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EXHIBIT 10.59
This Agreement between XXXXXXX XXXXXXX and XXXXXX X. XXXXXXX, 000 Xxxx
Xxxx Xxxxxx, Xxx Xxxxx, Xxx Xxxx 00000 as Landlord and SUNGOLD ENTERPRISES
LIMITED, 0000 Xxx Xxxxxxx, Xxxxxxxxxxx, Xxx Xxxx 00000 as Tenant.
Witnesseth: The Landlord hereby leases to the Tenant the following
premises: 0000 Xxx Xxxxxxx, Xxxxxxxxxxx, Xxx Xxxx 00000 (one part of a duplex
industrial building of approximately 14,080 square feet, as presently occupied)
and 0000 Xxx Xxxxxxx Xxxxxxxxxxx, Xxx Xxxx 00000 (the other part of a duplex
industrial building of approximately 12,080 square feet) for the term of FIVE
(5) YEARS to commence from the 1st day of December 1996 and to end on the 30th
day of November 2001 to used and occupied only for office, interior storage,
assembly, light manufacturing and the sale of sunglasses both wholesale and
retail upon the conditions and covenants following:
1st. That the Tenant shall pay the annual rent of One-Hundred Eighty
Three Thousand One Hundred Twenty ($183,120,000) Dollars for the first year;
One Hundred Eighty Eight Thousand Six Hundred Thirteen ($188,613.00) Dollars
for the second year; One Hundred Ninety Four Thousand and Two Hundred Seventy
Two ($194,272.00) Dollars for the third year; One Hundred Ninety Nine Thousand
Nine Hundred Thirty ($199,930.00) Dollars for the fourth year and Two Hundred
Five Thousand Eight Hundred Fifty Eight ($205,858.00) Dollars for the fifth
year said rent to be paid in equal monthly payments in advance on the 1st day
of each and every month during the term aforesaid, as follows: December 1,
1996, to and including November 1, 1997, Fifteen Thousand Two Hundred Sixty
($15,260.00) Dollars; December 1, 1997 to and including November 1, 1998,
Fifteen Thousand Seven Hundred Seventeen and 75/100 ($15,717.75) Dollars;
December 1, 1998 up to and including November 1, 1999, Sixteen Thousand One
Hundred Eighty Nine and 33/100 ($16,189.33) Dollars; December 1, 1999 to and
including November 1, 2000, Sixteen Thousand Six Hundred Eight and 33/100
($16,608.33) Dollars; and December 1, 2000 to and including November 1, 2001,
Seventeen Thousand One Hundred Fifty Four and 83/100 ($17,154.83) Dollars
2nd. That the Tenant shall take good care of the premises and shall, at
the Tenant's own cost and expense make all repairs EXCEPT AS MODIFIED BY
PARAGRAPH 43rd HEREOF and at the end or other expiration of the term, shall
deliver up the demised premises in good order or condition, damages by the
elements excepted.
3rd. That the Tenant shall promptly execute and comply with all
statutes, ordinances, rules, orders, regulations and requirements of the
Federal, State and Local Governments and of any and all their Departments and
Bureaus applicable to said premises during said term; and shall also promptly
comply with and execute all rules, orders and regulations of the New York Board
of Fire Underwriters, or any other similar body, at the Tenant's own cost and
expense.
4th. That the Tenant, successors, heirs, executors or administrators
shall not assign this agreement, or underlet or underlease the premises, or any
part thereof, or make any alterations on the premises, without the Landlord's
consent in writing; or occupy, or permit or suffer the same to be occupied by
any business or purpose deemed disreputable or extra-hazardous on account of
fire, under the penalty of damages and forfeiture, and in the event of a breach
thereof, the term herein shall immediately cease and determine at the option of
the Landlord as if it were the expiration of the original term. *WHICH CONSENT
SHALL NOT BE UNREASONABLY WITHHELD.
5th. Tenant must give Landlord prompt notice of file, accident, damage or
dangerous or defective condition. If the Premises can not be used because of
fire or other casualty, Tenant is not required to pay rent for the time the
Premises are unusable. If part of the Premises can not be used, Tenant must pay
rent for the usable part. Landlord shall have the right to decide which part of
the Premises is usable. Landlord need only repair the damaged structural parts
of the Premises. Landlord is not required to repair or replace any equipment,
fixtures, furnishings or decorations unless originally installed by Landlord.
Landlord is not responsible for delays due to settling insurance claims,
obtaining estimates, labor and supply problems or any other cause not fully
under Landlord's control.
If the fire or other casualty is caused by an act or neglect of Tenant,
Tenant's employees or invitees, or at the time of the fire or casualty Tenant is
in default in any term of this Lease, then all repairs will be made at Tenant's
expense and Tenant must pay the full rent with no adjustment. The cost of the
repairs will be added rent.
Landlord has the right to demolish or rebuild the Building if there is
substantial damage by fire or other casualty. Landlord may cancel this Lease
within 30 days after the substantial fire or casualty by giving Tenant notice of
Landlord's intention to demolish or rebuild. The Lease will end 30 days after
Landlord's cancellation notice to Tenant. Tenant must deliver the Premises to
Landlord on or before the cancellation date in the notice and pay all rent due
to the date of the fire or casualty. If the Lease is cancelled Landlord is not
required to repair the Premises or Building. The cancellation does not release
Tenant of liability in connection with the fire or casualty. This is intended
to replace the terms of New York Real Property Law Section 227. EXCEPT AS
MODIFIED BY PARAGRAPH 46th HEREOF.
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6TH. The said Tenant agrees that the said Landlord and the Landlord's agents
and other representatives shall have the right to enter into and upon said
premises, or any part thereof, at all reasonable hours for the purpose of
examining the same of making such repairs or alterations therein as may be
necessary for the safety and preservation thereof.
7TH. The tenant also agrees to permit the Landlord or the Landlord's agent to
show the premises to persons wishing to hire or purchase the same; and the
Tenant further agrees that on and after the sixth month, next preceding the
expiration of the term hereby granted, the Landlord or the Landlord's agents
shall have the right to place notices on the front of said premises, or any
part thereof, offering the premises "To Let" or "For Sale", and the Tenant
hereby agrees to permit the same to remain thereon without hindrance or
molestation.
8TH. That if the said premises, or any part thereof shall be deserted or become
vacant during said term, or if any default be made in the payment of the said
rent or any part thereof, or if any default be made in the performance of any
of the covenants herein contained, the Landlord or representatives may re-enter
the said premises by force, summary proceedings or otherwise, and remove all
persons therefrom, without being liable to prosecution therefor, and the tenant
hereby expresses, waves the service of any notice in writing of intention to
re-enter, and the Tenant shall pay at the same time as the rent becomes payable
under the terms hereof a sum equivalent to the rent reserved herein, and the
Landlord may rent the premises on behalf of the Tenant, reserving the right to
rent the premises for a longer period of time than fixed in the original lease
without releasing the original Tenant from any liability, applying any moneys
collected, first to the expense of resuming by obtaining possession, second to
restoring the premises to a rentable condition, and then to the payment of the
rent and are other charges due and to grow due to the Landlord, any surplus to
be paid to the Tenant, who shall remain liable for and deficiency.
9TH. Landlord may replace, at the expense of Tenant, any and all broken glass
in and about the demised premises. Landlord may insure, and keep insured, all
plate glass in the demised premises for and in the name of Landlord, Bills, for
the premium therefor shall be rendered by Landlord to Tenant at such times as
Landlord may elect, and shall be due from, and payable by Tenant when rendered,
and the amount thereof shall be deemed to be, and be paid as, additional
rental. Damage and injury in said premises, caused by the carelessness,
negligence or improper conduct on the part of the said Tenant or the Tenant
agents or employees shall be repaired as speedily as possible by the Tenant at
the Tenant's own cost and expense.
10TH. That the Tenant shall neither encumber nor obstruct the sidewalk in front
of, entrance to, or halls and stairs of said premises, nor allow the same to be
obstructed or encumbered in any manner.
11TH. The Tenant shall neither place, or cause or allow to be placed, any sign
or signs of any kind whatsoever at, in or about the entrance to said premises
or any other part of same, except in or at such place or places as may be
indicated by the Landlord and consented to by the Landlord in writing. And in
case the Landlord's representatives shall deem it necessary to remove any such
sign or signs in order to paint the said premises or the building wherein same
is situated or make any other repairs, alterations or improvements in or upon
said premises or building or any part thereof, the Landlord shall have the
right to do so, providing the same be removed and replaced at the Landlord's
expense, whenever the said repairs, alterations or improvements shall be
completed.
12TH. That the Landlord is exempt from any and all liability for any damage or
injury to person or properly caused by or resulting from steam, electricity,
gas, water, rain, ice or snow, or any leak or flow from or into any part of
said building or from any damage or injury resulting or arising from any other
cause or happening whatsoever unless said damage or injury be caused by or be
due to the negligence of the Landlord.
13TH. That if default be made in any of the covenants herein contained, then it
shall be lawful for the said Landlord to re-enter the said premises, and the
same to have again, re-possess and enjoy. The said Tenant hereby expressly
waives the services of any notice in writing of intention to re-enter.
14TH. That this instrument shall not be a lien against said premises in respect
to any mortgages that are now on or that here after may be placed against said
premises, and that the recording of such mortgage or mortgages shall have
preference and precedence and be superior and prior in lien of this lease,
irrespective of the date of recording and the Tenant agrees to execute without
cost, any such instrument which may be deemed necessary or desirable to further
effect the subordination of the lease to any such mortgage or mortgages, and a
refusal to execute such instrument shall entitle the Landlord, or the
Landlord's assigns and legal representatives to the option of cancelling this
lease without incurring any expense or damage and the term hereby granted is
expressly limited accordingly.
15TH. The Tenant has this day deposited with the Landlord the sum of $15,260.00
as security for the full and faithful performance by the Tenant of all the
terms, covenants and conditions of this lease upon the Tenant's part to be
performed which said sum shall be returned to the Tenant after the time fixed
as the expiration of the term herein, provided the Tenant has fully and
faithfully carried out all of said terms, covenants and conditions on Tenant's
part to be performed. In the event of a bona fide sale, subject to this lease,
the Landlord shall have the right to transfer the security to the vendee for
the benefit of the Tenant and the Landlord shall be considered released by the
Tenant from all liability for the return of such security; and the Tenant
agrees to look to the new Landlord solely for the return of the said security,
and it is agreed that this shall apply to every transfer or assignment made of
the security to a new Landlord. *WHICH SECURITY SHALL BE DEPOSITED IN AN
INTEREST BEARING ACCOUNT FOR THE BENEFIT OF THE TENANT.
16TH. That the security deposited under this lease shall not be mortgaged,
assigned or encumbered by the Tenant without the written consent of the
Landlord.
17TH. It is expressly understood and agreed that in case the demised premises
shall be deserted or vacated, or if default be made in the payment of the rent
or any part thereof as herein specified, or if, without the consent of the
Landlord, the Tenant shall sell, assign, or mortgage this lease or if default
be made in the performance of any of the covenants and agreements in this lease
contained on the part of the Tenant to be kept and performed, or if the Tenant
shall fail to comply with any of the statutes, ordinances, rules, orders,
regulations and requirements of the Federal, State and Local Governments or of
any and all their Departments and Bureaus, applicable to said premises, or if
the Tenant shall file or there be filed against Tenant petition in bankruptcy
or arrangement, or Tenant be adjudicated a bankrupt or make an assignment for
the benefit of creditors or take advantage of any insolvency act, the Landlord
may, if the Landlord so elects, at any time thereafter terminate the lease and
the term hereof, on giving to the Tenant five days' notice in writing of the
Landlord's intention so to do, and then lease and the term hereof shall expire
and come to an end on the date fixed in such notice as if the said date were
the date originally fixed in this lease for the expiration hereof. Such notice
may be given by mail to the Tenant addressed to the demised premises.
18TH. Tenant shall pay to Landlord the rent or charge, which may, during the
demised term, be assessed or imposed for the water used or consumed in or on
the said premises, whether determined by meter or otherwise, as soon as and
when the same may be assessed or imposed, and will also pay the expenses for
the setting of a water meter in the said premises should the latter be
required. Tenant shall pay Tenant's proportionate part of the sewer rent or
charge imposed upon the building. And such rents or charges or expenses shall
be paid as additional rent and shall be added to the next month's rent
thereafter to become due.
19TH. That the Tenant will not nor will the Tenant permit undertenants or other
persons to do anything in said premises, or bring anything into said premises,
or permit anything to be brought into said premises or to be kept therein,
which will in any way increase the rate of fire insurance on said demised
premises, nor use the demised premises or any part thereof, nor suffer or
permit their use for any business or purpose which would cause an increase in
the rate of fire insurance on said building, and the Tenant agrees to pay on
demand any such increase.
20TH. The failure of the Landlord to insist upon a strict performance of any of
the terms, conditions and covenants herein, shall not be deemed a waiver of any
rights or remedies that the Landlord may have, and shall not be deemed a
waiver of any subsequent breach or default in the terms, conditions and
covenants herein contained. This instrument may not be changed, modified,
discharged or terminated orally.
21ST. If the whole or any part of the demised premises shall be acquired or
condemned by Eminent Domain for any public or quasi public use or purpose, then
and in that event, the term of this lease shall cease and terminate from the
date of title vesting in such proceeding and Tenant shall have no claim against
Landlord for the value of any unexpired term of said lease. No part of any
award shall belong to the Tenant.
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22ND. If after default in payment of rent or violation of any other provision
of this lease, or upon the expiration of this lease, the Tenant moves out or is
dispossessed and fails to remove any trade fixtures or other property prior to
such said default, removal, expiration of lease, or prior to the issuance of the
final order or execution of the warrant, then and in that event, the said
fixtures and property shall be deemed abandoned by the said Tenant and shall
become the property of the Landlord.
23RD. In the event that the relation of the Landlord and Tenant may cease or
terminate by reason of the re-entry of the Landlord under the terms and
covenants contained in this lease or by the ejectment of the Tenant by summary
proceedings or otherwise, or after the abandonment of the premises by the
Tenant, it is hereby agreed that the tenant shall remain liable and shall pay in
monthly payments the rent which accrues subsequent to the re-entry by the
Landlord, and the Tenant expressly agrees to pay as damages for the breach of
the covenants herein contained, the difference between the rent reserved and the
rent collected and received, if any, by the Landlord during the remainder of the
unexpired term such difference or deficiency between the rent herein reserved
and the rent collected if any, shall become due and payable in monthly payments
during the remainder of the unexpired term, as the amounts of such difference or
deficiency shall from time to time be ascertained; and it is mutually agreed
between Landlord and Tenant that the respective parties hereto shall and hereby
do waive trial by jury in any action, proceeding or counterclaim brought by
either of the parties against the other on any matters whatsoever arising out of
or in any way connected with this lease, the tenant's use or occupancy of said
premises, and/or any claim of injury or damage.
24TH. The Tenant waives all rights to redeem under any law of the State of New
York.
25TH. This lease and the obligation of Tenant to pay rent hereunder and perform
all of the other covenants and agreements hereunder on part of Tenant to be
performed shall in nowise be affected, impaired or excused because Landlord is
unable to supply or is delayed in supplying any service expressly or impliedly
to be supplied or is unable to make, or is delayed in making any repairs,
additions, alterations or decorations or is unable to supply or is delayed in
supplying any equipment or fixtures if Landlord is prevented or delayed from so
doing by reason of governmental preemption in connection with a National
Emergency or in connection with any rule, order or regulation of any department
or subdivision thereof of any governmental agency or by reason of the condition
of supply and demand which have been or are affected by war or other emergency.
26TH. No diminution or abatement of rent, or other compensation, shall be
claimed or allowed for inconvenience or discomfort arising from the making of
repairs or improvements to the building or to its appliances, nor for any space
taken to comply with any law, ordinance or order of a governmental authority. In
respect to the various "services," if any, herein expressly or impliedly agreed
to be furnished by the Landlord to the Tenant, it is agreed that there shall be
no diminution or abatement of the rent, or any other compensation, for
interruption or curtailment of such "service" when such interruption or
curtailment shall be due to accident, alterations or repairs desirable or
necessary to be made or to inability or difficulty in securing supplies for
labor for the maintenance of such "service" or to some other cause, not gross
negligence on the part of the Landlord. No such interruption or curtailment of
any such "service" shall be deemed a constructive eviction. The Landlord shall
not be required to furnish, and the Tenant shall not be entitled to receive, any
of such "services" during any period wherein the Tenant shall be in default in
respect to the payment of rent. Neither shall there be any abatement or
diminution of rent because of making of repairs, improvements or decorations to
the demised premises after the date above fixed for the commencement of the term
it being understood that rent shall, in any event, commence to run at such date
so above fixed. EXCEPT AS MODIFIED BY PARAGRAPHS 5th and 46th HEREOF.
27TH. Landlord shall not be liable for failure to give possession of the
premises upon commencement date by reason of the fact that premises are not
ready for occupancy or because a prior Tenant or any other person is wrongfully
holding over or is in wrongful possession, or for any other reason. The rent
shall not commence until possession is given or is available, but the term
herein shall not be extended.
ADD RIDER ONE
ADD RIDER TWO
And the said Landlord doth covenant that the said Tenant on paying the said
yearly rent, and performing the covenants aforesaid, shall and may peacefully
and quietly have, hold and enjoy the said demised premises for the term
aforesaid, provided however, that this covenant shall be conditioned upon the
retention of title to the premises by the Landlord.
AND IT IS MUTUALLY UNDERSTOOD AND AGREED that the covenants and
agreements contained in the within lease shall be binding upon the parties
hereto and upon their repective successors, heirs, executors and
administrators.
IN WIITNESS WHEREOF, the parties have interchangeably set their hands and seals
(or cause these presents to be signed by their proper corporate officers and
caused their proper corporate seal to be hereto affixed) this 27th day of
November, 1996.
Signed, sealed and delivered
in the presence of SUNGOLD ENTERPRISES LIMITED
/s/ XXXXXXX XXXXXXX By /s/ XXXXXX XXXXXXX L.S.
------------------------------------- ----------------------------
Secretary TITLE TENANT
/s/ XXXXXX X. XX XXXXX L.S.
----------------------------
XXXXXX X. XXXXXXX, LANDLORD
/s/ XXXXXXX XX XXXXX L.S.
----------------------------
XXXXXXX XXXXXXX, LANDLORD
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RIDER TO LEASE BETWEEN XXXXXXX XXXXXXX and XXXXXX X. XXXXXXX, as LANDLORD, and
SUNGOLD ENTERPRISES LIMITED, as Tenant, Dated November 27, 1996.
28th. The tenant covenants that during the entire term of this lease it will
provide, furnish, pay for and keep in force, at its own cost and expense, for
the benefit of the landlord, the following insurance covering the demised
premises, in form and in companies as approved by the landlord, and also
deliver certificates thereof to the landlord:
a) General accident, public liability and property damage insurance in
the amount of $1,000,000.00 for injury or death of one person and in the amount
of $2,000,000.00 for injury or death arising out of one accident or disaster,
and $50,000.00 as to property damage, and such insurance to fully protect the
landlord and tenant against any and all liability occasioned by accident or
disaster and such insurance to cover the entire demised premises, in addition,
the sidewalks and streets in front of and abutting the demised premises.
b) Plate glass insurance in an amount satisfactory to the owner and
landlord, covering the owner's and landlord's interest as it may appear or
tenant has the option to replace windows at own cost and expense within 10 days
after any damage or the landlord shall replace and charge tenant as additional
rent.
c) In the event the tenant does not so furnish and pay for any of the
said insurance or permits same to lapse, the premiums thereof shall be
forthwith and immediately paid by the tenant upon submission by the landlord to
the tenant of the said premium bills. In the event of the failure of the tenant
to pay same within ten (10) days after the submission of copies of paid,
receipted bills, the said insurance premiums shall forthwith and immediately be
deemed additional rent due and owing under this lease, together with the
monthly installment of rent next coming due after said submission, and all of
the owner's and landlord's rights in the event of tenant's default under and
pursuant to the terms of this lease and by operation of law accruing to the
owner and landlord and given to him under this lease shall forthwith and
immediately become operative.
29TH. A) The landlord shall furnish its own fire and extended coverage
and related insurance in companies of his own choice, on the property of which
the demised premises forms a part, but not upon any property, possessions,
contents or otherwise belonging to or affecting the tenant. The tenant shall
not do, nor permit to be done, any act upon said premises which will invalidate
or be in conflict with fire insurance and other policies covering the buildings
of which the demised premises form a part, nor do or permit anything to be done
in or upon the premises which shall cause an increase in the fire insurance
rate, extended coverage or other insurance rates applicable to the premises at
the time the tenant enters into possession thereof. If by reason of tenant's
failure to comply with the provisions of this paragraph or the provision of
paragraph 4th, of this lease, the said insurance rates should be higher than
they otherwise would be insofar as the demised premises are concerned and/or
the rest of the building of which the demised premises form a part, then the
tenant shall reimburse the landlord for such additional cost for that part of
all said insurance premiums thereafter shown paid on copies of paid, receipted
bills submitted by the landlord which shall have been charged because of such
failure or use by the tenant and such amounts shall forthwith and immediately
be deemed additional rent due and owing under this lease together with the
monthly installment of rent next coming due after said submission, and all of
the owner's and landlord's rights, in the event of tenant's default, under and
pursuant to the terms of this lease and by operation of law accruing to the
owner and landlord and given to him under this lease, shall forthwith and
immediately become operative.
b) The tenant shall reimburse landlord for the entire cost
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of the fire and extended coverage insurance on the building paid for by the
landlord within ten (10) days after the landlord bills the tenant. Landlord
shall furnish tenant with copies of paid, receipted bills.
In the event that tenant does not provide, furnish, pay for and keep in
force plate glass insurance, then Tenant will at its expense repair and/or
replace any plate glass on the demised premises.
30th. The tenant shall not record or cause or permit this lease to be
recorded in the office of the county clerk or elsewhere.
31st The tenant agrees at its own cost and expense to pay for all
electricity, water, telephone, gas and fuel consumed and used by it, including
water and standby water charges for sprinkler systems installed, if any; it
being the understanding and intent of the parties hereto that the landlord
rents and the tenant hires the demised premises without any service of any kind
whatsoever.
32nd. Any signs or signs that the tenant may wish to affix to the exterior of
the building shall be in conformity with the building and zoning ordinances of
the governing municipality, and the tenant further shall secure the written
permission of the owner and landlord to affix said signs.
33rd. It is understood and agreed that the premises, fixtures and
appurtenances are leased in their "AS IS" condition.
34th. a) Any notice required to be given by either party to the other shall
be deemed to be duly given and completed by sending notices by certified return
receipt mail, in the case of the landlord, to 000 Xxxx Xxxx Xxxxxx, Xxx Xxxxx,
Xxx Xxxx 00000, or such other address as the landlord may hereafter designate
in writing, and to the tenant by mailing such notice to the tenant directed to
the tenant's present address as hereinabove stated, at the demised premises.
b) The rent shall be payable to the landlord, XXXXXXX XxXXXXX and
XXXXXX X. XxXXXXX at 000 Xxxx Xxxx Xxxxxx, Xxx Xxxxx, Xxx Xxxx 00000, or such
other place as the landlord may designate in writing.
35th. If any mechanic's lien or liens shall be filed against the premises for
work done or material furnished to the tenant, the tenant shall, within thirty
days thereafter, and at its own cost and expense, cause such lien or liens to
be discharged by filing the bond or bonds required for that purpose by law.
36th. Tenant agrees not to allow garbage or refuse to accumulate outside of
the building upon the demised premises, unless in a container and subject to
approval of town and all other authorities.
37th. Any improvements or additions made by the tenant to the building,
including but not limited to plumbing and electrical fixtures, partitions, gas
service units, etc., shall immediately become the property of the landlord.
Any electrical work shall be performed in compliance with U.L. requirements and
all building codes.
38th. In the event of a default by the tenant for non-payment of rent, and
such default continuing for a period of ten (10) days subsequent to the due
date, there shall be added to the monthly rental then due and payable a sum
designated as a late charge, which shall be equal to five cent ($0.05) for each
dollar of the monthly payment past due. Such additional sum shall be construed
as additional rent and, if not paid with the then rent in arrears, shall become
immediately due and payable with the next succeeding monthly payment of rent. In
the event of a default by the tenant in the non-payment of rent, in addition to
the imposition of the late charge as hereinbefore set forth, the tenant shall
be liable
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in the event the landlord shall institute summary proceedings by the service of
a precept and petition for reasonable attorney's fees incurred by the landlord
in the amount of $200.00. This provision shall apply each and every time the
tenant be in default for the non-payment of rent and summary proceedings be
initiated.
39th. Tenant shall pay or cause to be paid promptly, when due, any charge
which may be incurred incident to the premises being connected or "hooked-up"
to an existing or proposed sewer system, and thereafter tenant shall be
responsible for the payment for any and all sewer rents levied against or
attributable to the demised premises. The obligation of the tenant hereunder
shall be construed as additional rent. Landlord shall pay for connection to
sewer if required.
40th. Any damage which shall be done to the building as a result of the
installation or removal of tenant's equipment shall be repaired by tenant at
tenant's sole cost and expense, and the premises shall be restored to their
original condition.
41st. If the sprinkler system installed in the building upon the demised
premises shall be damaged or injured or not in proper working order by reason
of any act or omission of the tenant, tenant shall forthwith restore the same
to good working condition at its own expense; and if the N.Y. Board of Fire
Underwriters or the N.Y. Fire Insurance Exchange or any bureau, department, or
official of the State or City Government require or recommend that any changes,
modification, alterations, or additional sprinkler heads or other equipment to
be made or supplied by reason of tenant's business or the locations of
partitions, trade fixtures, and other contents of the demised premises, or if
any such changes, modifications, alterations, additional sprinkler heads or
other equipment becomes necessary, to prevent the imposition of a penalty or
charge against the full allowance for a sprinkler system in the fire insurance
rate as fixed by said Exchange, or any fire insurance company, tenant shall, at
tenant's expense, promptly make and supply such changes, modifications,
alterations, additional sprinkler heads or other equipment, and upon failure to
do so, landlord may elect to cancel this lease or do said work at the expense
of the tenant, the cost of same to be deemed additional rent and to be due with
the next monthly installment of rent thereafter.
42nd. This agreement constitutes the entire agreement between the parties and
contains all agreements, conditions, representations and warranties made between
the parties hereto. No representation other than those herein expressly
contained have been made by either party to the other. This lease may not be
modified, altered, amended, changed or added to except in writing and signed by
all parties.
43rd. The landlord agrees during the term of this leasing agreement to make
necessary structural, roof, and outside repairs not occasioned as a result of
tenant's misuse or neglect. The tenant agrees to clean and maintain the present
cesspools and storm drains upon the premises. In the event landlord shall, in
the future, install additional cesspool or cesspools to service the subject
premises, then, in that case, the tenant shall be solely responsible for the
maintenance and replacement thereof. The entire cost to be paid by the tenant.
44th. The tenant shall pay to the landlord during the entire term herein
demised, commencing with December 1996, as and for additional rent hereunder
the amount of any increase in the aggregate of all real estate taxes of every
nature and description, including assessments, if any, levied against the
demised premises and herein referred to as the basic tax. The basic tax, as
aforementioned, shall be the aggregate of all real estate taxes of each and
every nature, including assessments levied against the
45th. The tentant shall maintain the lawn, shrubs and lawn sprinkler system
if any, and security system.
46th. Anything to the contrary notwithstanding, if the landlord is required
to or has the option to make repairs under paragraphs 5th and 26th hereof,
whether the repairs are of a substantial nature or otherwise, the landlord shall
complete or substantially complete said repairs within 120 days from the date
of casualty loss or the date of notification of a governmental authority of the
required change. In the event that the landlord should contest any
governmental order to make changes in the building, the 120 day period shall
commence from the date of adjudication of the landlord's requirement to make
said repairs.
47th. The landlord agrees to furnish and provide ten (10) parking spaces for
the tenant.
48th. The tenant is presently in possession of part of the premises.
49th. Tenant shall be reponsible for any and all lighting and fans in the
warehouse area.
50th. The tenant represents that the tenant shall not at any time dispose of
noxious or toxic substances or waste, if any of this type of material be on the
premises at any time, through the sanitary disposal system of the premisses, be
it cesspool, septic tank or sewer, or through any public or private sewer or
disposal system on or adjoining the premises. In the event that any noxious or
toxic substances are used, stored, created or otherwise obtained and/or
maintained by the tenant, including heating oil, same shall be at all times
handled in a safe and proper manner and in accordance with all municipal and
governmental standards. At such time as the tenant vacates the premises, be it
at the conclusion or termination of this lease or otherwise, the premises shall
be left in a vacant and broom cleaned condition with no noxious or toxic
substances in or about the premises. The tenant, and if the tenant is a
corporation, then the stockholders, directors and officers of the tenant
corporation do jointly and severally agree to, and by this lease provision, do
indemnify and hold harmless the landlord from any and all damages that may
result fom the breach of this
3
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demised premises, for the tax year 1995/96 as originally billed and paid. The
amount of any such increase shall be deemed additional rent and shall be paid
by the tenant to the landlord not later than the first day of the calendar
month occurring subsequent to the giving of notice to the tenant of the amount
of such increase and the simultaneously exhibiting to the tenant a copy of a tax
xxxx evidencing such increase. Such notice to be given by the landlord to the
tenant may be given personally or by certified mail, return receipt requested.
The tenant, at its sole cost and expense, shall have the right to contest all
future tax bills in accordance with the requirements of the tax authority
and the landlord shall cooperate in any such undertaking by providing any
documents or information in their possession.
In the event that any of the aforesaid taxes are decreased and refunds
received by landlord, they shall be for the sole benefit of the landlord without
any reduction or refunds of rent to tenant.
In the event that the total of the aforesaid taxes for any year subsequent
to the base year 1995/96 are less than the base year total taxes, then and in
that event the total taxes for said subsequent year shall be substituted for
the 1995/96 base year for any tax adjustment for all years following the year
of said base year substitution.
45th. The tenant shall maintain the lawn, shrubs and lawn sprinkler system
if any, and security system.
46th. Anything to the contrary notwithstanding, if the landlord is required
to or has the option to make repairs under paragraphs 5th and 26th hereof,
whether the repairs are of a substantial nature or otherwise, the landlord
shall complete or substantially complete said repairs within 120 days from the
date of casualty loss or the date of notification of a governmental authority
of the required change. In the event that the landlord should contest any
governmental order to make changes in the building, the 120 day period shall
commence from the date of adjudication of the landlord's requirement to make
said repairs.
47th. The landlord agrees to furnish and provide ten (10) parking spaces
for the tenant.
48th. The tenant is presently in possession of part of the premises.
49th. Tenant shall be responsible for any and all lighting and fans in the
warehouse area.
50th. The tenant represents that the tenant shall not at any time dispose
of noxious or toxic substances or waste, if any of this type of material be on
the premises at any time, through the sanitary disposal system of the premises,
be it cesspool, septic tank or sewer, or through any public or private sewer or
disposal system on or adjoining the premises. In the event that any noxious or
toxic substances are used, stored, created or otherwise obtained and/or
maintained by the tenant, including heating oil,same shall be at all times
handled in a safe and proper manner and in accordance with all municipal
and governmental standards. At such time as the tenant vacates the premises, be
it at the conclusion or termination of this lease or otherwise,the premises
shall be left in a vacant and broom cleaned condition with no noxious or toxic
substances in or about the premises. The tenant, and if the tenant is a
corporation, then the stockholders, directors and officers of the tenant
corporation do jointly and severally agree to, and by this lease provision, do
indemnify and hold harmless the landlord from any and all damages that may
result from the breach of this
4
8
lease provision, including but not limited to clean up and repair or replacement
of the premises, elimination of any noxious or toxis substances and purification
of the premises, carting and disposal of such substances, reasonable attorney's
fees, loss of rental due to any dangerous condition thereby created and any and
all losses stemming therefrom, the foregoing list being intended to be
illustrative only and not in limitation of the provisions hereof. The aforesaid
indemnification shall likewise be applicable to indemnify and hold harmless the
landlord from any third party claim made against the landlord which arises from
the tenants activities, actions and operation.
51st. The parties hereto represent that they have dealt with no real estate
broker other then DeLalio Associates and that all commissions will be paid by
the landlord in accordance with a separate agreement.
52nd. Tenant shall have the right to place containers in the rear of the
building in an orderly fashion and subject to the approval of the town and all
other authorities.
Tenant shall pay as additional rent any and all costs incurred by landlord
for refuse removal.
54th. Landlord agrees to furnish the following:
1. Up to 600 square feet of carpet and cove base at a cost not to exceed
$6,000.00 as per agreement attached hereto and made a part hereof.
2. Painting in accordance with agreement attached hereto and made a part
hereof.
3. Renovations to premises in accordance with plans attached hereto and
made a part hereof.
SUNGOLD ENTERPRISES LIMITED
By: /s/ XXXXXX XXXXXXX
--------------------------
Title Tenant
/s/ XXXXXX X. XXXXXXX
----------------------------
Xxxxxx X. Xxxxxxx, Landlord
/s/ XXXXXXX XXXXXXX
----------------------------
Xxxxxxx Xxxxxxx, Landlord
5
9
SECOND RIDER TO LEASE BETWEEN XXXXXXX XXXXXXX and XXXXXX X. XXXXXXX, as
LANDLORD and SUNGOLD ENTERPRISES LIMITED, as TENANT, DATED NOVEMBER 27, 1996.
Paragraph 1st - monthly rental for the period of December 1, 1999 to and
including November 1, 2000 shall be $16,660.83 in lieu of $16,608.33 as
stated in the lease.
Paragraph 8th - add after last period: "not withstanding the foregoing
re-entering by force shall be permitted only when the premises are deserted
or become vacant for any other default lawful court process will be
required.
Paragraph 11th - add after end of paragraph "notwithstanding the foregoing, all
signs as they presently exist may be retained by the Tenant as long as they
continue to conform to the requirements of the governing municipality. The
approval by the Landlord for any additional signs shall not be unreasonably
withheld."
Paragraph 13th - after re-possess and enjoy on second line add "upon lawful
court process". Delete last sentence beginning with the said Tenant ----
Paragraph 32nd - change last period of the paragraph to a comma and add "which
permission shall not be unreasonably withheld."
Paragraph 33rd - change last period of the paragraph to a comma and add "except
as is specifically set forth in paragraph 54th herein."
Paragraph 44th - at the first sentence on page 4, insert after tax year 1995/96
"covering the fiscal period of December 1, 1995 through November 30, 1996."
Paragraph 46th - on line 5 after within, the 120 days is changed to 90 days.
Paragraph 54th item 1 - delete in its entirety and substitute following: "Carpet
and cove base shall be provided by Landlord or allowed to Tenant, at
Tenant's option, at a cost not to exceed Ten ($10.00) Dollars per square
yard for the number of yards required by the agreed plans not to exceed 660
square yards."
Paragraph 55th - add to the first rider the following:
In the event that the building is sold and the new owner gives
notification to the Tenant of his intentions to terminate the lease, then
add in that event, the Tenant shall have a period of six (6) months to move
from the premises with all other terms and conditions of this lease
remaining in full force and effect.
Paragraph 56th - The Tenant shall have the following option provided that all
rentals provided herein have been paid timely and there are no breaches of
any term, covenant or condition stated herein.
The Tenant shall have the option to extend this Lease for a term of five
(5) additional years at an annual rental as follows:
ANNUAL ANNUAL
RENTAL RENTAL
----------- ----------
First Year 4% %214,092.00 $17,841.00
Second Year 222,656.00 18,554.67
Third Year 231,562.00 19,296.83
Fourth Year 240,824.00 20,068.67
Fifth Year 250,457.00 20,871.42
In order for the Tenant to exercise this option it must give written
notice of its intention to exercise the option at least
10
eighteen (18) months prior to the expiration of the original term of the lease
and execute an agreement extending the term within ten (10) days after said
agreement is presented to it by the landlord. All other terms of this lease
shall remain in full force and effect through the extended term.
SUNGOLD ENTERPRISES LIMITED
By [SIG]
-----------------------------------
Title Tenant
/s/ XXXXXX X. XX XXXXX
-----------------------------------
Xxxxxx X. XxXxxxx, Landlord
/s/ XXXXXXX XX XXXXX
-----------------------------------
Xxxxxxx XxXxxxx, Landlord
And the said Landlord doth covenant that the said Tenant on paying the said
yearly rent, and performing the covenants aforesaid, shall and may peacefully
and quietly have, hold and enjoy the said demised premises for the term
aforesaid, provided however, that this covenant shall be conditioned upon the
retention of title to the premises by the Landlord.
AND IT IS MUTUALLY UNDERSTOOD AND AGREED that the covenants and agreements
contained in the within lease shall be binding upon the parties hereto and upon
their respective successors, heirs, executors and administrators.
IN WITNESS WHEREOF, the parties have interchangeably set their hands and
seals (or cause these presents to be signed by their proper corporate officers
and caused their proper corporate seal to be hereto affixed) this 27th day of
November, 1996.
Signed, sealed and delivered
in the presence of SUNGOLD ENTERPRISES LIMITED
/s/ XXXXXXX XXXXXXX By [SIG] L.S.
------------------------------------ -----------------------------------
Secretary TITLE TENANT
/s/ XXXXXX X. XX XXXXX L.S.
-----------------------------------
XXXXXX X. XXXXXXX, LANDLORD
/s/ XXXXXXX XX XXXXX L.S.
-----------------------------------
XXXXXXX XXXXXXX, LANDLORD
