LEASE AGREEMENT
This Lease Agreement, made this 10 day of August, 1997, by and between:
DOLO REALTY CO.
a partnership of New Jersey
c/o Xxxxxxx Xxxxxx
0 Xxxxxxxxxx Xxx
Xxxxx Xxxx, Xxx Xxxxxx 00000
(hereinafter referred to as "Landlord")
and
TEARDROP GOLF COMPANY
00 Xxx Xxxxxx
Xxxxxxxx Xx. 0
Xxxxxx Xxxx, Xxxxx Xxxxxxxx
Until commencement date
Then at:
0000 Xxxxxxx Xxxx
Xxxxx, Xxx Xxxxxx 00000
(hereinafter referred to as "Tenant")
WITNESSETH:
1. THE DEMISE
The Landlord does hereby demise and lease to Tenant, and Tenant does
hereby lease and hire from Landlord, a building ("Building") of approximately
20,000 sq. ft. and the land known and designated as Block 4303, Lot 26, all
commonly known as 0000 Xxxxxxx Xxxx, Xxxxx, Xxx Xxxxxx, which land and building
are herein referred to as the "Premises", (Exhibit "A"). Tenant shall have the
right of ingress and egress between Lousons Road and the Premises. This lease is
for the entire building and land.
2. QUIET ENJOYMENT
Upon performing its obligations under this Lease, Tenant shall have and
enjoy quiet and peaceable possession of the Premises during the Term (as
hereinafter defined), subject to the terms of this Lease.
3. USE OF PREMISES
The Premises may be used for manufacturing, production and distribution
of golf clubs and any other lawful purposes, except premises may not be used for
manufacturing, preparation and storage of any type of food products, either in
finished or raw material stage. However, Tenant may maintain a cafeteria for
employees only on premises.
4. TERM
A. The term of this Lease (the "Term") shall commence on September 1,
1997 (the "Commencement Date"), and shall end August 31, 2002. The word "Term"
as used in this Lease in phrases such as "during the Term" or "at expiration of
the Term" shall include, unless a contrary intention is expressed, the Renewal
Term, if any.
B. The terms of the work letter, attached as Exhibit C, shall be
completed prior to the Commencement Date by Landlord at its sole expense, in a
good and workmanlike manner in compliance with all laws. Tenant shall obtain a
Certificate of Occupancy if necessary.
S. RENT; ADDITIONAL RENT; SECURITY
A. Tenant shall pay to Landlord, as fixed minimum rent ("Basic Rent")
effective as of the Commencement Date, the sums set forth in Exhibit B. The
Basic Rent shall be payable monthly in advance without setoff, deduction or
counterclaim, and without previous notice or demand therefor, with the first
monthly installment to be due and payable on September 1, 1997 and on the first
day of each month of the Term.
B. In addition to the Basic Rent, Tenant shall pay to Landlord or to the
appropriate third party (as may be specified hereinbelow), as additional rent
from the Commencement Date, without previous notice or demand therefor except as
otherwise herein provided (subject to no offset, deduction or counterclaim of
any kind of nature), and in the manner and upon the conditions herein set forth,
all other charges provided for hereunder to be paid by Tenant. Any and all sums
required to be paid by Tenant hereunder, whether to Landlord or otherwise, shall
for purposes of Landlord's rights including the non-payment thereof and for all
other purposes for which the same shall be relevant, be deemed additional rent
subject to the same duties and obligations of Tenant with respect to, and the
same remedies of Landlord for the non-payment of, Basic Rent ("Additional
Rent"). If Landlord shall pay any monies or incur any expenses in correction of
Tenant's violation of the covenants contained in this Lease, the amounts so paid
or incurred shall, upon notice to Tenant, be
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considered Additional Rent payable by Tenant with the next installment of Basic
Rent thereafter to become due and payable or, if at expiration of the Term or at
other termination of this Lease, within ten (10) days of demand therefor by
Landlord, it being agreed that the responsibility for payment thereof shall
survive expiration of the Term or other termination of this Lease. All rentals
of any nature shall be paid and delivered to Landlord at Landlord's address as
set forth at the head of this Lease, or to such other place or person as
Landlord may from time to time designate by notice to Tenant.
C. Basic Rent and Additional Rent are sometimes hereinafter collectively
referred to as "Rent", "rent" or "rental".
D. Contemporaneously with the execution of this Lease, Tenant has
deposited with Landlord the sum set forth in Exhibit B as the security deposit
(the "Deposit"), receipt of which is hereby acknowledged by Landlord, as
security for the faithful performance by Tenant of all of the terms, covenants
and conditions of this Lease by Tenant to be kept and performed. If at any time
during the Term, any of the rent herein reserved or provided to be paid shall be
overdue and unpaid beyond any applicable grace period, then Landlord may, at its
option, appropriate and apply any portion of the Deposit to the payment of any
such overdue rent; and in the event of the failure of Tenant to keep and perform
any other term, covenant and/or condition of this Lease to be kept and performed
by Tenant, then Landlord, at its option, may appropriate and apply the Deposit,
or so much thereof as may be necessary, to compensate Landlord for the loss or
damage suffered by Landlord due to the breach on the part of Tenant.
6. ASSIGNMENT OR SUBLETTING
A. Tenant may not assign this Lease in whole or in part, nor sublet all
or any part of the Premises, without the prior written Consent of Landlord which
shall not be unreasonably withheld. In all circumstances of assignment or
subletting, the assignee or subtenant shall assume in writing the obligations of
Tenant hereunder and the existing Tenant and guarantor hereunder (if any) and
each subsequent assignee, and guarantor shall remain jointly and severally
liable under this Lease. Consent to any particular assignment or subletting
shall not be deemed consent to any further or subsequent assignment or
subletting.
B. If Tenant shall assign this Lease or sublet the Premises and at any
time and the rent to be received by Tenant pursuant to such assignment or
subletting is in excess of the then applicable rent per square foot hereunder,
Landlord and Tenant shall split equally the entire amount of such excess,
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which excess shall be due and payable from time to time by Tenant promptly upon
receipt by Tenant of payment of rent by the assignee or subtenant. Any excess
shall be reduced by expenses incurred by Tenant, such as brokerage, etc.
C. If Tenant wishes to assign this Lease or sublet to any party, Tenant
first shall give written notice to Landlord of such intention ("Tenant's
Notice"), specifying the name of the proposed assignee or sublessee, the name of
and character of its business, the terms of the proposed assignment or sublease,
and shall provide Landlord with such other information as Landlord requests
including financial statements in form acceptable to Landlord.
D. Landlord may, within fifteen (15) days after its receipt of Tenant's
Notice, by notice to Tenant ("Landlord's Notice"), either consent not to be
unreasonably withheld to or reject the proposal, or Landlord may terminate this
Lease as of a date selected by Tenant, in the event only of a proposed
assignment, (except Landlord may not terminate in connection with the sale of
Tenant's business,) such date of termination having the same effect as if that
date were the original expiration date of this Lease, with all rents being
apportioned and adjusted as of such date of termination
7. REAL ESTATE TAXES
A. Tenant shall pay as Additional Rent during the Term, upon demand from
time to time by Landlord, the "Proportionate Share" (as hereinafter defined) of
real estate taxes, assessments and other charges and levies which may be made or
imposed upon the Premises ("Taxes"), other than income, franchise, gross
receipts, corporation, capital levy, excess profits, revenue, inheritance,
devolution, gift, estate, payroll or stamp tax, or other tax not in lieu of or
as substitute for real estate tax; provided, however, that if any time during
the Tern the methods of taxation prevailing at the Commencement Date shall be
altered so as to cause the whole or any part of the Taxes to be imposed, wholly
or partly, as a capital levy, on the rents received from the Premises or
otherwise, or if any tax shall be measured by or based in whole or in part upon
the value of the Premises and shall be imposed upon Landlord, then, to the
extent that such other tax is a substitute for or is enacted in lieu of existing
real estate tax, as described above, Tenant shall be responsible for payment, as
Additional Rent, of all such Taxes. The maximum obligation of Tenant, however,
shall be achieved by computing such substitute tax as if the Premises were the
sole property of Landlord. Upon request of Tenant, Landlord shall execute all
documents necessary for, and will cooperate with Tenant with respect to, the
prosecution, in Landlord's name, of appeals of the tax assessment against the
Premises, provided
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that no such appeal shall be prosecuted if the prosecution thereof would, in
Landlord's reasonable judgment, jeopardize Landlord's ownership of the Tract or
create any lien or encumbrance thereon, and further provided that Landlord shall
incur no expense or obligation in connection with any such appeals.
B. At the option of Landlord from time to time, the share of Taxes
and/or any other charges for which Tenant may be responsible hereunder shall be
paid in monthly installments in such amounts as are estimated and billed by
Landlord, each such installment being due on the first day of each month. If
Landlord does not make such election, then Tenant shall pay taxes to Landlord on
a quarterly basis, thirty (30) days before the date Landlord is required to pay
same. If Landlord elects such option, which it may do from time to time, then
within sixty (60) days after receipt by Landlord of final Tax bills and/or a
reasonable accounting of any other charges so billed for the applicable year,
Landlord shall make available for Tenant's inspection copies of such Tax bills
and/or such accounting, and the monthly payments to be made by Tenant thereafter
shall be adjusted to compensate for any overpayment or underpayment made by
Tenant in the preceding period. It is understood and agreed that the
responsibility of Tenant to pay costs of any nature which may be due under this
Lease shall, if not paid as of the time of expiration of the Term or other
termination of this Lease, survive expiration of the Term or other termination
of this Lease.
C. The phrase "Proportionate Share" shall mean one hundred percent
(100%).
D. Landlord shall elect to pay assessment for municipal improvements in
the maximum number of installments permitted by law. If the law does not permit
such election, Tenant's share thereof shall be determined as if such assessment
was payable in installments over twenty (20) years.
E. All taxes at beginning and end of term shall be prorated.
8. MAINTENANCE AND REPAIRS
Except as provided below, Tenant shall be responsible for undertaking
all maintenance and repairs to the premises and surrounding land, including the
systems servicing the premises and exterior maintenance such as but not limited
to snow removal. Landlord shall be responsible for structural maintenance and
repair of the Building except that Tenant shall be responsible for any
structural repair (including roof repairs) the need for which shall result from
or arise out of the acts or negligence of
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Tenant or its agents, employees, contractors, invitees or licenses ("Agents").
9. INSURANCE AND INDEMNITY; NON-LIABILITY
A. Tenant shall during the term, at its sole cost and expense, keep in
full force and effect a policy of public liability insurance with respect to the
premises to which the limits of liability for personal injury and property
damage combined shall not be less than $1,000,000 per occurrence and $2,000,000
annual aggregate (per location). In addition, tenant shall provide an excess
limits or umbrella liability policy with limits of liability not less than
$3,000,000 personal injury and property damage per occurrence and annual
aggregate. Landlord shall be named as an additional insured on each of these
policies.
All provisions of said policy, except the limits of liability, shall
operate in the same manner as if there were a separate policy covering each
insured. Certificates of said coverage shall be provided to the Landlord. Said
certificates to offer 30 days prior written notice of any material change or
cancellation. A certificate of insurance shall be delivered to the Landlord on
or before the Commencement Date of this lease.
B. Tenant shall indemnify and save Landlord harmless against and from
any and all claims, actions, damages, losses, liability and expense, including
court costs and reasonable attorneys' fees, in connection with loss of life,
personal injury and/or damage to property arising from or out of any occurrence
in, upon or at the Premises, or the occupancy or use by Tenant of the Premises,
or any part thereof, or occasioned wholly or in part by any act or negligence of
Tenant or its Agents. It is understood that Landlord shall not be liable for any
damage or injury which may be sustained by Tenant or any other person as a
consequence of the failure, breakage, leakage or obstruction of the water,
plumbing, steam, sewer, waste or soil pipes, roof, drains, leaders, gutters,
valleys, downspouts or the like, or of the electrical, gas, power, conveyor,
refrigeration, sprinkler, air conditioning or heating systems; or by reason of
the elements; or resulting from the carelessness, negligence or improper conduct
on the part of any other tenant or its Agents, unless it arises out of
Landlord's or its Agents' negligence.
C. If Tenant shall fail, refuse or neglect to obtain any of the
insurance called for by this Lease or maintain the same and to show Landlord
evidence of the same as aforesaid, Landlord shall have the right (but not the
obligation) to procure any such insurance and charge the cost thereof to Tenant,
but only after notice of failure to cure, within thirty (30) days.
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D. Tenant shall maintain fire and "special perils" insurance coverage on
the building on a replacement cost valuation basis and shall name the Landlord
as an insured. Insurance shall be in an amount equal to the replacement cost of
the building which shall be determined by appraisal of the tenants insurance
company, or, an independent appraisal service and shall be updated at a minimum
of every three years. At the commencement of this lease, it is agreed that the
replacement value shall be $1,000,000.00. Said policy shall recognize the
interest of the Landlord's mortgagees and/or lienholders.
Tenant shall procure rent insurance for two (2) years covering the
perils of file and "special perils" in an amount equal to the rent as outlined
in this lease adjusted per the terms of this lease.
If the tenant carries property insurance on a blanket basis covering
buildings and contents and/or several buildings and/or several buildings and
contents in several buildings, said policy shall contain a provision that the
amount of insurance determined as replacement cost in this paragraph above,
shall be reserved from this blanket amount of insurance for the benefit of the
Landlord.
Policies may be in the name of the tenant and the Landlord, however, it
should be provided within the policy that loss, if any, shall be payable to the
Landlord (see terms and conditions of paragraph 9A). Coverage shall be with an
insurance company licensed to do business in the state of New Jersey and rated A
XII or better by Bests Rating Service (or the equivalent as rated by Standard
and Poors Rating Service). Copies of said policies shall be provided to the
Landlord and their mortgagees as required. Certificates evidencing 30 day notice
of cancellation or material change shall be provided to the Landlord. Said
policies may provide for deductibles of no more than $50,000., however, Tenant
agrees to reimburse Landlord in the amount of any deducible incurred in case of
loss. Said policies hall be written on a no co-insurance and/or agreed amount
basis and shall also provided coverage in an amount no less than $250,000. to
provide for increased cost of construction as the result of changes in
ordinances or codes, and for removal of debris (known as ordinance and law
provisions).
E. Each party hereby releases the other from liability for property
damage from any cause whatsoever to the extent such releasing party shall
receive insurance proceeds (or have the availability of the receipt thereof) on
account of such damage or injury. Landlord and Tenant agree to use their best
efforts to include in their respective property insurance policies, the
following: (i) a waiver of the insurer's right of subrogation against the other
party, (ii) an express agreement
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that such policy shall not be invalidated if the insured waives the right to
recovery against any party responsible for a casualty, or (iii) any other form
of permission for the release of the other party.
10. TENANT'S RIGHT TO MAKE ALTERATIONS OTHER THAN RENOVATION WORK; SIGNS
ON EXTERIOR OF PREMISES
A. Tenant may, from time to time, at its own cost and expense, make such
nonstructural installations, alterations, restorations, changes or replacements
(hereinafter called "Alterations"), in, of or to the Premises as Tenant deems
necessary or desirable, provided that the prior written consent of Landlord
shall have been obtained, which consent shall not be unreasonably withheld or
delayed, (i.e., five (5) days after requested) if the Alterations will not
impair the value of the Premises in Landlord's reasonable judgment.
B. Tenant, in making the Alterations, shall comply with all applicable
laws, orders and regulations of federal, state, county and municipal
authorities, with any direction pursuant to law or given by any public officer,
and with all regulations of any board of fire underwriters having jurisdiction.
C. Tenant shall obtain or cause to be obtained, all building permits,
licenses, temporary and permanent certificates of occupancy and other
governmental approvals which may be required in connection with the making of
the Alterations, and Landlord shall cooperate with Tenant in the obtaining
thereof (at no out-of-pocket expense to Landlord) and shall execute any
documents reasonably required in furtherance of such purpose.
D. Tenant shall pay all costs and expenses in connection with the making
of Alterations and shall discharge or bond any mechanic's lien filed against the
Premises in connection therewith within a period of fifteen (15) days after
Tenant receives notice of filing of such lien, it being understood that Landlord
shall not be deemed hereby to have given consent to any such filing.
E. Tenant shall indemnify and hold Landlord harmless against and from
any claims arising out of such work and shall perform all work in a good and
workmanlike manner.
F. The Alterations shall be and remain the property of Landlord;
provided, however, that Landlord shall have the option, to be exercised, if at
all, at least fifteen (15) days prior to expiration of the Term or of any other
termination hereof, to give notice to Tenant that Tenant is to remove all or any
part of Alterations made by Tenant, upon the giving of which
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notice Tenant shall be obligated to remove the specified Alterations prior to
such expiration or termination and to repair any damage caused by the removal
and restore the Premises to their condition as existed prior to the making of
the applicable Alterations.
G. No signs may be placed or maintained on the exterior of the Premises
by Tenant without the prior written approval of Landlord, which consent shall
not be unreasonably withheld or delayed, (i.e., five (5) days after requested)
and any such sign as is placed or maintained by Tenant on the exterior of the
Premises must be kept in good condition and repair at all times and must be
installed and maintained in compliance with all applicable laws, rules and
regulations.
11. FIXTURES AND PERSONAL PROPERTY
Any trade fixtures, equipment and other property installed in or
attached to the Premises by and at the expense of Tenant shall remain property
of Tenant, and Tenant shall have the right, at any time, and from time to time,
to remove any and all of its trade fixtures, equipment and other property which
it may have stored or installed in the Premises. Tenant shall make all repairs
required as a result of the removal of such items so as to restore the Premises
to their original condition (including but not limited to repair of any holes in
the walls of the Building).
12. UTILITY CHARGES
Tenant shall, upon demand by Landlord, pay for all utilities of any
nature serving the Building.
13. OBSERVANCE OF LAWS, ORDINANCES, RULES AND REGULATIONS
A. Tenant shall comply with all statutes, ordinances, rules, orders,
regulations and requirements of all federal, state, county and municipal and
other applicable governmental authorities relating to the Premises and shall
faithfully observe in the use of the Premises all municipal and county
ordinances and regulations and state and federal statutes and regulations of the
Board of Fire Underwriters or similar agency for the prevention of fires to the
extent that the need to comply is caused by the specific use being made by
Tenant of the premises or any alterations made therein by Tenant. In case Tenant
shall fail or neglect to comply with the aforesaid statutes, ordinances, rules,
orders, regulations and requirements, or any of them, within the period of time
for compliance as contained therein or such shorter time as may be required in
this Lease, then (not in limitation of any other rights which Landlord may
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have under this Lease or by law in the case of a default by Tenant) Landlord or
its agents may enter the Premises and make necessary repairs and comply with any
and all of the said statutes, ordinances, rules, orders, regulations or
requirements, at the cost and expense of Tenant. In case of Tenant's failure to
pay therefor, the said cost and expense shall be added to the next month's rent
and be due and payable promptly as Additional Rent, together with interest as in
this Lease provided. In all other circumstances, Landlord shall comply with all
statutes, ordinances, rules, etc.
B. Tenant may contest any of the above-stated statutes, ordinances,
rules, orders, regulations or requirements, provided that Tenant shall indemnify
Landlord for any loss or liability (including but not limited to reasonable
attorneys' fees incurred by Landlord), and shall not do so in any circumstances
as would, in Landlord's reasonable judgment, jeopardize Landlord's ownership of
the Tract or cause any lien or encumbrance to be placed upon the Tract. Landlord
agrees to cooperate with any such contest, provided that Landlord shall entail
no out-of-pocket cost or expense.
14. DAMAGE TO PREMISES
A. If the Premises shall be damaged by fire, the elements, unavoidable
accident or other casualty, then, subject to the provisions below, Landlord
shall cause the damage to be repaired. In doing so, Landlord shall commence its
repairs promptly and diligently proceed with same, but shall not be required, in
any event, to expend more than the net amount of insurance proceeds received on
account of the damage and if proceeds are insufficient to restore and Landlord
does not expend additional funds, Tenant may terminate.
B. If the Premises shall be so damaged or destroyed as would render the
Premises untenantable for a period in excess of one hundred eighty (180) days,
or if then applicable laws or zoning requirements do not permit the necessary
repair or restoration after occurrence of damage or destruction of the Premises
to whatever extent, then either party shall have the right to cancel this Lease
by written notice to the other served within thirty (30) days of the occurrence,
effective as of the occurrence. Upon such termination, all Rent and Additional
Rent shall be apportioned as of the date of the occurrence. Further, if the
Premises are not in fact restored within 180 days, Tenant may terminate.
C. Tenant shall immediately notify Landlord in case of fire or other
damage to the Premises.
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D. The repair and restoration of any damage to the property of Tenant or
to the decorations and Alterations of Tenant shall not be the responsibility of
Landlord.
E. In the event any damage or destruction of the Premises renders the
Premises untenantable, all rent shall be abated during such period of
untenantability. If any such damage or destruction renders the Premises
partially untenantable, all rent shall be equitably apportioned. For purposes of
this Paragraph E, the word "rent" shall not include any Additional Rent as may
be due from Tenant by reason of default by Tenant under any term, covenant or
condition of this Lease.
F. Insurance proceeds applicable to the Premises and/or Building shall
be and remain the exclusive property of Landlord, except insurance proceeds
specifically designated as proceeds for Tenant's property.
15. EMINENT DOMAIN
A. In the event that more than ten percent (10%) as to Tenant or fifty
percent (50%) as to Landlord, of the floor area of the Building, or egress or
ingress from or to the Building or any utility necessary to operate the Premises
shall be appropriated or taken under or in lieu of the power of eminent domain
by any public or quasi-public authority (without the provision by Landlord of
alternative ingress and egress or utility service), either Landlord or Tenant
may terminate this Lease, effective as of the date of taking, by written notice
to the other given within sixty (60) days from the date of such taking, and the
parties shall thereupon be released from any liability to each other accruing
thereafter. Upon such termination, all Rent and Additional Rent shall be
pro-rated to the date of termination.
B. If there shall occur any such appropriation or taking under or in
lieu of eminent domain not giving rise to a right of termination pursuant to
paragraph A above, or if neither party timely exercises its right of
termination, this Lease shall remain in full force and effect as to the portion
of the Premises remaining, except that the Basic Rent shall be reduced in the
proportion that the floor area taken bears to the total floor area of the
Building. If a portion of the Building shall have been appropriated or taken and
if this Lease shall continue, then and in that event, Landlord agrees to
promptly commence restoration of the Building to a complete unit of like quality
and character as existed prior to such appropriation or taking. In no event
shall Landlord be obligated to incur costs in excess of the net proceeds of
condemnation actually received by Landlord.
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C. If this Lease is terminated as described in this Section, rent for
the last month of Tenant's occupancy shall be pro-rated and Landlord agrees to
refund to Tenant any rent paid in advance.
D. In the event of any appropriation or taking as aforesaid, whether
whole or partial, Tenant shall not be entitled to any part of the award paid for
such condemnation except as otherwise provided in paragraph E of this Section,
and Landlord is to receive the full amount of such award. Tenant hereby
expressly waives any right or claim to any part of such award, except as
hereinafter provided.
E. Tenant shall have the right to claim and recover from the condemning
authority, but not from Landlord, all such compensation then permitted by law as
may be separately awarded or recoverable by Tenant by reason of the condemnation
(provided that such separate award shall not reduce the compensation payable to
Landlord), including but not limited to compensation for or on account of any
cost or loss to which Tenant might be put in repairing, altering or removing
Tenant's merchandise, furniture, fixtures, leasehold improvements and equipment.
16. DEFAULT AND REMEDIES
A. If Tenant defaults in the payment of Basic Rent or any Additional
Rent (no notice thereof being required to be given by Landlord), or if the
Premises shall be deserted, abandoned or vacated, or if Tenant defaults in
compliance with any of the other covenants or conditions of this Lease and fails
to cure the same within twenty (20) days after the receipt of notice specifying
the default, then upon such rental default or at the expiration of such twenty
(20) days, as the case may be, Landlord may (a) cancel and terminate this Lease
upon written notice to Tenant (whereupon the Term shall terminate and expire,
and Tenant shall then quit and surrender the Premises to Landlord, but Tenant
shall remain liable as hereinafter provided) and/or (b) at any time thereafter
re-enter and resume possession of the Premises as if this Lease had not been
made. Anything above to the contrary notwithstanding, the said twenty (20)-day
period of time for cure of non-monetary defaults shall extend beyond such twenty
(20) days for the period of time necessary to effect the cure provided that
Tenant shall diligently commence the cure during such twenty (20)-day period and
shall diligently and continuously prosecute the cure to completion.
B. If this Lease shall be terminated or if Landlord shall be entitled to
re-enter the Premises and dispossess or remove Tenant under the provisions of
this Section (either or both of which events are hereinafter referred to as a
"Termination"), Landlord or Landlord's Agents may immediately or
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at any time thereafter re-enter the Premises and remove therefrom Tenant, its
Agents, and any subtenants and other persons, firms or corporations, and all or
any of its or their property therefrom, either by summary dispossess proceedings
or by any suitable action or proceeding at law or by peaceable reentry or
otherwise, without being liable to indictment, prosecution or damages therefor,
and may repossess and enjoy the Premises, including all additions, alterations
and improvements thereto.
C. In case of Termination, the Basic Rent and all other charges required
to be paid by Tenant hereunder shall thereupon become due and shall be paid by
Tenant up to the time of the Termination, and Tenant shall also pay to Landlord
all reasonable expenses which Landlord may then or thereafter incur as a result
of or arising out of a Termination, including but not limited to court costs,
attorneys' fees, brokerage commissions, and costs of terminating the tenancy of
Tenant, re-entering, dispossessing or otherwise removing Tenant and restoring
the Premises to good order and condition, and from time to time altering and
otherwise preparing the same for re-letting (including but not limited to costs
of removing all or any part of the Renovations or Alterations made by Tenant).
Upon a Termination, Landlord may, at any time and from time to time (but shall
not be obligated to), re-let the Premises, in whole or in part, in its own name,
for a term or terms which, at Landlord's option, may be for the remainder of the
Term, or for any longer or shorter period. Landlord shall be required to
mitigate its damages.
D. In addition to the payments required hereinabove in this Section,
Tenant shall be obligated to, and shall, pay to Landlord, upon demand and at
Landlord's option:
(i) liquidated damages in an amount which, at the time of Termination,
is equal to the excess, if any, of the then present amount of the installments
of Basic Rent and Additional Rent reserved hereunder, for the period which would
otherwise have constituted the unexpired portion of the Term over the then
present rental value of the Premises for such unexpired portion of the Term (the
word "Term" for purposes of this clause (i) and the ensuing clause (ii) being
deemed to include any Renewal Term then in effect or for which the option shall
have theretofore been exercised); or
(ii) damages payable in monthly installments, in advance, on the first
day of each calendar month following the Termination, and continuing until the
date originally fixed herein for the expiration of the Term, in amounts equal to
the excess, if any, of the sums of the aggregate expenses paid by Landlord
during the month immediately preceding such calendar month for all such items
as, by the terms of this Lease, are
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required to be paid by Tenant, plus an amount equal to the installment of Basic
Rent which would have been payable by Tenant hereunder in respect to such
calendar month, had this Lease not been terminated, over the sum of rents, if
any, collected by or accruing to Landlord in respect to such calendar month
pursuant to a re-letting or to any holding over by any subtenants of Tenant.
E. Landlord shall in no event be liable for failure to relet the
Premises, or in the event that the Premises are re-let, for failure to collect
rent due under such re-letting; and in no event shall Tenant be entitled to
receive any excess of rents over the sums payable by Tenant to Landlord
hereunder but such excess shall be credited to the unpaid rentals due hereunder,
and to the expenses of reletting and preparing for re-letting as provided
herein.
F. Suit or suits for the recovery of damages hereunder, or for any
installments of rent, may be brought by Landlord from time to time at its
election, and nothing herein contained shall be deemed to require Landlord to
postpone suit until the date when the "Term would have expired if it had not
been terminated under the provisions of this Lease, or under any provision of
law, or had Landlord not reentered into or upon the Premises.
C. Landlord, at its option, in addition to any and all remedies
available to it, shall have the right to charge a fee for payment of rent
received later than ten (10) days after the date due, which fee shall be the
greater of five percent (5%) of the delinquent payment or one percent (1%) per
month of the amount of the overdue rent.
H. Tenant hereby waives all rights of redemption to which Tenant or any
person claiming under Tenant might be entitled, after an abandonment of the
Premises or after a surrender and acceptance of the Premises and Tenant's
leasehold estate, or after a dispossession of Tenant from the Premises, or after
a termination of this Lease, or after a judgment against Tenant in an action in
ejectment, or after the issuance of a final order or warrant of dispossess in a
summary proceeding, or in any other proceeding or action authorized by any rule
of law or statute now or hereafter in force or effect.
I. No mention in this Lease of any specific right or remedy shall
preclude Landlord from exercising any other right or from having any other
remedy or from maintaining any action to which Landlord may otherwise be
entitled hereunder or at law or in equity.
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J. Landlord shall subordinate any statutory lien to any Lender providing
financing to Tenant.
17. NOTICES
Wherever in this Lease it shall be required or permitted that notice or
demand be given or served by either party to this Lease to or on the other, such
notice or demand shall be in writing and shall either be served personally or
sent by registered or certified mail, return receipt requested, to the parties
at the addresses described below -- to Landlord, at its address stated at the
head of this Lease, with a copy to Xxxxxxx X. Xxxxxxxx, Esq., 000 Xxxxxxxx
Xxxxxx, Xxxxx 000, Xxxxxxxx, Xxx Xxxxxx 00000; to Tenant, at its address stated
at the head of this Lease, attention of Xxxx Xxxxxxx, with a copy to Xxxxxx
Xxxxxxxxxx, Esq., 000 X. Xxxxxxxxxx Xxxxxx, Xxxxxxxxxx, Xxx Xxxxxx 00000. Such
addresses may be changed from time to time by either party by written notices
served upon the other, as above provided. Notices shall be effective upon
receipt.
18. ATTORNMENT; DEFINITION OF TERM "LANDLORD"
A. Tenant shall attorn to any new owner of the Tract, including a
mortgagee of the Tract, and shall execute such attornment instrument as shall
reasonably be requested by such new owner, and Tenant waives any right it may
have to surrender possession of the Premises or terminate this Lease in the
event of change of ownership of the Premises. The term "Landlord", as used in
this Lease, means only the owner for the time being of the Premises, so that in
the event of any sale or conveyance thereof, Landlord (and any successor selling
or conveying landlord) shall be and hereby is entirely freed and relieved of all
Landlord's covenants and obligations hereunder which accrued thereafter and it
shall be determined and construed, without further agreement between the parties
and the purchaser or transferee at or of any such sale or conveyance, that the
purchaser or transferee has assumed and agreed to carry out any and all
covenants and obligations of Landlord hereunder.
B. Upon any transfer of title by Landlord, Tenant agrees to give to the
grantee, at the request of Landlord an estoppel or offset statement as provided
for in Section 22 below ("Estoppel or Offset Statements") and then current
financial statements of Tenant.
19. COST OF PERFORMING OBLIGATIONS
Unless otherwise specified, the respective obligations of the parties to
keep, perform and observe any terms, covenants or conditions of this Lease shall
be at the sole cost and expense of the party so obligated.
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20. RE-ENTRY BY LANDLORD
Should Tenant make an assignment for the benefit of creditors or file a
voluntary petition in bankruptcy or be adjudicated a bankrupt or take the
benefit of any insolvency act or if a receiver or trustee of Tenant and/or of
its property shall be appointed in any proceedings other than bankruptcy
proceedings and such appointment, if made in proceedings instituted by Tenant,
shall not be vacated within thirty (30) days after it has been made, or if made
in proceedings instituted by other than Tenant, shall not be vacated within
sixty (60) days after it has been made, any of the foregoing shall constitute a
default hereunder and Landlord, in addition to all other rights or remedies
hereunder and by law or equity, shall have the immediate right of re-entry and
may remove all persons and property from the Premises and such property may be
removed and stored in a public warehouse or elsewhere at the cost and expense of
Tenant, all without Landlord being deemed guilty of trespass or becoming liable
for any loss or damage which may be occasioned thereby.
21. MORTGAGE SUBORDINATION
This Lease shall be subordinate to the lien of any present or future
mortgage(s) on the Premises. Notwithstanding the automatic nature of the
subordination described in this Section, Tenant shall execute, acknowledge and
deliver to Landlord, or to its designee(s), any and all documents evidencing
such subordination as may be reasonably requested by Landlord or by any proposed
mortgagee. In default of such responsibility, Tenant hereby appoints Landlord as
Tenant's attorney-in-fact to execute, acknowledge and deliver such instrument
for and in the name and stead of Tenant, such power of attorney given to
Landlord to be deemed irrevocable and coupled with an interest. If any mortgagee
elects to have Tenant's interest in this Lease rendered superior in priority to
that mortgagee's lien on the Premises, then by notice to Tenant, this Lease
shall be deemed superior to that mortgagee's lien, whether this Lease was
executed before or after execution or recording of the instrument creating that
mortgagee's lien. Tenant shall provide to Landlord, Landlord's mortgagee and/or
any prospective mortgagee of Landlord, such financial statements and
information, relating to Tenant, as may be reasonably requested from time to
time by Landlord, the mortgagee and/or the prospective mortgagee.
22. ESTOPPEL OR OFFSET STATEMENTS
Tenant and Landlord shall, upon the reasonable request from time to time
of Landlord or Tenant, execute and deliver an estoppel or offset statement (a)
certifying that this Lease is in full force and effect and has not been modified
or amended, or
16
stating all amendments and modifications thereto; (b) specifying the dates to
which Rent and Additional Rent have been paid; (c) stating whether or not Tenant
or Landlord alleges that the other is in any respect in default, and, if so,
specifying the alleged default; (d) stating the Commencement Date; (e) stating
which options to renew have been exercised, if any; and (f) stating such other
information as Landlord may reasonably request.
23. HOLDOVER
In the event that Tenant shall for any reason remain in possession of
the Premises after the expiration of the Term, such possession shall at the
option of Landlord be on a month-to-month basis subject to the terms and
conditions of this Lease except as to duration of term and except that the Basic
Rent shall be one hundred and fifty percent (150%) of that in effect at
expiration of the Term. The foregoing is not intended to afford to Tenant the
right to remain in possession of the Premises after expiration of the Term
without Landlord's prior written consent.
24. FORCE MAJEURE
The period of time during which either party is prevented or delayed in
the making of any improvements or repairs or fulfilling any obligation required
under this Lease, with the exception of obligations of the payment of Rent or
Additional Rent, due to unavoidable delays caused by fire, catastrophe, strikes,
labor trouble, civil commotion, Acts of God or public enemies, government
prohibitions or regulations or inability to obtain materials or any other causes
beyond such party's reasonable control, shall be added to such party's time for
performance thereof, and such party shall have no liability by reason thereof.
It is understood, not in limitation of the generality of the foregoing, that
Landlord shall under no circumstances be liable to Tenant in damages or
otherwise for any interruption in service of water, electricity, heating, air
conditioning and/or other utilities and services of any nature caused by an
unavoidable delay, by the making of any necessary repairs or improvements or by
any cause beyond Landlord's reasonable control.
25. ENTRY BY LANDLORD
For a period commencing one (1) year prior to the termination of this
Lease, Landlord and its Agents shall have reasonable access, during business
hours, to the Premises for the purpose of exhibiting the same to prospective
tenants, and shall during the Term have reasonable access, during business
hours, to the Premises for the purpose of exhibiting the same to prospective
purchasers. Landlord shall exercise its right of access for such purposes, if
exercised at all, upon reasonable
17
advance notice to Tenant and in a manner not unreasonably to interfere
with Tenant's business at the Premises. At all times during the Term, Tenant
will permit upon prior notice, Landlord and its Agents to enter the Premises
during business hours in order to inspect the same and/or to enforce or carry
out any provision of this Lease.
26. BROKERS
Each party represents to the other it knows of no broker or other person
who introduced the parties to this transaction other than The Real Estate Store,
Kenilworth, New Jersey and Xxxxx Realty Associates, Inc., for whose commission
Landlord shall be liable by separate agreement (and against which Landlord shall
indemnify and hold Tenant harmless from). In the event of a claim by any other
broker or person for commissions arising out of a misrepresentation by one of
the parties hereto, that party shall indemnify and hold the other harmless from
that claim, such indemnify and hold harmless agreement to include court costs
and reasonable attorneys' fees incurred in respect to or in defense against such
claim.
27. END OF TERM
Upon expiration of the Term or other termination of this Lease, Tenant
shall peaceably and quietly quit and surrender the Premises, broom clean, in the
same condition as on Commencement Date, reasonable wear and tear and damage by
fire or other casualty excepted. Tenant shall also, remove all trade fixtures
and movable partitions, and shall repair any damage caused in so moving and
restore the Premises to such condition as existed prior to installation of such
fixtures and partitions. All Alterations of Tenant shall be left by Tenant and
shall remain part of the Premises except to the extent Landlord may have
otherwise specified in a notice to Tenant given pursuant to paragraph F of
Section 10 ("Tenant's Right to Make Alterations; Signs on Exterior of
Premises").
28. LIABILITY OF LANDLORD
Tenant agrees that the liability of Landlord (or of any subsequent
landlord) in the event of breach by Landlord shall be limited to Landlord's
interest in the Premises and any proceed therefrom. Tenant expressly agrees that
any judgment or award which Tenant may obtain against Landlord shall be
recoverable and satisfied solely out of the right, title and interest of
Landlord in and to the Premises and any proceed therefrom, and Tenant shall have
no personal rights against any principals or partners of Landlord, and shall
have no rights of lien or levy against any other property of Landlord.
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29. NET LEASE
It is understood and agreed that, except as may otherwise in this Lease
be expressly provided, Tenant has the responsibility of paying all charges of
any kind or nature attributable to the Premises, whether or not specifically set
forth in this Lease, it being the intention of the parties hereto that, except
as may otherwise herein be provided, the Rent payable to Landlord under this
Lease be absolutely net and that Landlord have no expense whatsoever
attributable to the Premises or to the operation or maintenance of the Premises.
30. PERFORMANCE OF TENANT'S OBLIGATIONS
If Tenant shall be in default hereunder, after the lapse of any
applicable notice and grace period, in any respect, Landlord may at Landlord's
option and without waiving its rights hereunder, cure such default on behalf of
Tenant, in which event Tenant shall, promptly upon demand by Landlord, reimburse
Landlord for all expenses incurred by Landlord in effecting such cure, including
but not limited to attorneys' fees, together with interest thereon at twelve
percent (12%) per annum (whether or not elsewhere in this Lease it is provided
for Landlord to recover interest upon occurrence of a specified default by
Tenant and cure thereof by Landlord). In order to collect such reimbursement,
Landlord shall have all the remedies available under this Lease and/or by law or
equity for a default in the payment of Rent. Tenant shall also be responsible
for all attorneys' fees incurred by Landlord in connection with any default or
threatened default by Tenant, the enforcement by Landlord of any covenant made
by Tenant, and/or Landlord's exercise of any right of approval or consent as may
be provided for hereunder.
31. FLOOR LOADS
Tenant shall not place a load upon any floor of the Premises exceeding
the floor load per square foot area which it was designed to carry and which is
allowed by law.
32. ECRA COMPLIANCE
Tenant shall, at Tenant's own expense, comply with the Environmental
Cleanup Responsibility Act and Industrial Site Recovery Act N.J.S.A. 13:1K-6
et. seq., and the regulations promulgated thereunder ("ECRA") and ("ISRA"), as
well as all other environmental laws, rules or regulations ("Environmental
Laws") only in connection with cessation of its operation and be limited to
costs and expenses related to its actions or occurrences during the lease term.
Tenant shall, at Tenant's own
19
expense, make all submissions to, provide all information to, and comply
with all requirements of, the Bureau of Industrial Site Evaluation ("the
Bureau") of the New Jersey Department of Environmental Protection ("NJDEP").
Should the Bureau or any other division of NJDEP determine that a cleanup plan
be prepared and that a cleanup be undertaken because of any spills or discharges
of hazardous substances or wastes at the Premises which occur during the Term,
unless caused by Landlord's or its Agents' acts or omissions, or from offsite,
then Tenant shall, at Tenant's own expense, prepare and submit the required
plans and financial assurances, and carry out the approved plans. At no expense
to Landlord, Tenant shall promptly provide all information requested by Landlord
for preparation of nonapplicability affidavits with respect to ECRA and ISRA and
shall promptly sign and deliver such affidavits when requested by Landlord.
Tenant shall indemnify, defend and save harmless Landlord against all fines,
suits, procedures, claims and actions of any kind (including attorneys' fees)
arising out of or in any way connected with any spills or discharges of
hazardous substances or wastes at the Premises which occur during the Term, and
from all fines, suits, procedures, claims and actions of any kind (including
attorneys' fees) arising out of Tenant's failure to provide all information,
make all submissions and take all actions required by the Bureau or any other
division of NJDEP, or from any violation under or failure to comply with ECRA
and ISRA or any other Environmental Law. Tenant's obligations and liabilities
under this Section 32 shall continue so long as Landlord remains responsible for
any spills or discharges of hazardous substances or wastes at the Premises which
occur during the term, notwithstanding expiration of the Term or other
termination of this Lease. Tenant's failure to abide by the terms of this
Section 32 shall be restrainable by injunction.
33. INVALIDITY OF PARTICULAR PROVISIONS
Wherever in this Lease any portion or part thereof has been stricken
out, whether or not any relative provision has been added, this Lease shall be
read and construed as if the material so stricken were never included herein and
no implication shall be drawn from the text of the material so stricken which
would be inconsistent in any way with the construction or interpretation which
would be appropriate if such material were never contained herein.
34. GENDER AND PERSON
Words of any gender used in this Lease shall be held to include any
other gender, and words in the singular number shall be held to include the
plural, when the sense of the words require same.
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35. MODIFICATION
This Lease may not be modified except by an instrument in writing signed
by the parties hereto.
36. COVENANTS TO BIND RESPECTIVE PARTIES
The covenants and agreements contained in this Lease shall inure to the
benefit of the parties hereto and their heirs, legal representatives, successors
and permitted assigns and, subject to Section 18 ("Attornment, Definition of
Term 'Landlord'"), shall be binding on the parties hereto, their heirs, legal
representatives, successors and assigns.
37. NO WAIVER OF BREACHES
The failure of Landlord or Tenant to insist upon strict performance of
any of the covenants or conditions of this Lease or to exercise any option
herein conferred in any one or more instances shall not be construed as a waiver
or relinquishment for the future of any such covenants, conditions or options,
but the same shall be and remain in full force and effect. Acceptance by
Landlord of current rent shall not be deemed a waiver of past obligations of
Tenant, nor shall acceptance by Landlord at any time of any monies proffered by
Tenant constituting less than the entire amount of rent then due be deemed other
than receipt of partial payment on account of the rent due, and shall not
constitute an accord or satisfaction.
38. CAPTIONS
Captions have been used solely for the sake of reference and shall in no
way govern or affect the interpretation hereof.
39. EXHIBITS
All exhibits referred to herein are attached (unless otherwise
specified) and are deemed to be a part hereof.
40. INTEGRATION
The agreements contained in this Lease constitute the full and final
agreement between the parties hereto as to the subject matter hereof, and all
prior agreements or writings of any nature between the parties hereto are hereby
superseded and are integrated herein. This Lease may not be amended except in
writing signed by both parties hereto.
21
41. JOINT AND SEVERAL LIABILITY
In the event that two or more individuals, corporations, partnerships or
other business associations (or any combination of two or more thereof) shall
sign this Lease as or hereafter become Tenant, the liability of each such
individual, corporation, partnership or other business association to pay rent
and perform all other obligations hereunder shall be joint and several. In the
event that Tenant is or shall be a partnership or other business association the
members of which are, by virtue of statute or general law, subject to personal
liability, the liability of each such member shall be joint and several.
42. NO OPTION OR OFFER
The submission of this Lease for examination does not constitute a
reservation of, or option for, the Premises nor an offer of any nature, and this
Lease becomes effective only upon execution hereof by Landlord, Tenant and the
guarantor(s), if any.
43. CHANGES REQUIRED BY LENDER
Tenant shall consent in writing to any changes in this Lease required by
any prospective mortgage lender provided that no such changes shall materially
adversely affect Tenant's rights hereunder or materially increase Tenant's
obligations hereunder.
44. LANDLORD REPRESENTATION
Landlord represents, to the best of its knowledge, there are not
hazardous substances on the demised premises, including asbestos, and Landlord
shall remediate any of the same to the extent that they exist prior to the
commencement of the term or were caused by acts of Landlord or migration from
offsite, and the Landlord agrees to indemnify and hold Tenant harmless
therefrom.
45. WAIVER OF JURY TRIAL
The parties waive the right to a jury trial with respect to any action,
including an action for damage or injury, arising out of this Lease or Tenant's
use or occupancy of the Premises.
46. NO LEASE RECORDING
Tenant agrees that it will not record this Lease or any memorandum
hereof.
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47. RENEWAL
A. Tenant shall be entitled to renew this Lease for one (1) five
(5)-year period, which shall commence on the day immediately subsequent to the
date of the expiration of the initial Term (the "Renewal Term"), upon the same
terms and conditions as are contained in this Lease, except that there shall be
no further right of renewal and the Basic Rent for the Renewal Term shall be as
set forth on Exhibit B.
B. Tenant shall only be entitled to exercise its right to renew if
Tenant is not in material default of any of the provisions of this Lease at the
time of exercise thereof, and such right shall only be effective if Tenant shall
continue to be current and not in default with respect to the provisions of this
Lease from the date of Tenant's exercise of renewal to the date of expiration of
the Term.
C. Tenant shall exercise its right of renewal, if at a11, by giving
Landlord notice of the exercise thereof at least nine (9) months prior to
expiration of the Term.
IN WITNESS WHEREOF, the parties hereto have hereunder set their hands
and seals the day and year first above written.
WITNESS OR ATTEST: LANDLORD:
DOLO REALTY CO.
/s/ Xxxxxxx Xxxxxx By: /s/ Xxxxxxx Xxxxxx
-------------------------- --------------------------
Xxxxxxx Xxxxxx, Partner
/s/ Xxxxx X. Xxxxxxxx By: /s/ Xxxxxxx Xxxxxx
--------------------------- --------------------------
Xxxxxxx Xxxxxx, Partner
TENANT:
TEARDROP GOLF CO.
/s/ X. Xxxxxxx
___________________________ --------------------------
Secretary President
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EXHIBIT A
[GRAPHIC OMITTED]
Survey of 0000 Xxxxxxx Xxxx, Xxxxxxxx xx Xxxxx, Xxxxx Xxxxxx, Xxx Xxxxxx
EXHIBIT B
BASIC RENT FOR BUILDING-AND TRACT
Portion of Term Fixed Annual Fixed Monthly
------------ -------------
September 1, 1997-- August 31, 1998 $75,000.00 $6,250.00
September 1, 1998 - August 31, 1999 $75,000.00 $6,250.00
September 1, 1999 - August 31, 2000 $80,000.00 $6,666.66
September 1, 2000 - August 31, 2001 $80,000.00 $6,666.66
September 1, 2001 - August 31, 2002 $85,000.00 $7,083.33
SECURITY DEPOSIT
Two Months - which is increased as Rent increases $12,500.00
Renewal Portion:
September 1, 2002 - August 31, 2007 $450,000.00 $ 7,500.00
WITNESS OR ATTEST: LANDLORD:
DOLO REALTY CO.
/s/ Xxxxxxx Xxxxxx By: /s/ Xxxxxxx Xxxxxx
-------------------------- --------------------------
Xxxxxxx Xxxxxx, Partner
/s/ Xxxxx X. Xxxxxxxx By: /s/ Xxxxxxx Xxxxxx
--------------------------- --------------------------
Xxxxxxx Xxxxxx, Partner
TENANT:
TEARDROP GOLF CO.
/a/ Xxxxx Xxxxxxx /s/ X. Xxxxxxx
---------------------------- --------------------------
Secretary President
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EXHIBIT C
WORK LETTER
The Landlord shall complete the following at its own sole cost and
expense:
A Repair existing driveway as to eliminate all pot holes,
stones and etc.;
B Paint the walls of the offices;
C Replace any broken, stained or missing ceiling tiles;
and
D Warehouse shall be delivered in a "broom swept" clean
condition.
WITNESS OR ATTEST: LANDLORD:
DOLO REALTY CO.
/s/ Xxxxxxx Xxxxxx By: /s/ Xxxxxxx Xxxxxx
-------------------------- --------------------------
Xxxxxxx Xxxxxx, Partner
/s/ Xxxxx X. Xxxxxxxx By: /s/ Xxxxxxx Xxxxxx
--------------------------- --------------------------
Xxxxxxx Xxxxxx, Partner
TENANT:
TEARDROP GOLF CO.
/a/ Xxxxx Xxxxxxx /s/ X. Xxxxxxx
---------------------------- --------------------------
Secretary President
Dolo Realty Co., as Landlord, and Teardrop Golf Company, as Tenant, are
about to enter into a Lease Agreement ("Lease") for premises commonly known as
0000 Xxxxxxx Xxxx, Xxxxx, Xxx Xxxxxx 00000.
This will confirm our agreement as follows:
1. If Teardrop Golf Company ("Teardrop") does not obtain from Union
Township a Certificate of Occupancy permitting its use of the premises for the
manufacturing, production and distribution of golf clubs, without the need to
make any repairs or improvements to the premises and without the imposition of
any requirements other than the mere filing of an application, then Teardrop
Golf Company shall have the right to terminate the Lease and the same shall be
deemed void ab initio. If Teardrop decides to exercise the right herein provided
it shall do so by August 18, 1997.
2. Teardrop shall have the right, during the twenty-one day period
after the existing tenant of the premises vacates the same and Teardrop is
notified of that fact ("Exam Commencement Date"), to examine the premises to
determine the condition thereof. If Teardrop is unsatisfied with the condition
of the premises, for any reason, it shall have the right to terminate the Lease
by giving notice to the Landlord within twenty-one (21) days after the Exam
Commencement Date. Notwithstanding the foregoing, (x) if Teardrop's inspection
of the premises indicates that repairs are needed to the HVAC system, then
Landlord shall be obligated to make the same and to provide Teardrop with a six
month warranty with respect thereto and (y) if Teardrop is unsatisfied with the
condition of the premises and elects to terminate the Lease Landlord may negate
said termination notice by agreeing, at Landlord's expense, by notice given to
Teardrop within five (5) days of Teardrop's termination notice, to promptly make
all repairs desired by Teardrop.
The undersigned have executed this letter agreement to indicate their
agreement with the foregoing.
Teardrop Golf Company
By: /s/ X. Xxxxxxx
---------------------------
Dolo Realty Co.
By: /s/ [ILLEGIBLE]
---------------------------
Dolo Realty Co., as Landlord, and Teardrop Golf Company, as Tenant, have
entered into a Lease Agreement ("Lease"), dated August 10, 1997 for premises
commonly known as 0000 Xxxxxxx Xxxx, Xxxxx, Xxx Xxxxxx 00000.
Section 4 of the lease provides that "Tenant shall obtain a Certificate
of Occupancy if necessary."
The parties have been advised by the Township of Union that a
Certificate of Occupancy cannot and will not be issued until such time as Tenant
takes possession of the demised premises and moves in furniture, fixtures and
equipment therein, and sets up the premises for the operation of its business.
The parties hereby agree as follows:
1. If the Township of Union, or any department thereof, requires that
repairs or alterations be made to the demised premises as a condition (precedent
or subsequent) of obtaining a Certificate of Occupancy then each of the
Landlord and Tenant are responsible for such repairs and alterations as follows:
(i) If the repairs and alterations are required solely by reason of
the specific use being made by Tenant of the demised premises, of
the specific machinery and equipment placed therein by the Tenant
or the specific layout of the demised premises made by Tenant,
then Tenant shall be responsible for making such repairs and
alterations.
(ii) If the repairs and alterations required to be made do not fall
within category (i) above, then the Landlord shall promptly, at
its expense, make all such repairs and alterations.
2. If the Tenant is prevented by the Township from commencing the
conduct of business until Landlord makes its repairs and alterations, then
rental under the Lease shall xxxxx until such time as the Landlord finishes its
repairs and alterations and the Township signs off on the same.
The undersigned have executed this letter agreement to indicate their
agreement with the foregoing.
Teardrop Golf Company
By: /s/ X. Xxxxxxx
-------------------------------
Dolo Realty Co.
By: /s/ Xxxxxx G
------------------------------
Dated: August , 1997
