Exhibit 10.4
AGREEMENT
THIS AGREEMENT of lease, executed this 1st day of March, 1995, between
Xxxxx County Realty Co. having its offices at 0000 Xxx Xxxxx Xxxxx, Xxxxxxxxx,
Xxxxxxxx 00000, hereinafter referred to as LESSOR, and The Boyds Collection
Ltd., Inc., having its offices at 00 Xxxxx Xxxxx Xxxxxx, Xxxxxxxxxxx,
Xxxxxxxxxxxx 00000, hereinafter referred to as LESSEE.
WITNESSETH:
LESSOR, for and in consideration of the rent, covenants and agreements
hereinafter more fully mentioned and reserved, does by these presents lease to
the LESSEE a portion of that certain tract of real estate, being a portion of
the warehouse and offices in the former Sylvania Shoe facility located at 000
Xxxxx Xxxxxx, XxXxxxxxxxxxx, Xxxxxxxxxxxx as shown on Exhibit A attached hereto
and made part hereof, containing approximately 57,678 square feet, for a term of
three (3) years, beginning on the first day of May, 1995, at the total rental or
cost of Four Hundred, Seventy-Five Thousand, Five Hundred, Ninety and 60/100
Dollars ($475,590.60), payable in monthly installments of $13,210.85, in
advance, without demand, on the first day of each month during the term or any
continuance or renewal of time, to and at the office of X.X. Xxxx Associates,
Inc., 00 Xxxx Xxxxxx Xxxxxx, Xxxx, Xxxxxxxxxxxx 00000. The security deposit and
first month's rent are due upon the signing of the Lease.
SECURITY DEPOSIT
LESSEE shall pay a security deposit of $13,000.00 at the signing of
this lease. The Security Deposit shall be held by X.X. Xxxx Associates, Inc. and
shall bear interest at the rate paid on that account by the banking institution
holding said Deposit. At the termination of this lease, the security deposit
shall be first applied to repairs required as a result of LESSEE'S occupancy,
reasonable wear and tear excepted, thereafter to cleaning, thereafter to unpaid
rents, if any, and the balance, if any, shall be returned to the LESSEE. The
LESSEE may not consider the security deposit as a deposit toward the last
month's rent.
PAYMENT OF RENT
There will be a late payment charge of $25.00 per day on all late
rentals beginning with the first day following the due date. Late fees shall be
due and payable as additional rent.
LESSEE shall not make any deductions from rental payments for repairs
or other charges incurred by LESSEE, regardless of said charges being the
obligation of LESSOR except as provided below. Any and all such charges paid by
LESSEE, if appropriate under the terms of this Agreement, shall be invoiced to
LESSOR, who will reimburse LESSEE within five business days of receipt of
invoice. If reimbursement is not received by LESSEE within ten business days
following LESSEE'S invoicing date, LESSEE may escrow with LESSEE'S attorney an
amount equal to such invoice and reduce its next rental payment in that same
amount.
LESSEE further agrees to pay to LESSOR, or LESSOR'S agent, the sum of
$15.00 for each and every check which LESSEE tenders to LESSOR, or LESSOR'S
agent, which is dishonored. If LESSOR, or LESSOR'S agent, receives a total of
two insufficient checks which are dishonored by
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LESSOR'S bank for any reason during this lease agreement, LESSEE agrees that all
rental payments thereafter will be made by money order.
OPTION TO RENEW
Providing the LESSEE is not in default of this lease agreement, LESSEE
shall have the option to renew this lease for an additional term of two (2)
years from May 1, 1998 through April 30, 2000 by giving written notice to LESSOR
on or before November 1, 1997. All terms and conditions of this lease shall
remain unchanged except for the rental. Annual rental for the renewal term shall
be $178,717.50 payable in monthly installments of $14,893.13.
OPTION TO LEASE ADDITIONAL SPACE
Provided LESSEE is not in default of this lease agreement, LESSEE shall
have the option to lease 10,000 square feet of additional space at the end of
the second year of the initial term of this lease for the balance of the initial
term. The location of the additional space shall be as designated by LESSOR and
shall be contiguous to LESSEE'S leased area. All terms and conditions of this
lease shall apply to this space. Annual rental for such additional space shall
be Twenty Thousand and 00/100 Dollars ($20,000.00) payable in monthly
installments of $1,666.67 during the initial term of this lease. In the event
the LESSEE exercises the option to extend as provided herein, this space shall
be included in the option to renew. During the renewal term of this lease,
annual rental for such additional space shall be $22,916.67 payable in monthly
installments of $1,909.72.
TERMINATION
In the event LESSEE does not exercise its option as set forth in the
paragraph entitled, "Option to Renew," either party may terminate this lease at
the end of the term herein by giving the other written notice of at least 90
days prior thereto, but in default of such notice this lease shall continue upon
the same terms and conditions for a further period of one (1) month, and so on
from month to month until terminated by either party giving to the other party
90 days written notice, in which event this lease shall terminate on the last
day of the month following the end of the 90-day notice period.
DEFAULT BY TENANT
The failure of LESSEE to pay, when due, any installment of rent or
additional rent or any other sum payable by LESSEE under this Lease, which
failure shall continue unremedied by LESSEE for a period of five (5) days after
written notice thereof shall have been given to LESSEE by LESSOR shall
constitute default of this Lease Agreement provided, however, that, if LESSEE
defaults in making its payments of rent or additional rent requiring LESSOR'S
written notice on three (3) occasions within any twelve (12) month period, then,
at LESSOR'S election, such third (or subsequent) default shall not be capable of
cure by LESSEE.
If LESSEE falls to comply by correcting said default, and if
proceedings shall then be commenced by LESSOR to recover possession, either at
the end of the term or sooner termination of this lease, LESSEE waives any
further right to any statutory notice and agrees that five (5) days written
notice shall be sufficient.
OCCUPANCY
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Occupancy of the premises shall be as of May 1, 1995. However, LESSEE
may begin to occupy available spaces prior to said date by paying a rental
calculated on the following basis:
For the high bay area, $0.007361 per sq. ft. per day,
For the low bay area, $0.006667 per sq. ft. per day, and
For the office area, $66.75 per day;
such areas to be calculated in full bay increments for all warehouse space.
It is understood and agreed that LESSEE shall use the demised premises
for office and distribution, provided, however, that such use shall not include
volatile or unstable substances creating fire or explosion hazards, unless such
hazardous use is first approved, in writing, by the LESSOR, and the LESSOR shall
have the unilateral right to reject such hazardous use.
LESSEE shall conduct its business in compliance with all Local, State
and Federal rules and regulations, and LESSEE shall not permit or do anything
not permitted by any Local, State or Federal laws.
It is understood and agreed that LESSEE'S use of the demised premises
shall not include the use of hazardous waste or regulated materials as defined
by the Pennsylvania Department of Environmental Resources Regulations and the
United States Environmental Protection Agency Regulations or any other
regulatory body, without first obtaining the written consent of LESSOR. In the
event LESSOR consents to such use, treatment or handling of hazardous waste or
regulated material in and upon the demised premises, LESSEE hereby covenants and
agrees to deliver and surrender to LESSOR possession of the demised premises
upon expiration of this lease or its earlier termination as herein provided,
free and clear of such hazardous waste or regulated material. LESSEE shall
comply with all prescribed rules, regulations, and statutes of all federal,
state, and local governmental bodies when treating, using, handling, and/or
disposing of such hazardous waste or regulated material. In the event LESSEE
falls to comply with this provision of this lease agreement, LESSEE shall
protect and save and keep the LESSOR forever harmless and indemnified against
and from any penalty or damage or charges imposed for any violation of any law
or ordinance, whether occasioned by the neglect of LESSEE or those holding under
LESSEE, and that LESSEE will at all times protect, indemnify and save and keep
harmless the LESSOR against and from all claims, loss, costs, damage or expense
arising out of or from any accident or occurrence on or about the demised
premises causing injury to any person or property whomsoever or whatsoever, and
will protect, indemnify, save and keep harmless the LESSOR against and from any
and all claims and against any and all loss, cost, damage or expense arising out
of any failure of LESSEE in any respect to comply with and perform all the
requirements and provisions of this lease or to comply with any government, law,
rule, or regulation. LESSEE shall further reimburse LESSOR for all costs
incurred by LESSOR in treating, handling, disposing of, and cleaning up said
hazardous waste or regulated material from or about the demised premises.
LESSOR to the best of LESSOR'S knowledge is not aware of any hazardous
waste or regulated material present in and upon the demised premises nor any
that was in and upon the demised promises, and LESSOR shall hold LESSEE harmless
from any and all claims that may arise out of any conditions which may have
existed prior to LESSEE'S occupancy of the demised promises.
It shall be the LESSOR'S responsibility to see that the building is in
compliance with Pennsylvania Department of Labor and Industry regulations for
use as a warehousing facility and for
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administrative offices, as described on Exhibit A attached to and made a part
hereof, at the inception of this lease. LESSEE shall be responsible, at LESSEE'S
expense, for securing a codes enforcement inspection and use certificate, if
applicable, for LESSEE'S use. LESSEE shall be responsible, at LESSEE'S expense,
for bringing the demised premises into compliance with code requirements for
LESSEE'S use, and for keeping the promises in compliance as its use may require.
PARKING
LESSEE shall have the exclusive use of the parking lot located north of
the office entrance on South Street. Additional parking needs of LESSEE shall be
in common with other tenants of the LESSOR on the south side of the facility,
however, LESSEE shall have no less than 60 parking spaces. LESSEE shall ensure
at all times that parking does not interfere with loading and docking facilities
and the access thereto.
MAINTENANCE
LESSOR agrees to keep and maintain in good repair the structure
including the exterior walls and roof, driveways and parking areas, water lines,
sewer or septic lines, rain gutters and down spouts. electrical service to the
building, water service to the building, and sewer lines from the building.
LESSEE agrees to keep and maintain in good repair the major mechanical
systems, including electrical, plumbing, heating and air conditioning systems,
making proper replacement when necessary. LESSEE'S financial responsibility for
repair and replacement of any unit heaters which are not new at the commencement
of this Lease which are located in the high bay and low bay warehouse areas
shall be limited to $200 annually per unit heater which is not now at the
commencement of this Lease. LESSEE shall be responsible for all repair and
replacement of any unit heater and the office HVAC system which are now upon
commencement of this Lease. LESSOR warrants that at the beginning of this lease,
the heating and AC units for the office area are new, the majority of the unit
heaters located in the low bay space are new, and the remaining unit heaters in
the high bay and low bay warehouse areas have been serviced and are in operating
order, and LESSOR warrants that the electrical and plumbing systems are in
working order. LESSEE shall be responsible for contracting with a reliable
maintenance service to maintain the heating and HVAC systems an a semi-annual
basis. Written maintenance reports will be submitted to LESSOR after each
inspection/repair. LESSEE further agrees to maintain in good repair, reasonable
wear and tear excluded, the interior of the demised area including entrances and
plate glass windows, overhead doors, and dock seals.
LESSEE shall maintain the demised premises, at LESSEE'S expense, in a
clean, orderly and sanitary condition, free of insects, rodents, vermin and
other pests, and shall not permit undue accumulation of garbage, trash, rubbish
and other refuse. LESSEE shall be responsible for all routine maintenance,
including but not limited to, cleaning and/or replacement of heating and
air-conditioning system filters, light bulb replacement, faucet washer repairs,
electrical switch or outlet repairs, etc.
LESSEE shall be prepared for and shall exercise prudence in the
elimination of hazards to its employees and invitees. Said hazards shall
include, but not be limited to, removal and salting of ice in front of common
accessways. removal of water from common floor areas where slippery conditions
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can be created, installation of light bulbs in common areaways, and removal of
debris and/or other objects from common areaways.
LESSEE shall insure that all storage and display of merchandise will
permit emergency crews to reach electrical panels, sprinkler risers, and
doorways.
LESSEE shall reimburse LESSOR for LESSEE'S pro rate share of lawn and
shrubbery maintenance charges within fifteen (15) days of receiving an invoice
therefor. LESSEE'S pro rata share shall be defined as the ratio of the LESSEE'S
area as compared to the net rentable building area, LESSEE'S share of such lawn
and shrubbery maintenance charges shall not exceed $.05 per square foot per
year.
It shall be the duty of the LESSEE to keep the sidewalks in front of
LESSEE'S premises, clear of snow and in conformance with local municipal
regulations. It shall be the duty of the LESSEE to keep the driveway, loading,
and parking areas and sidewalks, clear of snow and ice as required by LESSEE.
Fines levied, if any, by the appropriate authorities for failure to conform with
local regulations shall be the responsibility of the LESSEE, and, if not paid
promptly by LESSEE, shall become additional rent hereunder and be paid within
ten (10) days of LESSOR submitting an invoice therefore.
Excepting any damage covered by fire and extended coverage insurance as
required in the section, "Fire Insurance," LESSEE shall make repairs in a
professional and workmanlike manner for all damages to the premises, and to
equipment and installations therein, and to any and all other parts of LESSOR'S
property which are necessitated by any act or lack of due care on the part of
LESSEE, its employees. agents, representatives, or visitors; such repairs are to
be made in a reasonable amount of time following written notice from LESSOR, and
LESSEE shall pay as additional rent the deductible up to $1,000.00 per
occurrence. If LESSEE does not make such repairs in a reasonable amount of time
or in a professional or workmanlike manner, then the cost that will be required
in repairing such damages shall, at LESSOR'S option, be considered as additional
rent, payable together with the next installment of rent hereinabove specified,
the same to be paid after the date on which such damage shall have been occurred
subject to all the provisions of this lease and of the relating law to default
in payment of rent.
LESSEE shall, at all times, conduct its business in such a manner as to
not inconvenience the other tenants of LESSOR. Such inconvenience shall include,
but not be limited to, noise, odor, dust, fumes, etc. that are at a level
greater than those normally associated with mechanized warehouse distribution.
LESSEE shall place chair mats under all desk chairs and work stations.
SURRENDER OF DEMISED PREMISES
LESSEE covenants and agrees to deliver up and surrender to LESSOR
possession of the demised promises upon expiration of this lease, or its earlier
termination as herein provided, broom clean and in as good condition and repair
as the same shall be at the commencement of the term of this lease, or may have
been put by the LESSOR during the continuance thereof, normal wear and tear
excepted. Acceptance by delivery of the demised promises or opening same for
business shall be deemed conclusive evidence that the demised promises were in
good order and condition at the commencement of the term of this lease. Prior to
the end of the term of this Agreement or any
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extensions thereof, LESSEE may request a walk-through with agent of LESSOR to
identify any damages requiring repair by LESSEE.
LESSEE shall at LESSEE'S expense remove all property of LESSEE and all
alterations, additions and improvements as to which LESSOR shall have opted to
be removed as provided in the section entitled, "Lessee Alterations," repair all
damage to the demised premises caused by such removal and restore the demised
premises to the condition in which they were prior to the installation of the
articles so removed. Any property not so removed and as to which LESSOR shall
have not opted to be removed as provided in the section entitled,"Lessee
Alterations." shall be deemed to have been abandoned by LESSEE and may be
retained or disposed of by LESSOR, as LESSOR shall desire. LESSEE'S obligation
to observe or perform this covenant shall survive the expiration of the term of
this lease.
UTILITIES
LESSEE shall be responsible, at LESSEE'S expense, for furnishing all
utilities for the demised premises. LESSEE shall have utility meters, where
appropriate, placed in the name of the LESSEE effective with the beginning date
of this lease. Utilities shall include: fuel for heating and/or processing;
electricity; water for sanitary and/or processing; water for sprinkler
operation; sewerage; and municipal refuse removal, if applicable.
Sanitary sewer and water services will be provided by LESSOR and LESSEE
shall reimburse LESSOR for LESSEE'S pro rata share of utilities used by LESSEE
that cannot be placed in LESSEE'S name. Such expenses will be due and payable as
additional rent on or before thirty (30) days after receiving the invoice from
LESSOR. LESSOR shall provide to LESSEE the charges incurred over the past year
with these utilities within 14 days of execution of this Agreement.
LESSEE will be prudent and responsible in its use of utilities not
placed in its name and will be responsible, as additional rent, for any excess
utility expenses caused by LESSEE. However, in no case shall LESSEE be held
responsible for any excess utility expenses incurred by other tenants of LESSOR.
In no event shall LESSOR be liable for the quality, quantity, failure
or interruption of such services to the demised promises unless such
discontinuance of service is caused by the negligence of LESSOR.
LESSEE shall maintain a minimum temperature of 45 Degrees Fahrenheit in
the demised promises.
LESSEE shall be responsible, at LESSEE'S expense, for curing any and
all sewer problems caused by LESSEE'S misuse or carelessness.
LESSEE shall be responsible for recycling all refuse as required by the
municipal authorities and/or regulating bodies in a manner according to their
regulations. Any fines imposed upon the LESSOR due to LESSEE'S negligence in
adhering to the same regulations concerning recycling shall be due and payable
by LESSEE as additional rent and shall be payable within fifteen (15) days of
receipt of an invoice therefor.
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LESSEE shall handle all waste, raw materials, work in process and
finished goods in compliance with all Local, State and Federal regulations.
REFUSE REMOVAL
LESSEE shall be responsible, at LESSEE'S expense, for the removal of
all refuse, waste, and debris from the demised promises.
TAXES AND ASSESSMENTS
LESSOR shall be responsible for the payment of all real estate taxes
levied against the property of which the demised promises are a part. LESSOR'S
obligation for tax expenses in each year shall be limited to the amount levied
for Xxxxx County and McSherrystown Borough for the full calendar year 1995 and
the school taxes for the full fiscal year of 1994-1995. LESSEE shall be
responsible, as additional rent, for its pro rata share of increases in real
estate taxes, if any, over those set forth above, which are brought about by
increased assessments or millages. In the event the school district, county
and/or municipality shall replace the real estate taxes levied against the
property of which the demised promises are a part with a tax which is borne by
LESSEE, such as inventory tax, LESSOR shall credit LESSEE against future rentals
any reduction in LESSOR-paid real estate taxes which are subsequently borne by
LESSEE. In no event shall LESSOR have any obligation greater than the base tax
periods established herein. In the event such real estate taxes are replaced in
whole or in part by a value added tax, LESSOR shall have no obligation to
provide such credit unless LESSOR has no burden under such value added tax.
LESSEE shall be responsible for any other taxes that shall result from
LESSEE'S use and occupancy of the premises. However, in no case shall LESSEE be
held responsible for any other taxes or increase in current taxes that shall
result from use and occupancy by other tenants of LESSOR or alterations or
improvements made by LESSOR for or by any other tenant of the premises.
FIRE INSURANCE
LESSOR shall be responsible for insuring the building of which the
demised premises are a part against loss by fire and such other hazards as are
provided for by an extended coverage endorsement to a standard Pennsylvania
insurance policy. LESSOR shall maintain at all times the amount of coverage
required to satisfy the minimum co-insurance requirements of the rating bureau.
LESSEE shall, as additional rent, be responsible, for its pro rata
share of increases in fire and extended coverage insurance premiums brought
about by rising replacement costs or by rate changes established by the
Insurance Services Office of Pennsylvania, over those premiums existing at the
beginning of this lease, and shall reimburse LESSOR within fifteen (15) days of
receipt of an invoice therefor. LESSOR represents that the insurance currently
in force for the premises covers activities such as warehousing and
distribution, provided, however, that such activities do not include volatile,
explosive or hazardous substances in any manner.
LESSEE shall not do or store anything on the promises which will
increase the insurance rates for the building or contents. In the event the cost
of insurance shall be increased by reason of LESSEE'S use or the materials kept
or stored thereon, LESSEE agrees to pay the additional cost of such insurance
within fifteen (15) days of receipt of an invoice and supporting documents
therefor.
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However, in no case shall LESSEE be held responsible for any increase in the
cost of insurance by reason of use or the materials kept or stored in the
promises by other tenants of LESSOR.
LESSEE shall be responsible for insuring its contents stored in the
demised premises against -such hazards as it may decide.
LESSOR shall not be responsible for any loss or theft of property of
LESSEE.
LESSEE shall be responsible, at LESSEE'S expense, for furnishing fire
extinguishers, as required, to meet local codes and for fire insurance
underwriting. Such extinguishers shall be properly placed in the demised area as
of the beginning date of this lease and shall be maintained and kept currently
inspected by LESSEE. At the termination of this lease or any renewal thereof,
LESSEE may remove its fire extinguishers. All of LESSEE'S fire extinguishers
shall be labeled with LESSEE'S name.
LESSEE shall comply with any insurance requirements necessary to
maintain insurance, prevent undue increases in insurance costs, and maintain the
promises in a safe condition.
LESSOR'S AND LESSEE'S RELEASE OF RECOVERY RIGHTS
The LESSOR and LESSEE hereby agree to release the other from any claim
for recovery for any loss or damage to any of its property which is insured
under valid and collectible insurance policies to the extent of any recovery
collectible under such insurance. It is further agreed that this waiver shall
apply only when permitted by the applicable policy of insurance.
LIABILITY INSURANCE
LESSEE agrees to indemnify and save harmless the LESSOR from any
casualty claim or lose arising by reason of LESSEE'S use or misuse on or about
the demised premises, of by reason of an accident or damage to any person or
property happening on or about the demised promises arising out of the acts or
omissions of LESSEE, their officers, employees, invitees, agents or visitors.
LESSEE agrees that it will provide a policy or policies of insurance in an
amount not less than One Million Dollars ($1,000,000.00) combined single limit,
bodily injury and property damage liability for each occurrence and aggregate.
LESSOR, XXXXX COUNTY REALTY CO., SHALL BE NAMED AS AN ADDITIONAL INSURED IN ANY
INSURANCE POLICY OR POLICIES OR CERTIFICATES AS EVIDENCE THEREOF. IN THE EVENT
OF A SUBLEASE, THEN LESSOR AND SUBLESSOR SHALL BE NAMED AS AN ADDITIONAL
INSURED. Certificates of insurance shall be provided to LESSOR by LESSEE. Such
certificates shall provide that the insurance may not be canceled without the
LESSOR receiving written notice from LESSEE'S insurance carrier at least ten
(10) days prior to such cancellation.
Certificates of such insurance shall be delivered to LESSOR a minimum
of fifteen (15) days following possession of the demised premises by LESSEE with
renewals thereof delivered to LESSOR a minimum of thirty (30) days prior to the
expiration of any such policies. If requested to do so, LESSEE shall also
provide LESSOR with copies of the pertinent portions of all such policies and
shall also permit LESSOR to examine the original policies. Each policy and
certificate evidencing the same shall contain an agreement by the insurer that
such policy shall not be canceled or modified without ten (10) days' written
notice to LESSOR and that no act or omission of LESSEE shall invalidate the
interest of LESSOR under such insurance without 10 days written notice to
LESSOR.
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If LESSEE fails to obtain and maintain any such insurance or to deliver any of
the certificates as required in this Lease, LESSOR may, in addition to any other
remedy under this Lease, procure such insurance at the expense of LESSEE and pay
the cost thereof. Such cost shall be deemed additional rent and shall be payable
by LESSEE to LESSOR immediately upon demand, together with interest until paid.
LESSOR agrees to indemnify and save harmless the LESSEE from any
casualty claim or loss arising by reason of LESSOR'S use or misuse on or about
the demised promises, or by reason of an accident or damage to any person or
property happening on the premises, except such casualty claim, loss, accident
or damage to any person or property happening on the promises which shall arise
out of LESSEE'S agent, employees or servants, licensees or invitees, or any
contract of LESSEE, or by default of LESSEE under this Lease. LESSOR agrees that
it will provide a policy or policies of insurance in an amount not less than One
Million Dollars ($1,000,000.00) combined single limit, bodily injury and
property damage liability for each occurrence and aggregate. LESSEE, THE BOYDS
COLLECTION, LTD, INC.. SHALL BE NAMED AS AN ADDITIONAL INSURED IN ANY INSURANCE
POLICY OR POLICIES OR CERTIFICATES AS EVIDENCE THEREOF provided LESSOR'S
insurance carrier permits LESSEE to be named as an additional insured.
DESTRUCTION
(1) In the event of:
(a) a partial destruction of the premises or the building
containing same during the term, which requires repairs to either the premises
or the building, or
(b) the promises or the building being declared unsafe or
unfit for occupancy by an authorized public authority for any reason other
than LESSEE'S act, use, or occupation, which declaration requires repairs to
either the promises or the building;
LESSOR shall, within ten (10) days following the date of destruction,
make a decision whether the repairs can be reasonably made under the laws and
regulations of authorized public authorities within a period of sixty (60) days,
and if such repairs can be made within said sixty (60) day period, and notify
LESSEE that LESSOR will make such repairs and forthwith make such repairs. Such
partial destruction, including any destruction necessary in order to make
repairs required by any such declaration. shall in no way annul or void this
lease except that LESSEE shall be entitled to a proportionate reduction to be
based upon the extent to which the making of such repair shall interfere with
the business carried on by LESSEE in said promises.
(2) It such repairs cannot be made within sixty (60) days, and
providing such destruction or repairs will not materially affect LESSEE'S
conduct of business, LESSOR may, at LESSOR'S option. make same within a
reasonable time, this lease continuing in full force and offered and the rent
proportionately abated as in this paragraph provided.
(3) In the event that the LESSOR elects not to make such repairs
which require more than sixty (60) days to complete, or such repairs cannot
be made under existing laws and regulations, LESSOR shall so notify LESSEE
within ten (10) days following the destruction and this lease may be
terminated at the option of either party.
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(4) If such repairs cannot be completed within one hundred twenty
(120) days from the date of such partial destruction or declaration, or if
LESSOR elects to make such repairs and is unable to complete same within one
hundred twenty (120) days, as aforesaid, the LESSEE may terminate this lease
upon thirty (30) days written notice to the LESSOR of such election.
(5) The total destruction, including any destruction required by any
public authority, of either the promises or the building shall terminate this
lease automatically.
ASSIGNMENT
LESSEE will not assign this lease nor underlet nor in any manner
dispose of the promises or any part thereof without the written consent of the
LESSOR; such consent not to be unreasonably withheld nor delayed more than 45
days following receipt of necessary information by LESSOR.
Any assignment or subletting shall terminate and void the LESSEE'S
rights or any other parties' right to exercise the terms and conditions of the
Option to Renew and the Option to Lease Additional Space. Additionally, any
assignment or subletting shall not eliminate or reduce LESSEE'S obligations,
regardless of type, under this Agreement.
BANKRUPTCY
If LESSEE shall become insolvent, or be declared bankrupt, or shall
make an assignment for the benefit of creditors, or have an execution issued
against LESSEE, the whole of the rent for the then entire term shall immediately
become due and payable.
SIGNS
LESSEE shall have the right to maintain appropriate advertising signs
on or appurtenant to the promises, or, where provided by the LESSOR, in the
areas designated by the LESSOR; however, no signs shall be painted an the
building itself. It shall be the responsibility of the LESSEE to secure approval
for its signs from the appropriate municipal authorities. LESSOR shall retain
the right to approve any sign or signs of LESSEE including the method of
attachment to the building, such approval not to be unreasonably withheld or
delayed.
LESSEE ALTERATIONS
LESSEE will not, without the prior written consent of the LESSOR such
consent not to be unreasonably withheld or delayed, make any alteration,
addition, or change in or to the premises, nor in any way deface or mutilate the
walls, floors, coiling, or other parts thereof, nor do or keep anything on the
promises which will affect the insurance against fire or other hazards or the
rate thereof, or which shall violate any law or government regulation, nor will
LESSEE permit or suffer anything to be done which is prohibited in this
paragraph. LESSOR understands that LESSEE will be installing and operating a
mechanized pick system in the demised promises, and grants permission in
principal for that installation subject to final approval by LESSOR following
submission of drawings to LESSOR by LESSEE prior to LESSEE installation of
system, such approval not to be unreasonably withheld or delayed.
All alterations and additions made by the LESSEE to LESSOR'S building,
including electrical, plumbing, HVAC, structural changes, offices, etc., shall
remain and become the property
11
of the LESSOR. LESSOR, at LESSOR'S option, may require LESSEE, at LESSEE'S
expense, to restore the premises to the condition existing at the beginning of
this lease, normal wear and tear excepted. Unless otherwise approved in writing
by the parties hereto, there shall be no exceptions to this lease provision. All
alterations and additions made by the LESSEE to LESSOR'S building shall be done
in a professional and workmanlike manner.
In the event LESSOR consents to alterations by LESSEE, LESSEE shall
secure and properly 1119 a stipulation against liens from any and all
contractors hired by LESSEE in order that LESSOR'S property shall not be subject
to any lien arising out of LESSEE'S alterations and/or additions to the demised
promises. LESSEE shall not permit any mechanic's or other lien or claim for lien
or notice in respect thereto to be filed against the demised promises or any
fixtures, equipment or furnishing contained therein. If any such lien or claim
be made or flied, LESSEE shall, within ten (10) days after notice of the filing
thereof, cause such said lien, notice or claim for lien to be effectively
removed and discharged of record; provided, however, that LESSEE shall have the
right to contest the amount or validity, in whole or in part, of any such lien,
notice or claim by appropriate proceedings. But, in any event, LESSOR shall
promptly bond such lien, notice or claim with a surety company satisfactory to
LESSOR and shall prosecute such proceedings with all due diligence and dispatch.
If LESSEE fails to so discharge or bond such lien, LESSOR may, at its election,
remove or discharge such lien, notice or claim by paying the full amount
thereof, or otherwise, and without any investigation or contest of validity
thereof, and LESSEE shall pay to LESSOR, upon demand, as additional rent, the
amount paid by the LESSOR, including LESSOR'S costs, expenses and counsel fees.
LESSOR ALTERATIONS
LESSOR shall make alterations as described on Exhibit "B."
LESSOR INSPECTION
LESSOR shall have the right to enter the promises during the normal
business hours of the LESSEE for the purpose of inspecting the promises and for
the purpose of making repairs required therein. LESSOR shall have the right to
enter the premises at any time, by master key or by force, if necessary, for
purposes of preventing damage, making of emergency repairs, for the purpose of
distraint, and to enforce any provisions of this lease.
LESSOR or LESSOR'S agent shall have the right to show the demised
promises to prospective tenants at any time during the three month period prior
to the lease termination. LESSOR or LESSOR'S agent may show the demised promises
to prospective purchasers at any time. LESSOR or LESSOR'S agent will provide a
minimum of 24 hours notice, by voice or in writing, to LESSEE of any intent to
show the demised promises and will attempt to do so during normal business
hours.
CONDEMNATION
If, during the term of this lease, the whole or any part of the demised
premises shall be taken under the power of Eminent Domain by any public,
quasi-public, or private authority, then in such event, the proceeds of said
condemnation shall be paid to LESSOR.
A. In the event the taking of the demised premises shall result in a
reduction in the size of the building and/or parking areas such that the
remaining areas are not reasonably suited for the conduct
12
of LESSEE'S business, then LESSEE may terminate this lease, at LESSEE'S
election, by giving LESSOR sixty (60) days notice of its election to terminate.
B. In the event the taking of the demised premises shall result in a
reduction in the size of the building and LESSOR shall determine that the cost
of restoration of the building is not reasonable and within the damages awarded
by the condemning authority, then in such event, LESSOR may elect to terminate
this lease by giving LESSEE sixty (60) days notice of its election to terminate.
C. In the event the taking of the demised premises shall result in a
reduction in the size of the building, and such reduction does not unreasonably
affect LESSEE'S business operation, then in such event, this Lease shall
continue in full force and effect except that the rental shall be reduced
proportionately based on the reduction of the demised area.
D. At such time as a notice of intent to condemn is received by LESSOR,
LESSOR will immediately notify LESSEE of said action, and LESSEE may elect to
participate in the negotiation for the purpose of limiting the damages from such
condemnation and securing any claims which LESSEE may have for damages to its
business or leasehold interest, damages to the real estate excepted.
ADDITIONAL REMEDIES OF LESSOR
In addition to all other remedies of the LESSOR, in the event of
default by LESSEE, as hereinbefore provided, the following remedies shall, at
the option of the LESSOR, be available:
A. If said rent or part thereof shall remain in arrears and unpaid
for a period of five (5) days following written notice from LESSOR or
LESSOR'S agent, LESSOR may at its option re-enter and resume possession of
the premises and declare this lease and the tenancy hereby created
terminated, and LESSOR may thereupon remove all persons and property from the
premises, with or without resort to process of any court, by force or
otherwise. If proceedings shall be commenced by LESSOR to recover possession,
either at the end of the term or sooner termination of this lease for
non-payment of rent, LESSEE specifically waives any right to any statutory
notice and agrees that five (5) days written notice shall be sufficient.
LESSEE further agrees that notwithstanding such termination, it shall remain
liable for any rent due to LESSOR or damages caused to LESSOR prior thereto.
B. It is understood that as often as default shall be made in the
payment of any installment of rent when due, the LESSOR may proceed by
Landlord's warrant at any time after said default, to make collection of all
rent then due, with costs of such proceedings. LESSEE hereby waives the benefit
of all laws or usages exempting any property from liability for rent, and the
LESSOR shall not waive any remedies given by existing laws. LESSEE hereby
authorizes any attorney, of any court of record, as often as default shall be
made in the payment of said rental, as provided under this lease agreement, to
appear for LESSEE and confess judgment against LESSEE for the amount then due
and unpaid, with attorney's commission of ten (10%) percent together with costs
of suit, without stay of execution, waiving inquisition and exemption.
Notwithstanding any provision in the printed portion of this lease to the
contrary, the removal from the demised premises by the LESSEE of any stored
products in the ordinary course of its business shall not be deemed a
clandestine or fraudulent removal.
13
C. In the event LESSEE fails to pay any installment of rent when
due, or to keep all covenants of this lease, or remove from the premises at
the termination of this lease, then LESSEE hereby authorizes and empowers any
attorney, or any Court of Record of Pennsylvania or elsewhere, to appear in
said Court and confess judgment in an amicable action of ejectment for the
premises above described, and LESSEE authorizes the immediate issuance of a
Writ of Possession for the premises.
D. In addition to any other remedies available to LESSOR, it is further
agreed that if an event of default has occurred or if the said specified rent or
other charges shall be in arrears and unpaid, or if the LESSEE shall remove or
attempt to remove or express or declare an intention to remove any of the goods
and chattels from the premisses without the consent or authorization of the
LESSOR, or if said LESSEE or those claiming under LESSEE shall fail to keep or
comply with any other of the covenants, regulations, terms and conditions of
this Lease, or any renewal or extension thereof, or with any notice given under
the terms hereof, this Lease may, at the option of the LESSOR, be forthwith
terminated and become absolutely void without any right on the part of the
LESSEE, or those claiming under the LESSEE, to reinstate the same by payment or
other performance of the condition or conditions violated. Furthermore, at the
option of the LESSOR, all rent for the entire unexpired term shall at once
become due and payable and any attorney may for the LESSEE or for those claiming
under the LESSEE, sign an agreement for entering in any competent court a
confession of judgment in ejectment of any term then past or present (without
any stay of execution) against the LESSEE and all persons claiming under the
LESSEE for the recovery by the LESSOR of possession of the within premises,
attorney's fee of ten (10%) percent, and costs without any liability on the part
of LESSOR or of the said attorney, for which this shall be a sufficient warrant,
and in like manner such attorney may file in any competent court a confession of
judgment in Assumpsit, for all rent and other charges due, or which may at any
time become due under the terms of this Lease or any extension or renewal
thereof, and so on from time to time as often as any of said rent or other
charges as aforesaid shall follow or become due or be in arrears, without any
liability on the part of the said LESSOR or said attorney, for which this is a
sufficient warrant, and upon the confession of such judgment or judgments
respectively, if LESSOR so desires, a Writ of Possession may issue forthwith,
without any prior writ or proceeding whatsoever, and a Writ of Execution on said
judgment for rent and other charges may issue forthwith, and so on from time to
time as often as any breach of the terms and conditions of this Lease shall
occur, and LESSEE does hereby release LESSOR for Itself and those claiming under
it of all errors and defects whatsoever in entering such actions or judgments or
proceedings thereon. No such termination of this Lease or taking or recovering
possession of the premises shall deprive LESSOR of any other remedy or action
against LESSEE or those claiming under LESSEE. It is further provided that the
LESSOR shall have the right In any subsequent default or defaults to bring one
or more amicable actions in the manner and form as hereinbefore set forth, and
that any previous confession of judgment shall not exhaust the same nor deprive
the LESSOR of entering Judgment upon any future default.
E. Except in the case of default in rental payments as set forth above,
LESSOR agrees that in the event of default, LESSEE shall be afforded a period of
thirty (30) days after written notice by Certified Mail of such default, to cure
same, before such default shall become actionable under any provision of this
lease.
INTEREST
Wherever in this lease there is a provision that LESSEE shall be liable
for the payment of any sum to LESSOR or LESSOR shall be liable for the same to
LESSEE, together with interest thereon,
14
or whenever LESSEE or LESSOR shall fail to pay any sum when due, such sum shall
bear interest until paid at a rate equal to the greater of:
(1) The prime rate of interest charged by the York Bank & Trust Company
of York, Pennsylvania, or Its successors, plus two (2%) percent; or
(2) Six (6%) percent per annum; but, in no event shall the rate be
greater than the legal rate of Interest which may be charged to borrowers of the
same character as LESSEE or LESSOR.
NOTICES
Any notice provided for herein shall be given by registered or
certified mail, addressed:
If to the LESSEE as follows:
LESSEE: THE BOYDS COLLECTION LTD., INC.
X.X. Xxx 0000
Xxxxxxxxxx, XX 00000
ALSO TO: X.X. XXXX ASSOCIATES, INC.
00 Xxxx Xxxxxx Xxxxxx
Xxxx, XX 00000
If to the LESSOR as follows:
LESSOR: XXXXX COUNTY REALTY CO.
0000 Xxx Xxxxx Xxxxx
Xxxxxxxxx, XX 00000
BROKER: X.X. XXXX ASSOCIATES, INC.
00 Xxxx Xxxxxx Xxxxxx
Xxxx, XX 00000
HOLDING OVER
Any holding over after notice of termination of this Lease shall, at
LESSOR'S option upon notice to LESSEE, be construed to be a tenancy either from
month-to-month at the rent and other payments herein specified and shall
otherwise be subject to the conditions, covenants and agreements of this Lease.
If LESSEE shall hold over after the termination of this Lease for any reason
whatsoever, and LESSOR has notified LESSEE in writing that such holding over
shall not be permitted, LESSEE shall pay as liquidated damages and not as a
penalty an amount equal to twice the monthly rent in effect for the last month
of LESSEE'S lawful occupancy prorated for the period during which such holding
over continues. Nevertheless, the acceptance of such amount by LESSOR shall be
without prejudice to any other rights or remedies of LESSOR at law or in equity
or under this Lease.
NON WAIVER
15
The failure of either LESSOR or LESSEE to insist in any one or more
instances upon a strict performance of any covenant of this lease, or to
exercise any right herein contained, shall not be construed as a waiver for the
future of such covenant or right, but the same shall continue in full force and
effect, unless the contrary is expressed in writing by one party to the other
party.
In every instance where approval is required by LESSOR or LESSEE, such
approval shall not be unreasonably withheld and a response shall be promptly
given.
PRO-RATA SHARE
Wherever pro-rata share is mentioned in this lease, pro-rata share
shall be defined as the ratio of the LESSEES' demised area as compared to the
total net rentable area of the building of which the demised area is a part.
Subject to increase under LESSEE'S "Option to Lease Additional Space," LESSEE's
pro-rata share of the building of which the demised premises is a part is 33%.
QUIET ENJOYMENT
LESSOR covenants that LESSEE, on paying said rental and performing
covenants and conditions in this lease contained, shall and may peaceably and
quietly have, hold and enjoy the demised premises for the entire term hereof,
including any renewal term, subject to all the provisions of this lease.
ATTORNMENT
So long as LESSEE has quiet enjoyment of the premises, LESSEE, for
itself and its successors and assigns, agrees to attorn to any person who shall
acquire title to the property by virtue of a foreclosure of the Deed of Trust or
deed given in lieu of such foreclosure, or otherwise, and the LESSEE further
agrees to execute and deliver, upon request, an appropriate agreement
memorializing the attornment.
SUBORDINATION
This lease, at LESSOR'S option, will be subordinate to any form of
security now or later placed on the property and to all advances made on the
security and Io all renewals, modifications, consolidations, replacements, and
extensions. If any mortgagee, trustee, or ground LESSOR elects to have this
lease be prior to the lien of its security, and gives written notice to LESSEE,
this lease will be deemed prior to said security, whether dated before or after
the date of the recording date of the security. LESSEE agrees to execute any
required documents, and LESSEE irrevocably appoints LESSOR as LESSEE'S
attorney-in-fact to do so if LESSEE fails to do so within ten (10) days after
written demand.
NONDISTURBANCE
So long as LESSEE is not in default in the payment of any rent or in
the performance of any of the terms, covenants or conditions of this Lease,
LESSEE'S rights to quiet enjoyment shall not be terminated or interfered with by
LESSOR or anyone claiming by, through or under LESSOR, whether by mortgage or
otherwise.
DESCRIPTIVE HEADINGS
16
The descriptive headings in this agreement are inserted for convenience
in reference only and do not constitute a part of this agreement.
BROKER
LESSOR and LESSEE certify that X.X. Xxxx Associates, Inc. is the broker
for this lease. LESSOR shall pay to X.X. Xxxx Associates, Inc. a commission of
6% of the rent on the original term of the Lease and any renewals for any and
all modifications or extensions of this lease and for a sales commission of 6%
in the event the property is purchased by LESSEE, its parent or affiliated
companies, successors or assigns. LESSOR hereby indemnifies LESSEE from any
obligation to pay or claim of nonpayment of said commissions throughout the term
of this Lease and any extensions or renewals thereof.
It is the intention of the parties hereto to be legally bound hereby
and this lease shall be binding upon the said parties hereto, their respective
heirs, executors, administrators, successors, and/or assigns.
IN WITNESS WHEREOF, the parties have hereunto set their hands and seals
the day and year first above written.
LESSOR: XXXXX COUNTY REALTY CO.
------------------------------- ------------------------------------------
Witness Xxxxx Xxxxxxxxxx, Partner
LESSEE: THE BOYDS COLLECTION LTD., INC.
------------------------------- ------------------------------------------
Attest Xxxx X. Xxxxxxxxx, President
------------------------------- ------------------------------------------
Attest Secretary of the Corporation, if required.
LESSEE: Employer Tax Identification Number: ________________________
17
ADDENDUM NO. 1
TO THE
LEASE AGREEMENT
BETWEEN
XXXXX COUNTY REALTY COMPANY, LESSOR
AND
THE XXXX'X COLLECTION LTD., INC. LESSEE
DATED MARCH 1, 1995
WE, THE UNDERSIGNED, hereby agree to amend the above referenced Lease
Agreement as follows:
1. The Leased area shall be increased approximately 27,153 square feet
as shown on the attached Exhibit A which is made part of this Agreement.
2. The monthly rental for the entire area shall increase from
$13,210.85 to $17,736.00 beginning May 1, 1996.
3. LESSEE shall lease an additional area of 29,994 square feet as shown
on Exhibit A from July 1, 1996 through December 31, 1996 for an additional rent
of $4,999.00 per month.
LESSEE shall have the option to lease this space at the same rental
beginning January 1, 1997 and ending April 30, 1998 by giving written notice to
LESSOR on or before December 31, 1996.
4. In the event LESSEE should exercise their Option to Renew this Lease
Agreement, the option shall apply to all space that is leased as of the time the
option is exercised. The rental for the additional area shall be calculated by
increasing the monthly rental as of the date of exercising the option by 12.73%.
All other terms and conditions of the lease shall remain unchanged.
5. The option to lease additional space under the original lease as
specified in the section titled OPTION TO LEASE ADDITIONAL SPACE is hereby
terminated.
6. LESSEE'S pro rata share of the building is hereby changed from
33% to 52.53%. The share for the additional space is 18.57%.
7. LESSEE agrees to cooperate with LESSOR in the relocation of
Merchandising Innovations.
8. LESSOR agrees to place the current gas fired unit heaters in good
operating condition. LESSOR shall be responsible for any alterations required to
the electrical meters.
9. LESSEE agrees to make any and all additional improvements to the
space as required. LESSOR grants LESSEE the right to move existing lighting as
LESSEE requires.
10. All other terms of the original lease remain in full force and
effect and apply to the additional leased areas except as amended herein.
18
11. If the terms and conditions of this Addendum conflict with any
of the terms and conditions of the original lease, this Addendum shall govern.
IN WITNESS WHEREOF, we hereunto set our hands and seals as of the dates
below.
------------------------ ---------------------------- -------------------
WITNESS XXXXX COUNTY REALTY, DATE
LESSOR
------------------------ ---------------------------- -------------------
ATTEST THE XXXX'X COLLECTION DATE
LTD., INC., LESSEE
19
ADDENDUM NO. 2
TO THE LEASE AGREEMENT
BETWEEN
XXXXX COUNTY REALTY CO., LESSOR
AND
XXXX'X COLLECTION, LTD., INC., LESSEE
DATED MARCH 1, 1995
WE, THE UNDERSIGNED, hereby agree to amend the above referenced lease
agreement as follows:
1. The term of this lease shall be extended for an additional three
(3) years beginning the first day of May, 1998. The current
monthly rental being $22,735.00 shall remain unchanged. The
leased area shall remain unchanged.
2. Provided LESSEE is not in default of this lease agreement,
LESSEE shall have the option to lease the remaining space in the
building for a monthly rental of $8717.00, by giving LESSOR 90
days written notice. Occupancy and rental for this additional
area shall be effective upon Merchandising Innovations or any
other tenant then occupying the area vacating this space.
LESSEE'S pro rata share of the building upon occupancy of the
option area shall be 100%. All other terms and conditions of the
lease shall apply to this additional area.
3. LESSEE agrees to make any and all additional improvements to the
space as required. LESSOR grants LESSEE the right to move
existing lighting as LESSEE requires. LESSOR grants LESSEE the
right to install approximately 4,000 to 6,000 square feet of
additional office space directly behind existing office area.
All work shall be done in a professional and workmanship type
manner. LESSEE shall not permit any mechanics' liens to be
attached to this property.
4. If any terms and conditions of this Addendum conflict with any
other terms and conditions of the original lease this Addendum
shall govern.
5. All other terms and conditions not modified herein remain in
full force and effect.
IN WITNESS WHEREOF, we herein set our hands and seals with 8th day of
October, 1997.
------------------------ ---------------------------- -------------------
WITNESS XXXXX CO. REALTY COMPANY, DATE
LESSOR
20
------------------------ ---------------------------- -------------------
ATTEST XXXX'X COLLECTION LTD., INC. DATE
21
ADDENDUM NO. 3
TO THE LEASE AGREEMENT
BY AND BETWEEN
XXXXX COUNTY REALTY, COMPANY, LESSOR
AND
XXXX'X COLLECTION, LTD., INC. LESSEE
DATED MARCH 1, 1995
We the undersigned, hereby agree to amend the lease dated March 1, 1995
between the above mentioned parties as follows:
1. The term of this lease shall be extended for an additional 10 years
beginning January 1, 1999 and ending December 31, 2009.
2. LESSOR shall reserve the right to increase the rent beginning
January 1, 2004, by giving written notice to LESSEE on or before July 1, 2003
of LESSOR'S intent to increase the monthly rent. The monthly rental of
$31,452.00 shall increase in proportion to the change in the Consumer Price
Index (U.S. All items). Upon LESSOR giving written notice to LESSEE, LESSEE
shall have until August 1, 2003 to accept the increase or give written notice
to LESSOR of LESSEE'S intent to terminate the lease as of December 31, 2003.
In event the LESSEE does not respond in writing on or before August 1, 2003
then the rental increase shall automatically become effective January 1,
2004. In the event LESSEE gives notice of LESSEE'S intent to terminate the
lease, LESSOR shall have until September 1, 2003 in which to withdraw
LESSOR'S notice to increase the monthly rental. In the event LESSOR does not
give written notice to LESSEE of LESSOR'S withdraw of the notice to increase
the monthly rental the lease shall terminate December 31, 2003.
3. LESSEE shall reimburse LESSOR for all real estate taxes effective
January 1, 1999 within fifteen (15) days of receiving an invoice from LESSOR or
at LESSOR'S option LESSEE shall pay the taxes when due at the flat rate due date
and provide LESSOR with copies of the paid tax invoices.
4. LESSEE at LESSEE'S expense shall build approximately 50,000 square
feet of warehouse space and shall complete such building on or before December
31, 1999. Lessor approves the attached building specifications and site plans as
shown on Exhibit "A".
5. LESSEE shall lease the entire site owned by LESSOR located at the
corner of South Street and 4th Street, McSherrystown, PA effective upon all
parties signing this addendum.
6. Providing the LESSEE in not in default of this lease agreement,
LESSEE shall have the option to renew this lease for an additional five (5) year
term, beginning January 1, 2010 through December 31, 2014 by giving written
notice to LESSOR on or before January 1, 2009 of such intent to renew. Rental
for the renewal term shall be negotiated at the time of renewal as follows:
A. LESSOR shall, within Thirty (30) days following receipt of
LESSEE'S notice to renew, provide LESSEE, in writing, with the proposed rental
for the renewal period.
22
B. LESSEE shall have Thirty (30) days following receipt of
LESSOR'S rental proposal to accept the proposed rent or negotiate a rental rate
with the LESSOR which is acceptable to the LESSEE.
C. In the event the parties fail to agree to a rental rate for
the renewal term on or before May 1, 2009, this lease shall terminate absolutely
on December 31, 2009.
7. In the event the Consumer Price Index no longer exists, LESSOR at
LESSOR'S choice may substitute a similar statistic.
All other terms and conditions of the basic lease not modified hereby
or in any other addendum shall remain unchanged and in full force and effect
throughout the extended term of this lease. If any terms of this addendum
conflict with any other terms of the lease agreement, this addendum shall
govern.
IN WITNESS WHEREOF, the parties have hereunto set their hands and seals
this 30 Day of December, 1998.
------------------------------ -------------------------------------
WITNESS XXXXX COUNTY REALTY CO., LESSOR
------------------------------ -------------------------------------
WITNESS XXXX'X COLLECTION LTD., INC., LESSEE
23
RIDER TO ADDENDUM
NO. 3 TO BOYDS' LEASE AGREEMENT
Notwithstanding any other provisions of the Agreement of Lease dated
March 1, 1995 between Xxxxx County Realty Co., as Lessor, and, The Boyds
Collection, Ltd., as Lessee, or any amendment thereto, the following provisions
shall apply:
1. The premises demised under the Lease shall be all of the land described
on Exhibit A attached hereto, together with the buildings, structures and
improvements now or hereafter located thereon.
A. Lessor acknowledges that activities conducted at demised premises
prior to commencement of Lessee's occupancy thereof my have
involved the use or generation of hazardous waste or regulated
materials as defined in the lease dated March 1, 1995, Lessor
will at all times protect, indemnify and same and keep harmless
the Lessee against and from all claims, loss, costs, damages or
expense arising out of or from the presence or alleged presence
of any hazardous waste or regulated materials present at,
emanating from, or generated at or transported from, the demised
premises prior to March 1, 1995, or structures in which such
hazardous waste or regulated materials are or were contained.
X. Xxxxxx acknowledges and agrees that Lessee may, in connection
with building the warehouse space referred to in paragraph 5 of
Addendum No. 3, at Lessee's own cost and expense, conduct tests
to identify the possible presence of hazardous waste or regulated
materials at any of the demised premises that in any way may be
affected by such building. If such testing identifies the
presence of hazardous waste or regulated materials ("Site
Contamination"), Lessor agrees that it shall be responsible for
the further investigation and remediation of the Site
Contamination in compliance with all applicable legal obligations
and as required by all regulatory authorities with jurisdiction
over the matter, except in any case to the extent such Site
Contamination results from hazardous waste or regulated materials
not present at the demised premises until after March 1, 1995 and
not caused by Lessor. If within thirty (30) days of Lessee's
notifying Lessor of Site Contamination, Lessor has not given
Lessee reasonable assurances that the Site Contamination will be
investigated and remediated as provided in the previous sentence
in a manner that will permit the warehouse space to be built and
completed as planned by June 30, 1999, Lessee may terminate this
lease extension immediately upon written notice to Lessor.
X. Xxxxxx acknowledges and agrees that hazardous waste or regulated
material may be present at the demised premises in quantities and
concentrations consistent with ordinary maintenance of the
demised premises and with building the warehouse space. With
respect to such hazardous waste or regulated materials, Lessee
affirms its obligations as set forth in the "Occupancy" section
of the Lease.
2. If Lessee requests Lessor's consent to make any alterations under the
Lease, Lessor shall respond to such request within five (5) business
days, and Lessor's failure to so respond within such five (5) day period
shall be deemed to be approval of the requested matter.
3. Lessee shall be permitted to remove any alterations that are particular
to its business and of which Lessee notified Lessor at the time it
installed such Installation, that such Installation would be removed by
Lessee at the and of the lease term.
4. The 60-day and 120-day periods referred to in the paragraph of the Lease
entitled "DESTRUCTION" shall all be deemed to be 180 days.
24
5. If the whole or any part of the demised premises are acquired or
condemned by eminent domain for any public or quasi public purpose, then
Lessee shall have the right to assert a claim for and receive the portion
of any payment for such taking attributable to Lessee's personal
property, fixtures, installations or improvements in or on the demised
premises, Lessee's relocation expenses and the value of the unexpired
term of this lease.
6. The parties also agree that if Lessor fails to perform any repair or any
other affirmative obligation required by it under the lease, Lessee shall
have the right to perform such obligation on behalf of Lessor, provided
Lessee takes the following actions: (i) notifies Lessor of its
performance obligation in writing, (ii) lessor fails to perform such
obligation within a commercially reasonable time, (iii) Lessee sends a
second notice apprizing Lessor that if Lessor fails to perform its
obligations within 15 days, Lessee will perform the obligation. If Lessor
does not commence such obligation within such 15 days period and
diligently complete perform such obligation. Any such amounts actually
and reasonably spent by Lessee, as certified by a competent court or
arbitrator as being properly spent by Lessee, may thereafter be used by
Lessee as a credit against future rent obligations of Lessee.
7. A. Real estate taxes that Lessee is responsible for shall not
include penalties or interest incurred by Lessor, income taxes,
use taxes, taxes on rentals, transfer or recording taxes,
inheritance taxes, estate taxes, concession taxes, capital stock,
franchise taxes, excise taxes, or sales taxes. If due to a future
change in the method of taxation, any franchise, income profit or
other tax, assessment, levy or governmental charge of any kind or
nature whatsoever, however designated, is substituted for or
replacing, in full or in part, real estate taxes such tax shall
be considered a real estate tax for purposes of this lease.
Additionally, if Lessor sells the demised premises, Lessee shall
not be responsible for any portion of a real estate tax increase
based on such sale.
B. If Lessor does not seek to contest the real estate taxes assessed
against the Building for any tax year during the term of this
lease, Lessor grants the right to Lessee to protest those taxes
in the name of and on behalf of Lessor.
8. If fifty percent or more of the stock of Lessee or substantially all of
the assets of Lessee are transferred pursuant to a merger or acquisition
of Lessee with another company or corporation, or if the Lessee assigns
this Lease to an affiliate of Lessee, said merger, acquisition or
assignment will not require the prior consent of Lessor hereunder. Lessee
shall have the right at any time and from time to time, without Lessor's
consent, to mortgage or otherwise encumber Lessee's interest in any or
all improvements appertaining thereto pursuant to one or more Leasehold
mortgages or deeds of trust ("Leasehold Mortgages"), provided that the
leasehold Mortgage is a bank, savings bank, insurance company, real
estate investment trust, mortgage investment trust, mortgage banking
company, investment banking company, trust company, any other
institutional-type lender.
9. If Lessee should desire to contest the validity of any legal requirement
or insurance requirement which Lessee by the provisions hereof is
obligated to comply with then, provided that so long as any contest does
not adversely affect the building and does not subject Landlord to the
possibility of civil liability, including the filing of any liens against
the building, or criminal protection, Lessee, at its expense, any carry
on such contest and non-compliance by it during such contest shall not be
deemed a breach of any covenant to comply with laws or insurance
requirements, provided that it shall indemnify and hold Landlord harmless
against the cost thereof and against all liability for any damages,
interest, penalties and expenses (including reasonable attorney's fees)
resulting from or incurred in connection with such contest or
noncompliance.
25
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Witness Xxxxx County Realty Co., Lessor
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Witness The Boyds Collection Ltd., Lessee
