EXHIBIT 10.11
Lease between ADVA and Rock Hill Business Technology Center, L.P. dated
May 23, 2001
LEASE
BY AND BETWEEN
ROCK HILL BUSINESS TECHNOLOGY CENTER, L.P.,
LANDLORD
AND
______________________ADVA International, Inc._______________________
TENANT
May 23, 2001
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ROCK HILL BUSINESS TECHNOLOGY CENTER, L.P.
LEASE
This Lease, is made this 23rd day of May, 2001, by and between Rock
Hill Business Technology Center, L.P., ("Landlord"), and ADVA International Inc.
("Tenant").
DATA SHEET
Tenant's Address: ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇ Cell: ▇▇▇-▇▇▇-▇▇▇▇ Fax: ▇▇▇-▇▇▇-▇▇▇▇
Federal ID # _____________
Landlord's Address: ▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
Security Deposit: $2,979.28
Term: Three (3) years.
Complex: Rock Hill Business Technology Center, including all buildings, land and
improvements thereon located at ▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇.
Leased Premises: Suite No. 214 on the 2nd floor of the Rock Hill Business
Technology Center as designated on Exhibit "A" attached hereto consisting of
approximately 1,336 Net Rentable Square Feet.
Commencement Date: June 8, 2001
Termination Date: May 31, 2004
Base Rent: $1,489.64 per month.
Rent Adjustment Date: June 1st of the second and third year of the lease.
Permitted Use: Administrative and sales office for ADVA International Inc and
its subsidiaries.
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THE PARTIES MUTUALLY AGREE AS FOLLOWS:
1. LEASED PREMISES: Landlord leases to Tenant and Tenant leases from Landlord
the Leased Premises described in the Data Sheet which is incorporated herein by
reference, in the Building described in the Data Sheet upon the terms, covenants
and conditions set forth herein and in the Data Sheet. Terms used herein shall
have the meanings and definitions set forth on the Data Sheet.
2. TERM: The Lease Term shall be for the Term, commencing on the Commencement
Date, and terminating on the Termination Date, all as described in the Data
Sheet unless earlier terminated as hereinafter provided. However, should Tenant
require a larger space in the Building, this lease may be terminated upon the
completion of the following conditions: 1) The execution of a new lease for a
larger space in the Building with a term of three or more years. 2) The payment
of the required security deposit. 3) Occupancy of the larger new space.
3. RENT: During the Term, Tenant agrees to pay Landlord Rent including but not
limited to annual Base Rent as set forth on the Data Sheet. As used herein,
"Rent" means the Base Rent, the Adjustment of Base Rent and amounts payable
under any Collateral Agreements referred to herein and any and all other sums
due to Landlord under this Lease and shall be payable as follows:
(a) Tenant shall pay Rent to Landlord monthly, in advance, and without
demand on the first day of each and every calendar month during the
Term and any extensions or renewals hereof at Landlord's address set
forth on the Data Sheet, or at such other place as Landlord may from
time to time designate in writing. If the Commencement Date occurs on a
day other than the first (1st) day of a month, then the first
installment of Rent shall be prorated, based on thirty (30) days per
month, and such installment so prorated shall be paid in advance.
(b) If Tenant fails to pay any installment of rent by the fifth (5th)
day of the month in which it is due, there shall be paid with such
unpaid amount a late charge of five percent (5%) of the installment or
amount due and owing under the terms of the Lease.
(c) Tenant's obligation to pay Rent is an independent covenant and is
and shall not be subject to any abatement, deduction, counterclaim,
reduction, setoff or defense of any kind whatsoever, except as set
forth herein .
(d) "Net Rentable Square Feet" of the Leased Premises is estimated to
be the area set forth in the Data Sheet. The actual "Net Rentable
Square Feet" of the Leased Premises shall be determined by Landlord
pursuant to the 1996 edition of the BOMA/ANSI Method for Measuring
Floor Area in Office Buildings ("BOMA Standard").
(e) CONSUMER PRICE INDEX: The Base Rent shall be increased on the Rent
Adjustment Date of each year ("Adjustment of Base Rent") if the
Consumer Price Index-U.S. City Average-All Urban Consumers (Index), as
published by the United States Department of Labor's Bureau of Labor
Statistics, has increased over the Base Period Index. The "Base Period
Index" shall be the Index for the calendar month which is four months
prior to Commencement Date. The Base Period Index shall be compared
with the Index for the same calendar month for each subsequent year
(the "Comparison Index"). If the Comparison Index is higher than the
Base Period Index, then the Base Rent for the next year shall be
increased by the percentage difference between the Comparison Index and
the Base Period Index commencing on the Rent Adjustment Date. In no
event shall the Base Rent be decreased.
4. SECURITY DEPOSIT. Tenant has deposited with Landlord, the Security Deposit
set forth in the Data Sheet as security for the full and faithful performance of
every provision of the Lease. If an Event of Default shall occur with respect to
any provision of this Lease, including, but not limited to the provisions
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relating to the payment of Rent, Landlord may use, apply, or retain all or any
part of the Security Deposit for the payment of any Rent or any other sum in
default, or for the payment of any other amount which Landlord may spend or
become obligated to spend by reason of such Event of Default or to compensate
Landlord for any other loss or damage which Landlord may suffer by reason of
such Event of Default . If any portion of the Security Deposit is so used or
applied, Tenant shall within fifteen (15) days after written demand therefore
deposit with Landlord an amount sufficient to restore the Security Deposit to
the amount required by this Lease. Tenant's failure to do so shall be a material
breach of this Lease. Any interest or income earned on the Security Deposit
shall accrue to Landlord and shall not be returned with the Security Deposit. If
Tenant shall fully and faithfully perform every provision of this Lease to be
performed by it as and when required by the Lease, the Security Deposit or any
balance thereof shall be returned to Tenant after the Termination Date and upon
Tenant's termination of possession of the Leased Premises. Should Base Rent
increase for any reason Tenant shall deposit with Landlord a sum sufficient that
the Security Deposit equals one month's Base Rent.
If Tenant has rendered all rent payments on or before the 5th day of each month
during the first twelve months of the lease term, Landlord will, with Tenant's
written approval, apply one half of the security deposit to the rent due during
the thirteenth month of the lease term.
5. COLLATERAL AGREEMENTS: Tenant agrees to pay all fees and charges incurred
under any separate written agreement with Landlord, including but not limited to
the Business Technology Center Services Agreement and any other (of which none
exist as of the date of this Lease) agreements concerning the provision of
services such as, but not limited to, telephone, photocopier and conference room
services (collectively, the "Collateral Agreements"), each of which are made a
part of this Lease. Tenant specifically understands that failure to pay for any
services or other benefits provided under any Collateral Agreement when due
thereunder and the failure to make such payment within ten (10) days after
written notice of such failure to pay is delivered to Tenant will be an Event of
Default under this Lease.
6. ACCEPTANCE OF LEASED PREMISES AND BUILDING BY TENANT: The taking of
possession of the Leased Premises by Tenant shall be conclusive evidence of
Tenant's acceptance of (a) the Leased Premises as complying with this Lease and
suitable for the purposes for which the same are leased; and (b) the Building
and each and every part and appurtenance thereof as being in a good and
satisfactory condition and complying with this Lease.
7. USE AND OCCUPANCY OF LEASED PREMISES: Tenant shall use and occupy the Leased
Premises for the Permitted Use set forth on the Data Sheet, and for no other
purpose whatsoever. Tenant shall not occupy or use, or permit any portion of the
Leased Premises to be occupied or used, for any business or purpose that is
unlawful, disreputable or extra-hazardous on account of fire or otherwise, or
permit anything to be done that could in any way increase the rate or result in
the denial or reduction of fire, liability or any other insurance coverage on
the Building or the Complex and/or its contents. If, by reason of Tenant's acts
or conduct of business, there shall be an increase in the rate of insurance on
the Building or the Complex or their contents, then without waiving the
provisions of this Section, Tenant shall pay such increase to Landlord
immediately upon demand as additional Rent. Tenant shall not make or permit any
noise or odor that is objectionable to the public, to other occupants of the
Building, or to Landlord, to emanate from the Leased Premises and shall not
create or maintain a nuisance thereon and shall not disturb, solicit, or harass
any occupant. Tenant shall not use Landlord's name or the name of the Building
or Complex in any advertising or other publication except as a means of
identifying Tenant's address.
8. LAWS AND REGULATIONS: Tenant shall comply with all laws, ordinances, rules
and regulations of any state, federal, municipal, or other government or
governmental agency ("Governmental Authority") having jurisdiction over the
Leased Premises that relate to the use, condition, or occupancy of the Leased
Premises and the conduct of Tenant's business thereon. The rules and regulations
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attached hereto and marked Exhibit B, as well as rules and regulations as may be
hereafter adopted by Landlord for the safety, care, cleanliness and use of the
Leased Premises and the Complex and the preservation of good order thereon, are
hereby expressly made a part hereof, and Tenant agrees to obey all such rules
and regulations. Tenant in so doing agrees to hold Landlord harmless from any
loss, cost, damage or penalty from Tenant's noncompliance therewith.
9. USE OF COMMON AREAS: Tenant shall have the nonexclusive use, in common with
others entitled to use the same, of the parking areas, access facilities,
loading docks, walkways, stairways, elevators, hallways, lobbies, and public
restrooms of the Building if any are provided by Landlord subject to such rules
and regulations which Landlord may impose.
10. WASTE: Tenant shall make reasonable efforts to conserve heat, air
conditioning, water, and electricity and shall use due care in the use of the
Leased Premises and of the Common Areas, and, without qualifying the foregoing,
shall not neglect or misuse water fixtures, electric lights, and heating and air
conditioning apparatus. Tenant agrees to abide by all governmental regulations
applying to conservation of energy by complying with any and all thermostatic
setting guidelines. Tenant in so doing agrees to hold Landlord harmless from any
loss, cost, damage, or penalty from Tenant's noncompliance therewith.
11. MAINTENANCE AND REPAIRS: Landlord shall make all necessary repairs to the
outer walls, roof, downspouts, gutters and basic structural elements, building
systems and common areas of the Building. Landlord may decorate, make repairs,
construct alternations, additions, changes or improvements whether structural or
otherwise in and about the Building or the Complex, or any part thereof, and for
such purposes may enter upon the Leased Premises and, during the continuance of
any such work, temporarily close doors, entryways, public space and corridors in
the Building, interrupt or temporarily suspend building services and facilities
and change the arrangement and location of entrances, passageways, doors and
doorways, corridors, elevators, stairs, toilets, or other public parts of the
building, provided that in no such event shall the Tenant's continued operation
of its business in the Leased Premises be unreasonably interrupted and provided
that nothing set forth above shall unreasonably interrupt Tenant's access to the
Leased Premises. Tenant will, at its sole cost and expense, keep and maintain
the Leasehold Improvements in the condition that existed on the date the Leased
Premises was first occupied by Tenant and in properly functioning, safe, orderly
and sanitary condition, will make all necessary replacements thereto, will
suffer no waste or injury thereto, and will at the expiration or other
termination of the Term of this Lease, surrender the same with all improvements
in the same order and condition in which they were on the Commencement Date, or
in the condition as the Leased Premises may be improved after the Commencement
Date, ordinary wear and tear and casualty damage excepted. Tenant shall repair
or replace, at Tenant's cost and expense, any damage done to the Leased
Premises, the Building, the Complex, or any part thereof, caused by Tenant or
Tenant's agents, employees, invitees, or visitors, and restore the same to the
condition it was in prior to such damage. All repairs and replacements shall be
effected in compliance with all building and fire codes and other applicable
laws and regulations. If Tenant fails to make such repairs or replacements
promptly, Landlord may, at its option, make the repairs or replacements, and
Tenant shall pay the cost thereof including but not limited to a charge for
Landlord's overhead to Landlord immediately on demand as part of the Rent due
hereunder. Any repairs required to be made by Tenant shall be performed only by
contractor(s) designated or approved by Landlord and only upon the prior written
approval of Landlord as to the work to be performed and materials to be
furnished in connection therewith. Further, in Landlord's sole discretion,
Landlord may perform the work to be done by Tenant under this paragraph with
contractors of Landlord's choosing and Tenant shall reimburse Landlord for the
cost thereof or at Landlord's direction pay such contractors directly and
immediately upon demand. Failure of Landlord to strictly enforce or perform the
terms hereof shall not constitute a waiver of any of the provisions hereof.
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12. ALTERATIONS AND IMPROVEMENTS BY TENANT: Tenant shall not make any
alterations, additions, or improvements to the Leased Premises ("Alterations")
without the prior written consent of Landlord which will not be unreasonably
withheld, conditioned or delayed. All Alterations consented to by Landlord and
performed at the direction of Tenant shall be subject to requirements contained
in this Lease and any other reasonable conditions imposed by Landlord,
including, but not limited to, Landlord approval of all contractors and
subcontractors, the guarantee of Tenant's obligation to pay for such
Alterations, and the rights of other tenants of the Complex. Prior to the
beginning of any construction on the Leased Premises, Tenant expressly agrees
(a) to submit all plans, blueprints or other specifications, including but not
limited to, interior decorating schemes, for the construction of improvements on
the Leased Premises to Landlord for approval, Landlord expressly reserving the
right to review, modify or reject any proposed improvement or plan for
construction; and (b) to obtain and deliver to Landlord such security against
mechanic's liens as Landlord shall reasonably request. Regardless of whether
Landlord' consent is required or obtained hereunder: (i) all Alterations shall
be made in accordance with applicable laws, codes and insurance guidelines, and
shall be performed in a good and workmanlike manner, (ii) if the construction or
installation of Tenant's alterations or fixtures causes any labor disturbance,
Tenant shall immediately take any action necessary to end such labor
disturbance, and (iii) Tenant shall furnish to Landlord as-built plans in such
format as Landlord may reasonably require.
All Alterations made by Tenant or at its direction, shall, at Landlord's option,
become the property of Landlord at the expiration or termination of this Lease.
Landlord reserves the express right to require Tenant at the expiration or
termination of this Lease to remove any Alterations made to the Leased Premises
and to require Tenant to repair and return the Leased Premises to its original
condition existing on the day prior to the execution of this Lease. If Tenant
fails to return the Leased Premises to its original condition upon request by
Landlord, Landlord may collect from Tenant an amount equal to the costs
necessary to return the Leased Premises to its original condition, including but
not limited to a reasonable charge for Landlord's overhead. In any event,
Landlord may in its sole discretion remove any Alterations at the expiration or
termination of this Lease and Tenant hereby agrees to pay Landlord for the cost
thereof including but not limited to a charge for Landlord's overhead.
All trade fixtures, movable equipment, or furniture owned by Tenant and
installed on or in the Leased Premises by Tenant shall be removed by Tenant upon
termination of this Lease at Tenant's sole cost and expense. Any such trade
fixture not removed at or prior to the termination of this Lease shall become
the property of Landlord and may be disposed of as Landlord's determines, and
Tenant agrees to pay immediately upon demand all costs and expenses of such
disposition.
Notwithstanding anything set forth herein above, Tenant may, without notice to
Landlord and without having to furnish to Landlord any as built plans as is
contemplated hereinabove, make interior alterations or improvements to the
Leased Premises of a strictly aesthetic or cosmetic nature or minor
non-structural, interior alterations or improvements which cost less than
$5,000.00, provided such changes do not encompass electrical, mechanical,
plumbing or structural work. Tenant shall have the further right to make
non-structural interior alterations, improvements or additions to the Leased
Premises without Landlord's consent (but only upon prior written notice to
Landlord describing with reasonable detail the work to be performed) if the cost
of such work is less than $10,000.00, provided that such changes do not
encompass electrical, mechanical, plumbing or structural work.
13. MECHANIC'S LIENS: Tenant shall not permit any mechanic's lien or other liens
to be placed upon the Leased Premises or the Building, the Leasehold
Improvements thereon or the Complex during the term hereof caused by or
resulting from any work performed, materials furnished, or obligation incurred
by or at the request of Tenant, and nothing contained in this Lease shall be
deemed as constituting the consent or request of Landlord, express or implied,
to any contractor, subcontractor, laborer, or material man for the performance
of any labor or the furnishing of any materials for any specific improvement,
alteration, or repair to the Leased Premises, or any part thereof, nor as giving
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Tenant any authority to contract for or permit the rendering of any services or
the furnishing of any materials that would give rise to the filing of any
mechanic's or other liens against the Leased Premises or the Building. If a lien
is filed upon the Leased Premises or the Building, Tenant shall cause the same
to be discharged of record within thirty (30) days after filing of same. If
Tenant shall fail to discharge such mechanic's lien within such period, then, in
addition to any other right or remedy of Landlord, Landlord may discharge the
same, either by paying the amount claimed to be due, or by procuring the
discharge of such lien by deposit in court or bonding. Any amount paid by
Landlord for any of the aforesaid purposes, or for the satisfaction of any other
lien not caused by Landlord, with interest thereon at the maximum lawful rate
provided from the date of payment, shall be paid by Tenant to Landlord
immediately on demand as Rent.
14. SERVICES TO BE FURNISHED BY LANDLORD: During business days and hours as
established by Landlord from time to time, Landlord shall furnish, at Landlord's
expense, adequate water, electrical, escalator and elevator service and heat and
air conditioning during such seasons of the year when such services are normally
furnished and in amounts normally furnished to comparable office buildings in
the immediate vicinity in which the Building is located for Tenant's normal use
and occupancy of the Leased Premises as general offices. Landlord, at Landlord's
expense, shall provide daily evening cleaning and janitorial service to the
Premises, Saturdays, Sundays and holidays excluded. Landlord shall provide
access to electric service in accordance with Landlord's building standard
service in effect from time to time, and Tenant shall comply with such
regulations. If however, through no fault of the Tenant, services or utilities
are continuously interrupted, continuously suspended or unavailable for three
consecutive business days, and such is within the Landlords direct and
reasonable control, then Tenant may ▇▇▇▇▇ rent starting the fourth business day
until such service or utility is restored. Tenant shall make reasonable efforts
to conserve heat, air conditioning, water and electricity and shall use due care
in the use of the Leased Premises and of the public areas in the Project. All
thermostats within the Premises shall be under the sole control of Landlord.
Water, gas, electrical, and sewer services included in the foregoing Building
services will be provided through available public utilities. Should any of
Tenant's office equipment or machinery breakdown, be damaged, or for any cause
cease to function properly or should Tenant suffer any loss or damages as a
result of the cessation, malfunction, fluctuation, variation, interruption, or
breakdown of services or equipment in the Complex, Tenant shall have no claim
against Landlord or for rebate of Rent or any damages including, but not limited
to, incidental or consequential damages.
Tenant will not, without the written consent of Landlord, use any apparatus or
device in the Leased Premises which will in any way increase the amount of
electricity or water usually furnished or supplied for use of the Leased
Premises; nor connect with electrical current, except through existing
electrical outlets in the Leased Premises, and apparatus or device, for the
purpose of using electrical current or water. If Tenant shall require electrical
current in excess of the amount usually furnished or supplied for use of the
Leased Premises, Tenant shall first procure the written consent of Landlord to
the use thereof and Landlord may cause a meter measuring electric current
consumed for any such other use to be installed. The cost of any such meters and
of installation, maintenance, and repair thereof shall be paid for by Tenant as
directed by Landlord and Tenant agrees at Landlord's option to either pay the
appropriate utility directly for said excess usage or to pay to Landlord
promptly the rates charged for such services by the local public authority, or
the local public utility as the case may be, furnishing the same, plus any
additional expense incurred in keeping account of the excess water and electric
current so consumed.
15. TIME OF POSSESSION AND OCCUPANCY OF LEASED PREMISES: Landlord will use its
best efforts to deliver the possession of the Leased Premises to Tenant on the
Commencement Date with such building construction, operation, repairing, or
remodeling complete, except that unless the delay in Tenant's occupancy is
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caused by Tenant or the result of delay in completing the Leasehold Improvements
is attributable to Tenant's action or inaction. Base Rent hereunder shall be
abated until the Leased Premises shall, on Landlord's part, be ready for
occupancy by Tenant, this Lease remaining in all things in full force and effect
and the Lease Term shall not thereby be extended.
16. HOLDING OVER: If after expiration or other termination of this Lease, Tenant
holds over with or without the prior written consent of Landlord, such tenancy
shall be from month to month and Tenant shall, throughout the entire holdover
period, pay rent equal to the greater of two (2) times the Base Rent, with such
adjustments to Base Rent as would have otherwise have been effect if the Lease
Term had continued during the holding over period, plus all other amounts that
would otherwise have been payable hereunder had the Term continued through the
period of such holding over by Tenant; provided, however, that Landlord's
acceptance of any such payment shall not constitute nor imply any consent by
Landlord to any such holding over by Tenant or any extension of the Lease Term
or prevent Landlord from exercising any remedy provided herein. In the event of
any unauthorized holding over, Tenant shall indemnify, defend and hold Landlord
harmless from and against all claims for damages (and reimburse Landlord upon
demand for any sums paid in settlement of any such claims) by any other tenant
or prospective tenant to whom Landlord may have leased all or any part of the
Leased Premises effective before or after the expiration of the Lease Term and
by any broker claiming any commission or fee in respect to any such lease or
offer of lease.
17. EVENTS OF DEFAULT:
(a) The following events shall be Events of Default by Tenant
under this Lease:
(i) Tenant fails or refuses to pay any installment of Rent or
other sum of money payable under this Lease or any Collateral
Agreement when due, and such failure to pay shall continue for
more than ten (10) days after Tenant's receipt of written
notice of such failure to pay. However, Landlord shall not be
required to provide notice to the Tenant of such failure to
remedy the same not more than twice in any twelve (12)
consecutive monthly period prior to such failure or refusal
constituting an Event of Default hereunder;
(ii) Tenant fails or refuses to comply with any term,
provision, or covenant of this Lease, other than the payment
of Rent, or any term, provision, or covenant of any other
Lease between Landlord and Tenant or any Collateral Agreement,
and Tenant shall not cure such failure or refusal within
thirty (30) days after written notice thereof from Landlord to
Tenant.
(iii) Tenant shall file or have filed against it or any
guarantor of this Lease any bankruptcy or other creditor's
action, or make an assignment for the benefit of its
creditors.
(b) If an Event of Default occurs, Landlord shall have the right to
pursue any one or more of the following remedies in addition to all
other rights or remedies provided herein or at law or in equity:
(i) Landlord may terminate this Lease or, without terminating
this Lease, terminate Tenant's right of possession and, in
either case, forthwith repossess the Leased Premises
("Repossession") by forcible entry and detainer suit or
otherwise without liability for trespass or conversion. From
time to time after Repossession of the Leased Premises,
whether or not this Lease has been terminated, Landlord may,
but shall not be obligated to, attempt to relet the Leased
Premises for the account of Tenant in the name of Landlord or
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otherwise, for such term or terms (which may be greater or
less than the period which would otherwise have constituted
the balance of the Term) and for such terms (which may include
concessions or free rent) and for such uses as Landlord, in
its uncontrolled discretion, may determine, and may collect
and receive the rent therefor. For the purpose of reletting,
Landlord is authorized to decorate or to make any repairs,
changes, alterations, or additions in or to the Leased
Premises that may be necessary or convenient. Tenant shall be
responsible for all costs and expenses related to or arising
from any alterations or decorating and all costs of reletting
the Premises including Landlord's overhead. Any rent received
shall be applied against Tenant's obligations hereunder, but
Landlord shall not be responsible or liable for any failure to
collect any rent due upon any such reletting.
Tenant agrees that Landlord may file suit to recover any sums
falling due under the terms of this subparagraph from time to
time; and that no delivery or recovery of any portion due
Landlord hereunder shall be a defense in any action to recover
any amount not theretofore reduced to judgment in favor of
Landlord, nor shall such reletting, be construed as an
election on the part of Landlord to terminate this Lease
unless a written notice of such intention be given to Tenant
by Landlord. Notwithstanding any such reletting without
termination, Landlord may at any time thereafter elect to
terminate this Lease for such previous default. Landlord shall
have the right to relet the Leased Premises to a third party
without waiving any right to claim against Tenant and without
incurring any obligation to pay over to Tenant any amounts
collected pursuant to re-rental.
(ii) To use any security deposit and/or any advance rent
applicable to any time period after the occurrence of the
Event of Default and any sums which would then or thereafter
otherwise be due from Landlord to Tenant to offset any rents,
damages, or other sums of money owed by Tenant.
No termination of this Lease and no Repossession of the Leased
Premises shall relieve Tenant of its liabilities and
obligations under this Lease, of all of which shall survive
any such termination or Repossession. In the event of any such
termination or Repossession, whether or not the Leased
Premises shall have been relet, Tenant shall pay to Landlord
the Base Rent and other sums and charges to be paid by Tenant
up to the time of such termination or Repossession, and
thereafter Tenant, until the end of what would have been the
Term in the absence of such termination or Repossession, shall
pay to Landlord, as and for liquidated and agreed current
damages for Tenant's default, the equivalent of the amount of
the Base Rent and such other sums and charges which would be
payable under this Lease by Tenant if this Lease were still in
effect, less the net proceeds, if any, of any reletting
effected pursuant hereto after deducting all of Landlord's
expenses in connection with such reletting, including, without
limitation, all repossession costs, brokerage and management
commissions, operating expenses, legal expenses, attorneys'
fees, alteration costs, and expenses of preparation for such
reletting. Tenant shall pay such current damages to Landlord
monthly on the days on which the Base Rent would have been
payable under this Lease if this Lease were still in effect,
and Landlord shall be entitled to recover the same from Tenant
on each such day.
At any time after such termination or Repossession, whether or
not Landlord shall have collected any current damages as
aforesaid, Landlord shall be entitled to recover from Tenant,
and Tenant shall pay to Landlord on demand, as and for
liquidated and agreed final damages for Tenant's default the
following:
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An amount equal to the then present value of the
excess of the Base Rent and other sums or charges
reserved under this Lease from the day of such
termination or Repossession for what would be the
then unexpired term if the same had remained in
effect, over the amount of rent Tenant demonstrates
that Landlord could in all likelihood actually
collect for the Leased Premises for the same period,
said present value to be arrived at on the basis of a
discount of four percent (4%) per annum.
In addition to all other remedies of Landlord, Landlord shall
be entitled to reimbursement upon demand of all reasonable
attorneys fees incurred by Landlord in connection with any
Event of Default. Despite anything to the contrary set forth
in this Lease, Landlord shall use commercially reasonable
efforts to mitigate its damages.
18. NO IMPLIED WAIVER: No waiver by either party of any breach of any agreement
herein contained shall operate as a waiver of such agreement itself, or of any
subsequent breach thereof. No payment by Tenant or receipt by Landlord of a
lesser amount than the monthly installments of rent herein stipulated shall be
deemed to be other than on account of the earliest stipulated rent nor shall any
endorsement or statement on any check or letter accompanying a check for payment
of rent be deemed an accord and satisfaction, nor shall acceptance of rent with
knowledge of breach constitute a waiver of the breach, and Landlord may accept
such check or payment without prejudice to Landlord's right to recover the
balance of such rent, to terminate this Lease, to Repossess the Leased Premises
or to pursue any other remedy provided in this Lease. No re-entry by Landlord,
and no acceptance by Landlord of keys from Tenant, shall be considered an
acceptance of a surrender of the Lease.
19. HAZARDOUS MATERIALS: Tenant shall not permit the use, generation, release,
manufacture, refining, production, processing, storage, or disposal of any
Hazardous Substances on, under, or about the Leased Premises, or the
transportation to or from the Leased Premises of any Hazardous Substance.
For purposes of this Lease, "Hazardous Substance" means any substance designated
pursuant to the Clean Water Act, Title 33 U.S.C. 1321; any substance designated
a hazardous substance pursuant to Section 311 of the Federal Water Pollution
Control Act, Title 33 U.S.C. 1317; defined as a hazardous waste pursuant to
Section 1004 of the Federal Resource Conservation and Recovery Act Title 42
U.S.C. 6901; any element, compound, mixture, solution, or substance designated
pursuant to the Comprehensive Environmental Response, Compensation and Liability
Act, Title 42 U.S.C. 9602; any hazardous waste having the characteristics
identified under or listed pursuant to the Solid Waste Disposal Act, Title 42
U.S.C. 1317; any hazardous air pollutant listed under Section 112 of the Clean
Air Act, Title 42 U.S.C. 7412; any imminently hazardous chemical substance or
mixture with respect to which the Administrator of the Environmental Protection
Agency has taken action pursuant to Section 7 of the Toxic Substances Control
Act, Title 15 U.S.C. 2606; and, any "Hazardous Substance," "Hazardous Material,"
"Hazardous Waste," "Pollutant," or "Contaminant," as defined by the statutes,
laws, rules and regulations of the state in which the Leased Premises is
located. The term also includes, but is not limited to, polychlorinated
biphenyl, asbestos, urea formaldehyde, petroleum or related substances.
Tenant shall, at Tenant's own expense, comply with all laws regulating the use,
generation, storage, transportation, or disposal of Hazardous Substances
("Environmental Laws"), and promptly provide any and all information regarding
the use, generation, storage, transportation, or disposal of Hazardous
Substances that is required by Landlord.
Tenant shall indemnify, defend, and hold harmless the Landlord, the manager of
the property, and their respective officers, directors, beneficiaries,
shareholders, partners, agents, and employees from all fines, suits, procedures,
claims, and actions of every kind, and all costs associated therewith (including
106
attorneys' fee and consultant's fees) arising out of or in any way connected
with any deposit, spill, discharge, or other release of Hazardous Substances
that occurs during the term of this Lease which arises at any time from Tenant's
use or occupancy of the Leased Premises, or from Tenant's failure to provide all
information, make all submissions, and take all steps required under the
Environmental Laws.
Tenant's obligations and liabilities under this paragraph shall survive the
expiration or other termination of this Lease.
20. INSURANCE: Tenant agrees to maintain at its sole expense, at all times
during the term of this Lease:
(a) Fire and extended coverage insurance on all of its Leasehold
Improvements, personal property, trade fixtures, equipment, and
inventory located in or on the Leased Premises and on all Alterations
made by Tenant. Such insurance policy or policies shall be maintained
with companies licensed to transact business in the state of South
Carolina, in amounts equal to 100% of the insurable replacement value
thereof, Landlord shall be named as a loss payee on all such policies.
(b) Commercial liability insurance providing coverage on an
"occurrence" rather than a "claims made" basis, which policy shall
include coverage for Bodily Injury, Property Damage, Personal Injury,
Contractual Liability (applying to this Lease), and Independent
Contractors, in current Insurance Services Office form or other form
which provides coverage at least as broad for the benefit of Landlord
and Tenant. Such coverage shall be in the minimum amount of not less
than Five Million Dollars ($5,000,000) Combined Single Limit, such
limit to be for any greater amount as may be reasonably indicated by
circumstances from time to time existing. Tenant shall furnish Landlord
with a certificate of such policy at least fifteen (15) days prior to
taking possession and whenever required shall satisfy Landlord that
such policy is in full force and effect. Such policy shall name
Landlord as an additional insured and shall be primary and
noncontributing with any insurance carried by Landlord. The policy
shall further provide that it shall not be canceled or altered without
thirty (30) days prior written notice to Landlord.
21. RELEASE FROM LIABILITY; INDEMNITY: Landlord shall not be liable to Tenant,
or to its officers, employees, agents, customers, or invitees, for any claims,
causes of action, losses, expenses, court costs or attorneys' fees arising from
any damage to person or property caused by or occurring in, on, or about the
Complex and appurtenances thereof except to the extent caused by the negligent
act or intentional misconduct of the Landlord, its agents or employees. Tenant
agrees to indemnify and hold Landlord harmless from and against all claims,
causes of action, losses, expenses, court costs or attorney's fees arising from
injury, death, or property loss or damage occurring in the Leased Premises, or
from any negligent act or omission of Tenants or its officers, employees,
agents, customers, or invitees or otherwise arising by, through, or under the
Lease, except to the extent caused by the negligent act or intentional
misconduct of Landlord, its agents or employees. Tenant shall engage an attorney
which is acceptable to Landlord, in its sole discretion, to appear in and/or
defend any action, claim suit or proceeding related to or arising from the
matters enumerated in the previous sentences which names Landlord as a party.
The provisions of this Section shall survive any termination or expiration of
this Lease.
22. WAIVER OF SUBROGATION: Anything in this Lease to the contrary
notwithstanding, Landlord and Tenant each hereby waives all rights of recovery,
claim, action, or cause of action, against the other, their agents, officers, or
employees, for any loss or damage that may occur to the Leased Premises, any
Leasehold Improvements, the Building or the Complex of which the Leased Premises
are a part, by reason of fire, the elements, or any other cause which is insured
against under the terms of standard fire and extended coverage insurance
policies referred to in this Section or is otherwise insured against under an
insurance policy maintained by the party suffering such loss or damage,
107
regardless of cause or origin, including any negligence of the other party
hereto and/or its agents, officers, or employees, and each party covenants that
no insurer shall hold any right of subrogation against such other party. Each
party hereto agrees to give immediately to any insurer that has issued to it
policies of fire and extended coverage insurance written notice of the mutual
waiver contained in this provision and to have such policies endorsed, if
necessary, to prevent the invalidation of insurance coverage by reason of such
mutual waiver.
23. LOSS OR DAMAGE TO PROPERTY: All personal property belonging to Tenant or to
any other person located in or about said Leased Premises or the Building shall
be there at the sole risk of Tenant or such other person, and neither Landlord
nor Landlord's agent or employees shall be liable for the theft or
misappropriation thereof, nor for any damage or injury thereof, nor for death or
injury of Tenant, or any other person or damage to property caused by water,
snow, frost, steam, heat, cold, dampness, falling plaster, explosions, sewers or
sewage, gas, odors, noise, the bursting or leaking of pipes, plumbing,
electrical wiring, and equipment and fixtures of all kinds, or by any act or
negligent act of other tenants or occupants of the Building, or of any other
person unless such damage, injury or death is caused by the intentional
misconduct of Landlord, its agents or employees.
24. FIRE OR OTHER CASUALTY: If the Leased Premises or the Building shall be
damaged by fire or other cause, Landlord shall at its option either (a)
undertake to restore such damage with all due diligence, or (b) in the event the
Leased Premises or the Building are damaged by fire or other cause to such
extent that damage cannot, in Landlord's sole judgment, be economically repaired
within 90 days after the date of such damage (taking into account the time
necessary to effectuate a satisfactory settlement with any insurance company and
using normal construction methods without overtime or other premium), terminate
this Lease, by notice given to Tenant within 60 days after the date of the
damage. Any termination hereunder by reason of damage to the Premises shall be
effective as of the date of the damage. Any termination by reason of damage to
the Building but not the Leased Premises shall be effective as of the date
notice is given. Such work shall not exceed the scope of the work done by
Landlord in originally constructing the Complex and installing building standard
items in the Leased Premises, nor shall Landlord in any event be required to
spend for such work an amount in excess of the insurance proceeds actually
received by Landlord as a result of the fire or other casualty. Tenant agrees
that promptly after completion of such work by Landlord, Tenant will proceed
with reasonable diligence and at Tenant's sole cost and expense to restore,
repair and replace the Leasehold Improvements and all Alterations, fixtures and
equipment installed by Tenant. Landlord shall not be liable for any
inconvenience or annoyance to Tenant or injury to the business of Tenant
resulting in any way from such damage or the repair thereof, except that,
subject to the provisions of the next sentence, Landlord shall allow Tenant a
pro rata diminution of Base Rent during the time the Leased Premises are unfit
for occupancy equal to the proportion that the Leased Premises unfit for
occupancy bears to the entire Leased Premises. If the Leased Premises or any
other portion of the Complex be damaged by fire or other casualty resulting from
the fault or negligence of Tenant or any of Tenant's agents, employees, or
invitees, the rent hereunder shall not be diminished during the repair of such
damage, and Tenant shall be liable to Landlord for the cost and expense of the
repair and restoration of the Complex caused thereby to the extent such cost and
expense is not covered by insurance proceeds. Tenant shall use proceeds from
insurance carried by Tenant to repair and restore Tenant's property.
25. CONDEMNATION: If the Leased Premises shall be taken or condemned for public
purpose to such extent as to render the Leased Premises untenantable, this Lease
shall, at the option of either party, cease and terminate as of the date of such
taking or condemnation. Either party may exercise such option to terminate by
written notice to the other party within fifteen (15) days after such taking or
condemnation. All proceeds from any taking or condemnation of the Leased
Premises shall belong to and be paid to Landlord. Upon termination pursuant to
this Section, Tenant shall immediately vacate the Leased Premises.
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26. DAMAGES FROM CERTAIN CAUSES/FORCE MAJEURE: Whenever a period of time is
herein prescribed for the taking of any action by Landlord, Landlord shall not
be liable to Tenant for any delay or for any loss or damage to any property or
person occasioned by theft, fire, act of God, public enemy, injunction, riot,
strike, insurrection, war, court order, requisition, or order of government body
or authority, or neglect of Tenant or any of Tenant's employees or agents, or
any other cause whatsoever beyond the control of Landlord, or for any damage or
inconvenience which may arise through repair or alteration of, or failure to
repair, any part of the Complex or Leased Premises necessitated by such causes.
Tenant, to the fullest extent permitted under applicable law, hereby waives any
claim or cause of action which may now exist or hereafter arise under any
applicable deceptive trade practices law or consumer protection law or any
successor statute.
27. NOTICE AND CURE: In the event of any act or omission by Landlord that would
give Tenant the right to damages from Landlord or the right to termination of
this Lease by reason of a constructive or actual eviction from all or part of
the Leased Premises or otherwise, Tenant shall not ▇▇▇ for such damages or
exercise any such right to terminate until it shall have given written notice of
such act or omission to Landlord and to the holder(s) of the indebtedness or
other obligations secured by any mortgage or deed of trust affecting the Leased
Premises provided that Landlord has provided to Tenant the name and address of
such holder, and a reasonable period of time for remedying such act or omission
shall have elapsed following the giving of such notice, during which time
Landlord and such holder(s), or either of them, their agents or employees, shall
be entitled to enter upon the Leased Premises after reasonable prior notice and
do therein whatever may be necessary to remedy such act or omission. During the
period after the giving of such notice and during the remedying of such act or
omission, the Base Rent payable by Tenant for such period as provided in this
Lease shall be abated and apportioned only to the extent that any part of the
Leased Premises shall be untenantable.
28. PERSONAL LIABILITY: The liability of Landlord, any agent of Landlord, or any
of their respective officers, directors, shareholders, or employees to Tenant
for or in respect of any default by Landlord under the terms of this Lease or in
respect of any other claim or cause of action shall be limited to the interest
of Landlord in the Complex, and Tenant agrees to look solely to Landlord's
interest in the Complex for the recovery and satisfaction of any judgment
against Landlord, any agent of Landlord, or any of their respective officers,
directors, shareholders, and employees.
29. TRANSFERS BY LANDLORD: In the event of a sale, conveyance or transfer of
interest by Landlord of the Complex containing the Leased Premises, or a portion
of the Complex containing the Leased Premises, the same shall operate to release
Landlord from any future liability upon any of the covenants or conditions,
expressed or implied, herein contained in favor or Tenant, and in such event
Tenant agrees to look solely to the responsibility of the successor in interest
of Landlord in and to this Lease. This Lease shall not be affected by any such
sale, and Tenant agrees to attorn to the purchaser or assignee.
30. ESTOPPEL CERTIFICATE: Tenant will, at any time and from time to time, within
fifteen (15) days from any written request by Landlord, execute, acknowledge,
and deliver to Landlord a statement in writing executed by Tenant certifying to
Landlord and/or any party designated by Landlord that Tenant is in possession of
the Leased Premises under the terms of this Lease, that this Lease is unmodified
and in full effect (or, if there have been modifications, that this Lease is in
full effect as modified, and setting forth such modifications), the dates to
which the rent has been paid, that to the knowledge of Tenant no default exists
hereunder or specifying each such default of which Tenant may have knowledge,
and such other matters as may be reasonably requested by Landlord. Any such
statement by Tenant may be relied upon by any prospective purchaser or mortgagee
of the Complex. Should Tenant fail to deliver the estoppel certificate as and
when required hereby, Tenant hereby irrevocably appoints Landlord as Tenant's
agent and attorney-in-fact coupled with an interest to execute and deliver such
estoppel certificate on Tenant's behalf.
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31. LEASE TO BE SUBORDINATE: This Lease is subject and subordinate to all ground
or underlying leases, mortgages, and restrictions which may now or hereafter
affect the Building (collectively, "Mortgage"), and to all renewals and
extensions thereof. Tenant agrees that in the event that any proceedings are
brought for the foreclosure of any Mortgage, Tenant shall immediately and
automatically attorn to the purchaser at such foreclosure sale, as the landlord
under this Lease, and Tenant waives the provisions of any statute or rule of
law, now or hereafter in effect, which may give or purport to give Tenant any
right to terminate or otherwise adversely affect this Lease or the obligations
of Tenant hereunder in the event that any such foreclosure proceeding is
prosecuted or completed. Further, so long as Tenant is not in default under this
Lease, this Lease shall remain in full force and effect and the holder of the
Mortgage and any purchaser at foreclosure sale thereof shall not disturb
Tenant's possession hereunder. Landlord shall use its best efforts to obtain and
deliver to Tenant a commercial reasonable form of non-disturbance agreement from
any mortgagee or ground lessor that affects the Building now or hereafter. For
confirmation of such subordination, nondisturbance and attornment, Tenant shall
execute a subordination, nondisturbance and attornment agreement requested by
Landlord. Tenant hereby irrevocably constitutes and appoints Landlord as
Tenant's agent and attorney-in-fact coupled with an interest to execute any such
subordination, nondisturbance and attornment agreement should Tenant fail to do
so within fifteen (15) days of request from Landlord.
32. ASSIGNMENT AND SUBLETTING: Tenant shall not voluntarily assign or encumber
its interest in this Lease or in the Leased Premises, or sublease all or any
part of the Leased Premises, or allow any other person or entity (except
Tenant's authorized representatives) to occupy or use any part or all of the
Leased Premises, nor shall any assignment or transfer of this Lease be
effectuated by operation of law or otherwise (any of the foregoing being
hereinafter referred to as an "Assignment") without in each such case obtaining
the prior written consent of Landlord, which consent shall not be unreasonably
withheld. The consent by Landlord to any Assignment shall not be construed as a
waiver or release of Tenant from the terms of any covenant or obligation under
this Lease, nor shall the collection or acceptance of Rent from any transferee
under an Assignment constitute an acceptance of the Assignment or a waiver or
release of Tenant or any transferee of any covenant or obligation contained in
this Lease, nor shall any Assignment be construed to relieve Tenant from the
requirement of obtaining the consent in writing of Landlord to any further
Assignment. If at any time during the Term of this Lease, Tenant (and/or the
guarantor, if any) is:
(a) A corporation or a trust (whether or not having shares of
beneficial interest) and there shall occur any change in the identity
of any of the persons then having power to participate in the election
or appointment of the directors, trustees, or other persons exercising
like functions and managing the affairs of Tenant, or
(b) A partnership, limited liability company or association or
otherwise not a natural person (and is not a corporation or a trust)
and there shall occur any change in the identity of any of the persons
who then are members of such partnership or association or who comprise
Tenant. Such change shall be deemed to be an Assignment. This Section
33 shall not apply if Tenant (and/or guarantor, if any) named herein is
a corporation and the outstanding voting stock thereof is listed on a
recognized national securities exchange.
Not withstanding anything to the contrary, no consent shall be required and
Tenant may freely assign this Lease or sublet the Leased Premises to any party
resulting from a merger or consolidation with Tenant or any of its divisions,
subsidiaries or affiliates or to any party that purchases substantially all of
Tenant's assets and assumes substantially all of Tenant's liabilities, or to an
affiliate or subsidiary Tenant.
110
33. RIGHT OF LANDLORD TO PERFORM: All covenants and agreements to be performed
by Tenant under any of the terms of this Lease shall be performed by Tenant at
Tenant's sole cost and expense and without any abatement or rent. If the Tenant
shall fail to pay any sum of money other than rent required to be paid by it
hereunder, or shall fail to perform any other act on its part to be performed
hereunder, and such failure shall continue for twenty (20) days after written
notice thereof by Landlord, the Landlord may, but shall not be obligated so to
do and without waiving or releasing the Tenant from any obligations of the
Tenant, make any such payment or perform any such other act on Tenant's part to
be made or performed as in the agreement provided. All sums so paid by Landlord
and all necessary incidental costs, together with interest thereon at the rate
of 23% per annum, or the maximum interest allowed by state law, from the date of
such payment by the Landlord, shall be payable to the Landlord on demand and
Tenant covenants to pay any such sums and Landlord shall have (in addition to
any other right or remedy of Landlord) the same rights and remedies in the event
of the nonpayment thereof by the Tenant as in the payment of Rent.
34. LANDLORD'S RIGHT TO ENTER LEASED PREMISES: Landlord, or its authorized
agents, may at any reasonable time, enter the Leased Premises to inspect, make
repairs, improvements, and/or changes in the Leased Premises or other premises
in the Building or adjacent premises as Landlord may deem proper; and there
shall be no diminution of rent, or liability on the part of the Lessee by reason
of inconvenience, annoyance, or injury to business. Landlord shall use
reasonable efforts to minimize disruption to Tenant upon entering the Leased
Premises.
35. NOTICE: Any notice, communication, request, reply or advice (collectively
"Notice") provided for in this Lease must be in writing, and shall, unless
otherwise expressly provided in this Lease, be given or be served by depositing
the same in the United States mail, postpaid and addressed to the party to be
notified, or by delivering the same in person to an officer of such party, or by
consigning the same to a recognized overnight delivery service operating on a
nationwide basis, addressed to the party to be notified. Notice deposited in the
mail in the manner hereinabove described shall be effective, unless otherwise
stated in this Lease, three (3) days after it is so deposited. Notice given in
any other manner shall be effective upon delivery. A party hereto may change its
address by providing fifteen (15) days written Notice to the other party
delivered in compliance with this paragraph. No such Notice shall be effective
until actually received by the other party and provided further that during the
Lease Term any Notice to Tenant shall be deemed duly given if delivered to
Tenant at the Leased Premises.
For Notice to Landlord: For Notice to Tenant:
Rock Hill Business Technology Center, L.P. ADVA International, Inc.
▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
36. RELOCATION: Landlord reserves the right at any time prior to tender of
possession of the Leased Premises to Tenant or during the term of this Lease
after the Commencement Date and upon thirty (30) days' prior written notice
("Substitution Notice") to substitute space which equals or exceeds the Net
Rentable Square Feet of the Leased Premises ("Substitute Space") elsewhere
within the Building for the Leased Premises. Should Landlord substitute the
Substitute Space, Landlord shall pay Tenant's actual, reasonable, out of pocket
costs and expenses of moving to the Substitute Space as well as the cost of
improving the interior aspects (i.e. paint, carpet) of the Substitute Space to
the standard of the Leased Premises, if required.
37. AMERICANS WITH DISABILITIES ACT: Landlord shall have the responsibility, at
its sole expense, to assure that the Leased Premises, at the time of initial
occupancy by Tenant, and Building and Complex is compliant with the requirements
of the Americans with Disabilities Act (the "ADA"). If the use or occupancy of
the Leased Premises by Tenant causes Landlord to be required under ADA to make
modifications or alterations to the Leased Premises or any of the other areas of
the Building or its entrances and parking areas, Tenant shall pay, as part of
its Rent due under this Lease, in the case of the Leased Premises, the entire
cost of such modification or alteration and in the case of the other areas of
the Building or its entrances of parking areas, its equitable share of the cost
of such modification or alteration.
111
38. QUIET ENJOYMENT: Landlord covenants that, provided Tenant complies with the
terms and provisions hereof, Tenant shall peaceably and quietly possess and
enjoy the Leased Premises as against all persons claiming any right, title, or
interest in and to said Leased Premises so long as Tenant shall faithfully
perform the covenants, obligations, agreements, and conditions of this Lease.
39. ENTIRETY AND AMENDMENTS: This Lease and all Exhibits and attachments hereto
and the Collateral Agreements embody the entire contract between the parties
hereto, relative to the subject matter hereof. Expect as otherwise herein and in
the Exhibits attached hereto and the Collateral Agreements provided, no
variations, modifications, changes, or amendments hereof shall be binding upon
any party hereto unless in writing, executed by a duly authorized officer or
agent of the particular party.
40. SEVERABILITY: If any term or provision of this Lease shall be invalid or
unenforceable to any extent, the remainder of this Lease shall not be affected
thereby, and each term and provision of this Lease shall be valid and enforced
to the fullest extent permitted by law.
41. SUCCESSORS AND ASSIGNS: All covenants and obligations contained within this
Lease shall bind and inure to the benefit of Landlord, its successors and
assigns, and shall be binding upon Tenant, its permitted successors and assign.
42. GOVERNING LAW: This Lease and the rights and obligations of the parties
hereto shall be interpreted, construed, and enforced in accordance with the laws
of the State of South Carolina.
43. TIME OF ESSENCE: Time is of the essence of this Lease and each and every
provision of this Lease.
44. BEST EFFORTS: Whenever in this Lease, there is imposed upon Landlord the
obligation to use Landlord's best efforts or reasonable efforts or diligence,
Landlord will be required to exert such efforts or diligence only to the extent
the same are economically feasible and will not impose upon Landlord
extraordinary financial or other burdens.
45. NO RESERVATION: Submission by Landlord of this instrument to Tenant for
examination or signature does not constitute a reservation of or option for
lease. This Lease will be as effective as a lease or otherwise only upon
execution and delivery by both Landlord and Tenant.
46. CONSENT: Whenever Landlord's consent is required under this Lease, such
consent may be withheld by Landlord in its sole and absolute discretion unless
otherwise specified herein.
47. LEGAL AUTHORITY: Each individual executing or attesting this Lease on behalf
of Tenant covenants, warrants, and represents that he/she is duly authorized to
execute or attest and deliver this Lease on behalf of Tenant.
48. WAIVER OF JURY TRIAL: Landlord and Tenant hereby knowingly, voluntarily and
intentionally waive the right to a trial by jury in respect to any litigation
based hereon, arising out of, under or in connection with this Lease or any
documents contemplated to be executed in connection herewith or any course of
conduct, course of dealings, oral or written statements, or actions of either
party arising out of or related in any manner with the premises, including
without limitation, any action to rescind or cancel this Lease or any claims or
defenses asserting that this Lease was fraudulently induced or is otherwise void
or voidable.
49. GROSS LEASE: This Lease is intended to be a "Gross Lease" (as oppose to a
"net lease") and as such all operating expenses, common area maintenance
charges, utility charges, real estate taxes, and insurance expenses are included
as part of Tenant's Base Rent and not separately passed through to Tenant,
except as otherwise provided herein.
112
50. TENANT'S LEASEHOLD IMPROVEMENTS: Landlord and Tenant, at Landlord's expense,
shall finish the Leased Premises as set forth in Exhibit C, (collectively
referred to herein as the "Leasehold Improvements"). Landlord is under no
obligation to make any structural or other alterations, decoration, additions or
improvements in or to the Leased Premises except as expressly set forth in
Exhibit C.
Any leasehold improvements (as contemplated in paragraph 12 of this Leasing
Agreement) that may be undertaken by Tenant shall conform to all building codes
and Building Standards.
51, ABANDONMENT: Tenant shall not vacate or abandon the Leased Premises at any
time during the term, and if Tenant shall abandon, vacate, or surrender said
Leased Premises, or be dispossessed by process of law, or otherwise, any
personal property belonging to Tenant and left on the Leased Premises, shall be
deemed to be abandon, at the option of the Landlord, except such property as may
be mortgaged to Landlord. Abandonment of the Leased Premises is herein defined
as non-occupancy of twenty (20) consecutive days.
52. EXHIBITS, RIDERS AND ADDENDA: The Data Sheet and Exhibits A, B, C, and any
other exhibits, riders and addenda attached hereto are incorporated herein by
reference and made a part of this Lease for all purposes.
IN WITNESS WHEREOF, Landlord and Tenant have executed this Lease the day and
year first above written.
IN THE PRESENCE OF: LANDLORD:
ROCK HILL BUSINESS
Witness: TECHNOLOGY CENTER, L.P.
By: [illegible]
---------------------------- ---------------------------------
Print Name: Its: [illegible]
----------------- --------------------------------
TENANT:
ADVA International, Inc.
Witness:
By: /s/▇. ▇. ▇▇▇▇
----------------------------- ---------------------------------
Print Name: Its: Chief Executive Officer
------------------ -------------------------------
113
EXHIBIT "A"
LEASED PREMISES
114
EXHIBIT "B"
RULES AND REGULATIONS
1. Landlord retains the right to approve the weight, size, and location
of safes and other heavy equipment and articles in and about the Leased Premises
and the Complex and to require all such items and furniture and similar items to
be moved into and out of the Complex and the Leased Premises only at such times
and in such manner as Landlord shall direct in writing. Movements of Tenant's
property into or out of the Complex and within the Complex are entirely at the
risk and responsibility of Tenant and Landlord reserves the right to require
permits before allowing any such property to be moved in or out of the Complex.
2. Landlord may display a "For Lease" sign or other like signage in on
or about the Complex at any time and within the Leased Premises six (6) months
prior to the Termination Date of this Lease. All signage to be placed within the
Leased Premises shall be placed upon the Leased Premises as Landlord shall
require.
3. Tenant, its officers, employees, agents, licensees, or invitees, or
otherwise shall not consume any alcoholic beverages in the Leased Premises, the
Building or the Complex.
4. Tenant shall not display, install, inscribe, paint, or affix any
sign, picture, advertisement, or notice inside or outside the Leased Premises of
the Building except as approved in writing by Landlord and upon the Termination
Date, Tenant shall remove all such signs, pictures, advertisement, and notices.
5. Tenant shall not place or permit any radio antenna, loudspeakers,
sound amplifiers, or similar devices on the roof or outside of the Building
without Landlord's advance written consent thereto.
6. The sidewalks, entrances, passages, elevators, vestibules,
stairways, corridors, and halls must not be obstructed or encumbered or used for
any purpose other than ingress and egress to and from the Leased Premises.
7. Supplies, good, materials, packages, furniture, and all such items
of every kind are to be delivered at the entrance point provided therefor,
through service elevators or dumbwaiters to the Tenant, or in such manner as the
Landlord may provide and the Landlord is not responsible for the loss or the
damage of any such property notwithstanding such loss or damage which may occur
through the carelessness or negligence of the employees of the Building.
8. Tenant shall, upon termination of the Lease, or of Tenant's
possession, surrender all keys of the Leased Premises to Landlord at the place
then fixed for the payment of rent and shall make known to Landlord the codes
and combinations of all locks of safes, cabinets, and vaults in the Leased
Premises.
9. Tenant will not, at anytime, use or permit the use of any portion of
the Leased Premises as a living quarters, sleeping rooms, or for similar uses.
10. No dogs, cats, reptiles, birds and other animals are allowed inside
the Building except animals which are identified as providing assistance or
guidance to physically challenged individuals.
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11. Tenant will not, at any time, allow the use or carrying of firearms
or concealed weapons on the Complex. All visitors, guests and employees will be
informed by Tenant of Landlord's prohibition of concealed weapons and firearms.
12. Tenant shall coordinate any move with the Business and Technology
Center staff. Moves will take place before or after normal business hours (8 am
- 5 pm), with either Business Technology Center maintenance or security present.
13. This is a smoke free building. Smoking is not allowed in any area
of the Building including the front entrance.
Landlord shall not be liable to Tenant for violations of any of said
rules and regulations or the breach of a covenant or condition in any lease by
any other Tenant in the Building.
No act or thing done or omitted to be done by Landlord or Landlord's
agents during the Lease Term which is necessary to enforce these rules and
regulations shall constitute an eviction by Landlord, nor shall it be deemed an
acceptance of surrender of said Leased Premises, and no agreement to accept such
surrender shall be valid unless in writing signed by Landlord. No employee of
Landlord or Landlord's agents shall have any power to accept the keys of said
Leased Premises prior to the Termination Date. The delivery of keys to any
employee of Landlord or Landlord's agents shall not operate as a termination of
the Lease or a surrender of the Leased Premises.
These rules and regulations shall be binding upon heirs, successors,
representatives, and assigns of the Tenants.
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EXHIBIT "C"
LEASEHOLD IMPROVEMENT WORK AGREEMENT
ATTACHED TO AND MADE A PART OF THIS LEASE
Suite 214 to be leased in "as is" condition and configuration, except for the
following:
1) All walls and woodwork to be repaired and painted.
2) New "building standard" carpet to be installed.
3) New carpet baseboard to be installed.
4) Windows to be cleaned.
5) Ceiling tiles to be replaced as necessary.
6) Switch and electrical outlet plates to be replaced as necessary.
7) Window shade blinds to be repaired and cleaned.
8) Window film to be repaired or replaced.
9) Blinds for conference room and adjacent office to be installed.
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ROCK HILL BUSINESS TECHNOLOGY CENTER, LP
SECURITY DEPOSIT AGREEMENT
This agreement made this 23rd day of May 2001, by and between ROCK HILL
BUSINESS TECHNOLOGY CENTER, L.P., "Landlord", and ADVA International, Inc.,
"Tenant";
WITNESSETH THAT:
Tenant has deposited with Landlord, the sum of $2,979.28 as security
for the full and faithful performance of every provision of the Lease dated the
23rd day of May 2001, ("Lease"). If Tenant defaults with respect to any of the
provisions of the Lease including but not limited to the provisions relating to
the payment of rent, Landlord may use, apply or retain all or any part of this
security deposit for the payment of any rent or any other sum in default, or for
the payment of any other amount which Landlord may spend or become obligated to
spend by reason of Tenant's default or to compensate Landlord for any other loss
or damage which Landlord may suffer by reason of Tenant" default. If any portion
of said deposit is so used or applied, Tenant shall within fifteen (15) days
after written demand therefore deposit with Landlord an amount sufficient to
restore the security deposit to its original amount Tenant's failure to do so
shall be a material breach of the Lease. Should Base Rent under the Lease
increase for any reason the undersigned Tenant shall deposit with Landlord a sum
sufficient that the Security Deposit equals two month's Base Rent. If the Tenant
shall fully and faithfully perform every provision of the Lease to be performed
by it as and when required by the Lease, the security deposit or any balance
thereof shall be returned to Tenant at the expiration of the Lease and upon
Tenant's vacation of Leased Premises as defined in the Lease.
Tenant agrees and understands that the security deposit placed with
Landlord for the purpose of reserving a rental unit belongs to the Tenant, and
as owner of the funds, and any interest earned shall accrue to Tenant's benefit.
However, it is agreed that all interest income from this deposit until the
termination date of the Lease and extensions of the Lease or any amendments of
the Lease, or in the event of forfeiture of deposit, shall accrue to Landlord.
IN WITNESS WHEREOF, Landlord and Tenant have executed this Agreement
the day and year first above written.
IN THE PRESENCE OF: LANDLORD:
ROCK HILL BUSINESS TECHNOLOGY CENTER, L. P.
By: [illegible]
-------------------------------- ---------------------------------------
IN THE PRESENCE OF: TENANT:
ADVA International, Inc.
By: /s/▇.▇. ▇▇▇▇
-------------------------------- ---------------------------------------
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