by
any agency or department of the State of Pennsylvania or the United States
Government. Lessee's obligations and liabilities under this paragraph shall
continue so long as Lessor remains responsible for any spills or discharges of
hazardous substances or wastes at the demised premises which occur during the
term of this Lease. Lessee's failure to abide by the terms of this paragraph
shall be restrainable by injunction.
48 HOLDOVER
If Lessee shall retain possession of the demised premises or any
portion thereof without Lessor's consent following the expiration of the Lease
or sooner termination for any reason, then Lessee shall pay to Lessor for each
day of such retention triple the amount of the daily rental as of the last month
prior to the date of expiration or termination. Lessee shall also indemnify,
defend. protect and hold Lessor harmless from any loss, liability or cost,
including reasonable attorney's fees, resulting from delay by Lessee in
surrendering the demised premises, including, without limitation, any claims
made by any succeeding Lessee founded on such delay. Acceptance of rent by
Lessor following expiration or termination shall not constitute a renewal of
this Lease, and
-22-
nothing contained in this section shall waive Lessor's right of reentry or any
other right. Unless Lessor consents in writing to Lessee's holding over, Lessee
shall be only a Lessee at sufferance, whether or not Lessor accepts any rent
from Lessee while Lessee is holding over without Lessor's written consent.
Additionally, in the event that upon termination of the Lease Lessee has not
fulfilled its obligation with respect to the repairs and cleanup of the demised
premises or any other Lessee obligations as set forth in this Lease, then Lessor
shall have the right to perform any such obligations as it deems necessary at
Lessee's sole cost and expense, and any time required by Lessor to complete such
obligations shall be considered a period of holding over and the terms of this
section shall apply.
49 RECOVERY FUND, ETC.
As required by the Pennsylvania Real Estate Licensing and Registration
Act, Lessee and Lessor acknowledge notice of the following: (a) The Pennsylvania
legislature has established a real estate recovery fund whose purpose is to
compensate persons who obtain a judgement because of fraud, misrepresentation or
deceit of any agent. For further information call (000) 000-0000; (b) Agent's
fee and the expiration date of a listing agreement, if any, are negotiable, and
(c) the broker is the agent of the Lessor, not the Lessee.
50 APPROVAL
This lease is subject to the approval of Lessor, to be obtained within
five (5) days of the date of execution by Lessee. If Lessor's approval is not
obtained as provided above, any monies paid by Lessee shall be returned to
Lessee.
Pending lease approval, Lanard & Axilbund, Inc., acting as agent for
Lessor, may deposit any such monies in its Escrow Account; however, such
depositing shall not constitute an approval of this lease by Lessor.
51 QUIET ENJOYMENT
Upon payment by Tenant of minimum rent and all additional rent and upon
the observance and performance by Lessee of all the terms, covenants,
conditions, provisions and agreements of this Lease on Lessee's part to be
observed and performed, Lessee shall peaceably and quietly hold and enjoy the
demised premises for the term of this Lease without hindrance or interruption by
Lessor or by any person or persons lawfully claiming or holding by, through or
under Lessor, subject, nevertheless, to the terms, covenants, conditions and
provisions of the Lease.
52 ALLOWANCE FOR TENANT IMPROVEMENTS
Lessor shall provide Lessee with an allowance for the alterations and
improvements to be constructed in the demised premises by Lessee in a total
amount up to the lesser of (i) twenty percent (20%) of the amount actually
expended by lessee for alterations and improvements in the demised premises from
the Commencement Date through August 31, 1997, or (ii) Forty-Five Thousand
Dollars ($45,000.00). As soon as practicable following August 31, 1997, Lessee
shall submit to Lessor, as documentation supporting the amount of the allowance
to be given under this Section, an itemized written statement detailing the
improvements and alterations constructed by Lessee in the demised premises and
the amount expended by Lessee for each item, together with copies of receipted
invoices for each item. The allowance shall be paid by means of a monthly credit
against base rent so long as Lessee continues to perform all of its obligations
under this Lease, such monthly credit to be equal to the total permitted
allowance divided by 120. In the event Lessee does not exercise its option to
renew this Lease for an additional five (5) years beyond
-23-
the initial term in accordance with Section 32 of this Lease, Lessee shall not
be entitled to and shall have no claim against Lessor for the remaining portion
of the allowance that was not paid as a monthly credit against base rent during
the initial term, and Lessor shall retain such remaining amount.
53 RIGHT OF FIRST OFFER
Lessor agrees that if, during the term of this Lease, Lessor desires to
voluntarily lease any space in the building on the Property, Lessor shall notify
Lessee of the lease rental rate, term of lease and other terms and conditions
upon which Lessor is willing to lease the space to Lessee. Lessee shall have a
period of ten (10) business days to notify Lessor whether or not it will lease
the space upon the stated terms and conditions. If Lessee agrees to lease the
space upon the stated terms and conditions, Lessor and Lessee shall negotiate in
good faith the lease based upon the previously stated terms and conditions, and
shall attempt to conclude and execute a lease within forty-five (45) calendar
days of Lessee's notice agreeing to lease the space. If, despite the good faith
efforts of Lessor and Lessee, no lease for the space is signed within such
forty-five (45) calendar day period, then Lessor shall have the right to market
the space to outside parties and Lessee shall have no further right of first
offer or other preferential right with regard to that particular space. If
Lessee, upon receiving Lessor's terms and conditions for leasing the space on
the stated terms, fails to respond to Lessor within ten (10) business days or
refuses to lease the space on the stated terms, then Lessor shall have the right
to market the space to outside parties, free of any rights of Lessee with
respect to such space. Lessee shall, within five (5) days of any request by
Lessor, provide Lessor with a written certificate specifying that Lessor has
informed Lessee of the availability of certain space (and specifying the space),
whether or not Lessee wished to lease the space, what the terms and conditions
of the proposed lease were, whether Lessee agreed to lease the space and any and
all other information reasonably requested by Lessor.
54 JOINT AND SEVERAL LIABILITY
Xxxx'x Cigar Company, Inc. and Ashton Distributing, Inc. together
constitute "Lessee" under this Lease Agreement, and each of them shall be
jointly and severally liable for all payment and performance obligations of
Lessee under this Lease Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Lease the day
and year first above written, and intend to be legally bound thereby.
LESSOR: P. D'XXXXXX, INC.
By: /s/ Xxxxx D'Xxxxxx
-----------------------------------
President
Attest: /s/ Xxxxxxxxx [ILLEGIBLE]
-------------------------------
Secretary
(corporate seal)
(Signatures continued on next page)
-24-
(Signatures continued from previous page)
The undersigned, having examined the above Lease and agreements, hereby
agrees to accept them and approves of them in their entirety.
LESSEE: XXXX'X CIGAR COMPANY, INC.
By: /s/ [ILLEGIBLE]
-------------------------------------
President
Attest: /s/ [ILLEGIBLE]
----------------------------------
Secretary
(corporate seal)
ASHTON DISTRIBUTORS, INC.
By: /s/ [ILLEGIBLE]
-------------------------------------
President
Attest: /s/ [ILLEGIBLE]
----------------------------------
Secretary
(corporate seal)
AGENT: LANARD & AXILBUND, INC.
By: /s/ [ILLEGIBLE]
-------------------------------------
-25-
EXHIBIT "A"
Description of Demised Premises
-26-
This page shows a floor plan of premises
EXHIBIT "A"
EXHIBIT B
1. Internal Humidor. A humidor room similar in nature to a commercial cooler
will be constructed encompassing approximately 5,000 square feet. The room will
be super insulated and the humidity and temperature will be precisely controlled
to maintain the proper environment for the long and short term storage of
cigars.
Neither the room itself nor the humidification or temperature control
equipment will xxxxxx the outside walls or roof of the building, will be
contained within the existing structure and will be accessible only from within
the demised premises.
2. Humidification Equipment. Humidification equipment designed to keep a 5,000
square foot humidor with the proper humidity for the long and short term
storage of cigars
3. Temperature Control Equipment. Heat/air conditioning equipment designed to
work in conjunction with the humidification equipment for 5,000 square foot
humidor and to keep said room at the proper temperature for the short and long
term storage of cigars.
Form W-9
(Rev. April 1990)
Department of the Treasury
Internal Revenue Service
--------------------------------------------------------------------------------
Request for Taxpayer
Identification Number and Certification
--------------------------------------------------------------------------------
Give this form
to the requester. Do
NOT sent to IRS.
--------------------------------------------------------------------------------
Please print or type
--------------------------------------------------------------------------------
Name (If joint names, list first and circle the name of the person or entity
whose number you enter in Part 1 below. See instructions under "Name" if your
name has changed.)
Xxxx'x Cigar Co., Inc.
--------------------------------------------------------------------------------
Address (number and street)
0000 Xxxxx Xxxxxx
--------------------------------------------------------------------------------
City, state, and ZIP code
Xxxxx., XX 00000
--------------------------------------------------------------------------------
Part I Taxpayer Identification Number (TIN)
--------------------------------------------------------------------------------
Enter your taxpayer identification number in
the appropriate box. For indiduals and sole
proprietors, this is your social security number.
For other entities, it is your employer
identification number. If you do not have a
number, see How To Obtain a TIN, below.
Note: If the account is in more than one name,
see the chart on page 2 for guidelines on whose
number to enter.
Social security number
|_|_|_|-|_|_|-|_|_|_|_|
or
Employer identification number
|_|_|-|_|_|_|_|_|_|_|
--------------------------------------------------------------------------------
----------------------------------------
List account number(s)
here (optional)
----------------------------------------
Part II For Payees Exempt From
Backup Withholding (See
instructions)
----------------------------------------
----------------------------------------
Requester's name and address (optional)
----------------------------------------
--------------------------------------------------------------------------------
Certification.--Under penalties of perjury, I certify that:
(1) The number shown on this form is my correct taxpayer identification number
(or I am waiting for a number to be issued to me), and
(2) I am not subject to backup withholding because: (a) I am exempt from backup
withholding, or (b) I have not been notified by the Internal Revenue
Service (IRS) that I am subject to backup withholding as a result of a
failure to report all interest or dividends, or (c) the IRS has notified me
that I am no longer subject to backup withholding.
Certification Instructions.--You must cross out item (2) above if you have been
notified by IRS that you are currently subject to backup withholding because of
underreporting interest or dividends on your tax return. For real estate
transactions, item (2) does not apply. For mortgage interest paid, the
acquisition or abandonment of secured property, contributions to an individual
retirement arrangement (XXX), and generally payments other than interest and
dividends, you are not required to sign the Certification, but you must provide
your correct TIN. (Also see Signing the Certification under Specific
Instructions, on page 2.)
--------------------------------------------------------------------------------
Please
Sign
Here Signature xxxx, CFO Date 3/4/97
--------------------------------------------------------------------------------
Instructions
(Section references are to the Internal Revenue Code.)
Purpose of Form.--A person who is required to file an information return with
IRS must obtain your correct taxpayer identification number (TIN) to report
income paid to you, real estate transactions, mortgage interest you paid, the
acquisition or abandonment of secured property, or contributions you made to an
individual retirement arrangement (XXX). Use Form W-9 to furnish your correct
TIN to the requester (the person asking you to furnish your TIN), and, when
applicable, (1) to certify that the TIN you are furnishing is correct (or that
you are waiting for a number to be issued). (2) to certify that you are not
subject to backup withholding, and (3) to claim exemption from backup
withholding if you are an exempt payee. Furnishing your correct TIN and making
the appropriate certifications will prevent certain payments from being subject
to the 20% backup withholding.
Note: If a requester give you a form other than a W-9 to request your TIN, you
must use the requester's form.
How To Obtain a TIN.--If you do not have a TIN, apply for one immediately. To
apply, get Form SS-5, Application for a Social Security Number Card (for
individuals), from your local office of the Social Security Administration, or
Form SS-4, Application for Employer Identification Number (for businesses and
all other entities), from your local Internal Revenue Service office.
To complete Form W-9 if you do not have a TIN, write "Applied For" in the
space for the TIN in Part I, sign and date the form, and give it to the
requester. Generally, you will then have 60 days to obtain a TIN and furnish it
to the requester. If the requester does not receive your TIN within 60 days,
backup withholding, if applicable, will begin and continue until you furnish
your TIN to the requester. For reportable interest or dividend payments, the
payer must exercise one of the following options concerning backup withholding
during this 60-day period. Under option (1), a payer must backup withhold on any
withdrawals you make from your account after 7 business days after the requester
receives this form back from you. Under option (2), the payer must backup
withold on any reportable interest or dividend payments made to your account,
regardless of whether you make any withdrawals. The backup withholding under
option (2) must begin no later than 7 business days after the requester receives
this form back. Under option (2), the payer is required to refund the amounts
withheld if your certified TIN is received within the 60-day period and you were
not subject to backup withholding during that period.
Note: Writing "Applied For" on the form means that you have already applied for
a TIN OR that you intend to apply for one in the near future.
As soon as you receive your TIN, complete another Form W-9, include your
TIN, sign and date the form, and give it to the requester.
What Is Backup Withholding?--Persons making certain payments to you are
required to withhold and pay to IRS 20% of such payments under certain
conditions. This is called "backup withholding." Payments that could be subject
to backup withholding include interest, dividends, broker and barter exchange
transactions, rents, royalties, nonemployee compensation, and certain payments
from fishing boat operators, but do not include real estate transactions.
If you give the requester your correct TIN, make the appropriate
certifications, and report all your taxable interest and dividends on your tax
return, your payments will not be subject to backup withholding. Payments you
receive will be subject to backup withholding if:
(1) You do not furnish your TIN to the requester, or
(2) IRS notifies the requester that you furnished an incorrect TIN, OR
(3) You are notified by IRS that you are subject to backup withholding
because you failed to report all your interest and dividends on your
tax return (for reportable interest and dividends only), or
(4) You fail to certify to the requester that you are not subject to
backup withholding under (3) above (for reportable interest and
dividend accounts opened after 1983 only), or
(5) You fail to certify your TIN. This applies only to reportable
interest, dividend, broker, or barter exchange accounts opened after
1983, or broker accounts considered inactive in 1983.
Except as explained in (5) above, other reportable payments are subject to
backup withholding only if (1) or (2) above applies.
Certain payees and payments are exempt from backup withholding and
information reporting. See Payees and Payments Exempt From Backup Withholding,
below, and Exempt Payees and Payments under Specific instructions, on page 2, if
you are an exempt payee.
Payees and Payments Exempt From Backup Withholding.--The following is a list of
payees exempt from backup withholding and for which no information reporting is
required. For interest and dividends, all listed payees are exempt except item
(9). For broker transactions, payees listed in (1) through (13) and a person
registered under the Investment Advisers Act of 1940 who regularly acts as a
broker are exempt. Payments subject to reporting under sections 6041 and 6041A
are generally exempt from backup withholding only if made to payees described in
items (1) through (7), except that a corporation that provides medical and
health care services or bills and collects payments for such services is
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Form W-9. (Rev. 4-90)
