EXHIBIT 10.4
L E A S E
THIS INDENTURE OF LEASE (hereinafter called "Lease") dated this 21st
day of May, 1999 between DEERSKIN TRADING POST, INC., having offices at 00 Xxxxx
Xxxxxx, Xxxxxxxxx, Xxx Xxxxxx 00000 (hereinafter called "Landlord"), and
AMERICA'S SHOPPING MALL, INC., (formerly Advanced Medical Sciences, Inc.) 000
Xxx. 00 #000, Xxxxxx, Xxx Xxxx 00000 (hereinafter referred to as "Tenant").
W I T N E S S E T H:
ARTICLE 1
DEMISED PREMISES - TITLE - TERM OF LEASE
Section 1.1 - Demised Premises. In consideration of the rents,
covenants and agreements hereinafter reserved and contained on the part of the
Tenant to be observed and performed, Landlord does hereby lease and demise to
the Tenant and the Tenant does hereby hire, lease and take from Landlord, for
the term subject to and upon the covenants and conditions hereinafter set forth,
the entire building and parking lot ("Demised Premises" or "Premises") located
at 0000 Xxxxxxxxx Xxxxx, Xxxxxx Xxxx, Xxxxxx 00000 (hereinafter referred to as
"Building").
Section 1.2 - Title. At the commencement of the term of the Lease
("Term"), Landlord shall own the fee title to the Demised Premises, subject to
restrictions and encumbrances of record, if any, zoning regulations affecting
such Premises and any state of facts shown on an accurate survey or as a visual
inspection of the Premises would disclose.
Section 1.3 - Term of Lease. To have and to hold unto the Tenant, its
successors and permitted assigns, for the term which shall commence currently
with the Closing, as that term is defined in the Asset Purchase Agreement
between Landlord and Tenant, dated April 21, 1999 (the "Asset Purchase
Agreement"), ("Commencement Date") and terminate on April 30, 2000. The
aforesaid period shall be referred to as the "Term" or "Lease Term".)
ARTICLE 2
USE OF PREMISES
The Tenant shall use and occupy the Premises only for a mail order
retail business consistent with Landlord's prior use of the Premises. Tenant
shall not permit gambling to be conducted at the Premises. Tenant shall not
store or sell gasoline or fuel at the Premises. The Premises shall not be used
as a drug treatment/rehabilitation center, methadone clinic, or alcohol
treatment/rehabilitation center. The Premises will not be used for residential
purposes. The Tenant will not permit the Premises to be used for any obscene or
pornographic purposes and
will not permit any obscene or pornographic material to be brought on the
Premises. Any of the aforementioned uses shall be deemed to be a breach of a
substantial obligation of the Lease. The Tenant shall not use or occupy or
permit the leased property to be used or occupied, nor do or permit anything to
be done in or on the leased property, in a manner which will in any way violate
any Certificate of Occupancy affecting the leased property, or make void or
voidable any insurance then in force with respect thereto, or which will make it
impossible to obtain fire or other insurance, or which will cause or be likely
to cause structural damage to the Building or any part thereof, or which will
constitute a public or private nuisance, or which would adversely affect the
then value thereof, and shall not use or occupy or permit the leased property to
be used or occupied in any manner which will violate any present or future laws
or regulations of any governmental authority. Other than as set forth above,
nothing herein contained shall be deemed or construed to constitute a
representation or guaranty by the Landlord that any specific business may be
conducted in the Premises or any particular use is lawful under the Certificate
of Occupancy.
ARTICLE 3
RENT AND OTHER CHARGES
Section 3.1 - Rent.
A. During the Term the Annual Basic Rent to be paid by Tenant
to Landlord shall be $336,000.
B. Said rent, additional rent and all other payments due under
this Lease shall be paid to the Landlord at the address hereinabove first
specified, or as the Landlord may otherwise direct in writing. Rent shall be
payable in monthly installments due and payable on the first day of each and
every month in advance. Failure to pay rent by the fifth day of the month shall
be deemed to be a breach of a substantial obligation of the Lease. Additionally,
if Tenant fails to pay the annual basic rent or additional rent on or before the
7th day of the month, (in addition to all other remedies Landlord may have
hereunder) Tenant shall pay one hundred fifty ($150.00) dollars as a late fee.
Said fee shall be deemed to be additional rent. Interest shall accrue on any
unpaid rent or additional rent at twenty-four (24%) percent per annum or at the
highest legal rate allowable pursuant to law, whichever amount shall be less.
C. If Tenant shall submit any check to Landlord for payment of
any obligation hereunder and said check is returned unpaid ("bounced" check),
Tenant shall pay one hundred fifty ($150.00) dollars to Landlord for the
bookkeeping charge incurred. In the event Tenant submits more than one "bounced"
check during the Term, Tenant shall be obligated to make all
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payments to Landlord by certified check or bank check. In such event, if Tenant
fails to submit a certified check or bank check to Landlord, said failure shall
be deemed to be a substantial breach of the terms of this Lease. The one hundred
fifty ($150) dollar bookkeeping charge is in addition to any other remedies
Landlord may have pursuant to the terms of this Lease.
Section 3.2 - Additional Rent. All payments Tenant is required to make
pursuant to this Lease, other than annual basic rent payments (including but not
limited to refurnishing of security or payment of additional security), shall
constitute additional rent and, if Tenant defaults in any such payment so as to
create an Event of Default (as hereinafter defined), Landlord shall have (in
addition to any rights and remedies granted hereby) all rights and remedies
provided by law for nonpayment of rent.
Section 3.3 - Persistent Late Payment of Rent. If Tenant shall default
in the payment of the rent reserved herein, or any item of additional rent
herein mentioned, or any part of either, during any two (2) months, whether or
not consecutive, during the Term and (i) such default continues for more than
ten business (10) days after written notice of such default by Landlord to
Tenant, and (ii) Landlord, after the expiration of such ten business (10) day
period, commences a proceeding or action to dispossess Tenant in each such
instance, then, notwithstanding that such defaults may have been cured prior to
the entry of a judgment against Tenant, any further default in the payment of
any money due Landlord hereunder which shall continue for more than ten business
(10) days after Landlord shall give a written notice of such default shall be
deemed to be deliberate and Landlord may thereafter serve a written three (3)
day notice of cancellation of this Lease and the term hereunder shall end and
expire as fully and completely as if the expiration of such three (3) day period
were the day herein definitely fixed for the end and expiration of this Lease
and the term thereof, and Tenant shall then quit and surrender the Premises to
Landlord, but Tenant shall remain liable as elsewhere provided in this Lease.
Section 3.4 - Last Month's Rent. Concurrently with the execution
hereof, Tenant is paying to Landlord the last month's portion of the Annual
basic rent in the amount of twenty-eight thousand dollars ($28,000).
ARTICLE 4
REAL ESTATE TAXES,
INSURANCE, AND BUILDING MAINTENANCE
Section 4.1 - Net Lease. It is hereby mutually agreed and it is the
intention of the parties hereto that this lease shall be deemed a "net lease"
with respect to the Premises. Tenant shall make all repairs structural and
non-structural to the
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premises. Other than as specifically set forth herein, Landlord shall not be
expected or required to make any payments of any kind or be under any liability
or have any obligation with respect to the Premises. Tenant agrees to pay, or
cause to be paid all costs necessary to maintain the Premises including, but not
limited to, real estate taxes, taxes assessed against the Premises (including
building, land and vault if any), taxes assessed against the rent, or taxes
assessed against use of the Premises, insurance costs, and maintenance costs.
Section 4.2 - Real Estate Taxes. Presentment of a xeroxed copy of the
real estate tax xxxx by the Landlord shall be deemed conclusive as to the amount
of additional rent for Real Estate Taxes to be paid by the Tenant. The
additional rent for Real Estate Taxes shall be due ten (10) days after Tenant is
presented with a copy of the tax xxxx. Tenant shall pay as additional rent the
entire amount of taxes as assessed against use of the Premises, insurance costs
and maintenance costs.
Section 4.3 - Late Payment. In the event Tenant's late payment of the
additional rent for real estate taxes causes a penalty and/or interest to be
incurred, said penalty and/or interest, shall be deemed to be additional rent
and shall be paid by Tenant to the Landlord.
Section 4.4 - Certiorari Proceedings. Either party may commence a
proceeding to challenge the tax assessment (hereinafter "Certiorari
Proceeding"). In the event landlord maintains a Certiorari Proceeding during the
Term, the cost of said proceeding shall be borne by the Tenant. Said cost shall
be deemed additional rent. In the event Tenant commences a Certiorari Proceeding
in any year of the term Landlord shall cooperate with the Tenant in the filing
of such proceeding. The cost and expense of the Certiorari Proceeding shall be
borne exclusively by the Tenant.
ARTICLE 5
UTILITY EXPENSE
Section 5.1 - Utility Expense. A. The Tenant agrees to pay, or cause to
be paid, all charges for gas, sewage, electricity, water, light,
air-conditioning, heat, power, or service used, rendered or supplied upon or in
connection with the Premises throughout the term of this Lease and any renewal
thereof, and to indemnify the Landlord and save it harmless against any
liability or damages on such account. The Tenant shall also, at its sole cost
and expense, procure any and all necessary permits, licenses and other
authorizations required for the lawful and proper installation and maintenance
upon the Premises of Tenant's own wires, pipes, conduits, tubes and other
equipment and appliances for use in supplying any such service to and upon the
Premises. Water for the standby sprinkler and sewer
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charges, if any, shall be an obligation of the Tenant. Tenant shall at its own
cost and expense install any and all utility meters which may be required by law
or which are necessary to provide utility service to the Premises.
Section 5.2 - Telephone Services. Tenant shall procure and pay for its
own telephone and communication services.
ARTICLE 6
SECURITY
Section 6.1 - Security. Tenant will deposit the sum of Twenty-Eight
Thousand dollars ($28,000.00) with the Landlord, payable upon execution hereof.
Landlord may use, apply or retain the whole or any part of the security to the
extent required to cure any default of Tenant's and reimburse Landlord for any
damages or expenses (including, without limitation, counsel fees) incurred by
reason of such default, including, but not limited to, any damages, deficiency
or expenses in reletting of the Premises, whether accrued before or after
summary proceedings or other re-entry by Landlord. If Tenant complies with all
its obligations hereunder, the security shall be returned to it thirty (30) days
after the end of the Term and delivery of possession of the Premises to
Landlord. In the event the Landlord shall sell or assign the Premises, then upon
transfer, Landlord agrees to transfer this security to such transferee and
Landlord shall thereupon be released from all liability with respect to such
security. Tenant shall not assign or encumber the security and neither Landlord
nor its successors or assigns shall be bound by any such assignment or
encumbrance. Provided Tenant has furnished Landlord with its Federal tax
identification number in the space provided below, Landlord agrees to deposit
the security in an FDIC insured account. The interest or dividends that accrue
on such security shall be deemed part of the security and credited to Tenant if
it is not in default of the terms of this Lease, less an amount equal to 1% of
the security deposit hereunder which amount shall be retained by the Landlord as
an annual administration fee.
Section 6.2 - Tax ID Number. Tenant's Federal tax identification number
is _____________.
ARTICLE 7
REPAIRS
Section 7.1 - Structural Repairs. Tenant shall be required to make or
cause to be made all interior and exterior repairs whether structural or
non-structural to the Premises. Any repair or alteration requiring expenditure
of ten thousand ($10,000.00) dollars or more shall require the consent of the
Landlord, which consent shall not be unreasonably withheld. In the event of a
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break-in, Tenant shall repair (and/or replace) the damage caused to the
Premises. Tenant is responsible for all damages to Premises incurred as a result
of a break-in.
Section 7.2 - Violations. Tenant shall do whatever is necessary to
remove any violations issued by any Federal, State or local governmental or
quasi-governmental agencies or units, within a reasonable period of time. The
aforesaid shall only apply to violations issued or which accrue prior to the
date Tenant vacates or the Term expires, whichever date shall be later. Tenant's
obligation to make said repairs and correct violations shall survive the
termination of this Lease so long as the obligations accrued prior to the date
of termination.
Section 7.3 - HVAC and Roof. At the date of termination of this Lease,
the electrical, plumbing heating ventilation and air conditioning system (HVAC),
shall be in good and working order and the Premises shall be in good repair. The
roof shall be free of leaks and the parking lot shall be paved and lined at the
termination of the Lease. These obligations shall survive termination of the
Lease.
ARTICLE 8
AFFIRMATIVE OBLIGATIONS AND COVENANTS OF TENANT
Section 8.1 - Affirmative Obligations. Tenant covenants and agrees, at
its own cost and expense, at all times during the Term, except as stated in
Article 8 hereof to:
A. Repairs. Keep, maintain in good order, condition and repair
the Premises and each and every part thereof including, without limitation, air
conditioning systems, interior plumbing units and systems; sprinkler systems;
electrical systems; equipment; alarm systems; parking lot; sidewalks, facilities
and fixtures which are at the Premises and the aforesaid obligation of Tenant
shall also include the replacement of any of the aforesaid items and the
replacement of any glass which may be damaged or broken. The aforesaid items
shall be in good and working order at the expiration of the Lease. This
obligation shall survive the termination of the Lease.
B. Keep Premises Clean and Attractive. Keep and maintain the
Premises in a neat and clean condition, including maintenance of any steps and
sidewalk adjacent to the Premises.
C. Comply with Laws. Promptly comply with all laws,
ordinances, rules and regulations of governmental authorities (including, but
not limited to, zoning ordinances and building codes) affecting the Premises.
D. Garbage. Handle and dispose of all rubbish, garbage and
waste from Tenant's operation in accordance with, all
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laws and ordinances, and reasonable regulations established by Landlord. Tenant
shall not permit the accumulation (unless in concealed enclosed containers), or
burning of any rubbish or garbage in, on or about any part of the Premises.
Tenant shall sort its garbage in accordance with all applicable laws and
regulations. All waste shall be removed from the Premises at least five times a
week and disposed of with a licensed xxxxxx.
ARTICLE 9
COVENANT AGAINST LIENS
Section 9.1 - No Liens. Tenant shall neither create nor permit to be
created any lien or encumbrance affecting the Premises and shall discharge,
promptly upon notice, any lien or encumbrance arising out of any act or omission
of Tenant. Notice is hereby given that Landlord shall not be liable for any work
performed or to be performed at the Premises for Tenant, or for any materials
furnished or to be furnished at the Premises for Tenant, and that no mechanic's
or other lien for such work or materials shall attach to or affect the interest
of Landlord in and to the Premises. Any contractors or subcontractors who shall
do work at the building on behalf of Tenant shall be licensed and insured in an
amount of not less than two million ($2,000,000.00) dollars. Moreover, such
workers shall be properly bonded and licensed. At least thirty (30) days prior
to commencement of any work at the Premises, Tenant shall submit proposed plans
to the Landlord. Moreover, Tenant shall, upon submission of the plans, submit
the name and address of the contractor, a copy of the contract, and an insurance
certificate naming the Landlord as an additional insured. Failure to submit this
documentation shall be deemed to be a breach of a substantial obligation of this
Lease. Landlord will not unreasonably withhold its consent to any proposed work,
so long as the aforesaid documentation is submitted in a timely manner.
ARTICLE 10
EASEMENT
Tenant shall permit Landlord or its assignees to show the
Premises to any person that Landlord deems appropriate. Such showings, visits or
repairs shall be done upon reasonable notice to Tenant, and so far as
practicable, in such manner as to avoid unreasonably interfering with or
adversely affecting Tenant's use of the Premises. It is hereby agreed that the
aforesaid easement does not grant Landlord dominion and control over the
Premises therefore such easement shall not relieve Tenant of indemnifying
Landlord from any and all liability for any injury which may be sustained by any
person on the Premises.
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ARTICLE 11
ADDITIONAL NEGATIVE OBLIGATIONS AND COVENANTS OF TENANT
Section 11.1 - Additional Covenants. Tenant covenants and agrees that
at all times during the Term it shall not at any time without first obtaining
Landlord's prior written consent:
A. Alterations. Make any alterations, improvements, and/or
additions to the Premises or any part thereof in excess of ten thousand
($10,000.00) dollars without the prior written consent of the Landlord, which
consent will not be unreasonably withheld.
B. Not Change Exterior Architecture. Change (whether by
alteration, replacement, rebuilding or otherwise) the exterior color and/or
architectural treatment of the Premises without the prior written consent of the
Landlord, which consent will not be unreasonably withheld.
C. Not Misuse Plumbing Facilities. Use the plumbing facilities
for any purpose other than that for which they were constructed, or dispose of
any garbage or other foreign substance therein.
D. No Liens. Subject any fixtures, furnishing or equipment in
or on the Premises which are affixed to the realty, to any mortgages, liens,
conditional sales agreements, security interest or encumbrances.
E. Not Damage the Premises. Perform any act or carry on any
practice which may damage, mar or deface the Premises.
F. Not Exceed Floor Loads. Place a load on any floor in the
Premises, which is in excess of the floor load per square foot as established by
standard engineering principles; or install, operate or maintain therein any
heavy item or equipment except in such manner as to achieve a proper
distribution of the weight.
G. Not Exceed Electrical Load. Install, operate or maintain in
the Premises, any electrical equipment which does not bear underwriters'
approval, and would overload the electrical system therein, or any part thereof,
beyond its reasonable capacity for proper and safe operation.
H. Not Permit Odors, etc. Suffer, allow or permit any
offensive or obnoxious vibration, noise, odor or other undesirable effect to
emanate from the Premises, or any machine or other installation therein, or
otherwise suffer, allow or permit the same to constitute a nuisance or otherwise
unreasonably interfere therefore with the safety, comfort or convenience of the
area surrounding the Premises; upon notice by
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Landlord to Tenant that any of the aforesaid is occurring, Tenant shall
forthwith (but in all events within five (5) days) remove or control the same.
I. Not Interfere with Insurance; Compliance; Improper Use. Use
or occupy the Premises or do not permit anything to be done thereon in any
manner which shall prevent Landlord from obtaining at standard rates any
insurance required or desired, or which would invalidate or increase the cost of
Landlord of any existing insurance, or which might cause structural injury to
the building, or which would constitute a public or private nuisance or which
would violate any present or future laws, regulations, ordinances or
requirements (ordinary or extraordinary, foreseen or unforeseen) of the federal,
state or municipal governments, or of any department, subdivisions, bureaus or
offices thereof, or of any other governmental public or quasi-public authorities
now existing or hereafter created having jurisdiction of the Premises.
J. Utilization of the Premises in Conformity with the
Certificate of Occupancy. Not utilize the Premises in violation of the use
clause set forth in this Lease or use the Premises in a manner which is not in
conformance with the Certificate of Occupancy.
K. Permits. Not do any work at the Premises without complying
with all laws, regulations, ordinances, affecting such work and obtaining all
necessary and proper permits. Tenant shall not submit any applications to any
governmental agency which have not been signed by the Landlord. Tenant shall, if
required, or if requested by Landlord use union labor for all alteration or
repair work performed at the Premises.
ARTICLE 12
INSURANCE CASUALTY, CONDEMNATION
Section 12.1 - Required Insurance. a. Tenant shall, at its own cost and
expense, maintain comprehensive public liability insurance (containing the
so-called "occurrence clause") against claims for personal injury, death and
property damage occurring in or about the Premises, such insurance shall afford
minimum protection (including umbrella policies) of Eleven Million ($11,000,000)
dollars with respect to the personal injury or death of any one person; Eleven
Million ($11,000,000) dollars with respect to personal injury or death occurring
or resulting from one occurrence.
b. Tenant shall at its own cost and expense maintain
casualty insurance (including coverage for fire, natural disasters and water
damage) in the amount of Three Million ($3,000,000) dollars. Landlord shall be
named as additional named insured and primary loss payee on said policy. Tenant
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shall also maintain rental insurance in an amount so that the annual basic rent
and additional rent are paid in the event the Premises are partially or wholly
destroyed. Said rental insurance shall be payable not more than 30 days after
the date of the casualty.
Section 12.2 - Required Provisions. All insurance maintained pursuant
to Article 12 shall:
A. Be provided by policies which may not be canceled or
modified with respect to the Premises without at least thirty (30) days prior
written notice by the insurer to Landlord;
B. Provide that no act or omission of Landlord or Tenant shall
affect the coverage afforded thereunder;
C. Name Landlord as an additional insured party and, if
obtainable, (even if at additional cost to the Tenant) provide that the insurer
waives all right of subrogation against Landlord for losses insured thereunder.
D. Be provided by an insurer with at least an "A" rating.
Section 12.3 - Landlord's Non-Liability, Tenant's Own Insurance.
A. Tenant hereby waives all right of recovery which it might
have against Landlord, Landlord's agents and employees, for loss or damage to
Tenant's furniture, inventory, furnishings, fixtures, equipment, chattels and
articles of personal property located on the Premises, notwithstanding that such
loss or damage may result from the passive negligence or fault of Landlord.
Tenant shall obtain insurance policies covering its furnishings, inventory,
fixtures, equipment and articles of personal property (collectively, "Personal
Property") in the Premises, and Tenant shall cause Landlord to be named as an
additional insured party under such policies (without entitling Landlord to
receive any loss proceeds thereof) and obtain the insurer's waiver of all rights
of subrogation against Landlord with respect to losses insured under such
policies. All policies obtained by the Tenant (including any liability or
casualty policies) shall provide that the insurer waives all rights of
subrogation against the Landlord for losses insured thereunder.
B. Tenant shall advise Landlord promptly of the applicable
provisions of such insurance policies and notify Landlord promptly of any
cancellation or change therein. Tenant shall provide copies of original
insurance policies to Landlord evidencing the insurance coverage required by
this Article.
Section 12.4 - Exculpation of Landlord. As a consideration for the
making of this Lease, the Landlord shall not be liable
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for any failure of water supply or electric current, nor for injury or damage
which may be sustained to any person or property by the Tenant or any other
person caused by or resulting from steam, electricity, gas, water, rain, ice, or
snow which may leak or flow from or into any part of said Building or the
Premises or from the breakage, leakage, obstruction or other defect of the
pipes, wiring, appliances, plumbing or lighting fixtures of the same, the
condition of said Premises or any part thereof, or from the street or
subsurface, or from any other source or cause whatsoever, unless such damage or
injury shall be caused by or be due to the gross negligence of the Landlord, the
Landlord's agents, servants or employees. Tenant acknowledges that it will
obtain appropriate insurance to cover any of the contingencies set forth above
Section 12.5 - Safety Compliance. Tenant agrees, at its own cost and
expense, to comply with all of the rules and regulations of the Fire Insurance
Rating Organization having jurisdiction and any similar body. If Tenant installs
any electrical equipment that overloads the lines of the Building, Tenant shall,
at its own cost and expense, promptly make whatever changes are necessary to
remedy such condition and to comply with all requirements of the Landlord and
the Board of Fire Insurance Underwriters and any similar body and any
governmental authority having jurisdiction thereof.
Section 12.6 - Fire or Other Casualty.
A. Rent and additional rent shall not be apportioned for any
month hereunder, in which the Premises are substantially damaged. In the event
the Premises shall be damaged or destroyed Tenant shall be obligated to rebuild
the Premises. Landlord shall tender any proceeds received from Tenant's casualty
insurance to contractors involved with the rebuilding of the Premises.
B. Notwithstanding anything to the contrary contained in the
preceding Paragraph A of this Section or elsewhere in this Lease, Tenant, or
Landlord at its option, may terminate this Lease on twenty-five (25) days notice
to the other party, given within sixty (60) days after the Premises shall be
damaged or destroyed, if the cost to repair the same shall amount to fifty (50%)
percent or more of the cost of replacement thereof; the term "cost of
replacement" shall be determined by the company or companies selected by
Landlord insuring Landlord against the casualty in question. Landlord shall be
entitled to retain all proceeds of any payment made under the casualty insurance
policy obtained by Tenant pursuant to this Article.
Section 12.7 - Condemnation.
A. Total or Substantial Partial Condemnation. If the whole of
the Premises shall be taken for any public or any
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quasi-public use under any statute or by right of eminent domain, or by private
purchase in lieu thereof, then this Lease shall automatically terminate as of
the date that title shall be taken. If a substantial part of the Premises shall
be taken so as to substantially interfere with the operation of Tenant's
business, then Landlord and Tenant shall each have the right to terminate this
Lease on thirty (30) days' notice to the other given within ninety (90) days
after the date of such taking. In the event that this Lease shall terminate or
be terminated, the rent shall, if and as necessary, be equitably adjusted.
B. Disposition of Proceeds. All compensation awarded or paid
upon such a total or partial taking of the Premises shall belong to and be the
property of Landlord without any participation by Tenant. Nothing herein shall
preclude Tenant from asserting any claim against the municipality enforcing the
condemnation.
ARTICLE 13
TENANT'S INDEMNIFICATION OF LANDLORD AGAINST LIABILITY
Tenant shall indemnify Landlord against all liability and
expense (including reasonable architects' and attorneys' fees) incurred by
Landlord (unless caused by the gross negligence of the Landlord) by reason of:
A. Any action commenced by Tenant (or by Landlord to cure an
event of default as hereinafter defined) on or about the Premises;
B. Any use, non-use or maintenance of the Premises or adjacent
area;
C. Any negligence of Tenant;
D. Any injury or damage to any person or property occurring on
or about the Premises (including the commencement of an action as a result of
such damage or injury) or adjacent area and it is admitted by Tenant that
Landlord has no liability for any such injury since Tenant has control of the
Premises; or
E. Any failure by Tenant to perform its obligations under the
Lease.
ARTICLE 14
LANDLORD'S REMEDIES IN EVENT OF TENANT'S DEFAULT OR BANKRUPTCY
Section 14.1 - Events of Default. Tenant shall be in default of this
Lease if any one or more of the following events (referred to herein as "events
of default") occurs:
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A. Tenant shall default in payment of any installments of
rent, additional rent or other sums required to be paid by Tenant under this
Lease, which default shall continue for five (5) days after written notice
thereof by Landlord to Tenant or in the observance or performance of any other
covenant or provision of this Lease and such default continues for ten (10) days
after notice of such default from Landlord.
B. Tenant shall make an assignment for the benefit of
creditors or shall assign or sublet;
C. A voluntary petition is filed by Tenant under any laws for
the purpose of adjudication of Tenant as a bankrupt or the extension of the time
of payment, composition, arrangement, adjustment, modification, settlement or
satisfaction of the liabilities of Tenant, or the reorganization of Tenant under
the Bankruptcy Act of the United States or any future laws of the United States
having the same general purpose, or receivers appointed for Tenant by reason of
insolvency or alleged insolvency of Tenant; an involuntary petition shall be
filed against Tenant for such relief and shall not be dismissed within ninety
(90) days.
Section 14.2 - Termination of Lease. Landlord, notwithstanding any
other right or remedy it may have under the Lease, at law or in equity, may, in
the event of Tenant's material breach of this Lease and its failure to cure as
set forth above, terminate the Lease, by written notice to Tenant setting forth
the basis therefor and effective not less than five (5) days thereafter,
whereupon, upon such effective date, the Lease shall terminate (with the same
effect as if such date were the date fixed herein for the natural expiration of
the Term), Tenant shall surrender the Premises to Landlord and Tenant shall have
no further rights hereunder, but Tenant, shall remain liable as hereinafter
provided. In such event, Landlord may, without further notice, enter the
Premises, repossess the same and dispossess Tenant and all other persons and
property therefrom.
Section 14.3 - Landlord's Damages.
A. If Landlord so terminates the Lease, Tenant shall pay
Landlord, as damages:
i. A sum which represents any excess of (i) the
aggregate of the rent, impositions and additional rent for the balance of the
Term if the Lease were not so terminated, over (ii) the net rental value of the
Premises at the effective date of such termination, both discounted at the rate
of 1% per month; or, at Landlord's option,
ii. Sums equal to the rent, impositions and
additional rent, when the same would have been payable if not for such
termination, less any net rents received by Landlord from
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any reletting, after deducting all costs incurred in connection with such
termination and reletting (but Tenant shall not receive any excess of such net
rents over such sums). Brokerage fees and reasonable legal fees incurred by the
Landlord in re-letting the Premises and the costs of repairing or doing
construction necessary to subdivide for any new tenant or tenants shall be
deemed to be costs incurred in re-letting.
Section 14.4 - Discovery of Damages. Landlord may commence actions or
proceedings to recover such damages or installments thereof at any lawful time.
No provisions hereof shall be construed to preclude Landlord's recovery from
Tenant of any other damages to which Landlord is lawfully entitled. Landlord
shall be entitled to payment of its reasonable legal fees in any action
commenced against Tenant by reason of Tenant's breach of any term of this Lease.
Section 14.5 - Nonexclusivity. No right or remedy herein conferred upon
Landlord is intended to be exclusive of any other right or remedy herein or by
law provided, but each shall be cumulative and subject to the grace and notice
provisions of Section 14.1 hereof, in addition to every other right or remedy
given herein or now or hereafter existing at law or in equity or by statute.
Section 14.6 - Landlord's Right to Perform Tenant's Covenants. If
Tenant shall fail to maintain the Premises or shall fail to make any other
payment or perform any other act which Tenant is obligated to make or perform
under this Lease, and Tenant has not proceeded to diligently cure such failure
to pay or perform after written notice by Landlord to Tenant stating such
nonperformance, then Landlord, after ten (10) day written notice to Tenant, may
perform for the account of Tenant any covenant in the performance of which
Tenant is in default. Tenant shall pay to the Landlord as additional rent, upon
demand, any amount paid by Landlord in the performance of such covenant in any
amount which Landlord shall have paid by reason of failure of Tenant to comply
with any covenant or provision of this Lease, including reasonable accounts of
fees incurred in connection with the prosecution or defense of any proceedings
instituted by reason of default of Tenant, together with interest at the rate of
twenty-four (24%) percent per annum or the highest rate allowed by law whichever
amount shall be less. Interest shall accrue from the date any outstanding amount
is due.
Section 14.7 - No Waiver. The failure of the Landlord to seek redress
for violation of, or to insist upon the strict performance of any covenant or
condition of this Lease shall not prevent a subsequent act which would have
originally constituted a violation from having all the force and effect of an
original violation. The receipt by Landlord of rent with knowledge of the breach
of any covenant of this Lease shall not be deemed a waiver of such breach and no
provision of this Lease shall be deemed to
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have been waived by Landlord unless such waiver be in writing signed by
Landlord. No payment by Tenant or receipt by Landlord of a lesser amount than
the monthly rent herein stipulated shall be deemed to be other than on account
of the earliest stipulated rent, nor shall any endorsement or statement of any
check or any letter accompanying any check or payment as rent be deemed an
accord and satisfaction, and Landlord may accept such check or payment without
prejudice to Landlord's right to recover the balance of such rent or pursue any
other remedy provided in this Lease. No act or thing done by Landlord or
Landlord's agents during the Term shall be deemed an acceptance of a surrender
of said Premises, and no agreement to accept such surrender shall be valid
unless in writing signed by Landlord. No employee of Landlord or Landlord's
agent shall have any power to accept the keys of the Premises prior to the
termination of the Lease and the delivery of keys to any such agent or employee
shall not operate as a termination of the Lease or a surrender of the Premises.
Section 14.8 - Right of Re-Entry. Tenant waives any and all right to a
trial by jury in the event that summary proceedings shall be instituted by
Landlord. The terms "enter", "re-enter", "entry" or "re-entry", as used in this
Lease are not restricted to their technical legal meaning.
ARTICLE 15
NO ASSIGNMENT AND SUBLETTING
Tenant shall not have the right to assign this Lease, or sublet all or
any part of the Demised Premises at any time during the Term.
ARTICLE 16
SUBORDINATION OF LEASE TO MORTGAGES ON THE PREMISES
Section 16.1 - Subordination. The Lease shall be subject and
subordinate to any mortgage on the Premises ("Mortgage") and any renewal,
replacement, extension or consolidation thereof.
Section 16.2 - Attornment Agreement. This Article shall be
self-operative but Tenant shall promptly, upon Landlord's request, execute and
deliver proper instruments subordinating the Lease to the Mortgage, agreeing to
attorn to the Mortgagee (at the Mortgagee's request) in the event the Mortgagee,
by foreclosure or otherwise, terminates Landlord's interest in the Premises and
agreeing further to notify the Mortgagee of any default by Landlord hereunder
and afford the Mortgagee reasonable opportunity to remedy such default should it
wish to do so.
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ARTICLE 17
ACCESS TO PREMISES
The Landlord is hereby given the right during usual business hours to
enter the Premises and to exhibit the same for the purposes of sale or hire of
all or a part of the Premises provided at least twenty-four (24) hours written
notice is given to Tenant. Landlord shall during the final six (6) months of the
Term be entitled to display, on the Premises in such manner as not unreasonably
to interfere with the Tenant's business, the usual "For Sale" or "To Let" signs
or such other signage indicating Landlord's proposed development plans for the
Premises, and the Tenant agrees that such signs may remain unmolested upon the
Premises.
ARTICLE 18
NOTICES
All notices, demands and requests which may or are required to be given
by either party to the other shall be in writing. All notices, demands and
requests by the Tenant to the Landlord shall be sent by United States Certified
Mail (return receipt requested), postage prepaid, addressed to the Landlord at
the address shown on the first page of this Lease or at such other place as the
Landlord may from time to time designate in a written notice to the Tenant. A
copy of any notice to Landlord shall be sent to Xxxxxxx Xxxxx Xxxxxxx Xxxxx &
Xxxxxx LLP, Xxx Xxxxxxxxxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, attn: Xxxxxx X.
Xxxxxxxx. All notices, demands and requests by the Landlord to the Tenant shall
be sent by United States Certified Mail, postage prepaid, Return Receipt
Requested, addressed to the Tenant at the address shown on the first page of
this Lease or at such other place as the Tenant may from time to time designate
in a written notice to the Landlord. A copy of any notice to Tenant shall be
sent to Caro & Associates, P.C. 00 Xxxx 00xx Xxxxxx, Xxxxx 0000, Xxx Xxxx, Xxx
Xxxx 00000, attn: Chase X. Xxxx. Notices, demands and requests which shall be
served upon the Landlord or the Tenant in the manner aforesaid shall be deemed
sufficiently served or given for all purposes hereunder two (2) days after such
notice, demand or request shall be mailed. Tenant hereby appoints any person
employed at the Premises as his agent authorized to accept service of any papers
or service of process.
ARTICLE 19
ACCEPTANCE
Neither the Landlord nor its agents have made any representations with
respect to the Building, the land upon which it is erected except as expressly
set forth herein and no rights,
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easements, or licenses are acquired by the Tenant by this Lease. The taking of
possession of the leased property by the Tenant shall be conclusive evidence
that the Tenant will have accepted the same "as is" at the time of the
commencement of the term hereof. In no event shall the Landlord be liable for
any defect, latent or otherwise, in such property or for any limitation on its
use.
ARTICLE 20
QUIET ENJOYMENT - CONVEYANCE BY LANDLORD
Section 20.1 - Quiet Enjoyment. Tenant, upon paying the rent and all
additional rent and other charges herein provided for and performing all
covenants and conditions of this Lease, on its part to be performed, shall
quietly have and enjoy the Premises during the term, without hindrance or
molestation by Landlord or any other person claiming through Landlord.
Section 20.2 - Conveyance by Landlord. If Landlord shall convey the
Premises, all liabilities and obligations on the part of Landlord under this
Lease accruing subsequent to such transfer shall terminate upon such conveyance
and thereafter all such liabilities and obligations shall be the liabilities and
obligations of such transferee and shall be binding upon such transferee of the
Premises.
ARTICLE 21
ESTOPPEL CERTIFICATE
Within ten (10) days after the request therefrom by Landlord, or if on
a sale, assignment of hypothecation by Landlord of its interest in the Premises,
or any part thereof, an estoppel certificate shall be required from Tenant and
Tenant shall deliver, in recordable form, a certificate to any proposed
mortgagee or purchaser, or to Landlord, certifying if such be the case that this
Lease is in full force and effect, the date of Tenant's most recent payment of
rent, and that there are no defenses or offsets outstanding, or stating those
claimed by Tenant. Tenant's failure to deliver said statement shall be
conclusive upon Tenant that (l) this Lease is in full force and effect without
modification except as may be represented by Landlord, (2) there are no uncured
defaults in Landlord's performance and Tenant has no right of offset, counter
claim or deduction, and (3) that no more than one (l) month's rent has been paid
in advance.
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ARTICLE 22
NO ABATEMENT OF RENT
Section 22.1 - No Abatement of Rent. Except as otherwise specifically
provided in this Lease, there shall be no abatement, diminution or deduction of
rent charges or other compensation due to the Landlord by the Tenant or any
person claiming under it, under any circumstances including but not limited to
the complete or partial destruction of the Building or any inconveniences,
discomfort, interruption of business or otherwise caused by a taking or
destruction of the Premises except as otherwise specifically provided herein.
Section 22.2 - Declaratory Judgment. Tenant waives its rights to bring
a declaratory judgment action with respect to any provision of this Lease, or
with respect to any notice sent pursuant to the provisions of this Lease, and
expressly agrees not to seek injunctive relief which would stay, extend or
otherwise toll any of the time limitations or provisions of this Lease, or any
notice sent pursuant thereto. Any breach of this paragraph shall constitute a
breach of substantial obligations of the tenancy, and shall be grounds for the
immediate termination of this Lease. It is further agreed that in the event
injunctive relief is sought, such relief shall be denied, and the Landlord shall
be entitled to recover the costs of opposing such an application or action,
including its attorneys' fees actually incurred.
ARTICLE 23
SURRENDER
Section 23.1 - Required Conditions. On the last day or sooner
termination of the Lease, Tenant shall quit and surrender the Premises broom
clean, in good condition and repair, exclusive of all alterations, additions and
improvements which may have been made in, on, or to the Premises (including, but
not limited to, replacement of any walls which were removed and removal of any
partitions or walls installed), movable furniture or unattached movable trade
fixtures normal wear and tear excepted. If the Premises are not surrendered as
and when aforesaid, Tenant shall indemnify Landlord against loss or liability
resulting from the delay by Tenant in so surrendering the Premises including,
without limitation, any claims made by any succeeding occupant founded on such
delay. Tenant's obligations under this section shall survive the expiration or
sooner termination of the term. In the event Tenant remains in possession of the
Premises after the expiration of the term created hereunder, and without the
execution of a new lease, Tenant, shall be deemed to be occupying the Premises
as a Tenant from month-to-month, at a monthly rental equal to three (3) times
the annual rent payable for the last month of the term or any renewal thereof.
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Section 23.2 - Abandoned Property. Any property left at the Premises by
the Tenant at the expiration of the Term or, when Tenant abandons the Premises,
shall be deemed abandoned. Landlord may sell or dispose of said property in any
manner it deems appropriate. Any costs of disposal incurred by Landlord shall be
paid by Tenant. This obligation shall survive termination of the Lease.
ARTICLE 24
MISCELLANEOUS
Section 24.1 - Governing Law. This Lease shall be governed by and
construed in accordance with the laws of the State of Nevada.
Section 24.2 - No Broker. Landlord and Tenant each represents and
warrants to the other that it has not employed any realtor, broker or agent in
connection with this Lease and the renting of the Premises hereunder. Landlord
and Tenant each agrees to indemnify the other and hold it harmless from all
liabilities arising from any claim that it incurred a commission, brokerage or
finder's fee including, without limitation, reasonable counsel fees in
connection therewith.
Section 24-3 - No Examination of Deed. In any summary proceeding
commenced by Landlord against Tenant, Tenant waives any rights it may have to
examine the deed for the Premises.
Section 24.4 - No Jury Trial. Anything herein contained to the contrary
notwithstanding, the Tenant agrees and does hereby waive trial by jury in any
action, proceeding or counterclaim brought by either of the parties hereto
against the other on any matter whatsoever arising out of or in any way
connected with this Lease, the relationship of Landlord and Tenant and/or
Tenant's use or occupancy of the Premises.
Section 24.5 - Counterclaim, Etc. Anything herein contained to the
contrary notwithstanding, in any action or summary proceeding brought for the
collection of any of the rent or additional rent provided for herein or for the
nonpayment thereof to the Landlord, or for any proceeding or action wherein
Tenant has violated the terms of this Lease, the Tenant hereby waives and agrees
not to introduce any noncompulsory counterclaims which the Tenant now has or
hereafter may have. The Tenant, however, shall have the right to litigate any
such claim in a separate independent action, and such independent action shall
at no time be joined or consolidated. Moreover, Tenant shall not assert as an
affirmative defense, in any summary proceeding commenced by the Landlord, any
claim which is based on Landlord's alleged negligence. Subject to the terms of
this Lease, Tenant may assert any negligence claims against Landlord in a
plenary action brought against Landlord.
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Section 24.6. Tenant accepts the Premises "as is". Tenant has carefully
inspected the Premises and is fully familiar with the condition of the Premises.
Section 24.7 - Legal Fees. Tenant shall pay as additional rent all
reasonable legal fees incurred by Landlord in any action or proceeding to
collect rent, additional rent or to enforce any provision of this Lease and for
which Landlord successfully prosecutes. Such fees shall be payable to Landlord
if it is defending any action commenced by Tenant or in the defense of any
counterclaims brought by Tenant.
Section 24.8 - Sign. Tenant shall only be entitled to erect a sign at
the Premises upon receipt of written approval from the Landlord, which shall not
be unreasonably withheld. If the Landlord approves the erection of such a sign,
Tenant shall be required to obtain all governmental approvals prior to erecting
the sign. Tenant shall be obligated to maintain the sign and Tenant will be
obligated to remove the sign when it vacates the Premises.
Section 24.9 - Interest. Interest shall accrue on all rent and
additional rent which has accrued but which is unpaid at the rate of twenty-four
(24%) percent per annum or the highest rate allowed by law whichever rate shall
be less.
Section 24.10. Any breach of the terms of this Lease by Tenant shall be
deemed substantial.
IN WITNESS WHEREOF, the parties have duly executed this Lease as of the
date first above written.
Landlord: DEERSKIN TRADING POST, INC.
By: /s/ [ILLEGIBLE]
------------------------------
(title)
Tenant: AMERICA'S SHOPPING MALL, INC.
By: /s/ [ILLEGIBLE]
------------------------------
(title)
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