STANDARD WAREHOUSE LEASE AGREEMENT 54,560 square feet
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LEASE AGREEMENT
THIS LEASE AGREEMENT, made and entered into by and between ▇▇▇▇▇▇▇ I/II,
LLC hereinafter referred to as "Landlord", and Contour Medical, Inc.
hereinafter referred to as "Tenant";
W I T N E S S E T H :
1. PREMISES AND TERM. In consideration of the obligation of Tenant
to pay rent as herein provided, and in consideration of the other terms,
provisions and covenants hereof, Landlord hereby demises and leases to Tenant,
and Tenant hereby accepts and leases from Landlord certain premises situated
within the County of Forsyth, State of Georgia, more particularly described on
Exhibit "A" attached hereto and incorporated herein by reference, together
with all rights, privileges, easements, appurtenances, and amenities belonging
to or in any way pertaining to the premises and together with the buildings
and other improvements situated or to be situated upon said premises (said
real property, building and improvements being hereinafter referred to as the
"Premises").
TO HAVE AND TO HOLD the same for a term commencing on the "commencement
date", as hereinafter defined, and ending sixty (60) months thereafter;
provided however, that in the event the commencement date is a date other than
the first day of a calendar month, said term shall extend for said number of
months in addition to the remainder of the calendar month following the
commencement date.
A. The commencement date shall be March 1, 1997. Tenant acknowledges
that it has inspected and accepts the Premises, and specifically the buildings
and improvements comprising the same, in their present condition, as suitable
for the purpose for which the Premises are leased. Taking of possession by
Tenant shall be deemed conclusively to establish that said buildings and other
improvements are in good and satisfactory condition as of when possession was
taken. Tenant further acknowledges that no representations as to the repair
of the Premises, nor promises to alter, remodel or improve the Premises have
been made by Landlord, unless such are expressly set forth in this lease. If
this lease is executed before the Premises become vacant or otherwise
available and ready for occupancy, or if any present tenant or occupant of the
Premises holds over, and the Landlord cannot acquire possession of the
Premises prior to said commencement date, Landlord shall not be deemed to be
in default hereunder, and Tenant agrees to accept possession of the Premises
at such time as Landlord is able to tender the same, which date shall
thenceforth be deemed the commencement date; and Landlord hereby waives
payment of rent covering any period prior to the tendering of possession to
Tenant hereunder. After delivery of possession to Tenant the Tenant shall,
upon demand, execute and deliver to Landlord a letter of acceptance of
delivery of the Premises.
B. In the event this lease pertains to a building or building
interior finish to be constructed, the provisions of this subparagraph B shall
apply in lieu of the provisions of subparagraph A above and the commencement
date shall be the date upon which the buildings and other improvements erected
and to be erected upon the premises shall have been substantially completed in
accordance with the plans and specifications described in Exhibit "B" attached
hereto and incorporated herein by reference provided however, that if Landlord
shall be delayed in such substantial completion as a result of: (i) Tenant's
failure to agree to plans, specifications, and cost estimates, by within a
reasonable period of time, unless such failure is the result of Tenant's good
faith efforts to resolve Tenant's legitimate concerns with any such items and
Tenant diligently seeks to resolve such concerns in a timely manner; (ii)
Tenant's request for materials, finishes or installations other than
Landlord's standard, which request causes an actual delay in Landlord's
substantial completion as a result of unavailability, additional time to
complete, or other factors causing an actual delay; (iii) Tenant's changes in
plans; or (iv) the performance or completion of a party employed by Tenant,
the commencement date and the payment of rent hereunder shall be accelerated
by the number of days of such delay, and provided further that if Landlord can
not substantially complete the premises as a result of any of events (i)
through (iv) above, Landlord may at its election complete so much of
Landlord's work as may be practical under the circumstances and, by written
notice to tenant, establish the commencement date of such partial completion,
subject to any applicable accelerations due to delays resulting from events
(i) through (iv) above. Taking of possession by Tenant shall be deemed
conclusively to establish that said buildings and other improvements have been
completed in accordance with the plans and specifications and that the
Premises are in good and satisfactory condition, as of when possession was so
taken. Tenant acknowledges that no representations as to the repair of the
Premises have been made by Landlord, unless such are expressly set forth in
this lease. After delivery of possession to Tenant, Tenant shall, upon
demand, execute and deliver to Landlord a letter of acceptance of delivery of
the Premises. In the event of any dispute as to substantial completion of
work performed or required to be performed by Landlord, the certificate of
Landlord's architect or general contractor shall be conclusive.
2. BASE RENT AND SECURITY DEPOSIT.
A. Tenant agrees to pay to Landlord rent for the Premises, in advance
without demand, deduction or set off, for the entire term hereof at the rate
of Twenty-Three Thousand One Hundred and Eighty-Eight and 00/100 Dollars ($
23,188.00 ) per month. One such monthly installment shall be due and payable
on the date hereof and a like monthly installment shall be due and payable on
or before the first day of each calendar month succeeding the commencement
date recited above during the hereby demised term, except that the rental
payment for any fractional calendar month at the commencement or end of the
lease period shall be prorated. [See Provision 29] With respect to the rent
that is posted by Tenant at the execution of this Lease, Landlord will credit
to Tenant's second month of rent interest on the posted rent at an annual rate
of four percent (4%).
B. Upon Tenant's execution of this Lease, Tenant shall provide to
Landlord an unconditional, irrevocable Letter of Credit (hereinafter, the
"L.C.") in the amount of Two Hundred Seventy-Eight Thousand Two Hundred and
Fifty-Six and 00/100 Dollars ($278,256.00), substantially identical in form to
Exhibit F attached hereto, in favor of and naming Landlord as the beneficiary,
which L.C. shall be issued by ▇▇▇▇▇▇▇ Bank. If Tenant's eventual investment
in tenant improvements, above Landlord's contribution, is less than
$100,000.00, then Tenant will increase the amount of the L.C. by such
shortfall. For example, if Tenant only invests $60,000 in tenant
improvements, then the amount of the L.C. will be increased to $318,256.00.
Tenant agrees that the L.C. shall be kept in full force and effect during the
Term of this Lease. However, if Tenant has performed its obligations under
this Lease in a diligent and timely manner, and Tenant's net worth increases
by ten percent (10%) annually over its 6/30/96 10K, then upon each anniversary
of the Commencement Date, the amount of the L.C. shall be reduced by twenty
percent (20%). If the term of the L.C. is for less than the full Term of this
Lease, then Tenant shall successfully renew the L.C. sixty (60) days prior to
any interim expiration. Landlord shall have the right to draw upon the L.C.
and have the proceeds thereof paid to Landlord at any time after the
occurrence of an Event of Default under the Lease and the expiration of any
applicable cure periods.
Failure of Tenant to comply with the provisions of this Paragraph shall,
at the option of Landlord, constitute an Event of Default under this Lease.
3. USE.
A. The demised Premises shall be used only for the purpose of general
office, receiving, storing, shipping and selling (other than retail) products,
materials and merchandise made and/or distributed by Tenant and for such other
lawful purposes as may be incidental thereto, and subject to any building or
building complex rules and regulations, such rules and regulations not to be
inconsistent with Tenant's rights hereunder and not to be enforced without a
copy of such rules and regulations being provided to Tenant. Permitted use in
the Premises is to include assembly of procedural medical trays for
sterilization. Outside storage, including without limitation, trucks and
other vehicles, is prohibited without Landlord's prior written consent.
Tenant will be permitted to have four (4) service vehicles parked at the
loading dock at night and in legal parking spaces during the business day.
Tenant shall at its own cost and expense obtain any and all licenses and
permits necessary for any such use. Tenant shall comply with all governmental
laws, ordinances and regulations applicable to the use of the Premises, and
shall promptly comply with all governmental orders and directives for the
correction, prevention and abatement of nuisances in or upon, or connected
with, the Premises, all at Tenant's sole expense. Tenant shall not permit any
objectionable or unpleasant odors, smoke, dust, gas, noise or vibrations to
emanate from the Premises, not take any other action which would constitute a
nuisance or would disturb or endanger any other tenants of the building in
which their Premises are situated or unreasonably interfere with their use of
their respective Premises. Without Landlord's prior written consent, Tenant
shall not receive, store or otherwise handle any product, material or
merchandise which is explosive or highly flammable. Tenant will not permit
the Premises to be used for any purpose or in any manner (including without
limitation any method of storage) which would render the insurance thereon
void or the insurance risk more hazardous or cause the State Board of
Insurance or other insurance authority to disallow any sprinkler credits.
B. Tenant agrees that the point pressure resulting from Tenant's
racking system, inventory, forklifts and equipment pertaining to Tenant's use
of the Premises shall not exceed allowable design floor loading for floor
slabs on grade. Tenant shall hold harmless Landlord from any loss, liability,
and expenses, both real and alleged, arising out of such damage or repair
caused by Tenant's negligence or failure to comply with this paragraph.
4. TAXES.
A. Landlord agrees to pay before they become delinquent all taxes,
assessments and governmental charges of any kind and nature whatsoever
(hereinafter collectively referred to as "taxes") lawfully levied or assessed
against the building and the grounds, parking areas, driveways and alleys
around the building; provided however, that the maximum amount of taxes to be
paid by Landlord hereunder during any one real estate tax year shall be
Thirty Thousand Six Hundred and Twenty-Four and no/100 Dollars ($30,624.00).
If, in any real estate tax year during the term hereof or any renewal or
extension, the taxes levied or assessed against the building and the grounds,
parking areas, driveways and alleys around the building during such tax year
shall exceed the sum set forth in the preceding sentence, Tenant shall pay to
Landlord as additional rental, upon demand, the amount of such excess. In the
event any such amount is not paid within twenty (20) days after the date of
Landlord's invoice to Tenant, the unpaid amount shall bear interest at the
rate of twenty percent (20%) per annum from the date of such receipt until
payment by Tenant. In the event the Premises constitute a portion of a
multiple occupancy building, Tenant agrees to pay to Landlord, as additional
rental, the amount of Tenant's "proportionate share" (as defined in
subparagraph 27B below) of the excess taxes referred to in this subparagraph.
Landlord reserves the right to require Tenant during each month of the lease
term to pay an escrow deposit to Landlord equal to one-twelfth of its
proportionate share of the estimated taxes. If the Tenant's total tax escrow
payments are less than Tenant's actual proportionate share of such taxes,
Tenant shall pay to Landlord upon demand the tax payment shortage; if the
total tax escrow payments of Tenant are more than Tenant's actual
proportionate share of such taxes, Landlord shall return such excess to Tenant
or retain such excess and credit it to Tenant's next accruing tax escrow
payment, at Tenant's option.
B. If at any time during the term of this lease, the present method
of taxation shall be changed so that, in lieu of the whole or any part of any
taxes, assessments or governmental charges levied, assessed or imposed on real
estate and the improvements thereon, there shall be levied, assessed or
imposed on Landlord a capital levy or other tax directly on the rents received
therefrom and/or a franchise tax, assessment, levy or charge measured by or
based, in whole or in part, upon such rents for the present or any future
building or buildings on the Premises, then all such taxes, assessments,
levies or charges, or the part thereof so measured or based, shall be deemed
to be included within the term "taxes" for the purposes hereof, provided,
however, nothing herein is intended to require Tenant to pay Landlord's income
tax obligations.
C. The Landlord shall have the right to employ a tax consulting firm to
attempt to assure a fair tax burden on the building and grounds within the
applicable taxing jurisdiction. Tenant shall pay to Landlord upon demand from
time to time, as additional rent, the amount of tenant's proportionate share
of the cost of such service, so long as such service is an unrelated third
party.
D. Any payment to be made pursuant to this paragraph 4 with respect
to the real estate tax year in which this lease commences or terminates shall
be prorated.
5. LANDLORD'S REPAIRS AND OBLIGATIONS. Landlord shall at its expense
maintain only the roof, foundation and the structural soundness of the
exterior walls of the building in good repair, reasonable wear and tear
excepted. Tenant shall repair and pay for any damage caused by the negligence
of Tenant, or Tenant's employees, agents or invitees, or caused by Tenant's
default hereunder. The term "walls" as used herein shall not include windows,
glass or plate glass, doors, store fronts or office entries. Tenant shall
immediately give Landlord written notice of defect or need for repairs, after
which Landlord shall have reasonable opportunity to repair same or cure such
defect. Landlord's liability with respect to any defects, repairs or
maintenance for which landlord is responsible under any of the provisions of
this lease shall be limited to the cost of such repairs or maintenance or the
curing of such defect.
6. TENANT'S REPAIRS AND OBLIGATIONS.
A. Tenant shall at its own cost and expense keep and maintain all
parts of the Premises (except those for which Landlord is expressly
responsible under the terms of this lease) in good condition, promptly making
all repairs, repainting, and replacements, including but not limited to,
windows, glass and plate glass, doors, any office entries, interior walls and
finish work, floors and floor covering, downspouts, gutters, heating and air
conditioning systems servicing only the Premises, dock boards, truck doors,
dock bumpers, paving, plumbing work and fixtures, termites and pest
extermination, grounds maintenance, common sewage line plumbing, common
exterior lighting (if applicable), and other obligations of the building,
keeping the parking areas, driveways, alleys and the whole of the Premises in
a clean and sanitary condition. Tenant shall only be obligated to pay for its
proportionate share of the general maintenance and repair of the Building that
is deemed to benefit the Building generally and not those that benefit a
specific other tenant of the Building. Tenant shall not be obligated to
repair any damage caused by fire, tornado or other casualty covered by the
insurance to be maintained by Landlord pursuant to subparagraph 12A below,
except that Tenant shall be obligated to repair all wind damage to glass
except with respect to tornado or hurricane damage.
B. The cost of maintenance and repair of any common party walls (any
wall, divider, partition or any other structure separating the Premises from
any adjacent Premises) shall be shared by Tenant and the tenant or tenants
occupying the adjacent Premises. Tenant shall not damage any demising wall or
disturb the integrity and support provided by any demising wall and shall, at
its sole cost and expense, promptly repair any damage or injury to any
demising wall caused by Tenant or its employees, agents or invitees.
C. In the event the Premises constitute a portion of a multiple
occupancy building, Tenant and its employees, customers and licensees shall
have the exclusive right to use the parking areas, if any, as may be
designated by Landlord in writing, subject to such reasonable rules and
regulations as Landlord may from time to time prescribe and subject to rights
of ingress and egress of other tenants. Landlord shall not be responsible for
enforcing Tenant's exclusive parking rights against any third parties.
D. Landlord reserves the right to perform and provide all or any part
of Tenant's repairs and obligations under subparagraph 6A above, and Tenant
shall, in lieu of the obligations set forth under subparagraph 6A above with
respect to such items, pay monthly as additional rent due under subparagraph
2A for its proportionate share of the cost and expense, including overhead,
for those items; and further provided that if Tenant or any other particular
tenant of the building can be clearly identified as being responsible for
obstructions or stoppage of the common sanitary sewage line, then Tenant, if
Tenant is responsible, shall pay the entire cost thereof, upon demand, as
additional rent. If, for any calendar year during which this Lease is in
effect, Tenant's total monthly payments made pursuant to this subparagraph are
less than Tenant's actual proportionate share of such repair obligations,
Tenant shall pay to Landlord the payment shortage. If the total monthly
payments are more than Tenant's actual proportionate share of such repairs and
obligations, Landlord shall return such excess to Tenant or retain such excess
and credit it to Tenant's next accruing monthly payment for such repairs and
obligations, at Tenant's ption.
E. In the event the Premises constitute a portion of a multiple
occupancy building, Landlord shall have the right to coordinate any repairs
and other maintenance of any rail tracks serving the building and if Tenant
uses such rail tracks, Tenant shall reimburse Landlord from time to time, as
additional rent, for a share of the costs of such repairs and maintenance and
any other sums specified in any agreement to which Landlord is a party
respecting such tracks, such share to be a fraction, the numerator of which is
the space contained in the Premises, and the denominator of which is the
entire space occupied by rail users in the building.
F. Tenant shall, at its own cost and expense, enter into a regularly
scheduled preventive maintenance/service contract with a maintenance
contractor for servicing all hot water, heating and air conditioning systems
and equipment within the Premises. The maintenance contractor and the
contract must be approved by Landlord. The service contract must include all
services suggested by the equipment manufacturer within the
operation/maintenance manual and must become effective (and a copy thereof
delivered to the Landlord) within thirty (30) days of the date Tenant takes
possession of the Premises.
7. ALTERATIONS. Except as provided for herein, Tenant shall not make
any alterations, additions or improvements to the Premises (including but not
limited to roof and wall penetrations) without the prior written consent of
Landlord, not to be unreasonably withheld or delayed. In the event Landlord
consents to the making of any such alterations, additions or improvements by
Tenant, the same shall be made by Tenant, at Tenant's sole cost and expense,
in accordance with all applicable laws, ordinances and regulations, and all
requirements of Landlord's and Tenant's insurance policies and only in
accordance with plans and specifications approved by Landlord; and any
contractor or person selected by Tenant to make the same and all
subcontractors must first be approved in writing by Landlord. Landlord, for
Tenant's benefit, will bid the plans and specifications for any alterations
among three (3) qualified contractors. Tenant shall approve any awardee for
any alteration and Tenant shall fully reimburse Landlord for the entire cost
thereof within twenty (20) days after written notification of Tenant by
Landlord providing Tenant with an invoice or other request (or statement).
Tenant may, without the consent of Landlord, but at its own cost and expense
and in a good workmanlike manner erect such shelves, bins, machinery and trade
fixtures as it may deem advisable, without altering the basic character of the
building or improvements and without overloading or damaging such building or
improvements, and in each case complying with all applicable governmental
laws, ordinances, regulations and other requirements. All alterations,
additions, improvements and partitions erected by Tenant shall be and remain
the property of Tenant during the term of this lease and Tenant shall, unless
Landlord otherwise elects as hereinafter provided, remove all alterations,
additions, improvements and partitions erected by Tenant and restore the
Premises to their original condition by the date of termination of this lease
or upon earlier vacating of the Premises, reasonable wear and tear excepted;
provided, however, that if Landlord so elects in writing prior to termination
of this lease or upon earlier vacating of the Premises, such alterations,
additions, improvements and partitions shall become the property of Landlord
as of the date of termination of this lease or upon earlier vacating of the
Premises and shall be delivered up to the Landlord with the Premises.
Notwithstanding the foregoing sentence, all shelves, bins, machinery and trade
fixtures installed by Tenant may be removed by Tenant prior to the termination
of this lease if Tenant so elects, and shall be removed by the date of
termination of this lease or upon earlier vacating of the Premises if required
by Landlord reasonable wear and tear excepted. Upon any such removal Tenant
shall restore the Premises to their original condition. All such removals and
restoration shall be accomplished in a good workmanlike manner so as not to
damage the primary structure or structural qualities of the building and other
improvements situated on the Premises.
8. SIGNS. Tenant agrees to conform to Landlord's signage program for
the building; however, all costs and expenses for the sign, sign installation,
removal and repair shall be paid by Tenant. Tenant shall have the right to
install standard signs upon the Premises only where first approved in writing
by Landlord and subject to any applicable governmental laws, ordinances,
regulations and other requirements. Tenant shall remove all signs prior to
the termination of this lease. Such installations and removals shall be made
in such a manner as to avoid injury or defacement of the building and other
improvements, and Tenant shall repair any injury of defacement, including
without limitation, caused by installation and/or removal.
9. INSPECTION AND RIGHT OF ENTRY. Landlord and Landlord's agents and
representatives shall have the right to enter the Premises at any time in the
event of an emergency and to enter and inspect the Premises at any reasonable
time during business hours, for the purpose of ascertaining the condition of
the Premises or in order to make such repairs as may be required or permitted
to be made by Landlord under the terms of this lease, provided, however, that
Landlord will not unreasonably interfere with Tenant's business operations.
During the period that is six (6) months prior to the end of the term hereof,
Landlord and Landlord's agents and representatives shall have the right to
enter the Premises at any reasonable time during business hours for the
purpose of showing the Premises and shall have the right to erect on the
Premises a suitable sign indicating the Premises are available. Tenant shall
give written notice to Landlord at least thirty (30) days prior to vacating
the Premises and shall arrange to meet with Landlord for a joint inspection of
the Premises prior to vacating. In the event of Tenant's failure to give such
notice or arrange such joint inspection, Landlord's inspection at or after
Tenant's vacating the Premises shall be conclusively deemed correct for
purposes of determining Tenant's responsibility for repairs and restoration.
10. UTILITIES. Landlord agrees to provide at its cost water,
electricity and gas (when applicable) service connections into the Premises in
accordance with the specifications, if any, attached hereto; but Tenant shall
pay for all water, gas, heat, light, power, telephone, sewer, sprinkler
charges and other utilities and services used on or from the Premises,
together with any taxes, penalties, surcharges or the like pertaining thereto,
and any maintenance charges for utilities, and shall furnish all electric
light bulbs and tubes. Such services will be separately metered to Tenant,
and Tenant shall pay all charges metered for the Premises. Landlord shall in
no event be liable for any interruption or failure of utility services on the
Premises.
11. ASSIGNMENT AND SUBLETTING.
A. Tenant shall not sell, assign, encumber or otherwise transfer by
operation of law or otherwise, this lease or any interest herein, sublet the
Premises or any portion thereof, or suffer any other person to occupy or use
the Premises or any portion thereof, without the prior written consent of
Landlord as provided herein, not to be unreasonably withheld or delayed, nor
shall Tenant permit any lien to be placed on the Tenant's interest by
operation of law. Tenant shall, by written notice, advise Landlord of its
desire from and after a stated date (which shall not be less than thirty (30)
days nor more than ninety (90) days after the date of Tenant's notice) to
sublet the Premises or any portion thereof for any part of the term thereof
and in such event Landlord shall have the right, to be exercised by giving
written notice to Tenant within ten (10) days after receipt of Tenant's
notice, to terminate this lease as to the portion of the Premises described in
Tenant's notice and such notice shall, if given, terminate this lease with
respect to the portion of the Premises therein described as of the date stated
in Tenant's notice. Said notice by Tenant shall state the name and address of
the proposed subtenant, and Tenant shall deliver to Landlord a true and
complete copy of the proposed sublease with said notice. If said notice shall
specify all of the Premises and Landlord shall give said termination notice
with respect thereto, this lease shall terminate on the date stated in
Tenant's notice. If landlord, upon receiving said notice by tenant, with
respect to any of the premises, shall not exercise its right to terminate.
Landlord will not unreasonably withhold its consent to Tenant's subletting the
Premises specified in said notice. Tenant shall, at Tenant's sole cost and
expense, discharge in full any outstanding commission obligation on the part
of Landlord with respect to this lease, and any commission which may be due
and owing as a result of any proposed assignment or subletting, whether or not
the lease is terminated pursuant hereto and rented by Landlord to the proposed
subtenant or any other tenant.
B. Any subletting hereunder by Tenant shall not result in Tenant being
released or discharged from any liability under this lease. As a condition to
Landlord's prior written consent as provided for in subparagraph 11A above,
the subtenant or subtenants shall agree in writing to comply with and be bound
by all of the terms, covenants, conditions, provisions and agreements of this
lease, and Tenant shall deliver to Landlord promptly after execution, an
executed copy of each sublease and an agreement of said compliance by each
sublessee.
C. Landlord's consent to any sale, assignment, encumbrance, subletting,
occupation, lien or other transfer shall not release Tenant from any of
Tenant's obligations hereunder or be deemed to be a consent to any subsequent
occurrence. Any sale, assignment, encumbrance, subletting, occupation, lien
or other transfer of this lease which does not comply with the provisions of
this paragraph 11 shall be null and void.
12. FIRE AND CASUALTY DAMAGE.
A. Landlord agrees to maintain insurance covering the building of
which the Premises are a part in an amount not less than eighty percent (80%)
(or such greater percentage as may be necessary to comply with the provisions
of any co-insurance clauses of the policy) of the replacement cost thereof,
insuring against the perils of Fire, Lightning, Extended Coverage, Vandalism
and Malicious Mischief, extended by Special Extended Coverage Endorsement to
insure against all other Risks of Direct Physical Loss, such coverages and
endorsements to be as defined, provided and limited in the standard bureau
forms prescribed by the insurance regulatory authority for the state in which
the Premises are situated for use by insurance companies admitted in such
state for the writing of such insurance on risks located within such state.
Subject to the provisions of subparagraphs 12C, 12D and 12E below, such
insurance shall be for the sole benefit of Landlord and under its sole
control. If during the second full lease year after the commencement date of
this lease, or during any subsequent year of the primary term or any renewal
or extension, Landlord's cost of maintaining such insurance shall exceed
Landlord's cost of maintaining such insurance for the first full lease year of
the term hereof, Tenant agrees to pay to Landlord, as additional rental, the
amount of such excess (or in the event the Premises constitute a portion of a
multiple occupancy building, Tenant's full proportionate share of such
excess). Said payments shall be made to Landlord within twenty (20) days
after presentation to Tenant of Landlord's statement setting forth the amount
due. Any payment to be made pursuant to this subparagraph 12A with respect to
the year in which this lease commences or terminates shall bear the same ratio
to the payment which would be required to be made for the full year as the
part of such year covered by the term of this lease bears to a full year.
B. If any increase in the fire and extended coverage insurance
premiums paid by Landlord or other Tenants for the building in which Tenant
occupies space is caused by Tenant's use and occupancy of the Premises, or if
Tenant vacates the Premises of this Lease and causes an increase in such
premiums, then Tenant shall pay as additional rental the amount of such
increase to Landlord.
C. If the buildings situated upon the Premises should be damaged or
destroyed by fire, tornado or other casualty, Tenant shall give immediate
written notice thereof to Landlord.
D. If the buildings situated upon the Premises should be totally
destroyed by fire, tornado or other casualty, or if they should be so damaged
thereby that rebuilding or repairs cannot in Landlord's estimation be
completed within two hundred (200) days after the date upon which Landlord is
notified by Tenant of such damage, this lease shall terminate and the rent
shall be abated during the unexpired portion of this lease, effective upon the
date of the occurrence of such damage.
E. If the buildings situated upon the Premises should be damaged by any
peril covered by the insurance to be provided by Landlord under subparagraph
12A above, but only to such extent that rebuilding or repairs can in
Landlord's estimation be completed within two hundred (200) days after the
date upon which Landlord is notified by Tenant of such damage, this lease
shall not terminate, and Landlord shall at its sole cost and expense thereupon
proceed with reasonable diligence to rebuild and repair such buildings to
substantially the condition in which they existed prior to such damage, except
that Landlord shall not be required to rebuild, repair or replace any part of
the partitions, fixtures, additions and other improvements which may have been
placed in, on or about the Premises by Tenant and except that Tenant shall pay
to Landlord upon demand any amount by which Landlord's cost of such
rebuilding, repair and/or replacement exceeds net insurance proceeds paid to
Landlord in connection with such damage and except that Landlord may elect not
to rebuild if such damage occurs during the last year of the term of the lease
exclusive of any option which is unexercised at the time of such damage. If
the Premises are untenantable in whole or in part following such damage, the
rent payable hereunder during the period in which they are untenantable shall
be reduced to such extent as may be fair and reasonable under all of the
circumstances. In the event that Landlord should fail to complete such above
referenced repairs and rebuilding within two hundred (200) days after the date
upon which Landlord is notified by Tenant of such damage, Tenant may at its
option terminate this lease by delivering written notice of termination to
Landlord as Tenant's exclusive remedy, whereupon all rights and obligations
hereunder shall cease and terminate.
F. Notwithstanding anything herein to the contrary, in the event the
holder of any indebtedness secured by a mortgage or deed of trust covering the
Premises requires that the insurance proceeds be applied to such indebtedness,
then Landlord shall have the right to terminate this lease by delivering
written notice of termination to Tenant within fifteen (15) days after such
requirement is made by any such holder, whereupon all rights and obligations
hereunder shall cease and terminate.
G. Each of Landlord and Tenant hereby releases the other from any loss
or damage to property caused by fire or any other perils insured in policies
of insurance covering such property, even if such loss or damage shall have
been caused by the fault or negligence of the other party, or anyone for whom
such party may be responsible; provided, however, that this release shall be
applicable and in force and effect only with respect to loss or damage
occurring during such times as the releasor's policies shall contain a clause
or endorsement to the effect that any such release shall not adversely affect
or impair said policies or prejudice the right of the releasor to recover
thereunder and then only to the extent of the insurance proceeds payable under
such policies. Each of the Landlord and Tenant agrees that it will request
its insurance carriers to include in its policies such a clause or
endorsement. If extra cost shall be charged therefore, each party shall
advise the other thereof and of the amount of the extra cost, and the other
party, at its election, may pay the same, but it shall not be obligated to do
so.
13. LIABILITY. Landlord shall not be liable to Tenant or Tenant's
employees, agents, patrons or visitors, or to any other person whomsoever, for
any injury to person or damage to property on or about the Premises, resulting
from and/or caused in part or whole by the negligence or misconduct of Tenant,
its agents, servants or employees, or of any other person entering upon the
Premises, or caused by the buildings and improvements located on the Premises
becoming out of repair, or caused by leakage of gas, oil, water or steam or by
electricity emanating from the Premises, and Tenant hereby covenants and
agrees that it will at all times indemnify and hold safe and harmless the
property, the Landlord (including without limitation the trustee and
beneficiaries if Landlord is a trust), Landlord's agents and employees from
any loss, liability, claims, suits, costs, expenses, including without
limitation attorney's fees and damages, both real and alleged, arising out of
or relating to any such damage or injury; except injury to persons or damage
to property the sole cause of which is the negligence of Landlord or the
failure of Landlord to repair any part of the Premises which Landlord is
obligated to repair and maintain hereunder within a reasonable time after the
receipt of written notice from Tenant of needed repairs. Tenant shall procure
and maintain throughout the term of this lease a policy or policies of
insurance, at its sole cost and expense, insuring both Landlord and Tenant
against all claims, demands or actions arising out of or in connection with:
(i) the Premises; (ii) the condition of the Premises; (iii) Tenant's
operations in and maintenance and use of the Premises; and (iv) Tenant's
liability assumed under this lease, the limits of such policy or policies to
be in the amount of not less than $500,000 per occurrence in respect to injury
to persons (including death), and in the amount of not less than $100,000 per
occurrence in respect to property damage or destruction, including loss of use
thereof. All such policies shall be procured by Tenant from responsible
insurance companies satisfactory to Landlord. Certified copies or
certificates of such policies, together with receipt evidencing payment of
premiums therefor, shall be delivered to Landlord prior to the commencement
date of this lease. Not less than fifteen (15) days prior to the expiration
date of any such policies, certified copies of the renewals thereof (bearing
notations evidencing the payment of renewal premiums) shall be delivered to
Landlord. Such policies shall further provide that not less than thirty (30)
days written notice shall be given to Landlord before such policy may be
canceled or changed to reduce insurance provided thereby.
14. CONDEMNATION.
A. If the whole or any substantial part of the Premises should be
taken for any public or quasi-public use under governmental law, ordinance or
regulation, or by right of eminent domain, or by private purchase in lieu
thereof, and the taking would prevent or materially interfere with the use of
the Premises for the purpose for which they are being used, this lease shall
terminate and the rent shall be abated during the unexpired portion of this
lease, effective when the physical taking of said Premises shall occur.
B. If part of the Premises shall be taken for any public or
quasi-public use under any governmental law, ordinance or regulation, or by
right of eminent domain, or by private purchase in lieu thereof, and this
lease is not terminated as provided in subparagraph 14A above, this lease
shall not terminate but the rent payable hereunder during the unexpired
portion of this lease shall be reduced to such extent as may be fair and
reasonable under all of the circumstances.
C. All compensation awarded for any taking (or the proceeds of
private sale in lieu thereof) of the Premises, buildings or other
improvements, or any part thereof, shall be the property of Landlord and
Tenant hereby assigns its interest in any such award to Landlord; provided,
however, Landlord shall have no interest in any award made to Tenant for loss
of business or for the taking of Tenant's fixtures and improvements if a
separate award for such items is made to Tenant.
15. HOLDING OVER. Tenant will, at the termination of this lease by
lapse of time or otherwise, yield up immediate possession to Landlord with all
repairs and maintenance required herein to be performed by Tenant completed.
If Landlord agrees in writing that Tenant may hold over after the expiration
or termination of this lease, unless the parties hereto otherwise agree in
writing on the terms of such holding over, the hold over tenancy shall be
subject to termination by Landlord at any time upon not less than thirty (30)
days advance written notice, or by Tenant at any time upon not less than
thirty (30) days advance written notice, and all of the other terms and
provisions of this lease shall be applicable during that period, except that
Tenant shall pay Landlord from time to time upon demand, as rental for the
period of any hold over, an amount equal to one and one half (1-1/2) the rent
in effect on the termination date, computed on a daily basis for each day of
the hold over period. No holding over by Tenant, whether with or without
consent of Landlord, shall operate to extend this lease except as otherwise
expressly provided. The preceding provisions of this paragraph 15 shall not
be construed as consent for Tenant to hold over.
16. QUIET ENJOYMENT. Landlord covenants that it now has, or will
acquire before Tenant takes possession of the Premises, good title to the
Premises, free and clear of all liens and encumbrances, excepting only the
lien for current taxes not yet due, such mortgage or mortgages as are
permitted by the terms of this lease, zoning ordinances and other building and
fire ordinances and governmental regulations relating to the use of such
property, and easements, restrictions and other conditions of record. In the
event this lease is a sublease, then Tenant agrees to take the Premises
subject to the provisions of the prior leases. Landlord represents and
warrants that it has full right and authority to enter into this lease and
that Tenant, upon paying the rental herein set forth and performing its other
covenants and agreements herein set forth, shall peaceably and quietly have,
hold and enjoy the Premises for the term hereof without hindrance or
molestation from Landlord, subject to the terms and provisions of this lease.
17. EVENTS OF DEFAULT. The following events shall be deemed to be
events of default by Tenant under this lease:
A. Tenant shall fail to pay any installment of the rent herein
reserved when due, or any other payment or reimbursement to Landlord required
herein when due, and such failure shall continue for a period of five (5) days
after notice to Tenant from Landlord; or
B. Tenant shall vacate all of the Premises or fail to continuously
operate its business at the Premises for the permitted use set forth in
paragraph 3 whether or not Tenant is in default of the rental payments due
under this lease; or
C. Tenant shall fail to discharge any lien placed upon the Premises
in violation of paragraph 22 hereof within sixty (60) days after any such lien
or encumbrance is filed against the Premises provided, however, if such ▇▇▇▇
▇▇▇▇▇▇▇ Landlord in financing, selling or managing the Building, Tenant will
discharge or bond over the lien immediately; or
D. Tenant shall fail to comply with any term, provision or covenant
of this lease (other than the foregoing in this paragraph 17), and shall not
cure such failure within twenty (20) days after written notice thereof to
Tenant.
E. Default by any guarantor of this Lease of the terms of its
guaranty, or the bankruptcy or insolvency of any guarantor.
18. REMEDIES.
A. Upon each occurrence of an event of default, Landlord shall have
the option to pursue any one or more of the following remedies without any
notice or demand:
(1) Terminate this lease, and/or
(2) Enter upon and take possession of the premises with or without
terminating this lease; and/or
(3) Alter all docks and other security devices at the premises with or
without terminating this lease, and pursue, at Landlord's option, one or more
remedies pursuant to this lease, tenant hereby specifically waving any state
or federal law to the contrary;
and in any such event tenant immediately shall surrender its premises to
landlord, and if Tenant fails to do so, Landlord, without waiving any other
remedy it may have, may enter upon and take possession of the premises or any
part thereof by force if necessary, without being liable for prosecution or
any claim of damages therefor.
B. In the event of a default or threatened default of this Lease by
Tenant, Landlord shall be entitled to all equitable remedies, including,
without limitation injunction and specific performance. The various rights,
remedies, powers, options and elections of Landlord reserved, expressed or
contained in this lease are cumulative, and no one of them shall be deemed to
be exclusive of the others, or of such other rights, remedies, powers, options
or elections as are now, or may hereafter, be conferred upon Landlord by law
or in equity. Failure by Landlord to enforce one or more of the remedies
herein provided shall not be deemed or construed to constitute a waiver of
such default, or any violation or breach of any of the terms, provisions, or
covenants herein contained, or a waiver of Landlord's right thereafter to
insist upon strict compliance with the terms hereof.
C. In the event that Landlord shall have taken possession of the
Premises pursuant to the authority herein granted, then Landlord shall have
the right to keep in place and use all of the furniture, fixtures and
equipment at the Premises, including that which is owned by or leased to
Tenant at all times prior to any foreclosure thereon by Landlord or
repossession thereof by any lessor thereof or third party having a lien
thereon. Landlord shall also have the right to remove from the Premises
(without the necessity of obtaining a distress warrant, writ of sequestration
or other legal process) all or any portion of such furniture, fixtures,
equipment and other property located thereon and to place same in storage at
any Premises within the County in which the Premises is located; and in such
event, Tenant shall be liable to Landlord for costs incurred by Landlord in
connection with such removal and storage. Landlord shall also have the right
to relinquish possession of all or any portion of such furniture, fixtures,
equipment and other property to any person ("Claimant") claiming to be
entitled to possession thereof who presents to Landlord a copy of any
instrument represented to Landlord by Claimant to have been executed by Tenant
(or any predecessor Tenant) granting Claimant the right under various
circumstances to take possession of such furniture, fixtures, equipment or
other property, without the necessity on the part of Landlord to inquire into
the authenticity of said instrument's copy of Tenant's or Tenant's
predecessor's signature(s) thereon and without the necessity of Landlord
making any investigation or inquiry as to the validity of the factual or legal
basis upon which Claimant purports to act; and Tenant agrees to indemnify and
hold Landlord harmless from all cost, expense, loss, damage and liability
incident to Landlord's relinquishment of possession of all or any portion of
such furniture, fixtures, equipment or other property to Claimant. The rights
of Landlord herein stated shall be in addition to any and all other rights
which Landlord has or may hereafter have at law or in equity; and Tenant
stipulates and agrees that the rights herein granted Landlord are commercially
reasonable.
19. LANDLORD'S LIEN. [Intentionally omitted]
20. MORTGAGES.
A. Tenant accepts this lease subject and subordinate to any
mortgage(s) and/or deed(s) of trust now or at any time hereafter constituting
a lien or charge upon the Premises or the improvements situated thereon,
provided however, that if the mortgagee, trustee, or holder of any such
mortgage or deed of trust elects to have Tenant's interest in this lease
superior to any such instrument, then by notice to Tenant from such mortgagee,
trustee or holder, this lease shall be deemed superior to such lien, whether
this lease was executed before or after said mortgage or deed of trust.
Tenant shall at any time hereafter on demand execute any instruments, releases
or other documents which may be required by any mortgagee for the purpose of
subjecting and subordinating this lease to the lien of any such mortgage,
provided that Landlord will obtain a non-disturbance agreement identical to
Exhibit G of this Lease from such mortgagee. All mortgages or deeds of trust
referred to in this subparagraph 20A refer to first mortgages or deeds of
trust only.
B. Tenant agrees not to look to the mortgagee, as mortgagee, mortgagee
in possession, or successor entitled to the property, for accountability for
any security deposit required by the Landlord hereunder, unless said sums have
been received by said mortgagee as security for Tenant's performance of this
lease.
21. LANDLORD'S DEFAULT. In the event Landlord should become in default
in any payments due on any such mortgage described in Paragraph 20 hereof or
in the payment of taxes or any other items which might become a lien upon the
Premises and which Tenant is not obligated to pay under the terms and
provisions of this lease, Tenant is authorized and empowered after giving
Landlord five (5) days prior written notice of such default and Landlord's
failure to cure such default, to pay any such items for and on behalf of
Landlord, and the amount of any item so paid by Tenant for or on behalf of
Landlord together with any interest or penalty required to be paid in
connection therewith, shall be payable on demand by Landlord to Tenant;
provided however,that Tenant shall not be authorized and empowered to make any
payment under the terms of this Paragraph 21 unless the item paid shall be
superior to Tenant's interest hereunder. In the event Tenant pays any
mortgage debt in full, in accordance with this paragraph, it shall, at its
election, be entitled to the mortgage security by assignment or subrogation.
22. MECHANICS LIENS AND OTHER TAXES. Tenant shall have no authority,
express or implied, to create or place any lien or encumbrance of any kind or
nature whatsoever upon, or in any manner to bind the interests of Landlord in
the Premises or to charge the rentals payable hereunder for any claim in favor
of any person dealing with Tenant, including those who may furnish materials
or perform labor for any construction or repairs, and each such claim shall
affect and each such lien shall attach to, if at all, only the leasehold
interest granted to Tenant by this instrument. Tenant covenants and agrees
that it will pay or cause to be paid all sums legally due and payable by it on
account of any labor performed or materials furnished in connection with any
work performed on the Premises on which any lien is or can be validly and
legally asserted against its leasehold interest in the Premises or the
improvements thereon and that it will save and hold Landlord harmless from any
and all loss, cost or expense based on or arising out of asserted claims or
liens against the leasehold estate or against the right, title and interest of
the Landlord in the Premises or under the terms of this lease. Tenant agrees
to give Landlord immediate written notice if any lien or encumbrance is placed
on the Premises.
23. NOTICES. Each provision of this instrument or of any applicable
governmental laws, ordinances, regulations and other requirements with
reference to the sending, mailing or delivery of any notice or the making of
any payment by Landlord to Tenant or with reference to the sending, mailing or
delivery of any notice or the making of any payment by Tenant to Landlord
shall be deemed to be complied with when and if the following steps are taken:
A. All rent and other payments required to be made by Tenant to
Landlord hereunder shall be payable to Landlord at the address hereinbelow set
forth or at such other address as Landlord may specify from time to time by
written notice delivered in accordance herewith. Tenant's obligations to pay
rent and any other amounts to Landlord under the terms of this lease shall not
be deemed satisfied until such rent and other amounts have been actually
received by Landlord.
B. All payments required to be made by Landlord to Tenant hereunder
shall be payable to Tenant at the address hereinbelow set forth, or at such
other address within the continental United States as Tenant may specify from
time to time by written notice delivered in accordance herewith.
C. Any notice or document required or permitted to be delivered
hereunder shall be deemed to be delivered whether actually received or not
when deposited in the United States Mail, postage prepaid, Certified or
Registered Mail, addressed to the parties hereto at the respective addresses
set out below, or at such other address as they have theretofore specified by
written notice delivered in accordance herewith:
LANDLORD: TENANT:
▇▇▇▇▇▇▇ I/II, LLC Contour Medical, Inc.
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
c/o Childress ▇▇▇▇▇ Properties ▇▇. ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇.▇., ▇▇▇▇▇ ▇▇▇ ▇▇▇▇: ▇▇▇▇▇▇ ▇. ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
If and when included within the term "Landlord", as used in this instrument,
there are more than one person, firm or corporation, all shall jointly arrange
among themselves for their joint execution of such a notice specifying some
individual at some specific address for the receipt of notices and payments to
Landlord; if and when included within the term "Tenant", as used in this
instrument, there are more than one person, firm or corporation, all shall
jointly arrange among themselves for their joint execution of such a notice
specifying some individual at some specific address within the continental
United States for the receipt of notices and payments to Tenant. All parties
included within the terms "Landlord" and "Tenant", respectively, shall be
bound by notices given in accordance with the provisions of this paragraph to
the same effect as if each had received such notice.
24. HAZARDOUS MATERIALS.
A. For purposes of this section, "Hazardous Materials" shall include
all solid, liquid or gaseous materials defined or regulated as wastes under
any federal statute or regulation or any state or local law, regulation or
ordinance and shall further include all other substances defined or regulated
as pollutants or as hazardous, toxic, infectious, or radioactive substances
under any federal statute or regulation or any state or local law, regulation
or ordinance, all as amended from time to time.
B. Tenant shall not cause or permit any Hazardous Materials to be
used, generated, stored or disposed of on, under or about, or transported to
or from the Premises (collectively, "Hazardous Materials Activities") except
in compliance with all applicable federal, state and local laws, regulations,
ordinances and order governing such Hazardous Materials or Hazardous Materials
Activities, which compliance shall be at Tenant's sole cost and expense.
Additionally, Tenant shall not cause or permit any Hazardous Materials to be
disposed of on, under or about the Premises without the express prior written
consent of the Landlord, which may be withheld for any reason and may be
revoked at any time.
C. Landlord shall not be liable to Tenant or to any other party for
any Hazardous Materials Activities conducted or permitted on, under or about
the Premises by Tenant or by Tenant's employees, agents, contractors,
licensees or invitees, and Tenant shall indemnify, defend and hold Landlord
harmless from any claims, damages, fines, penalties, losses, judgments, costs
and liabilities arising out of or related to any Hazardous Materials
Activities conducted or permitted on, under or about the Premises by Tenant or
by Tenant's employees, agents, contractors, licensees or invitees, regardless
of whether Landlord shall have consented to, approved of, participated in or
had notice of such Hazardous Materials Activities. The provisions of this
paragraph shall survive the expiration or termination of this lease.
D. At the expiration or earlier termination of this lease, Tenant
shall remove from the Premises, at Tenant's sole expense, all Hazardous
Materials located, stored and disposed of on, under or about the Premises.
Tenant shall close, remove or otherwise render safe any buildings, tanks,
containers or other facilities related to the Hazardous Materials Activities
conducted or permitted on the Premises in the manner required by all
applicable laws, regulations, ordinances or orders.
25. INSOLVENCY OR BANKRUPTCY. The appointment of a receiver to take
possession of all or substantially all of the assets of Tenant, or an
assignment of Tenant for the benefit of creditors, or any action taken or
suffered by Tenant under any insolvency, bankruptcy, or reorganization act,
shall be Landlord's option constitute a breach of this Lease by Tenant. Upon
the happening of any such event or at any time thereafter, this Lease shall
terminate five (5) days after written notice of termination from Landlord to
Tenant. In no event shall this Lease be assigned or assignable by operation
of law or by voluntary or involuntary bankruptcy proceedings or otherwise and
in no event shall this Lease or any rights or privileges hereunder be an asset
of Tenant under any bankruptcy, insolvency, or reorganization proceedings.
26. LANDLORD'S LIABILITY. Any liability of Landlord hereunder shall be
enforceable only out of the Building or Property and in no event out of the
separate assets of any constituent partner of Landlord. No holder or
beneficiary of any mortgage or deed of trust on any part of the Property shall
have any liability to Tenant hereunder for any default of Landlord.
27. MISCELLANEOUS.
A. Words of any gender used in this lease shall be held and construed
to include any other gender, and words in the singular number shall be held to
include the plural, unless the context otherwise requires.
B. In the event the Premises constitutes a portion of a multiple
occupancy building or building complex, Tenant's "proportionate share", as
used in this lease, shall mean a fraction, the numerator of which is the space
contained in the Premises and the denominator of which is the entire leasable
space contained in the building or building complex.
C. The terms, provisions and covenants and conditions contained in
this lease shall apply to, inure to the benefit of, and be binding upon the
parties hereto and upon their respective heirs, legal representatives,
successors and permitted assigns, except as otherwise herein expressly
provided. Landlord shall have the right to assign any of its rights and
obligations under this lease. Each party agrees to furnish to the other,
promptly upon demand, a corporate resolution, proof of due authorization by
partners, or other appropriate documentation evidencing the due authorization
of such party to enter into this lease.
D. The captions inserted in this lease are for convenience only and in
no way define, limit or otherwise describe the scope or intent of this lease,
or any provision hereof, or in any way affect the interpretation of this
lease.
E. Tenant agrees from time to time within ten (10) days after request
of Landlord, to deliver to Landlord, or Landlord's designee a certificate of
occupancy (if applicable) and an estoppel certificate stating that this lease
is in full force and effect, the date to which rent has been paid, the
unexpired term of this lease and such other matters pertaining to this lease
as may be requested by Landlord. It is understood and agreed that Tenant's
obligation to furnish such estoppel certificates in a timely fashion is a
material inducement for Landlord's execution of this lease.
F. This lease may not be altered, changed or amended except by an
instrument in writing signed by both parties hereto.
G. All obligations of Tenant hereunder not fully performed as of the
expiration or earlier termination of the term of this lease shall survive the
expiration or earlier termination of the term hereof, including without
limitation all payment obligations with respect to taxes and insurance and all
obligations concerning the condition of the Premises. Tenant shall also,
prior to vacating the Premises, pay to Landlord the amount, as estimated by
Landlord, of Tenant's obligation hereunder for real estate taxes and insurance
premiums for the year in which the lease expires or terminates. All such
amounts shall be used and held by Landlord for payment of such obligations of
Tenant hereunder, with Tenant being liable for any additional costs therefor
upon demand by Landlord, or with any excess to be returned to Tenant after all
such obligations have been determined and satisfied, as the case may be. Any
security deposit held by Landlord shall be credited against the amount payable
by Tenant under this subparagraph 25G.
H. If any clause or provision of this lease is illegal, invalid or
unenforceable under present or future laws effective during the term of this
lease, 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 it is also the
intention of the parties to this lease that in lieu of each clause or
provision of this lease that is illegal, invalid or unenforceable, there be
added as a part of this lease contract 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.
I. Because the Premises are on the open market and are presently being
shown, this lease shall be treated as an offer with the Premises being subject
to prior lease and such offer subject to withdrawal or non-acceptance by
Landlord or to other use of the Premises without notice, and this lease shall
not be valid or binding unless and until accepted by Landlord in writing and a
fully executed copy delivered to both parties hereto.
J. All references in this lease to "the date hereof" or similar
references shall be deemed to refer to the last date, in point of time, on
which all parties hereto have executed this lease.
K. Time is of the essence of this lease and all of its provisions.
This lease in all respects shall be governed by the laws of the State of
Georgia.
L. Tenant shall not install drapes, curtains, blinds or any window
treatment without Landlord's prior written approval.
M. The duties and obligations of Tenant herein shall be binding upon
all or any of them. The duties and obligations of Tenant shall run and extend
not only to the benefit of the Landlord, as named herein, but to the
following, at the option of the following or any of them: (i) any person by,
through or under which Landlord derives the right to lease the Premises; (ii)
the owner of the Premises; and (iii) holders of mortgage or rent assignment
interests in the Premises, as their respective interests may appear; provided,
however, nothing contained herein shall be construed to obligate Tenant to pay
rent to any person other than the Landlord until such time as Tenant has been
given written notice of either an exercise of a rent assignment or the
succession of some other party to the interests of Landlord.
N. In order to induce Landlord to enter into this Lease Agreement,
Tenant agrees to provide to Landlord, before the initiation of construction of
the Premises and at any other time when reasonably requested by Landlord, an
audited balance sheet and income statement for the fiscal year most recently
concluded. Such balance sheet and income statement shall be for the legal
entity which is entering into the Lease Agreement with Landlord and/or the
entity guaranteeing the performance of Tenant's obligations under the Lease.
Tenant fully understands and agrees that a request for such information by
Landlord's lender or a prospective buyer for the Building will be deemed
reasonable.
O. In all provisions of this Lease, when Landlord's approval is
required, such approval shall not be unreasonably withheld or delayed.
28. ADDITIONAL PROVISIONS. See Additional Provisions, Paragraphs 29
through 31, attached hereto and made a part hereof as if fully incorporated
herein and when in conflict with the printed portion of this lease, said
Additional Provisions shall prevail.
EXECUTED BY LANDLORD, this 23rd day of October, 1996.
▇▇▇▇▇▇▇ I/II, LLC
By:/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇▇▇
Attest/Witness: Its: Managing Member
/s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Project Administrator
EXECUTED BY TENANT, this 23rd day of October, 1996.
Attest/Witness: CONTOUR MEDICAL, INC.
/s/ ▇▇▇ ▇▇▇ ▇▇▇▇▇▇ By:/s/ ▇▇▇▇▇▇ ▇. ▇▇▇
Title:Executive Assistant Its:President
ADDITIONAL PROVISIONS
29. The Base Monthly Rental provided for in Paragraph 2a of this Lease shall
be increased on every anniversary of the Commencement Date by two percent (2%)
of the immediately preceding month's rent. Therefore, the Base Monthly Rental
schedule for the Term of this Lease shall be:
Months 1 - 12: $23,188.00
Months 13 - 24: $23,652.00
Months 25 - 36: $24,125.00
Months 37 - 48: $24,607.00
Months 49 - 60: $25,099.00
30. With respect to the immediately adjacent five (5) bays of the Building,
or 38,080 square feet (hereinafter, the "Expansion Space"), Landlord will hold
the Expansion Space off of the market until January 1, 1997. If Tenant has
not expanded into and leased the Expansion Space by January 1, 1997, Landlord
will be released from this provision and will be free to lease the Expansion
Space to others without notice. Tenant agrees to make its best efforts to
inform Landlord as soon as possible of Tenant's intentions with regard to the
Expansion Space. When Tenant informs Landlord of its intent not to lease the
Expansion Space, this Paragraph will be rendered null and void.
31. Tenant is granted two (2) consecutive three (3) year renewal options at
a rental rate that is equal to ninety-five percent (95%) of the then current
market rental rate for comparable space in the North Georgia 400 industrial
submarket. The exercise of each renewal will require written notice to
Landlord from Tenant six (6) months prior to the expiration of the then
current Term.
EXHIBIT "A"
LEGAL DESCRIPTION
Total Area = 8.66 Acres
All that tract or parcel of land lying in and being a part of Land ▇▇▇ ▇▇▇ ▇▇
▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ and being more
particularly described as follows:
To find the TRUE POINT OF BEGINNING, commence at a point at the intersection
of the Western right-of-way of Shiloh Road East (60 foot right-of-way), and
the Southwestern right-of-way of Shiloh Road, (a 60 foot right-of-way),
Proceed Northwesterly along said Shiloh Road a distance of 2,179.52 feet to an
iron pin set; Said point being the TRUE POINT OF BEGINNING.
From the TRUE POINT OF BEGINNING as thus established, and continuing along
said right-of-way of Shiloh Road, Proceed North 02o19o03" East a distance of
101.43 feet to a 1/2" rebar found; Thence proceed North 02o18'58" East a
distance of 710.45 feet to a point; Thence proceed along a curve to the left
said curve having a radius of 740.80 feet and an arc length of 7.50 feet
(said arc being subtended by a chord bearing of North 02o00'58" East and a
chord distance of 7.50 feet to an iron pin set); Thence leaving said ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇'▇▇" ▇▇▇▇ a distance of 455.00 feet to a 1/2 rebar
found; Thence proceed South 02o18'55" West a distance of 720.86 feet to a
iron pin set; Thence proceed South 04o14'18" West a distance of 130.18 feet
to an iron pin set; Thence proceed North 81o17'20" West a distance of 283.36
feet to a point; Thence proceed North 87o41'05" West a distance of 169.01
feet to a point; Said point being the TRUE POINT OF BEGINNING.
Said tract of land containing 8.66 Acres, is shown on, and described according
to a plat by Blue Ridge Engineering, titled Boundary Survey for ▇▇▇▇▇▇▇ 5,
Dated October 7, 1996 and bearing the seal of ▇. ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇
Registered Land Surveyor 2339, said plat is hereby made part of this legal
description by this reference.
EXHIBIT "B"
IMPROVEMENT AGREEMENT
Added to and made a part of this Lease Agreement is Landlord's obligation to
install the improvements described in this Exhibit "B" and Exhibit "B-1" in a
diligent and ▇▇▇▇▇▇▇ like manner at no cost to Tenant.
1. Exhibit D of this Lease is a final floor plan of Tenant's Premises.
Landlord will improve 11,500 square feet of office area in accordance with the
configuration therein and in accordance with Landlord's standard finishes per
Exhibit "B-1" at no cost to Tenant.
2. Landlord is also obligated to improve the warehouse area of the Premises
with heating, lighting, and ventilation customary in the Atlanta Industrial
Market.
3. Any square footage of office area in excess of the 11,500 square feet
referenced above and any finishes above the level of finishes provided in
Exhibit "B-1" will be designed and installed by Landlord at Tenant's sole cost
and expense. Fifty percent (50%) of such cost shall be due and payable before
the commencement of interior construction, and fifty percent (50%) shall be
due before Tenant occupies the Premises.
As a point of clarification, as supplemental information to Exhibit
"B-1" Landlord's standard finishes and specifications specifically excludes
the following:
a) Wood trims and moldings
b) Wall covering
c) Cabinetry, shelving and mill work
d) Glass partitions
e) Insulated partitions
f) Sound batting and sound proofing
g) Marble, ceramic tile and wood flooring
h) Structural reinforcement for mezzanine office
i) Sprinkler system enhancements
j) Concrete loading ramps
EXHIBIT "B-1"
STANDARD SPECIFICATIONS
PARTITIONS
Demising Partitions: One-hour rated office/warehouse partition: 6" metal
studs to structure with 1/2" type "X" fire code
drywall each side and 3-1/2' SAB in cavity (test
number: UL Des U.448).
Note: Furnish and install 6", 25 gauge metal studs at 16"
o.c. to limiting height of 20'-0".
Furnish and install 6", 20 gauge metal studs at 24"
o.c. to limiting height of 25'3".
Furnish and install 6", 20 gauge metal studs at 16"
o.c. to limiting height of 32'11".
Interior Partitions: 3-5/8", 25 gauge metal studs at 24" O.C., with 1/2"GWB
each side - slab to ceiling grid.
Warehouse Partitions: If office is over 25% of total lease, office warehouse
is to be one-hour rated.
Non-rated office/warehouse partition: 3-5/8" metal
studs to structure with 1/2" GWB and 3-1/2" SAB to
1'0" above finished ceiling at office side and 1/2"
GWB to structure at warehouse side.
DOORS
Tenant Entry Door: 3'-0"W x 7'-0"H glass storefront door
Tenant Interior Door: 3'-0"W x 7'-0"H flush solid core stain grade birch
veneer in hollow metal frame.
Bifold Door: 6'-8"H stain grade flush birch veneer.
Hardware: PDQ ST-Plantation Design:
126 passage set
176 privacy set
182 lockset
Closers: LCN painted silver
Door Stops: Floor stops: Quality #331ES
CEILINGS
Grid: 2' x 4' x 15/16" ▇▇▇▇▇ ▇▇▇▇ grid
Acoustical Tile: ▇▇▇▇▇▇▇▇▇ 2' x 4' x 5/8" Cortega minaboard flat
fissured
Ceiling Height: 9'-0"
LIGHTING/ELECTRICAL
Light Fixtures: Lithonia 2 GT - 440 2' x 4' 4-lamp with acrylic lens
Emergency Egress
Lighting: Lithonia #6 ELM or combination unit: Lithonia #H2MSW1R
Exit Signs: Lithonia #MSW3 REL.
Audio/Visual Strobes:
HVAC
Diffusers: 2' x 2' perf. face
Return Air: 2' x 2' perf. face
Exhaust Fans:
Thermostats:
SPRINKLERS
Type: Exposed chrome
FINISHES
Carpet: 26 oz level loop or 30 oz cut pile; 22 oz. textured level
loop
Base: ▇▇▇▇▇; 4"h rubber cove
Vinyl Composition Tile: Tarkett; Expressions
Door Trim Paint: Alkyd base semi-gloss ▇▇▇▇▇ or equal
EXHIBIT "C"
ESTOPPEL CERTIFIATE
Landlord: ________________________________
Tenant: ________________________________
Premises: ________________________________
Area: _______________________________ Sq. Ft. Lease Date: _________
The undersigned Tenant under the above-referenced lease (the "Lease")
hereby ratifies the Lease and certifies to ________________ ("Landlord") as
owner of the real property of which the premises demised under the Lease (the
"Premises") is a party, as follows:
1. That the term of the Lease commenced on ________________, 19_____
and the Tenant is in full and complete possession of the Premises demised
under the Lease and has commenced full occupancy and use of the Premises, such
possession having been delivered by Landlord and having been accepted by
Tenant.
2. That the Lease calls for base monthly rent installments of
$_______________ which commenced to accrue on the __________ day of
___________________, 19____.
3. That additional rent based upon the annual operating charges for
the Building, as defined in the Lease, is payable by Tenant. Tenant is
currently paying $_____________ monthly as an estimated amount for this
additional rent. Tenant asserts no right to audit or contest annual operating
charges paid by Tenant for _________ and all prior years.
4. That no advance rental or other payment has been made in
connection with the Lease, except rental for the current month. There is no
"free rent" or other concession under the remaining term of the Lease, and the
rent has been paid to and including ___________, 19_____.
5. That a security deposit in the amount of $__________________ is
being held by Landlord, which amount is not subject to any set-off or
reduction or to any increase for interest or other credit due to Tenant.
6. That all obligations and conditions under said Lease to be
performed to date by Landlord or Tenant have been satisfied, free of defenses
and set-offs including all construction work in the Premises.
7. That the Lease is a valid lease and in full force and effect and
represents the entire agreement between the parties; that there is no existing
default on the part of Landlord or the Tenant in any of the terms and
conditions thereof and no event has occurred which, with the passing of time
or giving of notice or both, would constitute an event of default; and that
said Lease has: (Initial one)
( ) not been amended, modified, supplemented, extended, renewed
or assigned.
( ) been amended, modified, supplemented, extended, renewed or
assigned as follows by the following described agreements:
____________________________________________
____________________________________________
____________________________________________
____________________________________________
8. That the Lease provides for a primary term of ________ months; the
term of the Lease expires on the _______ day of _____________, 19_____; and
that (Initial one)
( ) neither the Lease nor any of the documents listed in
Paragraph 7 (if any) contain an option for any additional term or terms.
( ) the Lease and/or the documents listed under Paragraph 7,
above, contain an option for _____________ additional term(s) of ____________
year(s) and ___________ month(s) (each) at a rent to be determined as follows:
____________________________________________
____________________________________________
9. That, to the best of Tenant's knowledge, there is no apparent or
likely contamination of the real property or the Premises by Hazardous
material, and Tenant does not use, nor has Tenant disposed of, hazardous
materials in violation of environmental laws on the real property or the
Premises.
10. That there are no actions, voluntary or involuntary, pending
against the Tenant under the bankruptcy laws of the United States or any state
thereof.
11. That this certification is made knowing that Landlord is relying
upon the representation herein made.
Tenant:
_____________________________________
Dated: ______________ By: _____________________________
Typed Name: __________________
Title:
__________________
EXHIBIT "D"
FLOOR PLAN
[DIAGRAM]
EXHIBIT "E"
KEY PLAN / SITE PLAN
[DIAGRAM]
EXHIBIT "F"
LETTER OF CREDIT
WACHOVIA
------------------------------------------------------------------------------
SEPTEMBER 18, 1996 PAGE: 1
BENEFICIARY: APPLICANT:
CK WINDWARD #1, LLC, A NORTH EXECUTIVE OFFICE CENTER INC
CAROLINA LIMITED LIABILITY COMPANY A GEORGIA CORPORATION
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ SEVEN PIEDMONT CENTER, STE 500
ALPHARETTA, GA 30202 ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
AMOUNT: EXACTLY USED 311,367.00
EXACTLY THREE HUNDRED ELEVEN THOUSAND
THREE HUNDRED SIXTY SEVEN AND 00/100's
U.S. DOLLARS
PLACE OF EXPIRY: DECEMBER 31, 2000
PLACE OF EXPIRY: AT OUR COUNTERS
WE HEREBY ISSUE OUR IRREVOCABLE STANDBY LETTER OF CREDIT NO. LC870-074784 IN
YOUR FAVOR FOR THE ACCOUNT OF EXECUTIVE OFFICE CENTER INC. A GEORGIA
CORPORATION UP TO THE AGGREGATE AMOUNT OF EXACTLY USD 311,367.00
THIS LETTER OF CREDIT IS AVAILABLE FOR PAYMENT BY PRESENTATION OF YOUR DRAFTS
AT SIGHT DRAWN ON US BEARING THE CLAUSE: "DRAWN UNDER WACHOVIA BANK OF
GEORGIA, N.A., LETTER OF CREDIT NO: LC870-074784", ACCOMPANIED BY THE
FOLLOWING:
1 - BENEFICIARY'S SIGNED STATEMENT READING: "APPLICANT HAS DEFAULTED UNDER THE
TERMS OF THE OFFICE LEASE AGREEMENT BETWEEN APPLICANT AND BENEFICIARY, WITH
ALL APPLICABLE CURE PERIODS HAVING EXPIRED, INCLUDING TWO (2) BUSINESS DAYS
NOTICE OF INTENT OF BENEFICIARY TO DRAW ON THIS LETTER OF CREDIT".
2 - COPY OF NOTICE OF DEFAULT.
3 - THE ORIGINAL LETTER OF CREDIT.
SPECIAL CONDITIONS:
UNLESS THE NOTIVCE OF DEFAULT HAS BEEN PRESENTED AS SET FORTH ABOVE, THE
AMOUNT OF THIS STANDBY LETTER OF CREDIT SHALL REDUCE IN ACCORDANCE WITH THE
FOLLOWING SCHEDULE:
DATE NEW AMOUNT
JANUARY 2, 1998 USD$233,525.25
JANUARY 2, 1999 USD$155,683.50
JANUARY 2, 2000 USD$ 77,841.75
ALL DRAFTS MUST INDICATE THE NUMBER AND DATE OF THIS CREDIT.
WE HEREBY ENGAGE WITH YOU THAT DRAFTS DRAWN UNDER AND IN COMPLIANCE WITH THE
TERMS OF THIS CREDIT WILL BE DULY HONORED UPON PRESENTATION OF DOCUMENTS TO US
ON OR BEFORE THE EXPIRATION DATE OF THIS LETTER OF CREDIT.
THIS IS AN INTEGRAL PART OF LETTER OF CREDIT NUMBER:LC870-074784
THIS CREDIT IS TRANSFERABLE AND TRANSFER MAY BE EFFECTED BY WACHOVIA BANK OF
GEORGIA, N.A. PROVIDED THAT YOU DELIVER TO US YOUR WRITTEN REQUEST FOR
TRANSFER IN FORM AND SUBSTANCE SATISFACTORY TO US WITH A BANKING INSTITUTION'S
AUTHENTICATION OF YOUR SIGNATURE. THE ORIGINAL OF THIS LETTER OF CREDIT WITH
ANY AMENDMENTS MUST BE RETURNED TO US WITH THE TRANSFER REQUEST AND OUR
CUSTOMARY TRANSFER FEE OF 1/2 OF ONE PERCENT (MINIMUM USD 275.00) OF THE
AMOUNT
TO BE TRANSFERRED.
EXCEPT SO FAR AS OTHERWISE EXPRESSLY STATED, THIS DOCUMENTARY CREDIT IS
SDUBJECT TO UNIFORM CUSTOMS AND PRACTICE FOR DOCUMENTARY CREDITS, 1993
REVISION, INTERNATIONAL CHAMBER OF COMMERCE PUBLICATION NO. 500.
WACHOVIA BANK OF GEORGIA, N.A.
INTERNATIONAL DIVISION
By: /s/ ▇▇▇ ▇▇▇▇▇▇
AUTHORIZED SIGNATURE
PLEASE DIRECT ANY CORRESPONDENCE INCLUDING DRAWING OR INQUIRY QUOTING OUR
REFERENCE NUMBER TO WACHOVIA BANK, ▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇-▇▇▇▇▇, ▇.▇.
▇▇▇▇▇, ATTN: STANDBY LETTER OF CREDIT UNIT.
THIS DOCUMENT CONSISTS OF 2 PAGE(S)
FIRST AMENDMENT TO LEASE
THIS FIRST AMENDMENT TO LEASE (this First Amendment") is made and entered into
effective the 30th day of June, 1997, by and between ▇▇▇▇▇▇▇ I/II, LLC
(hereinafter referred to as "Landlord") and CONTOUR MEDICAL, INC., a Nevada
corporation (hereinafter referred to as "Tenant").
W I T N E S S E T H:
WHEREAS, Landlord and Tenant entered into that certain Lease Agreement
dated October 23, 1996 (hereinafter referred to as the "Original Lease") for
certain premises consisting of 54,560 square feet therein defined as the
"Premises" and located in the ▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇,
such Premises being more particularly shown and outlined on Exhibit "A",
attached hereto and incorporated herein by reference (hereinafter referred to
as the "Original Premises");
WHEREAS, Landlord and Tenant desire to modify and amend the Original
Lease, subject to and upon the terms and conditions set forth herein.
NOW, THEREFORE, for and in consideration of the foregoing, the sum of
Ten and No/100 Dollars ($10.00) and other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, the parties hereto
hereby modify and amend the Original Lease as follows:
1. Premises Redefined: Exhibit "A" of the Original Lease is hereby
modified and amended by deleting such Exhibit in its entirety and substituting
in lieu thereof the Exhibit "A" attached to this First Amendment and
incorporated herein by reference. In addition, the definition of the
"Premises" in the Original Lease is hereby modified and amended by increasing
such definition to include not only the Original Premises, but also the
additional 15,040 square feet of space located contiguous to the Original
Premises and more particularly shown as outlined on Exhibit "A" (hereinafter
referred to as the "Additional Premises"). The Original Premises and the
Additional Premises are hereinafter collectively referred to as the "Premises"
and all references in the Original Lease, as modified herein, to the
"Premises" shall mean and refer to the Original Premises and the Additional
Premises.
2. Completion of Construction
A. The commencement date of the Lease for the Original Premises
shall be the earlier of July 1, 1997 or the date upon which Landlord causes
the construction of the Original Premises to be substantially complete (as
hereinafter defined) in accordance with the plans and specifications
referenced on Exhibit "B", attached hereto and incorporated herein by
reference, which Exhibit "B" shall supersede in all respects the Exhibit "B"
attached to the Original Lease. As used herein, the construction of the
Original Premises shall be deemed to be "substantially complete" when the
construction of the Original Premises is completed to the extent (i) that a
certificate of occupancy has been issued therefor, (ii) Landlord has tendered
possession thereof to Tenant and (iii) otherwise in accordance with plans and
specifications referenced on Exhibit "B", as certified by Landlord's
architect, with only minor punch list items to be completed, the lack of
completion of which will not impair Tenant's occupancy of or conduct of
Tenant's usual business from the Premises. Following such substantial
completion of the Original Premises, Landlord shall have a reasonable period,
not to exceed thirty (30) days, to complete and remedy any items shown on the
punch list that Landlord and Tenant shall mutually agree upon within the first
ten (10) days after Tenant takes occupancy of the Original Premises.
B. In the event that Landlord fails to deliver the Original
Premises to Tenant substantially complete on or before July 1, 1997, then
Tenant shall be entitled to a credit against all rent payable under the Lease
for the period of such delay in an amount equal to one hundred fifty percent
(150%) of the daily rent payable under the Lease, computed on a daily basis
for each day of such delay, commencing on July 1, 1997 and continuing until
Landlord has delivered the Original Premises to Tenant substantially complete.
Such credit shall be taken and withheld by Tenant against the first
installments of rent due hereunder until fully recovered by Tenant, at which
time full rental shall recommence. (By way of example, in the event that
Landlord fails to deliver the Original Premises substantially complete until
July 3, 1997, then Tenant's rent shall be abated until July 6, 1997.)
Notwithstanding the foregoing, Tenant shall have no right to the credit as
specified in this subparagraph B as the result of (i) Tenant's request for
materials, finishes or other installations or change orders other than
Landlord's standard and other than those reflected on Exhibit "B", which
request causes an actual delay in Landlord's substantial completion as a
result of unavailability, additional time to complete or other factors causing
an actual delay of which Landlord gives Tenant notice immediately upon such
request by Tenant, (ii) any delay in performance or completion as a result of
any party employed by Tenant including any delay resulting from failure of the
plans provided by ▇▇▇▇▇ ▇▇▇▇▇ to comply with governmental requirements ((i) -
(ii) are hereinafter collectively referred to as "Tenant Delays") or (iii)
delay in substantial completion caused by civil commotion, war, war-like
operations, invasion, rebellion, hostilities, military or usurped power,
sabotage, governmental regulations or controls (but only to the extent such
regulations are not now in existence, or, if now in existence, are arbitrarily
imposed or delayed by public officials over which Landlord has no control),
fire or other casualty or Act of God after the date of the First Amendment
(provided that weather delays shall only constitute Acts of God to the extent
such weather occurs after the date of this First Amendment and actually
prevents the delivery or installation of materials, supplies or workers to the
Original Premises (hereinafter collectively referred to as "Force Majeure
Delays").
C. The commencement date of the Lease for the Additional
Premises shall be the earlier of September 1, 1997 or the day upon which
Landlord causes the construction of the Additional Premises to be
substantially complete (as defined above) in accordance with the plans and
specifications referenced on Exhibit "B". Following substantial completion of
the Additional Premises, Landlord shall have a reasonable period, not to
exceed thirty (30) days, to complete and remedy any items shown on the punch
list that Landlord and Tenant shall mutually agree upon within the first ten
(10) days after Tenant (or Tenant's permitted sublessee) takes occupancy of
the Additional Premises.
D. In the event that Landlord fails to deliver the Additional
Premises to Tenant substantially complete on or before September 15, 1997,
then Tenant shall be entitled to a credit against the base rent payable under
the Lease for the Additional Premises for the period of such delay in an
amount equal to one hundred fifty percent (150%) of such daily rent, computed
on a daily basis for each day of such delay, commencing September 15, 1997 and
continuing until Landlord has delivered the Additional Premises to Tenant
substantially complete. Such credit shall be taken and withheld by Tenant
against the next incurring installments of rent due under the Lease until
fully recouped by Tenant, at which time full rental shall recommence.
Notwithstanding the foregoing, Tenant shall have no right to the credit as
specified in the immediately preceding sentences as a result of Tenant Delays
or Force Majeure Delays.
3. Rental. Paragraph 2A of the Original Lease is hereby modified and
amended by deleting such paragraph in its entirety and substituting in lieu
thereof the following:
A. Tenant agrees to pay Landlord base rent for the Premises, in
advance without demand, deduction or set off at a rate of (i) Twenty Three
Thousand, One Hundred Eighty-Eight and No/100 Dollars ($23,188.00) per month
with respect to the Original Premises, commencing on the commencement date for
the Original Premises and (ii) Six Thousand Three Hundred Ninety-Two and
No/100 Dollars ($6,392.00) per month with respect to the Additional Premises,
commencing on the commencement date for the Additional Premises. Following the
commencement dates for both the Original Premises and the Additional Premises,
the total base rent payable hereunder shall be equal to Twenty Nine Thousand
Five Hundred Eighty and No/100 Dollars ($29,580.00) per month. Such base rent
shall be due and payable on or before the first day of each calendar month
succeeding the commencement date for the Original Premises and the Additional
Premises during the term, except that rental payments for any fractional
calendar months at the
commencement (as to either the Original Premises or the Additional Premises)
or termination of the lease shall be prorated and such base rent shall be
increased as set forth in Paragraph 29 hereof. With respect to the rent posted
by Tenant at the execution of the Lease, Landlord will credit against Tenant's
second month of rental payments interest on the posted rent at the annual rate
of four percent (4%) per annum.
4. Taxes. The first sentence of Paragraph 4A of the Lease is hereby
modified and amended by deleting such sentence in its entirety and
substituting in lieu thereof the following:
Landlord hereby agrees to pay before they become delinquent
all taxes, assessments, and governmental charges of any kind and nature
whatsoever (hereinafter collectively referred to as the "Taxes") lawfully
levied or assessed against the building and the grounds, parking areas,
driveways and alleys around the building. In the event that during any one
real estate tax year, Tenant's proportionate share of Taxes paid by Landlord
exceeds Twelve Thousand Three and 20/100 Dollars ($12,003.20) with respect to
the Original Premises or Three Thousand Three Hundred Eight and 80/100 Dollars
($3,308.80) with respect to the Additional Premises, Tenant shall pay to
Landlord as additional rental, upon demand, the amount of such excess.
5. Use. Paragraph 3A of the Original Lease is hereby modified and
amended by adding the following sentence immediately following the final
sentence thereof:
Notwithstanding anything to the contrary set forth above,
Landlord hereby represents and warrants that the Premises, upon completion of
the construction of the improvements thereto by Landlord, will comply in all
respects with all laws necessary for Tenant's intended use; provided, however,
the foregoing representation and warranty only extends to construction of the
sprinkler system in the building to Class III standards.
6. Tenant's Repairs. Paragraph 6A of the Original Lease is hereby
modified and amended by adding the following immediately following the final
sentence thereof:
Landlord covenants and agrees that on the commencement dates
for the Original Premises and the Additional Premises, Landlord shall assign
to Tenant all rights under all bonds. warranties and guaranties under the
existing construction contract between Landlord and the general contractor, as
well as any subcontractors and, if necessary, obtain the consent of the
contractor or subcontractor, as applicable, thereto, with respect to any items
for which Tenant has maintenance obligations under the Lease, and, upon
request thereafter, shall cooperate with Tenant in the event that Tenant
desires to make any claim under any such bonds, guaranties or warranties.
7. Assignment and Subletting. Paragraph 11A of the Original Lease is
hereby modified and amended by deleting the second sentence thereof in its
entirety and substituting in lieu thereof the following:
Tenant shall, by written notice, advise Landlord of Tenant's
desire from and after a stated date (which date shall not be less than thirty
(30) days nor more than ninety (90) days after the date of Tenant's notice) to
sublet the Premises or any portion thereof for any part of the term hereof and
in such event Landlord shall have the right, in Landlord's discretion which
shall be exercised within ten (10) days after receipt of such request to (i)
consent to such sublease, whereupon Tenant shall be entitled to enter into
such sublease upon the terms and conditions that were submitted to Landlord,
or (ii) refuse to consent to such sublease, in which event Landlord shall have
the right to terminate this Lease as to the portion of the Premises described
in Tenant's notice and such notice shall, if given, terminate this Lease with
respect to such portion of the Premises therein described as of the date
stated in Tenant's notice; provided, however, Tenant shall have the right to
rescind such request for sublease by notice given to Landlord within five (5)
days after receipt of Landlord's termination notice, whereupon Landlord's
termination notice shall automatically be deemed null and void.
Paragraph 11A of the Original Lease is hereby further modified and amended by
deleting the following sentence therefrom "If landlord, upon receiving said
notice by tenant, with respect to any of the premises, shall not exercise its
right to terminate."
Section 11 of the Lease is further modified and amended by adding the
following subparagraph D thereto:
D. Landlord hereby consents to Tenant's sublease of the
Additional Premises to Sunscript Pharmacy Corporation; provided however, such
consent does not release or relieve Tenant of any obligation or duty hereunder
with respect to the Additional Premises.
8. Fire and Casualty Damage. The first sentence of paragraph 12A of
the Original Lease is hereby modified and amended by deleting therefrom the
reference to eighty percent (80%) and substituting in lieu thereof a reference
to one hundred percent (100%).
9. Quiet Enjoyment. Paragraph 16 of the Original Lease is hereby
modified and amended by adding the following sentence immediately following
the final sentence thereof:
Landlord agrees to hereafter use reasonable efforts to
obtain a subordination, non-disturbance and attornment agreement from its
existing lender with respect to Tenant's rights under this Lease and continued
occupancy of the Premises in the event of any foreclosure or deed in lieu
thereof and shall endeavor to obtain such agreement within thirty (30) days
after the date of execution of this First Amendment.
10. Notices. Paragraph 23C of the Lease is hereby modified and amended
by adding the following sentence immediately following the final sentence
thereof:
Notwithstanding the foregoing, following the commencement
date, Tenant's address for notices shall be as follows:
Contour Medical, Inc.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇▇ ▇. ▇▇▇
11. Hazardous Materials. Section 24 of the Lease is hereby modified
and amended by adding the following subparagraph E thereto:
E. Notwithstanding anything to the contrary contained in
this Section 24 or elsewhere in this Lease, Landlord, to the best of
Landlord's knowledge hereby represents and warrants that there are no
Hazardous Materials or Hazardous Material Activities currently existing on the
Premises or on property adjacent or in proximity thereto, nor have such
Hazardous Materials or Hazardous Material Activities previously existed with
respect to the Premises, or property adjacent or in proximity thereto, and
that Tenant shall have no obligation under subparagraph D. above, to remove
any Hazardous Materials that were located. stored or disposed of on, under or
about the Premises at any time prior to the commencement date of this Lease
12. Proportionate Share. Paragraph 27B of the Lease is hereby modified
and amended by adding the following sentence immediately after the final
sentence thereof:
Landlord and Tenant hereby agree that following the
commencement date for both the Original Premises and the Additional Premises,
Tenant's proportionate share shall be equal to fifty percent (50%), calculated
based upon the number of square feet in the Premises (69,600) in proportion to
the number of square feet in the building (139,200), which square footage
Landlord hereby represents and warrants are accurate measurements of the
Premises and the building.
13. Increase in Base Rental. Section 29 of the Original Lease is
hereby modified and amended by deleting such section in its entirety and
substituting in lieu thereof the following:
29. The base monthly rental provided for in Paragraph 2A of
this Lease shall be increased on every anniversary of the first (1st) full
month following the commencement date with respect to the Original Premises by
two percent (2%) per annum of the month's base rent applicable in the month
immediately prior to such increase, such that the base monthly rental
hereunder shall be as follows:
months 1- 12: $29,580.00
months 13 - 24: $30,171.60
months 25 - 36: $30,775.03
months 37 - 48: $31,390.53
months 49 - termination: $32.018.34
14. Renewal Options. Section 31 of the Original Lease is hereby
modified and amended by deleting such section in its entirety and substituting
the following in lieu thereof:
A. Landlord hereby grants to Tenant, and Tenant hereby accepts,
two (2) successive three (3) year options (the "Options") to renew this Lease
at a rental rate (the "Rate") which shall be equal to ninety-five percent
(95%) of the then current fair market rental rate for comparable space in the
North Georgia, Interstate 400 Industrial submarket, as determined below.
B. In the event that Tenant determines that Tenant may be
interested in exercising either of the Options, Tenant shall give notice of
such interest to Landlord within the period not longer than twelve (12) months
prior to the expiration of the then current term and not later than nine (9)
months prior to the expiration of the then current term and Landlord and
Tenant shall thereafter negotiate for a period of not more than fifteen (15)
days to reach a determination of the Rate that will be in effect for the
applicable option period. In the even that Landlord and Tenant are unable to
so agree, the following provisions will apply:
i. Landlord and Tenant shall each within fifteen (15)
days thereafter appoint an individual qualified and experienced in appraisals
and designated as an M.A.I. appraiser under the standards of the American
Institute of Real Estate Appraisers, which appraisers (a) shall have no
personal or financial interest that would disqualify such appraisers from
exercising an independent and impartial judgment and (b) shall have a minimum
of five (5) years experience appraising industrial space in the submarket
described above as to the matter under appraisal, and such appraisers as so
appointed shall thereafter during a period not to exceed thirty (30) days
determine the Rate.
ii. In the event that the two (2) appraisers'
determination of the Rate varies by less than ten percent (10%), then such
determinations shall be averaged and such average shall be the Rate
iii. In the event that the two (2) appraisers determination
of the Rate varies by more than ten percent (10%), then the two (2) appraisers
shall jointly appoint a third appraiser who shall be similarly qualified and
who shall make a determination as to the Rate for the option period. Upon such
determination by such third appraiser, the three (3) appraisal amounts shall
be averaged and such amount shall be and constitute the amount of the Rate
payable with respect to such option period.
iv. Tenant and Landlord shall each bear the cost of the
appraiser appointed by them and shall each bear one-half (1/2) of the cost of
the third appraiser.
C. Upon completion of the procedures set forth in B, above,
Tenant shall have until the date six (6) months prior to the expiration of the
then current term to exercise the applicable Option upon notice to Landlord,
whereupon this Lease skill be extended upon all of the same terms and
conditions as set forth herein except that the base rent shall be the Rate as
determined above. If Tenant, after following the procedures outlined in
Section B above, fails to exercise the Option, Tenant agrees to reimburse
Landlord for Landlord's actual out-of-pocket costs for appraisers pursuant to
such Section.
D. Notwithstanding anything to the contrary set forth above, in
no event shall the Rate (as determined pursuant to Sections A and (if
applicable) B above) be less than the base rent in effect immediately prior to
the expiration of the then expiring term.
Except as expressly modified and amended herein, Landlord and Tenant
hereby ratify and affirm that the Original Lease is in full force and effect
as of the date hereof and hereby acknowledge and agree that all references in
the Original Lease to the "Lease" shall mean and refer to the Original Lease
as modified and amended hereby.
LANDLORD:
▇▇▇▇▇▇▇ I/II, LLC
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇▇▇, its Managing
Member
TENANT:
CONTOUR MEDICAL, INC., a Nevada
corporation
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇, President
EXHIBIT "A"
[DIAGRAM]
EXHIBIT "B"
FAX TRANSMITTAL
▇.▇. ▇▇▇▇▇ & Associates, Inc.
Interior Design/Space Planning
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
404/▇▇▇-▇▇▇▇ Fax: 404/▇▇▇-▇▇▇▇
TO: ▇▇▇▇▇▇ ▇▇▇▇ DATE: JUNE 30, 1997
FAX: #404/▇▇▇-▇▇▇▇ ▇▇GES: ONE (1),
INCLUDING THIS PAGE.
FROM: ▇▇▇▇▇ ▇▇▇▇▇
PROJECT: CONTOUR MEDICAL, INC.
MESSAGE: ▇▇▇▇▇▇, THE FOLLOWING IS A LIST OF PLANS & SPECIFICATIONS OF THE
CONSTRUCTION DOCUMENTS FOR CONTOUR MEDICAL, INC.:
A0.1 COVER SHEET
AO.2 GENERAL NOTES
A0.3 GENERAL NOTES
A1 DIMENSIONED PARTITION PLAN
*A1.1 DIMENSIONED PARTITION PLAN
REFLECTED CEILING PLAN
POWER AND COMMUNICATION PLAN
FINISH PLAN
A.2 REFLECTED CEILING PLAN
A.3 POWER/COMMUNICATION PLAN
A4.1 FLOOR FINISH PLAN
A4.2 WALL FINISH PLAN
ID FURNITURE PLAN (FOR REFERENCE ONLY)
*ID.1 FURNITURE PLAN
A5.1 INTERIOR ELEVATIONS
A5.2 INTERIOR ELEVATIONS
A6.1 ENLARGED PLAN, ELEVATIONS & DETAILS
A6.2 ENLARGED PLAN, ELEVATIONS & DETAILS
A6.3 SECTIONS & DETAILS
A6.4 SECTIONS & DETAILS
A7 DOOR SCHEDULE
* THESE PLANS WERE ADDED LATER IN THE PROJECT WHEN CONTOUR MEDICAL DECIDED
TO TAKE ADDITIONAL SPACE.
PLEASE LET ME KNOW IF YOU NEED ADDITIONAL INFORMATION.
EXHIBIT "B"
[DIAGRAM]