1
Exhibit 10.35.
CONSENT AND AGREEMENT
WHEREAS, Sun Life Assurance Company of Canada, successor in interest to
Industrial Developments International, Inc., (the "Landlord") has entered into
that certain Industrial Lease Agreement ("Lease") dated August 24, 1995, with
BIO CLINIC CORPORATION, a Delaware Corporation ("Tenant"), which provides for
the leasing by Tenant of approximately 196,333 square feet of space in a
building owned by Landlord and located in Westfork Business Park in ▇▇▇▇▇▇▇
County, Georgia (the "Premises");
WHEREAS SUNRISE MEDICAL, INC., A Delaware Corporation ("Guarantor") made and
entered into that certain Guaranty dated as of the 24th day of August, 1995
("Guaranty") in favor of Landlord, pursuant to which the Guarantor agreed and
undertook to guaranty the performance of Tenant's obligations under the Lease;
WHEREAS, the Tenant has requested that Landlord consent to the assignment (the
"Assignment") of Tenant's interest in the Lease to ▇▇▇▇▇ Industries, Inc., a
Delaware Corporation ("Assignee");
WHEREAS, Landlord has agreed to consent to the Assignment subject to the terms
and conditions set forth herein;
NOW THEREFORE, for good and valuable consideration, the receipt and adequacy
of which are hereby acknowledged, the parties hereto agree as follows:
Subject to the terms and conditions set forth below, Landlord hereby consents
to the Assignment:
1. Assignee does hereby agree to assume and make all payments relating to
obligations arising from and after the Closing Date (as defined below) under
the Lease and to perform all covenants and conditions which are to be
performed by Tenant after the Closing Date under the Lease;
2. Tenant does hereby assign to Assignee, as of the closing Date, all of
Tenant's rights, title and interests under the Lease;
3. Guarantor does hereby consent to the Assignment of the Lease and ratifies
and reaffirms its obligations under the Guaranty to the same extent and as if
the Assignee were the original Tenant under the Lease;
4. Tenant does hereby acknowledge and certify that Landlord has performed all
of its obligations under the Lease as of the date hereof, and that Tenant has
no charge, lien, or claim of offset under the lease or otherwise against rents
or other charges due or to become due under the lease.
5. The parties hereto agree and acknowledge that any use of the Premises shall
be restricted as set forth in, and shall in all respects comply with, the
Lease.
6. The parties hereto agree and acknowledge that the manufacture of Flexible
Polyurethane Foam is prohibited under the Lease.
7. For Purposes hereof, the term "Closing Date" shall mean the date of closing
under that Certain Asset Purchase Agreement dated August 29, 1996 between
Tenant, Assignee and Guarantor.
IN WITNESS WHEREOF, the parties hereto have caused this Consent and Agreement
to be duly executed as of this ____ day of October, 1996.
TENANT:
BIO CLINIC CORPORATION
By: s / ▇▇▇▇▇▇ ▇. ▇▇▇▇
Its: Secretary
ASSIGNEE:
▇▇▇▇▇ INDUSTRIES, INC.
By: s / ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Its: Vice President
Chief Financial Officer
GUARANTOR:
SUNRISE MEDICAL, INC.
By: s / ▇▇▇▇▇▇ ▇. ▇▇▇▇
Its: Vice President
General Counsel and Secretary
LANDLORD
SUN LIFE ASSURANCE COMPANY OF CANADA
By: s / ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Its: President
Page
BUILD TO SUIT
INDUSTRIAL LEASE AGREEMENT
BETWEEN
INDUSTRIAL DEVELOPMENTS INTERNATIONAL, INC.
AS LANDLORD
AND
BIO CLINIC CORPORATION
AS TENANT
DATED August 24, 1995
Page
LEASE INDEX
Section Subject
1 Basic Lease Provisions
2 Demised Premises
3 Term
4 Base Rent
5 Security Deposit
6 Additional Rent
7 Use of Demised Premises
8 Insurance
9 Utilities
10 Taxes and Other Impositions
11 Maintenance and Repairs
12 Tenants' Personal Property; Indemnity
13 Tenant's Fixtures
14 Signs
15 Landlord's Lien Waiver
16 Governmental Regulations
17 Environmental Matters
18 Plans and Specifications for Construction of Demised Premises
19 Tenant Alterations and Additions
20 Services by Landlord
21 Fire and Other Casualty
22 Condemnation
23 Tenant's Default
24 Landlord's Right of Entry
25 Mortgagee's Rights
26 Estoppel Certificate
27 Landlord Liability
28 Notices and Payments
29 Brokers
30 Assignment and Subleasing
31 Termination of Expiration
32 Late Payments
33 Rules and Regulations
34 Dispute Resolution Procedure
35 Option to Extend Term
36 Early Cancellation and Cancellation Payment
37 Miscellaneous
Exhibit "A" Legal Description
Exhibit "A-1" Site Plan
Exhibit "A-2" Floor Plan
Exhibit "A-3" Elevation Plan
Exhibit "A-4" Preliminary Construction Specifications
Exhibit "B" Permitted Encumbrances
Exhibit "C" Rules and Regulations
Exhibit "D" Protective Covenants
Exhibit "E" Form of SNDA
Page
BUILD TO SUIT
INDUSTRIAL LEASE AGREEMENT
THIS FIRST AMENDMENT AGREEMENT (this "Lease") is made this _____ day of
August, 1995, by and between INDUSTRIAL DEVELOPMENTS INTERNATIONAL, INC., A
Delaware corporation ("Landlord"), and BIO CLINIC CORPORATION, a Delaware
corporation ("Tenant") (the words "Landlord" and "Tenant" to include their
respective legal representatives successors and permitted assigns where the
context requires or permits)
WITNESSETH
1. Basic Lease Provisions. The following constitute the "Basic Lease
Provisions" of this Lease.
(a) Demised Premises: Exhibit "A" attached hereto
(b) Building Square Footage: 196,333
(c) Annual Base Rent
Lease Year 1 $ 502,365.99
Lease Years 2-5 $ 549,732.00
Lease Years 6-10 $ 632,192.00
Months 121-126 $ 316,096.00
(d) Monthly Base Rent Installments:
Months 1-3 $ 35,000.00
Months 4-6 $ 40,833.33
Months 7-12 $ 45,811.00
Lease Years 2-5 $ 45,811.00
Lease Years 6-10 $ 52,682.66
Months 121-126 $ 52,682.66
(e) Lease Commencement Date: February 1, 1996
(f) Base Rent Commencement Date: February 1, 1996
(g) Primary Term: 126 months
(h) Security Deposit: $10,000.00
(i) Date Tenant Must Approve Plans and Specifications For Improvements:
October 15, 1995
(j) Permitted Use: office fabrication light manufacturing and distribution
of therapeutic consumer products
(k) Addresses for notice:
Landlord Industrial Developments International, Inc.
Atlanta Financial Center
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: Chief Operating Officer
Page
Tenants: Bio Clinic Corporation
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: Vice President - Operations
(l) Address for rental payments:
Industrial Developments International, Inc.
▇.▇. ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
2. Demised Premises. For and in consideration of the rent hereinafter
reserved and the mutual covenants hereinafter contained, Landlord does hereby
lease and demise unto Tenants, and Tenant does hereby hire, lease and accept
from Landlord, that certain parcel of real property (the "Land") containing
approximately 11 acres which Land is situated in ▇▇▇▇▇▇▇ County, Georgia,
within Wertfork Distribution Center (the "Project") and is more particularly
described in Exhibit "A" attached hereto and by this reference made a part
hereof, together with and including all buildings, structures, driveways,
parking lots, walkways, landscaping and other appurtenances thereto and all
other improvements with the consent of Tenant, at any time during the term of
this Lease erected or situated thereon including specifically, but without
limitation, a building (the "Building") to be constructed containing
approximately 196,333 square feet of office and warehouse space of which
approximately 12,000 square feet shall be office space and to be located on
the Land as shown on Exhibit "A-1" attached hereto, and all other improvements
including all driveways, parking lots, walkways, landscaping and other
appurtenances thereto (collectively, the "Demised Premises") subject only to
the matters on Exhibit "B" attached hereto (herein referred to as "Permitted
Encumbrances"), all upon the terms and conditions hereinafter set forth. The
Demised Premises including the Building shall be developed and constructed by
Landlord substantially in accordance with the Preliminary Drawings prepared by
Smallwood, Reynolds, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, attached hereto as Exhibit "A-1)
(herein, the "Site Plan"): Exhibit "A-2" (herein, the "Floor Plan") and
Exhibit "A-3" (herein, the "Elevation Plan"), and the construction
specifications attached hereto as Exhibit "A-4") (herein "Preliminary
Construction Specifications"), (the plans and specifications as shown on
Exhibit "A-1" through "A-4" are herein, collectively the "Preliminary Plans")
and in accordance with the terms of Section 18 hereof. Exhibit to the extent
required to cause compliance with the provisions of applicable law, the
Building and improvements comprising the Demised Premises shall be located
substantially as shown on the Site Plan.
3. Term
(a) To have and to hold the Demised Premises for
(i) a preliminary term (the "Preliminary Term") which shall commence on the
date of execution of this Lease by Landlord and Tenant and shall expire on the
Lease Commencement Date, as defined herein, and
(ii) a primary term (the "Primary Term") which shall commence on the Lease
Commencement Date and shall expire one hundred twenty-six (126) calendar
months thereafter (the Preliminary Term, the Primary Term, and any and all
extensions thereof, herein referred to as the "Term". The Term of this Lease
shall end on the final day thereof without the requirement of notice from
either party to the other.
(b) For purposes of this Lease, the term "Lease Commencement Date" shall
mean the later to occur of Substantial Completion as defined herein and
January 1, 1996.
(c) For purposes of this Lease, the term "Substantial Completion" or any
grammatical variation thereof shall mean sufficient completion of construction
of the Demised Premises in accordance with the Plans (as defined in Section
18), so that Tenants can lawfully occupy the Demised Premises for the
Permitted Use, as evidenced by the delivery by Landlord to Tenant of
(i) a Certificate of Occupancy or its equivalent (or Temporary Certificate
of Occupancy or its equivalent ) for the Building issued by the appropriate
governmental authority if so required by applicable law, and
(ii) a Certificate of Substantial Completion on standard AJA Form G-704
certified by the project architect, Smallwood, Reynolds, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇
(the "Architect"). In the event completion to such extent is delayed because
of Tenant Delay, as defined herein, then Substantial Completion, shall be
deemed to mean the date when the Demised Premises would have been completed to
such extent but for such Tenant Delay as determined by the Architect in the
event Tenant shall dispute the determination of such date by the Architect,
the parties shall utilize the Dispute Resolution Procedure as defined in
Section 34, with Qualified Architects serving as Officials. For purposes of
this Lease, the Architect shall be deemed a "Qualified Architect" for Landlord
and ________________________ shall be deemed a "Qualified Architect" for
Tenant.
(d) The Lease Commencement Date and the expiration date of the Term, when
determined as herein provided, shall be evidenced by a supplemental agreement
to be executed upon the request of either party to the other party hereto.
(e) For purposes of this Lease, the term "Lease Year" shall mean each one
(1) year period beginning on the Lease Commencement Date, and each anniversary
thereof, and ending on the day immediately prior to the next succeeding
anniversary of the Lease Commencement Date.
(f) Tenant's Early Occupancy. Tenant shall have the right to enter the
Demised Premises for thirty (30) days prior to the Lease Commencement Date in
order to make tenant improvements and otherwise prepare the Demised Premises
for occupancy provided that during said period:
(i) Tenant shall comply with all terms and conditions of this Lease
another than the obligation to pay rent,
(ii) Tenant shall not interfere with Landlord's completion of the Demised
Premises, and
(iii) Tenant shall not begin operation of its business.
4. Base Rent. Tenant shall pay to Landlord at the address set forth in
Section 1(i) as base rent for the Demised Premises, commencing on the Lease
Commencement Date (herein, the "Base Rent Commencement Date") and continuing
throughout the Term in lawful money of the United States the annual amount set
forth in Section 1(c) payable in equal monthly installments as set forth in
Section 1(d) (the "Base Rent"), payable in advance, without demand and without
abatement, reduction, set-off, or deduction on the first day of each calendar
month during the Term. If the Base Rent Commencement Date shall fall on a day
other than the first day of a calendar month, the Base Rent shall be
apportioned pro rata on a per diem basis for the period between such Base Rent
Commencement Date and the first day of the following calendar month and such
apportioned sum shall be paid on the Base Rent commencement Date. If the last
day of the Term shall fall on a day other than the last day of a calendar
month, the Base Rent shall be apportioned pro rata on a per diem basis for the
period between the first day of the last calendar month of the Term and the
last day of the Term.
5. Security Deposit. Upon execution of this Lease by both parties, Tenant
will pay to the Landlord the sum set forth in Section 1(h) (the "Security
Deposit") as security for the full and faithful performance by Tenant of each
and every term, covenant and condition of this Lease. In the event that
Tenant is in default under this Lease, or fails to perform any of the terms,
provisions and conditions of this Lease, Landlord may use, apply, or retain
the whole or any part of the Security Deposit for the payment of any sum due
Landlord of which Landlord may expend or be required to expend by reason of
Tenant's default or failure to perform, including, but not limited to, any
damage or deficiency in the reletting of the Demised Premises; provided,
however, that any such use application or retention by Landlord of the whole
or any part of the Security Deposit shall not be or be deemed to be an
election of remedies by Landlord or viewed as liquidated damages, it being
expressly understood and agreed that, notwithstanding such use, application or
retention. Landlord shall have the right to pursue any and all other remedies
available to it under the terms of this Lease or otherwise. In the event that
Tenant shall comply with all of the terms, covenants and conditions of this
Lease, the Security Deposit shall be returned to Tenant within thirty (30)
days after compliance has been ascertained by Landlord and after delivery of
possession of the Demised Premises to Landlord in the event of a sale of the
Building. Landlord shall have the right to transfer the Security Deposit to
the purchaser and Landlord shall thereupon be released from all liability for
the return of the Security Deposit. Tenant shall look solely to the new
landlord for the return of such Security Deposit. Tenant shall not assign or
encumber the money deposited as security, and neither Landlord not its
successors or assigns shall be bound by any such assignment or encumbrance.
6. Additional Rent. Any amounts required to be paid by Tenant under this
Lease (in addition to Base Rent) hereunder and any charges or expenses
incurred by Landlord on behalf of Tenant under the terms of this Lease,
including, without limitation, any expenses incurred for taxes, insurance,
maintenance, repairs, replacements and utilities which are the obligation of
Tenant hereunder, shall be considered additional rent (herein "Additional
Rent") payable in the same manner and upon the same terms and conditions as
Base Rent reserved hereunder except as expressly set forth herein to the
contrary. Any failure on the part of Tenant to pay such Additional Rent when
due shall entitle Landlord to the remedies available to it for non-payment of
Base Rent, including without limitation, late charges and interest thereon at
the Interest Rate (as herein defined) pursuant to Section 32 hereof. Tenant's
obligations for payment of Additional Rent shall begin to accrue on the Lease
Commencement Date regardless of the Base Rent Commencement Date.
7. Use of Demised Premises
(a) The Demised Premises shall be used for the Permitted Use set forth in
Section 1(j) and for no other purpose, without prior written consent of
Landlord.
(b) Tenant will permit no liens to attach or exist against the Demised
Premises and shall not commit any waste.
(c) The Demised Premises shall not be used for any illegal purposes and
Tenant shall not allow, suffer, or permit any vibration, noise, odor, light or
other effect to occur within or around the Demised Premises that could
constitute a nuisance or trespass for any tenant of Landlord occupying an
adjoining building, its customers, agents, licensees or invitees. Upon notice
by Landlord to Tenant that any of the aforesaid prohibited uses are occurring,
Tenant agrees to promptly remove or control the same.
(d) Tenant shall not in any way violate any law, ordinance or any
restrictive covenant affecting the Demised Premises as shown by and included
in the Permitted Encumbrances, including specifically, but without limitation,
the Protective Covenants (as defined in Section 33), and shall not in any
manner use the Demised Premises so as to cause cancellation of, or prevent the
use of the fire and extended coverage insurance policy required hereunder.
8. Insurance
(a) Tenant covenants and agrees that from and after the date of deliver of
the Demised Premises from Landlord to Tenant, Tenant will carry and maintain
at its sole cost and expense, the following types of insurance in the amounts
specified and in the form hereinafter provided for:
(i) Liability insurance in the Commercial General Liability form (or
reasonable equivalent thereto) covering the Demised Premises and Tenant's use
thereof against claims for personal injury or death and property damage
occurring upon, in or about the Demised Premises, such insurance to be written
on an occurrence basis (not a claims made basis), to be in combined single
limits amounts not less than Three Million Dollars ($3,000,000.00) and to have
general aggregate limits of not less than Ten Million Dollars ($10,000,000.00)
for each policy year. The insurance coverage required under this Section
8(a)(i) shall, in addition, extend to any liability of Tenant arising out of
the indemnities provided for in Section 11 and, if necessary, the policy shall
contain a contractual endorsement to that effect.
(ii) (A) insurance on the "All-Risk" or equivalent form on a Replacement
Cost Basis against loss or damage to the Building and all other improvements
now or hereafter located on the Land and leased to Tenant hereunder
(including, without limiting the generality of the foregoing, flood insurance
if the Demised Premises are located in a flood hazard area), having a
deductible not greater than Fifty Thousand Dollars ($50,000.00); and in an
amount sufficient to prevent Landlord or Tenant from becoming a co-insurer of
any loss, but in any event in amounts not less than 100% of the actual
replacement value of such Building and improvements Landlord shall have the
right to require from Tenant, not more often than once every twelve (12)
months, reasonable evidence of the value of the Building.
(B) insurance on the "All-Risk" or equivalent form against abatement
or loss of rental by reason of the occurrences covered by the insurance
described in clause (A) above and by reason of any insurable service
interruptions in an amount equal to Base Rent and all Additional Rent for at
least twelve 12) months following the occurrence of such casualty.
(C) boiler and machinery insurance covering losses to or from any
steam boilers, pressure vessels or similar apparatus requiring inspection
under applicable state or municipal laws or regulations which are located at
the Demised Premises or on any other building systems for which such coverage
is available in amounts determined by Tenant to be appropriate or for such
higher amounts as may at any time be reasonably required by Landlord and
having a deductible of not more than Fifty Thousand Dollars ($50,000.00);
coverage shall be on a broad form comprehensive basis including loss of income
with a limit of at least an amount which is reasonably acceptable to Landlord,
and
(D) workmen's compensation insurance to the extent required by the
laws of the state in which the Demised Premises are located to the extent
necessary to protect Landlord, Mortgagee and the Demised Premises against
workmen's compensation claims.
(b) All policies of the insurance provided for in Section 8(a) shall be
issued in form acceptable to Landlord by insurance companies with a rating of
not less than "B-" and financial size of not less than Class XII, in the most
current available 'Best's Insurance Reports' and licensed to do business in
the state in which the Building is located. Tenant shall have the right to
increase the deductible amounts under the policies of insurance required by
Sections 8(a)(ii)(A) and (C) above, subject to the approval of Landlord, such
approval not to be unreasonably withheld; provided, however, that Landlord
shall be entitled to withhold such approval unless Tenant is able to
demonstrate that the requested increase in any such deductible is commercially
reasonable for improvements comparable to the Building. Each and every such
policy:
(i) shall name Landlord as well as Landlord's Mortgagee, as defined in
Section 24 and any other party reasonably designated by Landlord, as an
additional insured. In addition, the coverage described in Section 8(a)(ii)
shall also name Landlord as "loss payee" as its interest may appear.
(ii) shall endeavor to deliver to Landlord prior to (but in no event later
than thirty (30) days after) delivery of possession of the Demised Premises to
Tenant and thereafter within thirty (30) days prior to the expiration of each
such policy, and, as often as any such policy shall expire or terminate.
Renewal or additional policies shall be procured and maintained by Tenant in
like manner and to like extent;
(iii) shall contain a provision that the insurer waives any right of
subrogation against Landlord on account of any loss or damage occasioned to
Landlord, its property, the Demised Premises or its contents arising from any
risk covered by all risks fire and extended coverage insurance of the type and
amount required to be carried hereunder, provided that such waiver does not
invalidate such policies or prohibit recovery thereunder.
(iv) shall contain a provision that the insurer will endeavor to give to
Landlord and such other parties in interest at least thirty (30) days notice
in writing in advance of (but in no event later than thirty (30) days after)
any material change, cancellation, termination or lapse, or the effective date
of any reduction in the amounts of insurance; and
(v) shall be written as a primary policy which does not contribute to and
is n to in excess of coverage which Landlord may carry.
(c) Any insurance provided for in Section 8(a) may be maintained by means of
a policy or policies of blanket insurance, covering additional items or
locations or insureds; provided, however, that:
(i) Landlord and any other parties in interest from time to time
designated by Landlord to Tenant shall be named as an additional insured
thereunder as its interest may appear;
(ii) the coverage afforded Landlord and any such other parties in interest
will not be reduced or diminished by reason of the use of such blanket policy
of insurance;
(iii) any such policy or policies shall specify therein the amount of the
total insurance allocated to the Tenant's improvements an property, and;
(iv) the requirements set forth in this Section 8 are otherwise satisfied.
(d) In the event that Tenant shall fail to carry and maintain the insurance
coverages set forth in this Section 8, Landlord may upon thirty (30) days
notice to Tenant (unless such coverages will lapse in which event no such
notice shall be necessary) procure such policies of insurance and Tenant shall
promptly reimburse Landlord therefor.
(e) Each party may, at any time, but not more than one (1) time in any
twelve (12) month period, require a review of the insurance coverage and
limits of liability set forth in Section 8 to determine whether the coverage
and the limits are reasonable and adequate in the then existing circumstances.
The review shall be undertaken on a date and at a time set forth in a party's
notice requesting review and shall be conducted at the Demised Premises. If
the parties are, after a review, unable to agree on either the coverage or the
limits, then the parties shall employ the Dispute Resolution Procedure (as
defined in Section 34) with insurance advisors having at least ten (10) years
experience in insurance for commercial and industrial properties serving as
Officials. In rendering the decision the Officials shall consider the
requirements of Section 8, the cost of the insurance to be obtained,
inflation, changes in condition, and the insurance then being carried by
similar industrial use developments in the area of the Project.
9. Utilities. Commencing on the Lease Commencement Date and continuing
through the remainder of the Term, Tenant shall be responsible for maintaining
the portion of the utility lines located between the Land boundary line and
the Building and shall promptly pay as billed to Tenant all rents and charges
for water and sewer services and all costs and charges for gas, steam,
electricity, fuel, light, power, telephone, heat and any other utility or
service used or consumed in or servicing the Demised Premises and all other
costs and expenses involved in the care, management and use thereof to the
extent charged by the applicable utility companies. If Tenant fails to pay
any utility bills or charges, Landlord may, at its option and upon reasonable
notice to Tenant, pay the same and in such event, the amount of such payment,
together with interest thereon at the Interest Rate as defined in Section 32
from the date of such payment by Landlord, will be added to Tenant's next due
payment, as Additional Rent.
10. Taxes and Other Impositions.
(a) Commencing on the Lease Commencement Date and continuing through the
remainder of the Term, Tenant shall be solely obligated for the costs of all
real estate taxes and other impositions for the Demised Premises, including
the Building and the Land, and Tenant agrees to pay all installments of such
imposition which accrue during the Term. This provision shall expressly
survive the expiration or termination of this Lease in order to settle up
Tenant's pro rata share of such taxes for the final Lease Year of the Term.
(b) Real estate taxes and other impositions shall mean all ad valorem taxes,
water and sanitary taxes, assessments, liens, licenses and permit fees (except
for any permit fees associated with the initial construction to be performed
by Landlord pursuant to Section 8 hereof) or any other taxes imposed, assessed
or levied against the Land and the Demised Premises, and all other charges,
impositions or burdens of whatever kind and nature, whether or not
particularized by name, and whether general or special, ordinary or
extraordinary, foreseen or unforeseen, which at any time during the Term may
be created, assessed, confirmed, adjudged, imposed or charged upon or with
respect to the Demised Premises, the Land, or any improvements made thereto,
or on any part of the foregoing or any appurtenances thereto, or directly upon
this Lease or the rent payable hereunder of amount payable by any subtenants
or other occupants of the Demised Premises, or upon this transaction or any
documents to which Tenant is a party or successor-in-interest, or against
Landlord because of Landlord's estate or interest herein, by any governmental
authority, or under any law, including, among others, all rental, sales, use,
inventory or other similar taxes and any special tax bills and general,
special, or other assessments and liens or charges made on local or general
improvements or any governmental or public power or authority whatsoever.
(c) Notwithstanding the foregoing, if any imposition shall be created,
levied, assessed, adjudged, imposed, charged or become a lien with respect to
a period of time which commences before the Lease Commencement Date or ends
after the expiration date of the Term (other than an expiration date of the
Term by reason of breach of any of the terms hereof by Tenant), then Tenant
shall only be required to pay that portion of such imposition which is equal
to the proportion of said period which falls within the Term if Tenant is
permitted to pay (by the assessing and collecting authorities) and elects to
pay any imposition in installments. Tenant shall nevertheless pay any and all
installments thereof which would otherwise become delinquent prior to the
expiration of the Term or sooner termination of the Term. Nothing contained
in this Lease shall require Tenant to pay any income or excess profits or
taxes assessed against Landlord, or any corporation, capital stock and
franchise taxes imposed upon Landlord. Landlord agrees to deliver to Tenant,
copies of all such notices of real estate taxes and impositions which Landlord
receives.
(d) Tenant agrees to pay such real estate taxes and impositions prior to
delinquency.
(e) Tenant shall furnish Landlord, not later than thirty (30) days after the
last day upon which they may be paid without any fine, penalty, interest or
additional cost, but in any event, by the due date thereof, evidence of the
payment of all real estate taxes and impositions.
(f) Landlord agrees that Tenant's financial obligations for the assessments
due under the Protective Covenants (as hereinafter defined) shall be capped at
$9.817 per year during the initial Term of this Lease.
11. Maintenance and Repairs.
(a) From and after the Lease Commencement Date and throughout the Term,
Tenant shall, at its own cost and expense, except as provided in Section 11(b)
below, maintain the Demised Premises in good condition and repair, including
but not limited to the electrical systems, heating air conditioning and
ventilation systems, plate glass windows and doors, sprinkler and plumbing
systems. Tenant shall maintain in full force and effect a service contract
for the heating, ventilation and air conditioning systems with an entry
reasonably acceptable to Landlord. Tenant's obligations to repair and
maintain the Demised Premises shall also include, without limitation, repair,
maintenance and replacement of all plumbing and sewage facilities within and
about the Demised Premises (including, specifically, but without limitation,
the portion of water and sewer lines between the boundary of the Land and
Building), fixtures, interior walls, floors, ceilings, windows, doors,
storefronts, plate glass, skylights, all electrical facilities and equipment
including, without limitation, lighting fixtures, lamps, fans and any exhaust
equipment and systems, electrical motors, and all other appliances and
equipment of every kind and nature located in, upon or about the Demised
Premises including, without limitation, exterior lighting and fencing, and any
sidewalks, parking areas and access ways (including, without limitation, curbs
and striping) upon the Demised Premises and the landscaping and grounds
surrounding the Building. All glass, both interior and exterior, is at the
sole risk of Tenant; and any broken glass shall be promptly replaced at
Tenant's expense by glass of like kind, size and quality. Unless the same is
caused solely by the negligent action r inaction of Landlord, Landlord shall
not be liable to Tenant or to any other person for any damage occasioned by
failure in any utility system or by the bursting or leaking of any vessel or
pipe in or about the Demised Premises, or for any damage occasioned by water
coming into the Demised Premises or arising from the acts or neglects of
occupants of adjacent property or the public.
(b) Landlord shall, at its own cost and expense, maintain in good condition
and repair the exterior walls, roof, foundation and structural frame of the
Building. Landlord's obligation shall exclude the cost of any maintenance or
repair required because of the negligence of Tenant, Tenant's employees, agents
or any other party acting on behalf of Tenant, the cost of which shall be the
responsibility of Tenant.
12. Tenant's Personal Property Indemnity. All of Tenant's personal property
in the Demised Premises shall be and remain at Tenant's sole risk, and
Landlord shall not be liable for and Tenant hereby releases Landlord from any
and all liability for theft thereof or any damage thereto occasioned by any
acts or negligence of any third persons, or any act of God, except to the
extent caused by the acts or negligence of Landlord, its agents, employees and
contractors. As to personal injury or property damage (including personal
property of Tenant), Landlord shall not be liable for any injury to the person
or property of Tenant or other persons in or about the Demised Premises,
Tenant expressly agreeing to indemnify and save Landlord harmless in all such
cases, except to the extent occasioned by any acts of negligence of Landlord,
its agents, employees or contractors. Tenant further agrees to reimburse
Landlord for any reasonable costs or expenses, including without limitation
attorneys' fees, which Landlord may actually and reasonably incur in
investigation, handling or litigating any such claim against Landlord by a
third person. Tenant shall have the option to defend Landlord with counsel
selected by Tenant and reasonably acceptable to Landlord. The provisions of
this Section 12 shall survive the expiration or termination of this Lease with
respect to any damage, injury or death occurring before such expiration or
termination.
13. Tenant's Fixtures. Tenant shall have the right to install in the Demised
Premises trade fixtures required by Tenant or used by it in its business and
if installed by Tenant, to remove any or all such trade fixtures from time to
time during and upon termination of this Lease, provided, however, that Tenant
shall repair and restore any damage or injury to the Demised Premises (to the
condition in which the Demised Premises existed prior to such installation)
caused by the installation and/or removal of any such trade fixtures.
14. Signs. No sign, advertisement or notice shall be inscribed, painted,
affixed, or displayed on the windows or exterior walls of the Demised Premises
or on any public area of the Building, except in such places, numbers, sizes,
colors and styles as are approved in advance in writing by Landlord, which
approval shall not be unreasonably withheld or delayed and which conform to
all applicable laws and/or ordinances and the Protective Covenants. Any and
all permitted signs shall be installed, maintained and removed by Tenant, at
Tenant's sole expense.
15. Waiver of Landlord's Lien. Landlord hereby waives its right to lien
Tenant's personal property and trade fixtures.
16. Governmental Regulations. Tenant shall promptly comply throughout the
Term of this Lease, at Tenant's sole cost and expense, with all present and
future laws, ordinances and regulations of all applicable governing
authorities relating to all or any part of the Demised Premises, foreseen or
unforeseen, ordinary as well as extraordinary, or to the use or manner of use
of the Demised Premises or to the sidewalks, parking areas, curbs and access
ways adjoining the Demised Premises. In the event that such law, ordinance or
regulation promulgated or effective after the Lease Commencement Date requires
a renovation, improvement or replacement to the Demised Premises, then Tenant
shall be required to make such renovation, improvement or replacement at
Tenant's sole cost and expense. Tenant shall also observe and comply with the
requirements of all policies of public liability, fire and other policies of
insurance at any time in force with respect to the Demised Premises. Landlord
represents and warrants that as of the Lease Commencement Date and to
Landlord's actual knowledge the design and construction of the improvements on
the land materially complies with all applicable federal, state, courts and
municipal laws, ordinances and codes.
17. Environmental Matters.
(a) For purposes of this Lease:
(i) "Contamination" as used herein means the uncontained or uncontrolled
presence of or release of Hazardous Substances (as hereinafter defined) into
any environmental media from, upon, within, below, into or on any portion of
the Demised Premises, the Building, or the Project so as to require
remediation, cleanup or investigation under any applicable Environmental Law
(as hereinafter defined).
(ii) "Environmental Laws" as used herein means all federal, state, and
local laws, regulations, orders, permits, ordinances or other requirements,
concerning protection of human health, safety and the environment, all as may
be amended from time to time.
(iii) "Hazardous Substances" as used herein means any hazardous or toxic
substance, material, chemical, pollutant, contaminant or waste as those terms
are defined by any applicable Environmental Laws (including, without
limitation, the Comprehensive Environmental Response Compensation and
Liability Act 42 USC 9601 et seq ("CERCLA") and the Resource Conservation and
Recovery Act, 42 USC 6901 et seq ["RCRA"]) and any solid wastes,
polychlorinated biphenyl, urea formaldehyde, asbestos, radioactive materials,
radon, explosives, petroleum products and oil.
(b) Landlord represents that except as set forth in environmental reports
delivered by Landlord to Tenant
(i) Landlord has not treated, stored or disposed of any Hazardous
Substances upon or within the Demised Premises and
(ii) to Landlord's actual knowledge, no Hazardous Substances are present on
or under the Land as of the date of this Lease.
(c) Tenant represents that all its activities on the Demised Premises or
the Project during the course of this Lease will be conducted in compliance
with Environmental Laws. Tenant warrants that it is currently in compliance
with all applicable Environmental Laws and that there are no pending or
threatened notices of deficiency, notices of violation, orders, or judicial or
administrative actions involving alleged violations by Tenant of any
Environmental Laws. Tenant, at Tenant's sole cost and expense, shall be
responsible for obtaining all permits or licenses or approvals under
Environmental Laws necessary for Tenant's operation of its business on the
Demised Premises and shall make all notifications and registrations required
by any applicable Environmental Laws. Tenant, at Tenant's sole cost and
expense, shall at all times comply with the terms and conditions of all such
permits, licenses, approvals, notifications and registrations and with any
other applicable Environmental Laws affecting in any way the Demised Premises.
Tenant warrants that it will obtain all such permits, licenses or approvals
and make all such notifications and registrations required by any applicable
Environmental Laws necessary for Tenant's operation of its business on the
Demised Premises.
(d) Tenant shall not cause or permit any Hazardous Substances to be brought
upon, kept, stored or used in or about the Demised Premises, the Building, or
the Project without the prior written consent of Landlord, which consent may
be granted or withheld in the absolute discretion of Landlord; provided,
however, that the consent of Landlord shall not be required for the use at the
Demised Premises of cleaning supplies, toner for photocopying machines and
other similar materials, in containers and quantities reasonably necessary for
and consistent with normal and ordinary use by Tenant, at the Demised
Premises, in the routine operation or maintenance of Tenant's office equipment
or in the routine janitorial service, cleaning and maintenance for the Demised
Premises.
(e) Tenant shall not cause or permit the release of any Hazardous Substances
by Tenant or its agents, contractors, employees or invitee into any
environmental media such as air, water or land, or into or on the Demised
Premises, the Building or the Project in any manner that violates any
Environmental Laws. If such release shall occur, Tenant shall
(i) make all steps reasonably necessary to contain and control such release
and any associated Contamination,
(ii) clean up or otherwise remedy such release and any associated
Contamination to the extent required by, and take any and all other actions
required under, applicable Environmental Laws and
(iii) notify and keep Landlord reasonably informed of such release and
response.
(f) Regardless of any consent granted by Landlord pursuant to Section 17(d)
allowing Hazardous Substances upon the Demised Premises, Tenant shall under no
circumstances whatsoever
(i) cause or permit any activity on the Demised Premises which would cause
the Demised Premises to become subject to regulation as a hazardous waste
treatment, storage or disposal facility under RCRA or the regulations
promulgated thereunder,
(ii) discharge Hazardous Substances into the storm sewer system serving the
Project, or
(iii) install any underground storage tank or underground piping on or
under the Demised Premises.
(g) Tenant shall and hereby does indemnify Landlord and hold and defend
Landlord harmless from and against any and all reasonable and actual expense
loss, and liability suffered by Landlord (with the exception of those
expenses, losses, and liabilities arising from Landlord's own negligence or
willful act) by reason of Tenant's storage, generation, handling, treatment,
transportation, disposal, or arrangements for transportation or disposal of
any Hazardous Substances (whether accidental, intentional, or negligent) or by
reason of Tenant's breach of any of the provisions of this Section 17. Such
expenses, losses and liabilities shall include, without limitation
(i) any and all expenses that Landlord may incur to comply with any
Environmental Laws as a result of Tenant's failure to comply therewith,
(ii) any and all costs that Landlord may incur in studying or remedying any
Contamination at or arising from the Demised Premises as a result of a failure
by Tenant to comply with this Section 17 or Environmental Laws,
(iii) any and all costs that Landlord may incur in studying, removing,
disposing or otherwise addressing any Hazardous Substances which are present
at the Demised Premises as a result of a failure by Tenant to comply with this
Section 17 or Environmental Laws,
(iv) any and all fines, penalties or other sanctions assessed upon and
Landlord by reason of Tenant's failure to comply with Environmental Laws, and
(v) any and all reasonable legal and professional fees and costs incurred by
Landlord in connection with the foregoing. The indemnity contained herein
shall survive the termination or expiration of this Lease.
(h) Landlord shall have the right, but not the obligation, to enter the
Demised Premises at reasonable times throughout the Term, after prior written
notice to Tenant, to audit and inspect the Demised Premises for Tenant's
compliance with this Section 17.
18. Plans and Specifications for Construction of Demised Premises.
(a) Within sixty (60) days after the date hereof, Landlord shall prepare at
Landlord's sole cost and expense, and submit to Tenant a set of plans and
specifications (collectively, the "Plans and Specifications") based upon the
Preliminary Plans, covering all work to be performed by Landlord in
constructing the Building and other improvements which shall be a part of the
Demised Premises. Tenant shall have ten (10) business days after receipt of
the Plans and Specifications in which to review and approve the Plans and
Specifications. Tenant shall have the right to object to the Plans and
Specifications if they are not a logical evaluation from the Preliminary
Plans. In the event Tenant shall fail to review the Plans and Specifications
within such time period, Tenant shall be deemed to have approved such Plans
and Specifications. Any subsequent changes to the Plans and Specifications
requested by Tenant shall be at Tenant's sole cost and expense and subject to
Landlord's written approval (herein referred to as a "Change Order"), which
approval shall not be unreasonably withheld or delayed. Tenant may by
comparable materials, or with materials of a higher grade, but Tenant shall
have no right to change the materials to materials which, in Landlord's
reasonable opinion, are of an inferior grade or quality to those called for in
the Plans and Specifications. The aggregate cost of all such Change Orders in
excess of the costs reflected in the Plans and Specifications shall be paid in
cash by Tenant to Landlord upon Landlord's submission to Tenant of written
request for payment of such additional cost and not later than the Lease
Commencement Date. The cost to Tenant for Change Orders shall be Landlord's
cost plus fifteen percent (15%) of such amounts as Landlord's overhead.
(b) Landlord shall, at its sole cost and expense construct the Building and
other improvements pursuant to the Plans and Specifications, and in accordance
with the terms and conditions of this Lease ("Landlords Work"). Landlord
shall make no changes to the Plans and Specifications without Tenant's written
consent, with the exception of immaterial details, which will not affect
Tenant's use or occupancy of the Building or other improvements. Landlord
shall have the final Plans and Specifications sealed by the Architect,
obtained all required building permits, certificates and licenses and
thereafter, in accordance with all applicable law and insurance requirements,
perform Landlord's Work in a diligent and good workmanlike manner, subject to
Ordinary Delay and Tenant Delay (as those terms are defined below).
(c) Landlord shall use reasonable speed and diligence to achieve Substantial
Completion, at Landlord's sole cost and expense, on or before February 1,
1996. In the event that Landlord is unable to achieve Substantial Completion
on or before March 1, 1996 (as may be extended for delay as set forth in
Section 18(e) below), the first months' Base Rent shall ▇▇▇▇▇. In the event
that Landlord is unable to achieve Substantial Completion on or before April
1, 1996 (as may be extended for delay as set forth in Section 18(c) below),
Tenant shall receive two (2) days additional free rent for each day of delay
thereafter, up to a maximum of thirty (30) days additional free rent. In the
event that Landlord is unable to achieve Substantial Completion on or before
May 1, 1996 (as may be extended for delay as set forth in Section 18(e)
below), Tenant may, at its option and sole remedy, terminate this Lease by
written notice to Landlord given on or before June 1, 1996 (provided that
Substantial Completion has not occurred prior to Landlord's receipt of said
termination notice), and thereafter neither Landlord nor Tenant shall have any
further obligation hereunder.
(d) No later than the date which is seven (7) days prior to the estimated
date of Substantial Completion, Landlord shall give Tenant written notice that
Landlord estimates Substantial Completion will occur seven (7) days
thereafter. Immediately after receipt of such notice, Tenant may commence
construction and installation of Tenant's improvements and fixtures within the
Demised Premises (herein referred to as "Tenant's Work"), Landlord and Tenant
shall cause their respective workmen to work in cooperation with each other.
(e) The Substantial Completion target date of February 1, 1996 shall be
extended for one(1) day for each day that Substantial Completion is delayed;
(i) as a result of the failure by Tenant to timely approve or disapprove
the Plans and Specifications, or as a result of Change Orders or other changes
requested by Tenant in the Plans and Specifications after the Tenant's
approval thereof (collectively referred to herein as "Tenant Delay"); or
(ii) due to strikes or other labor troubles not specific to the Demised
Premises, governmental restrictions and limitations, war or other national
emergency, noon-availability of materials or supplies, delay in
transportation, accidents, floods, fire, damage or other casualties, weather
or acts or omissions of Tenant, or delays by utility companies in bringing
utility lines to the Demised Premises all beyond the reasonable control of
Landlord (collectively referred to herein as "Ordinary Delay"). The inability
or refusal of Landlord to make any monetary payment shall not constitute or
result in an Ordinary Delay.
(f) On or prior to the date of Substantial Completion of the Demised
Premises, a representative of Landlord and a representative of Tenant
together shall inspect the Demised Premises and, within fifteen (15) days
thereafter, generate a punch list of defective or uncompleted items relating
to the completion of construction of the improvements within the Demised
Premises, which punch list shall indicate the estimation by the parties of the
cost of each item. Landlord shall, within a reasonable time after such punch
list is prepared and agreed upon by Landlord and Tenant, complete such
incomplete work and remedy such defective work as are set forth on the punch
list.
(g) Upon the Lease Commencement Date, Tenant shall execute and deliver to
Landlord a letter confirming the Lease Commencement Date and expiration date of
this Lease.
(h) Landlord hereby warrants to Tenant that the materials and equipment
furnished by Landlord's contractors in the completion of Landlord's Work will
be of good quality and new, that during the one (1) year period following the
date of Substantial Completion of Landlord's Work, such materials and
equipment and the work of such contractors shall be free from defects not
inherent in the quality required or permitted hereunder, and that such work
will conform to the Plans and Specifications (the foregoing referred to herein
as "Landlord's Warranty"). This warranty shall exclude damages or defects
caused by abuse by Tenant, its employees, invitee, licensees, contractors and
agents, improper or insufficient maintenance, improper operation or normal
wear and tear under normal usage.
19. Tenant Alterations and Additions
(a) Except as to any nonstructural alterations, improvements or additions to
the Demised Premises (collectively a "Tenant Change"), which Tenant changes
individually cost less than $20,000.00 and in the aggregate over the Term
total less than $200,000.00, Tenant shall not make or permit to be made any
other Tenant Change without first obtaining on each occasion Landlord's prior
written consent (which consent Landlord agrees not unreasonably to withhold)
and Mortgagee's prior written consent (if such consent is required). With
respect to any such Tenant Change requiring Landlord's prior written consent,
Tenant shall furnish Landlord with a full set of plans and specifications for
any such Tenant Change prior to the commencement thereof together with an
original builder's risk policy of insurance in form and amount of coverage
reasonably acceptable to Landlord, showing Tenant as named insured, and
Landlord and Mortgagee (if applicable) as loss payees. If Landlord, a the
time of giving his approval to any Tenant Change, notifies Tenant that
approval is conditioned upon restoration, then upon written request of
Landlord, Tenant shall, at its sole cost and expense and upon the termination
of this Lease, remove the same and restore the Demised Premises to its
condition prior to such Tenant Change.
(b) All Tenant Changes shall be performed in accordance with all legal
requirements applicable thereto and in a good and workmanlike manner with
first-class materials and, upon completion of any Tenant Change, Tenant shall
furnish to Landlord "as-built" drawings showing the location and type thereof.
No Tenant Change shall impair the structural strength of the Building or
reduce its value. Tenant shall take or cause to be taken all steps that are
required or permitted by law in order to avoid the imposition of any
materialmen's or mechanics' liens upon the Building or the Demised Premises,
and Tenant shall pay the full cost of any Tenant Change. Except as otherwise
provided herein and in Section 12 hereof, all Tenant Changes and all repairs
and all other property attached to or installed on the Demised Premises by or
on behalf of Tenant shall immediately upon the expiration or earlier
termination of the Term be and become part of the Demised Premises surrendered
to Landlord upon the expiration or earlier termination of the Term. With
respect to any Tenant Change, whether or not requiring Landlord's prior
consent, Landlord shall have no duty or obligation to make any replacement or
repair thereto, whether interior or exterior, structural or non-structural,
ordinary or extraordinary or as required to comply with any law.
20. Services by Landlord. From and after the Lease Commencement Date,
Landlord shall be responsible for providing no services to the Demised
Premises whatsoever, except for the services for which Landlord is
specifically obligated pursuant to Section 18(f) and (h).
21. Fire and Other Casualty.
(a) If the Building or other improvements on the Land shall be damaged or
destroyed by fire or other casualty, Tenant at Tenant's sole cost and expense,
shall promptly and diligently proceed to adjust the loss with the insurance
companies (subject to the approval of the Mortgagee (if applicable) and of
Landlord) and arrange for the disbursement of insurance proceeds, and repair,
rebuild or replace such Building and other improvements, so as to restore the
Demised Premises to the condition in which they were immediately prior to such
damage or destruction. The net proceeds of any insurance recovered by reason
of such damage or destruction in excess of the cost of adjusting the insurance
claim and collecting the insurance proceeds (such excess being referred to
herein as the "Net Insurance Proceeds") shall be held by the Mortgagee
(provided that such Mortgagee is a bank savings association, insurance company
or other similar institutional lender, herein called "Institutional Lender"),
or, if no Institutional Lender then holds a mortgage lien, or deed of trust on
the Demised Premises, by any national or state chartered bank which is
reasonably acceptable to Landlord and Tenant, and the Net Insurance Proceeds
shall be released for the purpose of paying the fair and reasonable cost of
restoring such Building and other improvements. Such Net Insurance Proceeds
shall be released to Tenant, or to Tenant's contractors from time to time as
the work progresses, pursuant to such requirements and limitations as may be
reasonably acceptable to Landlord and Mortgagee (if the Mortgagee so requires)
including without limitation, lien waivers from each of the contractors,
subcontractors, materialmen and suppliers performing the work. If the Net
Insurance Proceeds (less any applicable deductible) are insufficient to
restore the Demised Premises, Tenant shall be obligated to pay such deficiency
and the amount of any such deductible. Notwithstanding the foregoing if the
Net Insurance Proceeds are less than Twenty-Five Thousand Dollars
($25,000.00), and if the Mortgagee agrees in writing such Net Insurance
Proceeds may be held by Tenant and used by Tenant to pay the fair and
reasonable cost of restoring such Demised Premises and other improvements. If
the Net Insurance Proceeds exceed the full cost of the repair, rebuilding or
replacement of the damaged Building or other Improvements, if the Mortgagee
does not retain such excess proceeds and supply the same on account of the
debt owed to it, then the amount of such excess Net Insurance Proceeds shall
be paid to Tenant upon the completion of such repair, rebuilding or
replacement. Landlord agrees not unreasonably to withhold or delay any
approvals required to be obtained by Tenant from Landlord pursuant to the
provisions of this Section 21(a). Landlord agrees to cooperate with Tenant,
at no cost to Landlord, in connection with Tenant's request to Mortgagee to
release the Net Insurance Proceeds to Tenant.
(c) Notwithstanding the foregoing, in the event that the Demised Premises
are so destroyed in the last thirty (30) months of the then Term so as to
prevent Tenant from operating a substantial portion of its business within the
Demised Premises and which cannot be repaired by a date which is ninety (90)
days prior to the expiration of the then Term, then Tenant may terminate and
cancel this Lease effective as of the date of such casualty by giving written
notice to Landlord within thirty (30) days of the date of such casualty. Upon
the giving of such notice, all obligations hereunder with respect to periods
from and after the effective date of termination shall thereupon cease and
terminate, provided, however, that a condition of said termination is that
Tenant pay to Landlord an amount equal to the deductible under Tenant's
insurance policy covering said casualty and that Tenant assign to Landlord all
insurance proceeds relating to said casualty.
22. Condemnation.
(a) If all of the Demised Premises is taken or condemned for a public or
quasi-public use, this Lease shall terminate as of the earlier of the date
title to the condemned real estate vests in the condemnor and the date on
which Tenant is deprived of possession of all of the Demised Premises. In
such event, the Base Rent herein reserved and all Additional Rent and other
sums payable hereunder shall be apportioned and paid in full by Tenant to
Landlord to that date, all Base Rent, Additional Rent and other sums payable
hereunder prepaid for periods beyond that date shall forthwith be repaid by
Landlord to Tenant, and neither party shall thereafter have any liability
hereunder, except that any obligation or liability of either party, actual or
contingent, under this Lease which has accrued on or prior to such termination
date shall survive.
(b) In the event of a taking of "Substantially All of the Demised Premises"
(as herein defined), Tenant may, at its option, upon thirty (30) days' written
notice to Landlord, which shall be given no later than sixty (60) days
following the taking, have the right to terminate this Lease. All Base Rent
and other sums payable by Tenant hereunder shall be apportioned and paid
through and including the date of taking and neither Landlord nor Tenant shall
have any rights in any compensation or damages payable to the other in
connection with such condemnation. For purposes of this provision,
"Substantially All of the Demised Premises" shall mean
(i) so much of the Demised Premises as when taken, leaves the untaken
portion unavailable, in the reasonable opinion of Tenant and Landlord, for the
continued feasible and economic operation of the Demised Premises by Tenant
for the same purposes as immediately prior to such taking or as contemplated
herein;
(ii) so many of the parking spaces on the Land as reduces the parking ratio
below that which is required by the zoning ordinance applicable to the Project
and Landlord's failure to provide substantially similar alternative parking
reasonably acceptable to Tenant within sixty (60) days after such taking, or
(iii) so much of the Demised Premises that access to the Demised Premises
is materially impeded as reasonably determined by Landlord and Tenant.
(c) If only part of the Demised Premises is taken or condemned for a public
or quasi-public use and this Lease does not terminate pursuant to Section
23(b) above, Tenant shall restore, using all reasonable speed and diligence,
the Demised Premises to a condition and to a size as nearly comparable as
reasonably possible to the condition and size thereof immediately prior to the
taking and Landlord to the extent of the award it receives in excess of the
costs of collecting the award and value of the land taken (herein, the "Net
Condemnation Proceeds), shall release the Net Condemnation Proceeds to Tenant
for that purpose and Tenant shall have the right to participate in any
proceeding relating to the awarding of restoration damages. There shall be an
equitable abatement of the Base Rent and Additional Rent according to the
value of the Demised Premises before and after the taking. Determination of
such value of the Demised Premises after a partial taking shall be mutually
agreed to by the parties within sixty (60) days from the date of the taking
and if the parties cannot so agree, then such value shall be determined in
accordance with the Dispute Resolution Procedure (as defined in Section 34),
with real estate appraisers having at least ten (10) years experience
appraising commercial real estate, including build-to-suit leases, serving as
Officials. Pending such determination, Tenant shall continue to pay the Base
Rent and Additional Rent as herein originally specified, and upon such
determination, if Tenant is entitled to a refund because of an overpayment of
Base Rent or Additional Rent, Landlord shall make the same promptly, or in
lieu thereof credit the amount thereof to future installments of Base Rent or
Additional Rent as they become due.
(d) Landlord shall be entitled to receive the entire award is any proceeding
with respect to any taking provided for in that Section 22, without deduction
therefrom for any estate vested in Tenant by this Lease, and Tenant shall
receive no part of such award. Nothing herein contained shall be deemed to
prohibit Tenant from making a separate claim, against he condemnor, to the
extent permitted by law, for the value of the unamortized tenant improvements
(installed in accordance with Section 19 at Tenant's expense). Tenant's
movable trade fixtures, machinery and moving expenses, provided that, in any
case, the making of such claim shall not and does not adversely affect or
diminish Landlord's award.
23. Tenant's Default.
(a) The occurrence of any one or more of the following events shall
constitute an event of default (herein referred to as an "Event of Default")
of Tenant under this Lease;
(i) if Tenant fails to pay Base Rent or any Additional Rent hereunder as
and when such rent becomes due and such failure shall continue for more than
ten (10) days after receipt of written notice from Landlord of such failure;
(ii) if Tenant fails to pay Base Rent or any Additional Rent on time more
than three (3) times in any period of twelve (12) months, notwithstanding that
such payments have been made within the applicable cure period;
(iii) [intentionally deleted]
(iv) if Tenant permits to be done anything which creates a lien upon the
Demised Premises and fails either (A) to discharge, (B) bond such lien, or (C)
________ security with Landlord acceptable to Landlord, within thirty (30)
days after receipt by Tenant of written notice thereof;
(v) if Tenant violates the provisions of Section 30 of this Lease by
attempting to make an unpermitted assignment or sublease;
(vi) if Tenant fails to maintain in force all policies of insurance
required by this Lease and such failure shall continue for more than thirty
(30) days after Landlord gives Tenant notice of such failure;
(vii) if any petition is filed by or against Tenant or any guarantor of
this Lease under any present or future section or chapter of the Bankruptcy
Code, or under any similar law or statute of the United States or any state
thereof (which, the case of an involuntary proceeding, is not permanently
discharged, dismissed, stayed, or vacated, as the case may be, within sixty
(60) days of commencement), or if any order for relief shall be entered
against Tenant or any guarantor of this Lease in any such proceedings;
(viii) if Tenant or any guarantor of this Lease becomes insolvent or makes
a transfer in fraud of creditors or makes an assignment for the benefit of
creditors;
(ix) if a receiver custodian or trustee is appointed for the Demised
Premises or for all or substantially all of the assets of Tenant or of any
guarantor of the Lease, which appointments is not vacated within sixty (60)
days following the date of such appointment; or
(x) if Tenant fails to perform or observe any other term of this Lease
and such failure shall continue for more than thirty (30) days after Landlord
gives Tenant notice of such failure, or if such failure cannot be corrected
within such thirty (30) day period, if Tenant does not commence to correct
such default within said thirty (30) day period and thereafter diligently
prosecute the correction of same to completion within a reasonable time and in
any event prior to the time a failure to complete such correction could cause
Landlord to be subject to t a prosecution for violation of any law, rule,
ordinance or regulation or causes, or could cause a default under any mortgage
or other Permitted Encumbrance.
(b) Upon the occurrence of any one or more of the aforesaid Events of
Default, or upon the occurrence of any other default or defaults by Tenant
under this Lease, Landlord may, at Landlord's option, without any demand or
notice whatsoever (except as expressly required in this Section 23);
(i) Terminate this Lease by giving Tenant notice of termination in which
event this Lease shall expire and terminate on the date specified in such
notice of termination with the same force and effect as though the date so
specified were the date herein originally fixed as the termination date of the
Term, and all rights of Tenant under this Lease and in and to the Demised
Premises shall expire and terminate and Tenant shall remain liable for all
obligations under this Lease arising up to the date of such termination, and
Tenant shall surrender the Demised Premises to Landlord on the date specified
in such notice, and if Tenant fails to so surrender, Landlord shall have the
right without notice to enter upon and take possession of the Demised Premises
and to expel or remove Tenant and its effects without being liable for
prosecution or any claim for damages therefore; or
(ii) Terminate this Lease as provided in Section 23(b)(i) hereof and
recover from Tenant all damages Landlord may incur by reason of Tenant's
default, including, without limitation, a sum which, as the date of such
termination, represents the value of the excess, if any, of (1) the Base Rent,
Additional Rent and all other sums which would have been payable hereunder by
Tenant for the period commencing with the day following the date of such
termination and ending with the expiration date had this Lease not been
terminated over (2) the aggregate reasonable rental value of the Demised
Premises for the period commencing with the day following the date of such
termination and ending with the expiration date had this Lease not been
terminated, plus (3) the costs of recovering possession of the Demised
Premises and all other expenses incurred by Landlord due to Tenant's default,
including, without limitation, reasonable attorney's fees, plus (4) the unpaid
Base Rent and Additional Rent earned as of the date of termination plus any
interest and late fees due hereunder, plus other sums of money and damages
owing on the date of termination by Tenant to Landlord under this Lease or in
connection with the Demised Premises, all of which excess sum shall be deemed
immediately due and payable; provided, however, that such payments shall not
be deemed a penalty but shall merely constitute payment of liquidated damages,
it being understood and acknowledged by Landlord and Tenant that actual
damages to Landlord are extremely difficult, if not impossible, to ascertain.
The excess, if any, of subparagraph (ii)(1) over subparagraph (ii)(2) herein
shall be discounted to present value at the "Treasury Yield" rate. "Treasury
Yield" shall mean the rate of return in percent per annum of Treasury Constant
Maturities for the length of time specified as published in document
H.15(paragraph 19) (presently published by the Board of Governors of the U.S.
Federal Reserve System titled "Federal Reserve Statistical Release") for the
calendar week immediately preceding the calendar week in which the termination
occurs. If the rate of return of Treasury Constant Maturities of the calendar
week in question is not published on or before the business day preceding the
date of the Treasury Yield in question is to become effective, then the
Treasury Yield shall be based upon the rate of return of Treasury Constant
Maturities of the length of time specified for the most recent calendar week
for which such publication has occurred. If no rate of return for Treasury
Constant Maturities most nearly corresponding to the length of the applicable
period specified. If the publishing of the rate of return of Treasury
Constant Maturities is ever discontinued, then the Treasury Yield shall be
based upon the Index which is published by the Board of Governors of the U.S.
Federal Reserve System in replacement thereof or, if no such replacement Index
is published, the index which, in Landlord's reasonable determination, most
nearly corresponds to the rate of return of Treasury Constant Maturities. In
determining the aggregate reasonable rental value pursuant to subparagraph
(ii)(2) above, the parties hereby agree that, at the time Landlord seeks to
enforce this remedy, all relevant factors should be considered, including, but
not limited to,
(a) the length of time remaining in the Term,
(b) the then current market conditions in the general area in which the
Building is located,
(c) the likelihood of reletting the Demised Premises for a period of time
equal to the remainder of the Term,
(d) the net effective rental rates then being obtained by landlords for
similar type space of similar size in similar type buildings in the general
area in which the Building is located,
(e) the vacancy levels in the general area in which the Building is located,
(f) current levels of new construction that will be completed during the
remainder of the Term and how this construction will likely affect vacancy
rates and rental rates an d
(g) inflation, or
(iii) Without terminating this Lease, and with or without notice to
Tenant, Landlord may in its own name but as agent for Tenant enter into and
upon and take possession of the Demised Premises or any part thereof, and, at
Landlord's option remove persons and property therefrom, and such property, if
any, may be removed and stored in a warehouse or elsewhere at the cost of and
for the account of Tenant, all without being deemed guilty of trespass or
becoming liable for any loss or damage which may be occasioned thereby, and
Landlord may rent the Demised Premises or any portion thereof as the agent of
Tenant with or without advertisement, and by private negotiations and for any
term upon such terms and conditions as Landlord may deem necessary or
desirable in order to relet the Demised Premises. Landlord shall in no way be
responsible or liable for any failure to rent the Demised Premises or any part
thereof, or for any failure to collect any rent due upon such reletting. Upon
each such reletting, all rentals received by Landlord from such reletting
shall be applied, first to the payment of any indebtedness (other than any
rent due hereunder) from Tenant to Landlord; second, to the payment of any
costs and expenses of such reletting, including, without limitation, brokerage
fees and attorney's fees and costs of alterations and repairs; third, to the
payment of rent and other charges then due and unpaid hereunder, and the
residue, if any, shall be held by Landlord to the extent of and for
application in payments of future rent, if any becomes owing, as the same may
become due and payable hereunder. In reletting the Demised Premises, as
aforesaid, Landlord may rant rent concessions and Tenant shall not be credited
therefore. If such rentals received from such reletting shall at any time or
from time to time be less than sufficient to pay to Landlord the entire sum is
then due from the Tenant hereunder. Tenant shall pay any such deficiency to
Landlord. Such deficiency shall, at Landlord's option, be calculated and paid
monthly. Notwithstanding any such reletting without termination, Landlord may
at any time thereafter elect to terminate this Lease for any such previous
default provided same has not been cured; or
(iv) Without terminating this Lease and with or without notice to Tenant,
Landlord may enter into and upon the Demised Premises and without being liable
for prosecution or any claims for damages therefor, maintain the Demised
Premises and repair or replace any damage thereto or do anything or make any
payment for which Tenant is responsible hereunder. Tenant shall reimburse
Landlord immediately upon demand for any expenses which Landlord incurs in
thus effecting Tenant's compliance under this Lease, and Landlord shall not be
liable to Tenant for any damages with respect thereto; or
(v) Without liability to Tenant or any other party and without
constituting a constructive or actual eviction, suspend or discontinue
furnishing or rendering to Tenant any property, material, labor, utilities or
other service, whatever Landlord is obligated to furnish or render the same so
long as Tenant is in default under this Lease; or
(vi) Allow the Demised Premises to remain unoccupied and collect rent from
Tenant as it comes due, or
(vii) [intentionally deleted]
(viii) Pursue such other remedies as are available as law or in equity.
(c) If this Lease shall terminate as a result of or while there exists a
default hereunder, any funds of Tenant held by Landlord may be applied by
Landlord to any damages payable by Tenant (whether provided for herein or by
law) as a result of such termination or default.
(d) Neither the commencement of any action or proceeding, nor the settlement
thereof, nor entry of judgment thereon shall bar Landlord from bringing
subsequent actions or proceedings from time to time, nor shall the failure to
include in any action or proceeding any sum or sums then due by a bar to the
maintenance of any subsequent actions or proceedings for the recovery of such
sum or sums to omitted.
(e) If any statute or rule of law shall limit any of Landlord's remedies as
hereinabove set forth, Landlord shall nonetheless be entitled to any and all
other remedies hereinabove set forth.
(f) No agreement to accept a surrender of the Demised Premises and no act or
omission by Landlord or Landlord's agents during the Term shall constitute an
acceptance or surrender of the Demised Premises unless made in writing and
signed by Landlord. No re-entry or taking possession of the Demised Premises
by Landlord shall constitute an election by Landlord to terminate this Lease
unless a written notice of such intention is given to Tenant.
(g) No provision of this Lease shall be deemed to have been waived by either
party unless such waiver is in writing and signed by the party making such
waiver. Landlord's acceptance of Base Rent or Additional Rent following an
Event of Default hereunder shall not constitute as a waiver of such Event of
Default. No custom or premise which may grow up between the parties in
connection with the terms of this Lease shall be construed to waive or lessen
either party's right to insist upon strict performance of the terms of this
Lease, without a written notice thereof the other party.
(h) The rights granted to Landlord in this Section 23 shall be cumulative of
every other right or remedy provided in this Lease or which Landlord may
otherwise have as law or in equity or by statute, and the exercise of one or
more rights or remedies shall not prejudice or impair the concurrent or
subsequent exercise of other rights or remedies or constitute a forfeiture or
waiver of Base Rent. Additional Rent or damages accruing to Landlord by
reason of any Event of Default. If an Event of Default shall occur, Tenant
shall pay to Landlord, on demand, all expenses incurred by Landlord as a
result thereof, including reasonable attorneys' fees, court costs and
expenses. Other than in connection with a claim arising from the negligence
or intentional misconduct of Landlord, its employees, agents or
representatives, if Landlord shall be made a party to any litigation commenced
against Tenant as a result of this Lease, Landlord's ownership of the Demised
Premises or the relationship of Landlord and Tenant arising by virtue of this
Lease. Tenant shall pay all costs and reasonable attorneys' fees incurred by
Landlord in connection with such litigation. Notwithstanding anything to the
contrary contained herein, the event any third party prevails in any action to
which Landlord is made a party and it is ultimately determined that there was
no negligence or intentional misconduct on the part of Landlord, Tenant shall
pay all costs and reasonable attorneys' fees incurred by Landlord in
connection with such litigation.
24. Landlord's Right of Entry. Tenant agrees to permit Landlord and the
authorized representatives of Landlord and of the Mortgagee to enter upon the
Demised Premises at all reasonable times for the purposes of inspecting them
and making any necessary repairs thereto and performing any work therein that
may be necessary by reason of Tenant's failure to make such repairs or perform
any such work required of Tenant under this Lease; provided that, except in
the case of an emergency. Landlord shall give the Tenant reasonable prior
written notice not less than two (2) days in advance of Landlord's intended
entry upon the Demised Premises. Nothing herein shall imply any duty upon the
part of Landlord to do any such work, and the performance thereof by Landlord
shall not constitute a waiver of Tenant's default in failing to perform it.
Landlord shall not be liable for inconvenience, annoyance, disturbance or
other damage to Tenant by reason of making such repairs or the performance of
such work in the Demised Premises or on account of bringing materials,
supplies and equipment into or through the Demised Premises during the course
thereof, and the obligations of Tenant under this Lease shall not thereby be
affected, provided, however, that Landlord shall use reasonable efforts not
to annoy, disturb or otherwise interfere with Tenant's operations in the
Demised Premises in making such repairs or performing such work. Landlord
also shall have the right to enter the Demised Premises at all reasonable
times to exhibit the Demised premises to any prospective purchaser, mortgagee
or tenant.
25. Mortgagee's Rights
(a) For purposes of this Lease:
(i) "Mortgagee" as used herein means the current holder of a Mortgage.
(ii) "Mortgage" as used herein means any or all mortgages, deeds to secure
debt, deeds of trust or other instruments in the nature thereof which ma now
or hereafter affect or encumber Landlord's title to the Demised Premises and
any amendments, modifications, extensions or renewals thereof.
(b) This Lease and all rights of Tenant hereunder are and shall be subject
and subordinate to the lien and security title of any Mortgage created after
the Lease Date provided that the holder of said Mortgage created after the
Lease Date provided that the holder of said Mortgage agrees not to disturb
Tenant's possession of the Leased Premises so long as Tenant is not in default
hereunder, as evidenced by a non-disturbance agreement, signed by said holder
which agreement may include (a) the conditions contained in Section 24(a)
below, (b) a requirement that said holder be given notice and opportunity to
cure a landlord default and (c) other provisions customarily required by
lenders and reasonably acceptable to Tenant. Tenant recognizes and
acknowledges the right of Mortgagee to foreclose or exercise the power of sale
against the Demised Premises under any Mortgage.
(c) [Intentionally deleted}
(d) If requested by Mortgagee, Tenant shall, upon demand, at any time or
times, execute, acknowledge, and deliver to Mortgagee any and all instruments
that may be necessary to make this Lease superior to the lien of any Mortgage.
(e) If Mortgagee (or Mortgagee's nominee, or other purchaser at foreclosure)
shall hereafter succeed to the rights of Landlord under this Lease, whether
through possession or foreclosure action or delivery of a new lease, Tenant
shall, if requested by such successor, attorn to and recognize such successor
as Tenant's landlord under this Lease without change in the terms and
provisions of this Lease, provided that such successor shall not be bound by
(i) any payment of Base Rent or Additional Rent for more than one month in
advance, except prepayments in the nature of security for the performance by
Tenant of its obligations under this Lease, or
(ii) any provision of any amendments to the Lease to which Mortgagee has
not consented (provided that Landlord or such Mortgagee has given Tenant
written notice of such consent requirement), and shall promptly execute and
deliver any instrument that may be necessary to evidence such attornment,
(iii) the defaults of any prior landlord under this Lease, or
(iv) any other rights arising out of the defaults of any prior landlord
under this Lease. Such successor landlord shall, if requested by Tenant,
deliver an estoppel certificate stating that this Lease is unmodified and in
full force and effect (or if there have been modifications, that the same is
in full force and effect, as modified) Upon such attornment, this Lease shall
continue in full force and effect as a direct lease between such successor
landlord and Tenant, subject to all of the terms, covenants and conditions of
this Lease.
(f) In the event there is a Mortgage at any time during the Term, Landlord
shall use reasonable efforts to cause the Mortgagee to enter into a
subordination, nondisturbance and attornment agreement with Tenant reasonably
satisfactory to Tenant and consistent with this Section 25.
(g) Landlord represents that First Union National Bank of Georgia ("First
Union") currently holds a Mortgage encumbering the Demised Premises. Landlord
shall use reasonable efforts to cause First Union to enter into a
subordination nondisturbance and attornment agreement in the form attached
hereto as Exhibit "E" within thirty days after the Lease Date.
26. Estoppel Certificate. Tenant agrees at any time, and from time to time
within fifteen (15) days after Landlord's written request, to execute,
acknowledge and deliver to Landlord, a statement in writing in recordable form
to Landlord and/or its designee certifying that;
(i) this Lease is unmodified and in full force and effect (or, if there
have been modifications, that the same is in full force and effect, as
modified) and
(ii) the dates to which Base Rent, Additional Rent and other charges have
been paid,
(iii) whether or not, to the best knowledge of the signer of such
certificates, there exists any failure by Landlord to perform any term,
covenant or condition contained in this Lease, and if so, specifying each such
failure of which the signer may have knowledge,
(iv) (if such be the case) the Tenant has unconditionally accepted the
Demise Premises and is conducting its business therein;
(v) and as to such additional matters as may be reasonably requested by
Landlord, it being intended that any such statement delivered pursuant hereto
may be relied upon by Landlord and by any purchaser of title to the Demised
Premises or by any Mortgagee or any assignee thereof or any party to any sale-
leaseback of the Demised Premises, or the landlord under a ground lease
effecting the Demised Premises.
27. Landlord Liability. No owner of the Demised Premises, whether or not
named herein, shall have liability hereunder after it ceases to hold title to
the Demised Premises, except for obligations which may have theretofore
accrued. Neither Landlord nor any officer, director, shareholder, partner or
principal of Landlord, whether disclosed or undisclosed, shall be under any
personal liability with respect to any of the provisions of this Lease, and if
Landlord is in breach or default with respect to Landlord's obligations or
otherwise under this Lease, Tenant shall look solely to the equity of Landlord
in the Demised Premises for the satisfaction of Tenant's remedies. It is
expressly understood and agreed that Landlord's liability under the terms,
covenants, conditions, warranties and obligations of this Lease shall in no
event exceed the loss of Landlord's equity interest in the Demised Premises.
28. Notices and Payments. Any notice or payment required or permitted to be
given or served by either party to this Lease shall be deemed given when made
in writing and either
(i) personally delivered,
(ii) deposited with the United States Postal Service, postage prepaid, to
be mailed by registered mail, return receipt requested, or
(iii) delivered by overnight delivery service providing proof of delivery,
properly addressed to the address set forth in Section 1(k) (as the same may
be changed by giving written notice of the aforesaid in accordance with this
Section 28). If any notice mailed is properly addressed with appropriate
postage but returned for any reason, such notice shall be deemed to be
effective notice and to be given on the date of mailing.
29. Brokers. Neither Landlord nor Tenant has engaged any brokers who would
be entitled to any commission or fee based on the execution of this Lease,
other than as set forth in Section 1(m) (the "Broker") who shall be paid by
Landlord pursuant to separate agreement. Further, neither Landlord nor Tenant
have had any conversations or negotiations with any broker except the Broker
concerning the leasing of the Demised Premises to Tenant. Landlord and Tenant
hereby indemnify each other against and from any claims for any brokerage
commissions (except those payable to the Broker, all of which are payable
pursuant to a separate agreement) and all costs, expenses and liabilities in
connection therewith, including, without limitation, reasonable attorneys'
fees and expenses, for any breach of the foregoing. The foregoing
indemnification shall survive the expiration or termination of the Lease for
any reason.
30. Assignment and Subleasing.
(a) Tenant may not assign, mortgage, pledge, encumber or otherwise transfer
this Lease, or any interest hereunder, or sublet the Demised Premises in whole
or in part, without on each occasion first obtaining the prior express written
consent of Landlord, which consent may be withheld in Landlord's reasonable
discretion. for purposes of this Section 30, Landlord shall be deemed to have
reasonably withheld consent if Landlord determines
(i) that the prospective assignee or subtenant is not of a financial
strength similar to Tenant as of the Lease Date,
(ii) that the prospective assignee or subtenant has a poor business
reputation
(iii) that the proposed use of the Demised Premises by such prospective
assignee or subtenant (including without limitation, a use involving the use
or handling of Hazardous Substances) will negatively affect the value or
marketability of the Building or the Project or
(iv) that the prospective assignee or subtenant is a current tenant in the
Project or is a bona-fide third-party prospective tenant Permitted subtenants
or assignees shall become liable directly to Landlord for all obligations of
Tenant hereunder, without, however, relieving Tenant of any of its liability
hereunder. No assignment, mortgaging, subletting or use or occupancy by
others shall in any way be construed to relieve Tenant from any of its
liability hereunder to pay Base Rent, Additional Rent and all other sums
payable by Tenant hereunder or to perform its obligations hereunder (which
shall in every instance continue as the liability and obligation of a
principal and not a surety) or from thereafter obtaining the express consent
of Landlord to any other or further assignment, mortgaging or subletting of
this Lease.
(b) Notwithstanding Section 30(a), provided that there is not an Event of
Default under this Lease which remains uncured, Tenant shall have the right,
upon ten (10) days' prior written notice to Landlord,
(i) to sublet all or part of the Demised Premises to any related
corporation or entity which controls Tenant, is controlled by Tenant or is
under common control with Tenant; or
(ii) to assign this Lease to a successor corporation into which or with
which Tenant is merged or consolidated or which acquired substantially all of
Tenant's assets and property, provided that (x) such successor corporation
assumes substantially all of the obligations and liabilities of Tenant and
shall have assets, capitalization, net worth and credit worthiness at least
equal to the assets, capitalization, net worth and credit worthiness of Tenant
as of the date of this Lease as determined by generally accepted accounting
principles and (y) Tenant shall provide in its notice to Landlord the
information required in Section 30(c) below. For the purpose hereof "control"
shall mean ownership of not less than fifty percent (50%) of all the voting
stock or legal and equitable interest in such corporation or entity.
(c) If Tenant should desire to assign this Lease or sublet the Demised
Premises (or any part thereof), Tenant shall give Landlord written notice no
later than forty-five (45) days in advance of the proposed effective date of
any proposed assignment or sublease specifying
(i) the name and business of the proposed assignee or sublessee;
(ii) the amount and location of the space within the Demised Premises
proposed to be so subleased;
(iii) the proposed effective date and duration of the assignment or
subletting; and
(iv) the proposed rent or consideration to be paid to Tenant by such
assignee or sublessee. Tenant shall promptly supply Landlord with financial
statements and other information as Landlord may reasonably request to
evaluate the proposed assignment or sublease.
(d) Landlord shall have a period of thirty (30) days following receipt of
such notice and other information requested by Landlord within which to notify
Tenant in writing that Landlord elects,
(i) to terminate this Lease as to the space so affected as of the proposed
effective date set forth in Tenant's notice, in which event Tenant shall be
relieved of all further obligation hereunder as to such space, except for
obligations under Section 12 and 29 and all other provisions of this Lease
which expressly survive the termination hereof; or
(ii) to permit Tenant to assign or sublet such space, provided, however,
that, if the rent rate agreed upon between Tenant and its proposed subtenants
is greater than the rent rate that Tenant must pay Landlord hereunder for
that portion of the Demised Premises, or if any consideration shall be
promised to or received by Tenant in connection with such proposed assignment
or sublease (in addition to rent), then one half (1/2) of such excess rent and
other consideration shall be considered Additional Rent owed by Tenant to
Landlord (less brokerage commissions, attorneys' fees and other disbursements
reasonably incurred by Tenant for such assignment and subletting if acceptable
evidence of such disbursements is delivered to Landlord), and shall be paid by
Tenant to Landlord, in the case of excess rent, in the same manner that Tenant
pays Base Rent and, in the case of any other consideration, within ten (10)
business days after receipt thereof by Tenant; or
(iii) to refuse, in Landlord's reasonable discretion, taking into
consideration the factors set forth in paragraph (a) above, to consent to
Tenant's assignment or subleasing of such space and to continue this Lease in
full force and effect as to the entire Demised Premises. If Landlord should
fail to notify Tenant in writing of such election within the aforesaid thirty
(30) day period. Landlord shall be deemed to have elected option
(iii) above. Tenant agrees to reimburse Landlord for reasonable legal fees
(not to exceed $5,000.00) and any other reasonable costs incurred by Landlord
in connection with any requested assignment or subletting and such payments
shall not be deducted from the Additional Rent owed to Landlord pursuant to
subsection (ii) above. Tenant shall deliver to Landlord copies of all
documents executed in connection with any permitted assignment or subletting
which documents shall be in form and substance reasonably satisfactory to
Landlord and which shall require such assignee to assume performance of all
terms of this Lease on Tenant's part to be performed. No acceptance by
Landlord of any rent or any other sum of money from any assignee, sublessee or
other category of transferee shall be deemed to constitute Landlord's consent
to any assignment sublease, or transfer.
(e) Any attempted assignment or sublease by Tenant in violation of the terms
and provisions of this Section 30 shall be void and such act shall constitute
a material breach of this Lease. In no event shall any assignment, subletting
or transfer, whether or not with Landlord's consent, relieve Tenant of its
primary liability under this Lease for the entire Term, and Tenant shall in no
way be released from the full and complete performance of all the terms
hereof. Any assignment or sublease allowed hereunder or consented to by
Landlord shall not relieve Tenant (or its assignee) from obtaining Landlord's
consent to any subsequent assignment or sublease if required by this Section
30. If Landlord takes possession of the Demised Premises before the
expiration of the Term, Landlord shall have the right at its option to take
over any sublease of the Demised Premises or any portion thereof and such
subtenant shall attorn to Landlord, as its landlord, under all the terms and
obligations of such sublease occurring from and after such date, but excluding
previous acts, omissions, negligence or defaults of Tenant and any repair or
obligation in excess of available net insurance proceeds or condemnation
award.
(f) Landlord shall have the right to sell, transfer, assign, pledge, and
convey all or any part of the Demised Premises and any and all of Landlord's
right under this Lease. In the event Landlord assigns or otherwise conveys
its rights under this Lease, Landlord shall be entirely freed and released
from any obligations accruing thereafter under this Lease, and Tenant agrees
to look solely to Landlord's successor in interest for performance of such
obligations.
31. Termination or Expiration.
(a) No termination of this Lease prior to the normal ending thereof by lapse
of time or otherwise, shall affect Landlord's right to collect rent for the
period prior to termination thereof.
(b) At the expiration or earlier termination of the Term, Tenant shall
surrender the Demised Premises and all improvements, alterations and additions
thereto and keys therefor to Landlord, clean and neat and in the same
condition as at the commencement of the Term, ordinary wear and tear and
permitted alterations and additions only excepted.
(c) If Tenant remains in possession of the Demised Premises after expiration
of the Term, with or without Landlord's acquiescence and without any express
agreement of the parties. Tenant shall be a tenant-at-sufferance at one
hundred fifty percent (150%) of the Base Rent in effect at the end of the
Term. Tenant shall also continue to pay all other Additional Rent due
hereunder, and there shall be no renewal of this Lease by operation of law.
32. Late Payments. In the event any installment of rent, inclusive of Base
Rent, or Additional Rent or other sums due hereunder, if any, is not paid
(i) within five (5) days after Tenant's receipt of written notice of such
failure to pay on the first occasion during any twelve (12) month period, or
(ii) as and when due with respect to any subsequent late payments in any
twelve (12) month period. Tenant shall pay an administrative fee equal to
five percent (5%) of such past due amount, plus interests on the amount past
due at a rate equal to the lesser of (X) twelve percent (12%) per annum or (Y)
the maximum interest rate allowed under the applicable law (the "Interest
Rate") to defray the additional expenses incurred by Landlord in processing
such payment.
33. Rules and Regulations. Tenant agrees to abide by the Rules and
Regulations set forth on Exhibit "C" attached hereto, as well as other rules
and regulations reasonably promulgated by the Landlord from time to time and
the declaration of protective covenants for the Project, attached hereto as
Exhibit "D" as it may be amended from to time (herein, the "Protective
Covenants"), which Protective Covenants shall run with the Land and be binding
on Tenant, its successors and assigns. As to Tenant, the Rules and
Regulations shall be revised as follows:
(a) Landlord hereby consents to Tenant's contractor under the service
contract required in Section 11(a) of this Lease going on the roof of the
Building; provided, however, that Tenant shall give Landlord reasonable prior
notice thereof.
(b) In the event that Tenant desires to install any awning or other
projection on the outside wall of the Building, Landlord agrees that it shall
not unreasonably withhold its consent to such installation.
34. Dispute Resolution Procedure.
(a) In the event that a dispute arises between Landlord and Tenant under the
Lease, and the Lease specifically provides that the dispute resolution
procedure outlined in this Section 34 (herein referred to as the "Dispute
Resolution Procedure") shall be utilized, the parties shall proceed as
follows:
(i) The party electing to proceed under the procedures outlined herein
(the "Electing Party") shall give written notice of such election to the other
party (the "Other Party") and shall designate in writing the Electing Party's
selection of an individual with the qualifications outlined in the section of
the Lease giving rise to this remedy (the "Official") who shall act on the
Electing Party's behalf in determining the disputed fact.
(ii) Within twenty (20) days after the Other Party's receipt of the
Electing Party's selection of an Official, the Other party, by written notice
to the Electing Party, shall designate an Official who shall act on the Other
Party's behalf in determining the disputed fact.
(iii) Within twenty (20) days of the selection of the Other Party's
Official, the two (2) Officials shall render a joint written determination of
the disputed fact. If the two (2) Officials are unable to agree upon a joint
written determination within such twenty (20) day period, each Official shall
render his or her own written determination and the two Officials shall select
a third Official within such twenty (20) day period. In the event the two
Officials are unable to select a third Official within such twenty (20) day
period, then either party may apply to a court of original jurisdiction in
▇▇▇▇▇▇▇ County, Georgia for appointment by such court of such third Official.
(iv) Within twenty (20) days after the appointment of the third Official,
the third Official shall select one of the determinations of the two (2)
Officials originally selected, without modification or qualification.
(v) If either Landlord or Tenant fails or refuses to select an Official,
the Official selected shall alone determine the disputed fact. Landlord and
Tenant agree that they shall be bound by the determination of disputed fact
pursuant to this subsection. Landlord shall bear the fee and expense of its
Official, Tenant shall bear the fee and expenses of its Official, and Landlord
and Tenant shall share equally the fee and expense of the third Official, if
any.
35. Option to Extend Term
(a) Landlord hereby grants to Tenant two (2) consecutive options to extend
the Term for a period of five (5) years each time, each option to be exercised
by Tenant giving written notice of its exercise to Landlord in the manner
provided in this Lease at least one hundred eighty (180) days prior to (but
not more than two hundred ten (210) days prior to) the expiration of the Term,
as it may have been previously extended. No extension option may be exercised
by Tenant if an Event of Default has occurred and is then continuing or any
facts or circumstances then exist which, with the giving of notice or the
passage of time, or both, would constitute an Event of Default either at the
time of exercise of the option or at the time the applicable Term would
otherwise have expired if the applicable option had not been exercised.
(b) If Tenant exercises its options to extend the Term, Landlord shall,
within thirty (30) days after the receipt of Tenant's notice of exercise,
notify Tenant in writing of Landlord's reasonable determination of the Base
Rent for the Demised Premises, which amount shall not be less than Base Rent
for the prior Term for the applicable five (5) year option period, taking into
account all relevant factors for space of this type in the Lithia Springs,
Georgia area. Tenants shall have thirty (30) days from its receipt of
Landlord's notice to notify Landlord in writing that Tenant does not agree
with Landlord's determination of the Base Rent and therefore that Tenant
elects to retract is option to extend the Term, in which case the Term, as it
may have been previously extended, shall expire on its scheduled expiration
date and Tenant's option to extend the Term shall be void and of no further
force and effect. If Tenant does not notify Landlord of such retraction
within thirty (30) days of its receipt of Landlord's notice, Base Rent for the
Demised Premises for the applicable extended term shall be the Base Rent set
forth in Landlord's notice to Tenant.
(c) Except for the Base Rent, which shall be determined as set forth on
subparagraph (b) above, leasing of the Demised Premises by Tenant for the
applicable extended term shall be subject to all of the same terms and
conditions set forth in this Lease, including Tenant's obligation to pay
Tenant's share of Operating Expenses as provided in this Lease; provided,
however, that any improvement allowances, rent abatements, or other
concessions applicable to the Demised Premises during the initial Term shall
not be applicable during any such extended term.
36. Early Cancellation and Cancellation Payment. Provided that no Event of
Default has occurred and is then continuing and no facts or circumstances then
exist which, with the giving of notice or the passage of time, or both, would
constitute an Event of Default, Tenant shall have the right to cancel this
Lease effective on the date which is the last day of the ninety-sixth (96th)
month of the Term. Tenant shall notify Landlord in writing at least one
hundred eight (180) days prior to the effective date of such termination, and
together with such notice Tenant shall deliver to Landlord an amount equal to
six months of the then current Base Rent as an agreed-upon cancellation
payment in the event Tenant fails to notify Landlord within such period,
Tenant shall be deemed to have waived Tenant's cancellation right for the
remainder of the Term and any extensions thereof.
37. Miscellaneous.
(a) The parties hereto hereby covenant and agree that any present or fixture
law to the contrary notwithstanding this Lease shall not terminate, except as
herein specifically provided, and Landlord shall receive the Base Rent and
Additional Rent and all other sums payable by Tenant hereinabove provided as
net income from the Demised Premises, without any abatement, reduction, set-
off, counterclaim, defense or deduction, except as expressly provided in this
Lease, and not diminished by
(i) any imposition of any public authority of any nature whatsoever during
the Term, notwithstanding any changes in the method of taxation or raising,
levying or assessing any imposition, or any changes in the name of any
imposition, or
(ii) any expenses or charges required to be paid by Tenant to maintain,
restore or replace the Demised Premises or to protect Landlord's ownership of
the Demised Premises, other than payments under any Mortgage now existing or
hereafter created by Landlord. The obligations of Tenant hereunder shall not
be affected by reason of any damage to or destruction of the Demised Premises
except as expressly otherwise provided to the contrary in this Lease. Tenant
shall remain obligated under this Lease in accordance with its terms and shall
not take any action to terminate, rescind or void this Lease, solely as a
result of any bankruptcy, insolvency, reorganization, liquidation, dissolution
or other proceeding affecting Landlord or any assignee of Landlord.
(b) If any clause or provision of this Lease is determined to be illegal,
invalid or unenforceable under present or future laws effective during the
Term, then and in that event, it is the intention of the parties hereto that
the remainder of this Lease shall not be affected thereby, and that in lieu of
such illegal, invalid or unenforceable clause or provision there shall be
substituted a clause or provision as similar in terms to such illegal, invalid
or unenforceable clause or provision as may be possible and be legal, valid
and enforceable. If such invalidity is essential to the rights of either or
both parties, then the affected party shall have the right to reinstate this
Lease on written notice to the other.
(c) All rights, powers, and privileges conferred hereunder upon the parties
hereto shall be cumulative, but not restrictive to those given by law.
(d) Time is of the essence of this agreement.
(e) No failure of Landlord or Tenant to exercise any power given Landlord or
Tenant hereunder or to insist upon strict compliance by Landlord or Tenant
with hits obligations hereunder, and no custom or practice of the parties at
variance with the terms hereof shall constitute a waiver of Landlord's or
Tenant's rights to demand exact compliance with the terms hereof.
(f) This Lease contains the entire agreement of the parties hereto and no
representations, inducements, promises or agreements, oral or otherwise,
between the parties not embodied herein shall be of any force and effect. The
masculine (or neuter) pronoun, singular number shall include the masculine,
feminine and neuter gender and the singular and plural number.
(g) This contract shall create the relationship of Landlord and Tenant
between Landlord and Tenant no estate shall pass out of Landlord; Tenant has a
usufruct not subject to levy and sale and not assignable by Tenant except as
expressly set forth herein.
(h) Landlord and Tenant agree to execute, upon request of the other, a short
form memorandum of this Lease in recordable form and the requesting party
shall pay the costs and charges for the recording of such short form
memorandum of lease. Under no circumstances shall Tenant have the right to
record this Lease (other than a short form memorandum of Lease, as approved by
Landlord), and should Tenant do so, Tenant shall be in default hereunder.
(i) The captions of this Lease are for convenience only and are not a part
of this Lease, and do not in any way define, limit, describe or amplify the
terms or provisions of this Lease or the scope or intent thereof.
(j) This lease may be executed in multiple counterparts, each of which shall
constitute an original, but all of which taken together shall constitute one
and the same agreement.
(k) This Lease shall be interpreted under the laws of the State in which the
Demised Premises is located.
(l) The parties acknowledge that this Lease is the result of the
negotiations between the parties, and in construing any ambiguity hereunder no
presumption shall be made in favor of either party. No interference shall be
made from any item which has been stricken from this Lease other than the
deletion of such item.
IN WITNESS WHEREOF, the parties hereto have hereunto set their hands under
seals, the day and year first above written.
Signed, sealed and delivered in the presence of:
Unofficial Witness
Notary Public
(NOTARY SEAL)
My Commission Expires:
Signed and sealed and delivered in presence of:
Unofficial Witness
Notary Public
(NOTARY SEAL)
My Commission Expires:
LANDLORD
INDUSTRIAL DEVELOPMENTS
INTERNATIONAL, INC.
By:
Name:
Title:
Attest:
Name:
Title:
(CORPORATE SEAL)
TENANT
BIO CLINIC CORPORATION
By:
Name:
Title:
Attest:
Name:
Title:
(CORPORATE SEAL)