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EXHIBIT 10.24
STANDARD NET INDUSTRIAL LEASE
[▇▇▇▇▇ & ▇▇▇▇▇ LOGO]
This Information Schedule is a part of the Lease between the parties named
below. The information in this Schedule is further explained and detailed in
the rest of the Lease, most particularly in the referenced Lease Paragraphs.
INFORMATION &
PARAGRAPH #
DATE OF LEASE: September 21, 1993
#1 -----------------------------------------------------------------------------------------
PARTIES Landlord: National Life Insurance Company
#1,19 d/b/a Plaza 85 Business Park
Karsten Realty Advisors
Courthouse Center
▇▇▇ ▇.▇. ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Copy: ▇▇▇▇▇ & ▇▇▇▇▇ Company
Peachtree Center, South Tower
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Tenant: Spectrx, Inc.
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6025 - A/B/C Unity Drive
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Norcross, Georgia 30071
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PREMISES: Approximately 9,763 Square Feet at ▇▇▇▇-▇/▇/▇ ▇▇▇▇▇ ▇▇▇▇▇
#2.1 ----- ------------------------------------------------------
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Exhibits A&B
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#2.1(b) Adjacent Site Improvements (if none, so state) See Exhibit "B"
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Exhibit B
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LANDLORD'S WORK: (if none, so state) See Exhibit "C"
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# 3.1 Exhibit C
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OCCUPANCY: The "Date of Occupancy" shall be the first to occur of:
#3.2
a) November 1, 1993
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b) The date Tenant begins business in the Premises
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TERM: The "Lease Term" begins on the Date of Occupancy and ends at midnight on the last day of
#4 the Sixtieth (60th) full calendar month thereafter.
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RENTS: Fixed Minimum Rent: Two Hundred Thirty Nine Thousand One Hundred Ninety Three and
#5 50/100 Dollars ($3,050.94) per month for 12 months. The Fixed Minimum Rent shall be
increased either (i) in accordance with Paragraph 5.1(c) or as detailed in Exhibit "E"
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ADDITIONAL RENTS:
#5.2, 7.3 Tenant's share of the Operating Costs, Real Estate Taxes, and Insurance Premiums is
8.2(b) established at Five POINT One PERCENT ( 5.1 % )
10.1, 11
PERMITTED USES: General Office, Optical Electronics Manufacturer and Developer
#6.1 -----------------------------------------------------------------------------------------
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LANDLORD'S BROKER: (if none, so state) ▇▇▇▇▇ & ▇▇▇▇▇ ; To be paid by Landlord
#20 ------------------------------------------------------
TENANT'S BROKER: (if none, so state) None ; To be paid by Landlord
#20 --------------------------------------------------------
ADDITIONAL EXHIBITS: The following Exhibits are attached to and made a part of this Lease.
A. Description of the Premises
B. Plan of the Premises
▇. ▇▇▇▇▇▇▇▇'s Work and Tenant's Work
D. Dangerous/Hazardous Chemicals and Materials
E. Special Stipulations
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STANDARD NET INDUSTRIAL LEASE
1. PARTIES: This lease is made as of the date shown in the Information
Schedule, between the parties as provided in said Schedule.
2. PREMISES: In consideration of the agreements in this Lease and other
consideration paid, Landlord leases to the Tenant and Tenant leases
from Landlord:
(a) the "Premises" are located in the "Building" located in
Landlord's "Industrial Park" described in Exhibit A and the
Information Schedule and are shown on Exhibit "B".
(b) the sole right to use the parking loading area, if any,
described in the Information Schedule and as shown as the
"Adjacent Site Improvements" on Exhibit "A".
(c) the non-exclusive right to use, together with Landlord and
other tenants of the Industrial Park, the driveways, parking
(to the extent not leased to other tenants for their sole
use), and grounds.
3. IMPROVEMENTS, DATE OF OCCUPANCY.
3.1 COMPLETION OF CONSTRUCTION: The Landlord's Work is described
in Exhibit "C". Any items to be paid for by Tenant are as
shown in Exhibit "C". Landlord will use reasonable efforts to
deliver the Premises to Tenant in substantial compliance with
the plans and specifications listed in Exhibit "C" on or
before the date provided in the Information Schedule, subject
to Article 15. Plans and specifications to be provided by
Tenant will be available to Landlord as provided in the
Information Schedule.
3.2 DATE OF OCCUPANCY: If the Date of Occupancy occurs under
(b) as provided in the Information Schedule, Landlord and
Tenant each agree, if asked, to execute an addendum listing
the date.
3.3 POSSESSION: Tenant may cancel this lease if possession is not
provided within ninety (90) days from the projected date of
occupancy. ▇▇▇▇▇▇ agrees not to seek damages if ▇▇▇▇▇▇▇▇ fails
to complete the Landlord's work or if occupancy is delayed due
to any of the events in Article 15 or any other cause.
4. TERM: Commencement and Termination. The Lease Term is as provided in
the Information Schedule. If the Date of Occupancy is the first day
of a month that month shall be the first full calendar month. If the
Tenant is on the Premises before the Date of Occupancy, the terms of
the Lease (except rentals) will govern. This lease is not terminable
by ▇▇▇▇▇▇, except as expressly stated.
5. RENTS, SECURITY DEPOSITS.
5.1(a) FIXED MINIMUM RENT: Tenant agrees to pay Landlord Fixed
Minimum Rent (the Rent) for the Premises in the amounts listed
in the Information Schedule. The Rent will be paid in monthly
installments, in advance, without offset, deduction or prior
demand, on the first day of each month of the original and any
renewal Lease Term. The Rent for the time from the Date of
Occupancy to the first day of the next calendar month will be
paid on the Date of Occupancy.
5.1(b) RENT TAX: If any governmental agency imposes any tax measured
by the amount of rent paid, Tenant will pay such tax at the
time of payment of Fixed Minimum Rent or Additional Rent.
5.2(a) ADDITIONAL RENT: In addition to the Fixed Minimum Rent,
Tenant will pay as Additional Rent Tenant's share of the
property costs which includes: insurance premiums (whether
elective or required). Real property taxes and Tenant's share
of operating costs. Operating costs include all costs and
expenses of any kind or nature incurred by Landlord in
managing, operating, equipping, policing, protecting,
lighting, repairing, replacing
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and maintaining the Building and the common areas, including,
but not limited to, maintenance and repairs, common area
utilities, water and sewer, management, landscaping,
irrigation systems, cleaning, snow removal, signage, lighting,
pest control, security costs, supplies, trash removal, parking
lot sweeping, personal property taxes. Owners' Association
dues, maintenance of and replacement of equipment, exterior
painting, roof repairs, parking lot repairs, seal coating, and
striping, plumbing repairs, and compensation and benefits of
employees involved in such work. Excluded from Operating
Costs are net income taxes, financing costs, capital
improvements, leasing commissions, advertising expenses,
renovation of space for new tenants, and renovation as a
result of casualty from causes against which Landlord carried
insurance. If Tenant fails to pay its share of these
expenses, Landlord shall have the remedies provided for the
failure to pay rent.
5.2(b) PAYMENT OF ADDITIONAL RENT: Additional rent, together with
any tax measured by the amount of the additional rent, will be
paid in monthly installments on the first day of each month in
an amount reasonably established from time to time by
Landlord. Property costs for period including time outside
the Lease Term will be prorated. Landlord will provide an
accounting of actual costs at least annually and any refund
due Tenant or payment due Landlord shall be paid within
fifteen (15) days from receipt of notice.
5.2(c) TENANT'S SHARE: Tenant's share is the percentage obtained by
dividing the number of square feet of leasable area in the
Premises by the number of square feet of leasable area in the
building or Industrial Park (whichever is applicable). The
tenant's share is initially established as set forth in the
Information Schedule.
5.3 RENT OBLIGATIONS INDEPENDENT, STATEMENT, PRORATION, WHERE
PAYABLE, LATE CHARGE: The rent obligations are independent of
any other obligations of Tenant or Landlord and Tenant is not
entitled to any abatement or reduction in rent except as
expressly provided. Tenant waives the benefit of any statute
which would alter this agreement of the parties. Rent due for
any period which is less than one month will be prorated.
Rent is payable to Landlord at the address listed in the
Information Schedule or such other places the Landlord may
designate from time to time in writing. A five (5%) percent
handling fee is due on any rent not paid within ten (10) days
of the due date, unless Landlord elects to pursue actions
under Paragraph 13.
6. USE:
6.1 USE: Tenant covenants and agrees to use the Premises for no
purpose other than those listed in the Information Schedule.
6.2 COMPLIANCE WITH LAW: Tenant at its expense will comply
promptly with all statutes, ordinances, rules and regulations,
orders and requirements (including the recommendations of fire
rating organizations, Tenant's and Landlord's underwriters and
insurance companies), in effect during the Lease Term
regulating the use of the Premises by Tenant. Tenant will not
carry on nor permit any dangerous or offensive activity so as
to create damage to the Property, waste, a nuisance or
disturbance to other tenants.
6.3 ENVIRONMENTAL PROTECTIONS: Tenant acknowledges that there are
in effect federal, state and local laws, regulations, and
guidelines, and that additional and other laws, regulations,
and guidelines may hereinafter be enacted to take effect
relating to or affecting the Premises, and concerning the
impact on the environment of construction, land use,
maintenance and operation of structures, and the conduct of
business. Tenant will not cause or permit to be caused, any
act or practice, by negligence, omission, or otherwise, that
would adversely affect the environment, or do anything or
permit anything to be done that would violate any of said
laws, regulations or guidelines. ▇▇▇▇▇▇ agrees to comply with
Exhibit "D" ("Control of Dangerous/Hazardous Chemicals and
Materials"). Tenant shall indemnify, defend, protect and hold
Landlord, its employees, agents, officers and directors,
harmless from and against all claims, accidents, suits,
proceedings, judgments, losses, costs, damages, liabilities
(including, without limitation, sums paid in settlement of
claims), deficiencies, fines, penalties, punitive damages or
expenses (including, without limitation, reasonable attorneys,
experts', and consultants' fees, investigation and laboratory
fees, court costs and litigation expenses) resulting from any
adverse affect to the environment by ▇▇▇▇▇▇, directly or
indirectly resulting from the presence of any
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Hazardous Materials in, on, or under the Premises that were
introduced to the Premises by ▇▇▇▇▇▇. All obligations of
Tenant under this Article 6.3 shall survive the expiration or
earlier termination of the Lease.
6.4 CONDITION OF PREMISES: ▇▇▇▇▇▇ accepts the Premises in the
condition existing as of the date of this Lease, subject only
to the completion of ▇▇▇▇▇▇▇▇'s work. Tenant accepts the
Premises subject to all applicable zoning, municipal, county,
state and federal laws, ordinances and regulations governing
use of the Premises and to any covenants or restrictions of
record, and matters disclosed by any attached exhibits.
Tenant acknowledges that Landlord and Landlord's agent have
not made any representation or warranty as to the suitability
of the Premises for Tenant's business.
7. MAINTENANCE, REPAIRS AND ALTERATIONS:
7.1 TENANT'S OBLIGATIONS: During the Lease Term Tenant shall
maintain, replace and keep the Premises, fixtures and
equipment in good and clean order, condition and repair,
including but not limited to all windows and doors and their
fixtures, loading dock equipment (dock levelers, overhead
doors, dock shelters, seals and bumpers), pavement under sole
use of Tenant, electrical system, lighting (fixtures, bulbs,
ballasts, starters, and diffusers), plumbing, heating and
cooling system and equipment, floors, sprinkler system,
interior wall surfaces, interior partitions, mezzanines and
all adjacent site improvements. Tenant will maintain
maintenance contracts satisfactory to Landlord covering the
air conditioners and insurance policies covering boilers.
Tenant waives the benefits of any statute which would give
Tenant the right to make repairs at Landlord's expense or to
terminate this Lease because of Landlord's failure to keep the
Premises in good order, condition and repair.
Tenant agrees to store trash in suitable containers outside
the building. ▇▇▇▇▇▇ agrees not to store goods, pallets,
drums, or any other materials outside the premises.
Tenant shall not place a load upon any floor of the premises
exceeding the floor load per square foot area which such floor
was designed to carry and which is allowed by law. Use by
Tenant of any mezzanines for storage is at Tenant's sole risk
and ▇▇▇▇▇▇ agrees to indemnify Landlord from any claims
resulting from any such use.
In the event Landlord designated specific parking areas within
the parking and loading areas, Tenant will cause its
employees, agents, and invitees to park only in the designated
areas. No repair or servicing of any motorized vehicle shall
be allowed in the Premises or any parking or loading areas,
roadways or service areas within the Industrial Park. No
vehicle (including equipment, trailers, and machinery) shall
be abandoned or disabled or in a state of non-operation or
disrepairship upon the property of the Landlord, and Tenant
shall enforce this restriction against Tenant's employees,
agents, and invitees. Should Landlord determine that a
violation of this restriction has occurred, Landlord shall
have the right to cause the offending vehicle to be removed
and all costs of such removal shall be the obligation of the
Tenant responsible for such vehicle within ten (10) days of
written notice to Tenant.
7.2 LANDLORD'S OBLIGATIONS: Landlord will maintain the roof, the
structural integrity of the exterior walls, structural
supports and foundations of the Building and the paved areas
of the Industrial Park (except for pavement under Tenant's
sole use), unless covered by the provisions of Paragraph 9.3.
Landlord may enter the Premises on reasonable notice to carry
out its obligations. Landlord will not unduly interfere with
▇▇▇▇▇▇'s operations. Landlord is not liable for any
reasonable interruption of ▇▇▇▇▇▇'s use of the Premises.
It is expressly agreed between the parties that the Landlord
will not be liable to the Tenant for any damage or injury
which may be sustained by the Tenant or those claiming through
Tenant as a result of leaks in the roof, foundation or outside
walls. The Landlord will be liable to the Tenant only in the
event of the Landlord's willful refusal to repair the roof,
foundation and outside walls, or Landlord's gross negligence
in making such repairs.
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7.3 RAIL SPUR USE AND COSTS (WHERE APPLICABLE):
(a) If Tenant has sole access to a rail spur servicing
the Building or Industrial Park, Tenant, at its sole
cost and expense, shall maintain and repair the
entire rail spur. ▇▇▇▇▇▇ also agrees to reimburse
Landlord as additional rent for all insurance and
other operating costs incurred by Landlord regarding
the rail spur within ten (10) days after receipt of a
statement from Landlord.
(b) If more than one tenant has access to a rail spur or
spurs servicing the Building or Industrial Park, the
Landlord shall coordinate all maintenance and
repairs. Tenants with access to the rail spur(s)
shall reimburse Landlord for the maintenance,
repairs, insurance and other operating costs based
upon the proportion of the Premises to the total
leasable area leased, from time to time, to tenants
having access to the rail spur(s). Tenant shall
reimburse Landlord as additional rent for such costs
within ten (10) days after receipt of a statement
from Landlord.
7.4 SURRENDER OF PREMISES: At the end of the term, or any other
termination, Tenant will return the Premises in good, clean
condition and operating order, after completion of maintenance
and replacement which is Tenant's responsibility. Damage by
ordinary wear and tear is excepted to the extent that it is
not part of Tenant's obligation to maintain and replace. Also
excepted is casualty from causes against which Landlord
carried insurance. Extraordinary wear and tear due to
Tenant's use of the Premises is the responsibility of Tenant.
Damage to the Premises caused by Paragraph 7.5(c) removals
will be repaired by Tenant. Tenant shall notify Landlord in
writing (cont) at least 120 days prior to vacating the
Premises and shall within 30 days prior to vacating arrange to
meet with Landlord for a joint inspection of the Premises
shall be deemed correct for the purpose of determining
Tenant's responsibility for repairs and restoration of the
Premises.
7.5 ALTERATIONS AND ADDITIONS:
7.5(a) CONSENT: Tenant will not make any alterations or improvements
to the Premises, or changes to the exterior of the Premises,
or the exterior of the Building without Landlord's prior
written consent. Landlord may condition its consent with any
of the following:
(i) Tenant's agreement to remove any alterations or
improvements upon termination, and to restore the
Premises to the prior condition.
(ii) A lien and completion bond equal to one and one-half
times the estimated cost of improvements.
(iii) Insurance necessary to protect both parties while
work is in progress.
(iv) Waivers of Liens from all contractors or
sub-contractors involved in the alterations or
improvements.
7.5(b) LIENS: Claims for labor or materials for, or purporting to be
for, labor or materials furnished to Tenant shall be paid by
Tenant when due, or secured by bond, so as to immediately
discharge any liens filed against the Premises, Building or
Industrial Park. In the event Tenant does not discharge any
such liens, Landlord shall have the right, but not the
obligation, to discharge such liens. Any such amount paid or
incurred by Landlord shall be immediately due and payable as
additional rent by Tenant to Landlord together with interest
at the rate indicated in Paragraph 24.10 from the date of
payment by Landlord until paid by ▇▇▇▇▇▇.
7.5(c) SURRENDER OR REMOVAL OF ALTERATIONS: Unless removal is
required by Landlord, at Landlord's option, all alterations or
improvements will become the property of Landlord and will be
surrendered with the Premises at the end of the Lease Term or
other termination, without payment. Tenant's machinery and
equipment, unless it is fixed to the Premises so that it
cannot be removed without material damage, remains the
property of Tenant and may be removed by Tenant subject to
Paragraph 7.4.
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8. INSURANCE:
8.1 LIABILITY INSURANCE: During the Lease Term Tenant will
maintain a broad form policy of comprehensive general
liability insurance insuring Landlord and Tenant against
liability arising out of the use, occupancy or maintenance of
the Premises. The insurance will be for not less than
$1,000,000 combined single limit personal injury and property
damage. The limits of the insurance will not limit the
liability of Tenant. The policy will contain cross-liability
endorsements, if applicable, and will insure Tenant's
performance of the indemnity provisions of Paragraph 8.5. If
Tenant fails to maintain the required insurance, Landlord may,
but is not obligated to, maintain the insurance at Tenant's
expense. The policy shall expressly provide that it is not
subject to invalidation of the Landlord's interest by reason
of any act or omission on the part of Tenant.
8.2(a) LANDLORD'S INSURANCE: During the Lease Term Landlord will
maintain policies of insurance covering loss or damage to the
Building in the amount of the full replacement value,
providing protection against all perils included within the
classification of fire and extended coverage. Landlord may
elect to provide comprehensive general liability insurance,
rent loss, vandalism, malicious mischief, sprinkler leakage,
war, automobile, umbrella, flood boiler, air conditioner and
all-risk insurance. The insurance will provide for payment
for loss to Landlord or to the holder of a first mortgage or
deed of trust on the property.
8.2(b) PAYMENT OF PREMIUMS, INSURANCE POLICIES: Landlord shall pay
the premiums for the insurance policies maintained by Landlord
under Paragraph 8.2(a) and Tenant shall pay Landlord as
Additional Rent Tenant's share of the Premiums as provided in
Paragraph 5.2. If the Lease Term expires before the
expiration of the insurance period, Tenant's liability shall
be prorated on an annual basis.
8.2(c) TENANT'S PERSONAL PROPERTY: Tenant assumes all risk of loss
or damage to ▇▇▇▇▇▇'s Property. Tenant assumes the risk that
loss or damage to ▇▇▇▇▇▇'s Property, to the Premises or to the
Property may result in loss of income, profits or goodwill to
the business of Tenant or other persons interested in Tenant's
Property. Tenant releases and holds Landlord harmless from
liability for these losses or damage, except arising out of
Landlord's gross negligence or willful misconduct. Tenant's
Property includes all goods, equipment, inventory,
merchandise, records and other personal property and all
fixtures, improvements and betterments placed in or about the
Premises, belonging to Tenant or any person connected with, or
claiming under or through Tenant. ▇▇▇▇▇▇ agrees to indemnify
Landlord and save it harmless from all loss or claims,
including reasonable attorneys fees and costs in defending a
claim, arising out of loss or damage to ▇▇▇▇▇▇'s Property
belonging to others. Landlord means Landlord, its employees
and agents.
TENANT SHALL PROVIDE INSURANCE TO THE EXTENT OF NOT LESS THAN
NINETY PERCENT (90%) OF THE FAIR MARKET VALUE OF TENANT'S
PROPERTY AS APPRAISED BY TENANT'S INSURER(S), WITH AN AGREED
AMOUNT ENDORSEMENT. TENANT, AT ITS SOLE COST AND EXPENSE,
SHALL OBTAIN THE INSURANCE COVERAGES NECESSARY TO PROVIDE
PROTECTION FOR THE RISKS AND OBLIGATIONS TO INDEMNIFY ASSUMED
BY TENANT AND SHALL MAINTAIN SUCH INSURANCE FOR THE LEASE
TERM. TENANT AGREES TO NOTIFY EACH INSURANCE CARRIER OF THE
TENANT'S ASSUMPTION OF RISK, RELEASE AND INDEMNIFICATION
STATED ABOVE. TENANT ACKNOWLEDGES THAT ITS INSURANCE
COVERAGES COULD BE VOIDED OR OTHERWISE ADVERSELY AFFECTED BY
THE FOREGOING PARAGRAPH UNLESS THE INSURANCE CARRIER HAS
WAIVED ITS RIGHT OF SUBROGATION OR HAS OTHERWISE AGREED TO THE
ABOVE ASSUMPTION OF RISK, RELEASE AND HOLD HARMLESS AGREEMENT
AND INDEMNIFICATION.
8.3(a) TENANT'S INSURANCE POLICIES: Insurance carried by Tenant will
be with responsible carriers acceptable to Landlord and
licensed in the State in which the Property is located. The
Tenant will deliver to Landlord certified copies of the
policies of insurance or certificates evidencing the existence
and amounts of the insurance. No policy shall be cancelable
or subject to reduction of coverage or other modification
except after 30 days prior written notice to Landlord. Tenant
shall, at least 30 days prior to the expiration of the
policies,
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furnish Landlord with renewals or "Binders" for the policies,
or Landlord may order the required insurance and charge the
cost to Tenant pursuant to Paragraph 23.
8.3(b) INCREASED RISK: Tenant will not do anything or permit
anything to be done or any hazardous condition to exist
("Increased Risk") which shall invalidate or cause the
cancellation of the insurance policies carried by either
Tenant or Landlord. If Tenant does or permits any Increased
Risk which causes an increase in the cost of Landlord's
insurance policies then Tenant shall reimburse Landlord
pursuant to Paragraph 23 for additional premiums attributable
to any act, omission or operation of Tenant causing the
increase in the premiums, including, but not limited to,
non-compliance with recommendations under Paragraph 6.2.
Payment of additional premiums will not excuse Tenant from
terminating or removing the Increased Risk unless Landlord
agrees in writing. Absent agreement, Tenant shall promptly
terminate or remove the Increased Risk.
8.4 WAIVER OF SUBROGATION ON PROPERTY POLICIES: Each party
releases the other party from any and all liability or
responsibility (to the other party or anyone claiming
through___ under them by way of subrogation or otherwise) for
_____ or damage to property resulting from causes insured
against, even if such casualty has been caused by the fault or
negligence of the other party, or anyone for whom such party
may be responsible.
8.5 INDEMNIFY: Tenant shall indemnify and hold harmless Landlord,
its agents and employees, from and against any and all claims
arising from: (a) Tenant's use of the Premises, (b) the
conduct of Tenant's business or anything else done or
permitted by Tenant to be done in or about the Premises or
elsewhere in the Industrial Park, (c) any breach or default in
the performance of Tenant's obligations under the Lease, or
arising from any negligence of the Tenant, or Tenant's agents,
contractors or employees. Tenant shall defend Landlord
against all costs, attorney's fees, expenses and liabilities
incurred in the defense of any such claim action or
proceeding. In case any action or proceeding is brought
against Landlord by reason of a claim, Tenant, upon notice
from Landlord, shall defend the same at Tenant's expense by
counsel satisfactory to Landlord. Tenant assumes all risk of
damage to property or injury to persons, in or about the
Premises arising from any cause and Tenant waives all such
claims against Landlord, except claims due to Landlord's gross
negligence or willful misconduct. The liability of Tenant to
indemnify Landlord, its agents and employees, shall not extend
to any matter against which Landlord shall be effectively
protected by insurance, provided that if any liability shall
exceed the amount of effective and collectable insurance, the
liability of Tenant shall apply to the excess. Whether the
insurance is "effective" depends in part, but not by way of
limitation, on the absence of any defense to coverage made the
insurer.
9. CASUALTY, DAMAGE:
9.1 DAMAGE TO PREMISES: Tenant will give immediate notice to
Landlord of fire or other casualty damage to the Premises.
Landlord will repair the Premises, except damage from items in
which Tenant is responsible for under Paragraph 6.3 herein and
unless it decides to terminate under Paragraph 9.2. Tenant
will be obligated to pay pro rata fixed and additional rent on
the portion of the Premises it can occupy.
9.2 OPTIONS TO TERMINATE:
9.2(a) PREMISES DAMAGE: If the Building is substantially destroyed
or the damage requires more than 150 days from the date of the
damage to repair, either Landlord or Tenant has the option to
terminate this Lease by giving written notice within 30 days
after the date of the damage (except Tenant shall not have
such option if less than twenty-five (25%) percent of the
Premises is damaged, in which case the provisions of 9.2(b)
shall apply). This Lease shall terminate either 30 days after
receipt of the notice or the date Tenant vacates the Premises,
whichever is sooner.
9.2(b) REPAIRS REQUIRING LESS THAN 150 DAYS TO REPAIR: If the
estimated repair time is less than 150 days and Landlord
diligently pursues repairs, Tenant may not terminate if repair
time runs over 150 days due to causes beyond Landlord's
control.
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9.2(c) DAMAGE DURING LAST SIX MONTHS OF TERM: If casualty damage
occurs to the Premises or to the Building during the last six
(6) months of the Lease Term, Landlord may terminate this
Lease. If Tenant has an unexpired option to extend, the
option to extend or renew must be exercised within twenty (20)
days of the casualty. If the option is exercised Landlord may
not cancel unless there is substantial damage. If the option
is not exercised, the option is terminated and Landlord may
terminate the Lease.
9.3 NEGLIGENCE OF TENANT - UNINSURED LOSS: An "Insured Loss" is
damage caused by an event which is either required to be or
which has been elected by Landlord to be covered by insurance
described in Paragraph 8.2(a). If casualty damage occurs
which is not an Insured Loss and which is due to a negligent
or willful act of Tenant, Tenant will repair the damage at its
expense and will remain liable for the full rent during
repair. Termination under Paragraph 9.2 will not be available
to Tenant.
9.4 TENANT CLAIMS: No compensation, claims, or diminution of rent
will be paid or allowed by Landlord, by reason of
inconvenience, annoyance, or injury to business, arising from
the necessity of repairing any other portion of the Building
however the necessity may occur.
10. REAL PROPERTY TAXES:
10.1 PAYMENT OF TAXES: Landlord shall pay the "Base Real Property
Taxes" on the Property during the Lease Term. Base Real
Property Taxes are real property taxes applicable to the
Property as shown on the tax bill for the most recent tax
fiscal year ending prior to the Commencement Date. Tenant
shall pay Landlord, ▇▇▇▇▇▇'s Share of the amount, if any, by
which the real property taxes during the Lease Term exceed the
Base Real Property Taxes as Additional Rent as provided in
Paragraph 5.2. If the Premises are not separately assessed,
▇▇▇▇▇▇'s share of the real property tax payable by Tenant
shall be prorated.
10.2 DEFINITION OF "REAL PROPERTY TAX". The term "Real Property
Tax" includes any form of assessment, license fee, levy,
penalty or tax (other than inheritance or estate taxes),
imposed by an authority with direct or indirect power to tax
any legal or equitable interest of Landlord in the real
property of which the Premises are a part, but shall not
include any rent tax payable by Tenant under Paragraph 5, nor
any corporate franchise or income taxes.
10.3 PERSONAL PROPERTY TAXES: Tenant will pay, before delinquent,
all taxes assessed against trade fixtures, furnishings,
equipment and all other personal property of Tenant. Tenant
will cause these items to be assessed and billed separately
from the real property of Landlord.
11. UTILITIES: Tenant will pay directly to the appropriate supplier, the
cost of all water/sewer, gas, heat, light, electrical, telephone,
refuse disposal and other utilities and services supplied to the
Premises, and any taxes on those bills. If any services are not
separately metered, Tenant will pay as Additional Rent as provided in
Paragraph 5.2 a proportion of all jointly-metered utilities used by
other occupants of the property based either upon type and extent of
use or on area, as reasonably determined by Landlord.
12. ASSIGNMENT AND SUBLETTING:
12.1 LANDLORD'S CONSENT REQUIRED: Tenant will not voluntarily or
by operation of law assign, transfer, mortgage, sublet or
otherwise transfer or encumber all or part of Tenant's
interest in this Lease or in the Premises, without ▇▇▇▇▇▇▇▇'s
prior written consent which consent may not be unreasonably
withheld by Landlord. Any attempted assignment, transfer,
mortgage, encumbrance or subletting without consent shall be
void as against Landlord, and shall constitute a breach of the
Lease.
12.2 NO RELEASE OF TENANT: Regardless of Landlord's consent, no
subletting or assignment will alter the primary liability of
Tenant to pay the rent and to perform all other obligations to
be performed by ▇▇▇▇▇▇. Acceptance
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of rent from any other person will not be deemed a waiver by
Landlord of any provision of this Lease. Consent to one
assignment or subletting will not be deemed consent to any
subsequent assignment or subletting.
12.3 PARTICIPATION BY LANDLORD: In the event of any assignment or
sublease involving rent in excess of the Fixed Minimum Rent or
Additional Rent required under this Lease as Excess Rent),
Landlord shall participate in the Excess Rent. Tenant shall
promptly forward to Landlord fifty (50%) percent of all such
Excess Rent collected from the assignee or subtenant and shall
supply Landlord with true copies as executed of all
assignments and subleases.
12.4 PROCESSING FEES: If Landlord consents to sublease or
assignment, Tenant will pay a processing fee of $350.
13. DEFAULTS, REMEDIES:
13.1 EVENTS OF DEFAULT: It is a default under this Lease if any of
the following "Events of Default" happens:
(a) If any Fixed Monthly Rent is not paid when due and
default continues for a period of five (5) days; or
(b) If any additional rent is not paid when due and
default continues for a period of ten (10) days; or
(c) If the provisions of Paragraph 6.3 are not fully complied with; or
(d) If Tenant defaults under any of the terms of this
Lease other than those in 13.1(a), (b) and (c), and
default continues for fifteen (15) days after written
notice (except if default cannot be completely cured
within fifteen (15) days, it will not be an Event of
Default if Tenant starts to cure within the fifteen
(15) day period, and in good faith continually
proceeds to remedy the default); or
(e) If Tenant or any person who has guaranteed
performance, files a voluntary petition in bankruptcy
or is adjudicated a bankrupt or insolvent, or files a
petition or answer seeking relief under any federal,
state or other statute or regulation, or seeks or
consents or acquiesces in the appointment of a
trustee, receiver or liquidator of Tenant or
guarantor, or of all or any substantial part of
Tenant's properties or of the Premises or any or all
rents, earnings, or income or makes an assignment for
the benefit of creditors, or admits in writing its
inability to pay its debts generally as they become
due; or
(f) If a petition is filed against Tenant, or any person
who has guaranteed performance, seeking relief under
any federal, state or other statute or regulation,
which remains undismissed or unstayed for an
aggregate of sixty (60) days (whether or not
consecutive), or if a trustee, receiver or liquidator
of Tenant or guarantor, or of all or any substantial
part of its properties or of the Premises or any or
all rents, or income is appointed without the consent
or acquiescence of Tenant, or guarantor, and the
appointment remains unvacated or unstayed for an
aggregate of sixty (60) days (whether or not
consecutive).
(g) In the event Tenant or Tenant's subsidiary or
affiliate shall lease other Premises from Landlord,
any default under such other leases shall be deemed
to be a default under this Lease and Landlord may
enforce all rights and remedies for an Event of
Default herein.
13.2 NOTICE, TERMINATION:
Landlord at any time after the happening of an Event of
Default may declare an Event of Default by written notice to
Tenant specifying the Event(s) of Default. In the same or a
later written notice Landlord may elect that this Lease
terminate at 5:00 p.m. on the date listed by Landlord. The
date will be at least five (5) days after the giving of the
termination notice (including the termination date). On the
date in the notice, subject
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to Paragraph 13.4, the Lease and all interests demised will
terminate and all rights of the Tenant shall cease. The
termination will not take place if before the stated date and
time:
(i) Tenant has paid all arrears of fixed minimum rent and
additional rent and all other amounts payable by
Tenant (together with interest pursuant to Paragraph
24.10) and as additional rent all expenses
(including, without limitation, attorney's fees and
expenses) incurred by Landlord due to any default by
Tenant, (the "arrearages"), and
(ii) All other defaults have been cured to the
satisfaction of Landlord.
13.3 REPOSSESSION, RELETTING: After notice of an Event of Default,
whether before or after a termination as provided in Paragraph
13.2, Landlord, without further notice and with no liability
to Tenant, may repossess the Premises, by summary proceedings,
ejectment or otherwise, and remove Tenant and all other
persons and any and all property from the Premises. After
such repossession, Landlord may (but is under no obligation
to) relet the Premises, any part thereof, or the Premises with
additional premises, on account of Tenant (until Landlord
makes demand for final damages), in Tenant's or Landlord's
name, without notice to Tenant, for a term (which may be more
or less than the period which would have been the balance of
the term of this Lease) and on conditions (including
concessions, periods of rent free use, or alterations) and for
purposes which Landlord determines and Landlord may receive
the rents. landlord is not liable for failure to collect any
rent due upon any such reletting.
13.4 SURVIVAL OF TENANT'S OBLIGATIONS, DAMAGES: No provisions in
Paragraphs 13.1, 13.2 and 13.3, will relieve Tenant of its
liability and obligations under this Lease, all of which will
survive. ▇▇▇▇▇▇▇▇ will not be deemed to accept a surrender of
▇▇▇▇▇▇'s lease or otherwise discharge Tenant because Landlord
takes or accepts possession of the Premises or exercises
control over them as provided. Acceptance of surrender and
discharge may be done only by an instrument executed on behalf
of Landlord by its duly authorized officer or employee.
In the event of termination or repossession following an Event
of Default, Tenant will pay to Landlord the Arrearages up to
the earlier of the date of termination or repossession.
Further, Tenant until the end of what would have been the term
of this Lease in the absence of termination and whether or not
the Premises or any part have been relet, is liable to
Landlord for, and will pay to Landlord, as liquidated and
agreed "Current Damages" for Tenant's default:
(a) The Fixed Minimum Rent and all additional rent and
other charges payable by Tenant or which would be
payable if this Lease had not terminated, plus all
Landlord's expenses in connection with any reletting,
including, without limitation, repossession costs,
brokerage commissions, legal expenses, attorney's
fees, expenses of employees, alteration costs, and
expenses of preparation for such reletting.
(b) The net proceeds, if any, of any reletting on account
of Tenant pursuant to Paragraph 13.3. If the
Premises have been relet with additional premises,
the net proceeds, if any, of reletting shall be
prorated.
Tenant shall pay Current Damages to Landlord monthly on the
days on which the Fixed Minimum Rent would have been payable
if the Lease were not terminated, and Landlord is entitled to
recover from Tenant each month. After termination under
Paragraph 3.2, whether or not Landlord has collected Current
Damages, Tenant will pay to Landlord on demand, as liquidated
and agreed "Final Damages" for Tenant's default and in lieu of
all Current Damages beyond the date of demand, an amount equal
to the present cash value on the date of demand on the Fixed
Minimum Rent and additional rent and other charges which would
have been payable from the date of demand for what would have
been the unexpired term of this Lease if it has not been
terminated plus the Arrearages to the earlier of the date of
termination or repossession and Current Damages up to the date
of demand which remain unpaid.
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If any statute or rule of law governing a proceeding in which
Final Damages are to be proved validly limits the amount to
an amount less than that provided for, Landlord is entitled to
the maximum amount allowable under the statute or rule of law.
The discount rate of interest shall be as provided in
Paragraph 24.10.
14. CONDEMNATION:
14.1 PERMANENT CONDEMNATION: If the Premises or any portion are
taken under the power of eminent domain, or sold under the
threat of the exercise of the power (both called
"Condemnation"), this Lease will terminate as to the part
taken as of the first date the condemning authority takes
either title or possession. If the portion of the Premises
taken is more than twenty-five (25%) percent or makes the
balance unfit for Tenant's use, Tenant has the option to
terminate this Lease as of the date the condemning authority
takes possession. The option will be exercised in writing as
follows:
(i) Within thirty (30) days after the condemning
authority has taken possession.
(ii) Absent notice, within ten (10) days after the
condemning authority has taken possession.
If Tenant does not terminate, this Lease will remain in full
force and effect as to the portion of the Premises remaining.
The rent will be proportionately reduced.
Any award for Condemnation is the Landlord's whether the award
is made as compensation for diminution in value of the
leasehold or for the taking of the fee, or as severance
damages. Tenant is entitled to any award for damage to
▇▇▇▇▇▇'s trade fixtures and removable personal property and
moving expenses. If this Lease is not terminated, Landlord,
to the extent of severance damages received, will repair
damage to the Premises caused by Condemnation except to the
extent that ▇▇▇▇▇▇ has been reimbursed by the condemning
authority. Tenant will pay any amount in excess of the
severance damages required to complete the repair.
14.2 TEMPORARY CONDEMNATION: Upon Condemnation of all or a part of
the Premises for temporary use, this Lease will continue
without change or abatement in Tenant's obligations, as
between Landlord and Tenant. Tenant is entitled to the award
made for the use. If the Condemnation extends beyond the term
of the Lease, the award will be prorated between the Landlord
and the Tenant as of the expiration date of the term. The
Tenant is responsible for the cost of any restoration work
required to place the Premises in the condition they were in
prior to Condemnation unless the release of the Premises
occurs after termination. In such case, ▇▇▇▇▇▇ will assign to
the Landlord any claim it may have against the condemning
authority. If Tenant has received restoration funds, it will
give the funds to Landlord within fifteen (15) days after
demand.
15. FORCE MAJEURE: If ▇▇▇▇▇▇▇▇'s performance of any obligations under any
provision in this Lease is delayed by an act or neglect of Tenant, Act
of God, strike, labor dispute, unavailability of materials, boycott,
governmental restrictions, riots, insurrection, war, catastrophe, or
act of the public enemy, the period for the beginning or completion of
the (cont.) obligation is extended for a period equal to the delay.
16. SUBORDINATION: This Lease, at Landlord's option, will be subordinate
to any form of security now or later placed on the property and to all
advances made on the security and to all renewals, modifications,
consolidations, replacements and extensions. ▇▇▇▇▇▇'s right to quiet
possession of the Premises will not be disturbed if Tenant is not in
default under this Lease, unless it is otherwise terminated under the
terms. If any mortgagee, trustee or ground lessor elects to have this
Lease prior to the lien of its security, and gives written notice to
Tenant, the Lease will be deemed prior to the security, whether dated
before or after the date of the security, or the recording date.
▇▇▇▇▇▇ agrees to execute any required documents, and ▇▇▇▇▇▇
irrevocably appoints Landlord as ▇▇▇▇▇▇'s attorney-in-fact to do so,
if ▇▇▇▇▇▇ fails to so execute within ten (10) days after written
demand.
17. ESTOPPEL CERTIFICATE: Tenant, after not less than ten (10) days prior
written notice from Landlord, will deliver to Landlord a written
statement (i) certifying that this Lease is unmodified and in full
force and effect (or, if modified, stating the nature of the
modification and certifying that this Lease, as so modified, is in
full force and effect) and the
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date to which the rent and other charges are paid in advance, if any,
(ii) stating the amount of the security deposit, if any, held by
Landlord and (iii) acknowledge that there are not, to Tenant's
knowledge, any uncured defaults on the part of Landlord, or stating
any claimed defaults. The statement may be relied upon by any
prospective purchaser or lender of the Premises.
▇▇▇▇▇▇'s failure to deliver the statement within said time will be
conclusive upon Tenant (i) that this Lease is in full force and
effect, without modification except as may be represented by Landlord,
(ii) that any security deposit is as represented by Landlord, (iii)
that there are no uncured defaults in Landlord's performance, and (iv)
that not more than one month's rent has been paid in advance.
If Landlord desires to sell or finance or refinance all or part of the
Premises, ▇▇▇▇▇▇ agrees to deliver to any proposed purchaser or lender
named by Landlord all financial statements of Tenant as may be
reasonably required by the proposed purchaser or lender. The
statements will include the past three years' financial statements of
Tenant. All financial statements will be received by Landlord in
confidence and will be used only for these purposes.
18. CORPORATE AUTHORITY: If Tenant is a corporation, each individual
executing this Lease on behalf of the corporation represents and
warrants that he is duly authorized to execute and deliver this Lease
on behalf of the corporation, in accordance with a duly adopted
resolution of the Board of Directors of the corporation, or in
accordance with the bylaws of the corporation, and that this Lease is
binding upon the corporation.
19. NOTICES: All notices required or permitted under this Lease shall be
in writing and shall be deemed duly given if sent by United States
certified or registered mail, return receipt requested, or by Federal
Express or other major overnight courier that provides evidence of
delivery, addressed to Landlord or Tenant, respectively, at the
addresses provided in the Information Schedule.
Either party by notice as provided above may change the address for
notices and/or payment of rent.
20. BROKER'S FEE: Landlord and ▇▇▇▇▇▇ represent and warrant to each other
that except as listed in the Information Schedule, no broker, agent or
finder has been employed by or in connection with this Lease and no
commissions are payable by it to any person. Tenant and Landlord each
agree to indemnify, defend and save harmless the other from any
expenses of claim for fees or commissions resulting from the
indemnifying party having dealt with any broker, agent or finder in
negotiating this Lease. Landlord and ▇▇▇▇▇▇ acknowledge that the
broker(s) in this transaction are as listed in the Information
Schedule and that payments of commissions will be in accordance with
their respective agreements. Tenant represents it did not deal with
any other broker, agent or finder purporting to represent Landlord.
21. LANDLORD'S ACCESS: Landlord and ▇▇▇▇▇▇▇▇'s agents have the right to
enter the Premises at reasonable times for the purpose of inspecting,
showing the Premises to prospective purchasers, tenants, lenders, and
making alterations, repairs, improvements or additions to the Premises
or to the Building that Landlord deems necessary or desirable.
Landlord may place any ordinary "For Sale" or "For Lease" signs on the
Premises or the Building, without rebate of rent liability.
22. LANDLORD'S LIABILITY: The term "Landlord" means only the owner or
owners of the fee title at the time in question. If the Landlord (or
the then grantor) transfers any title or interest, from and after the
date of transfer the Landlord (or the then grantor) is relieved of all
liability for Landlord's obligations. Any Security Deposit not
delivered to the grantee is excepted. Landlord's obligations under
this Lease shall thereafter be binding on Landlord's successors and
assigns. ▇▇▇▇▇▇ agrees to attorn to any transferee or lender of
Landlord.
23. LANDLORD'S RIGHT: If Tenant fails to make any required payment or
defaults in performing any other term in this Lease, Landlord may, but
need not (and without waiving the default), make such payment or
remedy other defaults for Tenant's account and at Tenant's expense,
immediately and without notice in case of emergency, otherwise on five
(5) days written notice to Tenant. The costs, with interest under
Article 24.10, and with a charge equaling fifteen (15%) percent of the
cost (to cover Landlord's overhead), in due as additional rent with
Tenant's next fixed minimum rent installment.
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24. MISCELLANEOUS:
24.1 TIME OF ESSENCE: Time is of the essence under this Lease.
24.2 COVENANTS AND CONDITIONS: Each provision of this Lease
performable by Tenant is both a covenant and a condition.
24.3 CAPTIONS: Article and paragraph captions are only for
convenience.
24.4 INCORPORATION OF PRIOR AGREEMENTS, AMENDMENTS: This Lease
contains all agreements of the parties with respect to any
matter mentioned. No prior agreement or understanding is
effective after execution of this Lease. This Lease may be
modified in writing only, signed by the parties. The Exhibits
listed on the Information Schedule and attached to this Lease
are part of this Lease as fully as if placed in the body of
the Lease.
24.5 CUMULATIVE REMEDIES: No remedy or election is exclusive but,
wherever possible, is cumulative with all other remedies of
law or in equity.
24.6 SEVERABILITY: The invalidity of any provision of this Lease
as determined by a court of competent jurisdiction, shall not
affect the validity of any other provision. The valid
portions of the Lease shall be interpreted together to
accomplish the intent of the parties.
24.7 MERGER: The voluntary or other surrender by Tenant or a
mutual cancellation will work a merger, and at Landlord's
option, will terminate existing subtenancies or operate as an
assignment of subtenancies.
24.8 HOLDING OVER: If Tenant retains possession after the Lease
Term expires, without the written consent of Landlord, the
occupancy will be a tenancy from month to month at a rent in
the amount of twice the last fixed minimum rent plus all
additional rent and other charges payable, and upon all other
terms contained herein. Any options (i.e. renewal, expansion)
and rights of first refusal contained in the Lease are
terminated in the event of a holdover tenancy.
24.9 WAIVERS: Waiver by Landlord of any provision is not a waiver
of any other provision or of any subsequent breach by Tenant
of the same or any other provision. ▇▇▇▇▇▇▇▇'s consent or
approval in the future. The acceptance of rent by ▇▇▇▇▇▇▇▇ is
not a waiver of any breach by Tenant other than the failure of
Tenant to pay the particular rent accepted, regardless of
whether ▇▇▇▇▇▇▇▇ knows of such a breach.
24.10 INTEREST ON PAST DUE OBLIGATIONS: Any amount due to Landlord
not paid when due will bear interest from the date due at the
prime lending rate in effect from time to time at the Chase
Manhattan Bank, N.A., in New York City, or the highest rate of
interest payable under the law, whichever is lower. Payment
of interest will not cure any default by Tenant under this
Lease except as expressly provided.
24.11 ATTORNEY'S FEES: If either party brings an action regarding
terms or rights under this Lease, the prevailing party in any
action, on trial or appeal, is entitled to reasonable
attorney's fees as fixed by the court to be paid by the losing
party. The term "attorney's fees" shall include, but is not
limited to, reasonable attorney's fees incurred in any and all
judicial, bankruptcy, reorganization, administrative or other
proceeding, including appellate proceedings, whether the
proceedings arise before or after entry of a final judgment
and all costs and disbursements in connection with the matter.
24.12 WAIVER OF JURY TRIAL: Landlord and Tenant each waive trial by
jury in any action, proceeding, or counterclaim brought by
either of the parties to this Lease against the others on any
matter whatsoever arising out of or in any way connected with
this Lease or its termination, the relationship of Landlord
and ▇▇▇▇▇▇,
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Tenant's use or occupancy of the Premises, and/or any claim of
injury or damage and any emergency statutory or any other
statutory remedy.
24.13 RECORDING: ▇▇▇▇▇▇ will not record this Lease without
▇▇▇▇▇▇▇▇'s written consent. Any recordation, at ▇▇▇▇▇▇▇▇'s
option, will constitute a non-curable default of Tenant.
24.14 SIGNS AND AUCTIONS: Tenant shall not place any sign upon or
conduct any auction on the Premises without Landlord's prior
written consent.
24.15 SECURITY: Tenant acknowledges that the rents reserved in this
Lease do not include the cost of security guards or other
security measures, and that Landlord has no obligation to
provide such services. Tenant assumes all responsibility for
the protection of Tenant, its agents, employees and invitees
from acts of third parties.
24.16 RELOCATION OF TENANT: Landlord reserves the right, at its
sole option, to relocate Tenant to a comparable space (the
Relocation Space) in the Industrial Park. Landlord may use
decorations and materials from the Premises or other materials
in making the Relocation Space comparable to the Premises.
Neither the Fixed Minimum Rent nor the Tenant's Share
percentage shall be changed on account of the move unless it
is raised or reduced in accordance with the share percentage
for the Relocation Space. ▇▇▇▇▇▇ agrees that no rights
granted in this Lease shall be deemed breached by ▇▇▇▇▇▇▇▇'s
exercise of rights under this paragraph. Landlord shall pay
the decoration costs, moving expenses for furniture, fixtures
and equipment, utility hookup charges and reasonable actual
out-of-pocket expenses incurred by Tenant.
24.17 EASEMENTS AND RESTRICTIVE COVENANTS: Landlord reserves the
right of grant and record easements, cross-easements, rights,
restrictive covenants and conditions and dedications which it
deems necessary or desirable. The grants will not
unreasonably interfere with ▇▇▇▇▇▇'s use of the Premises.
▇▇▇▇▇▇ agrees to promptly execute documents requested by
▇▇▇▇▇▇▇▇. Failure to execute will be a material breach under
this Lease.
24.18 RULES AND REGULATIONS: Tenant will comply with Landlord's
rules and regulations respecting the Industrial Park. Notice
of the rules and regulations will be posted or given to
Tenant.
24.19 BINDING EFFECT, CHOICE OF LAW: Subject to provisions
restricting assignment or subletting and to the provisions of
Paragraph 22, this Lease will bind the parties, their personal
representatives, successors and assigns. This Lease shall be
governed by the laws of the state in which the Premises are
located.
24.20 ABSENCE OF OPTION: The submission of this Lease for
examination does not constitute a reservation of or an option
for the Premises and this Lease becomes effective only upon
execution by Landlord.
25. SPECIAL STIPULATIONS: Insofar as the following Special Stipulations
conflict with any of the foregoing provisions, the following Special
Stipulations shall control. Special Stipulations, if any, are
attached hereto and made a part of this Agreement as Exhibit "E".
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Both parties acknowledge that they have reviewed this Lease thoroughly
and have given their voluntary consent to the provisions. The Landlord and
Tenant agree that, at execution, the terms are commercially reasonable and show
the intent of the parties.
The parties thereto have executed this Lease on the dates specified
below.
LANDLORD:
WITNESSES: NATIONAL LIFE INSURANCE COMPANY
a Vermont corporation
By: Karsten Realty Advisors
a California corporation
as Real Estate Investment Manager
By:
------------------------------------ ------------------------------------
By:
------------------------------------ ------------------------------------
TENANT: SPECTRX, INC.
WITNESSES:
By:
------------------------------------ ------------------------------------
▇▇. ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------------
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SIGNAGE CRITERIA
In order to maintain a uniform appearance of Plaza ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇,
the following sign criteria has been established:
1. Color and design of signage solely controlled by Landlord.
2. Signage and installation to be paid by ▇▇▇▇▇▇.
3. A schematic for tenant signage to be provided to insure
correct lettering of company name.
4. Landlord shall approve all copy and tenant shall initial
schematic prior to order placement by Landlord.
5. Landlord shall direct placement of all tenant signs and
methods of attachment to window.
18
REGULATIONS
SIGNAGE: As described in "Signage Criteria".
LOCKS: All locks must be keyed to master in case of
emergency. Please contact leasing office if
locks need to be re-keyed.
JANITORIAL: Any person employed by Tenant to do janitorial work,
shall, while in the buildings be subject to and
under control and direction of the Landlord or its
agents (but not as agent of Landlord or its agent).
WATER/SEWER/TRASH: The project is serviced by a master meter and
numerous dumpsters. Each Tenant will pay a pro rata
share per month standard charge to Landlord. This
is subject to annual increases as per lease.
Tenants will incur an additional charge for any
trash left outside dumpster or tenant premises.
WINDOW COVERINGS: Bronze mini-blinds as specified by Landlord.
EXTERIOR PREMISES: Sidewalks, entrances, service areas, courts and
corridors of buildings shall not be obstructed or
used for storage or any purpose other than ingress
and egress by Tenant.
Tenant shall be permitted to move furniture and
office furnishings into or out of building only
between the hours of 5:30 p.m. and 8:00 a.m. and on
Saturday and Sunday. Any other moving time shall
be approved and controlled by Landlord.
QUIET ENJOYMENT: Tenant shall not unreasonably interfere with the
quiet enjoyment of all other occupants of buildings
and shall not permit any objectional noise or odor
to emanate from Premises, nor disturb, solicit or
canvass any occupant of buildings.
Landlord reserves the right to make such other and
further reasonable regulations as in its judgement
may from time to time be necessary for the safety,
good order and cleanliness of the buildings and
premises and any such other and further regulations
shall be binding upon the parties hereto with the
same force and effect had they been inserted herein
at a time of lease execution.
19
EXHIBIT "A"
DESCRIPTION OF THE PREMISES AND ADJACENT SITE IMPROVEMENTS
The Premises are described as follows: Plaza 85 Business Park
6025 - A/B/C ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
The Adjacent Site Improvements are described
as follows:
[map graphics]
PLAZA EIGHTY FIVE BUSINESS PARK
20
EXHIBIT "B"
FLOOR PLAN
[Floor Plan graphic]
21
EXHIBIT "C"
DESCRIPTION OF THE LANDLORD'S WORK AND TENANT'S WORK
1. Landlord hereby agrees to proceed with reasonable diligence to complete
construction of the Premises or otherwise to prepare the Premises for
Tenant's occupancy in accordance with the Plans and Specifications. Tenant
shall have no right to occupy the Premises until Landlord has notified
Tenant, in writing, that the work to be done by Landlord has been
substantially completed, except for minor finishing operations or items
necessary awaiting performance of any work done by ▇▇▇▇▇▇. Prior to
performance of any work to be done by ▇▇▇▇▇▇, a punch list will be prepared
by Landlord or representative of Landlord, and ▇▇▇▇▇▇. However, Tenant
shall have the right to make periodic inspections of the construction, so
long as Tenant gives Landlord prior notification and complies with
Landlord's safety rules. Notwithstanding anything herein to the contrary,
payment of rental hereunder and ▇▇▇▇▇▇'s tenancy shall commence November 1,
1993 provided that all work required to be performed by Landlord has been
substantially completed except for punch list items.
2. Subject to the provisions of the Lease and except as otherwise provided in
this Lease to the contrary, if Landlord, for any reason whatsoever, shall
fail to complete a portion of its work in the Premises or to deliver
possession of the Premises on or before November 1, 1993, this Lease shall
not be void or voidable, nor shall Landlord be deemed to be in default
hereunder or in any way liable to Tenant for any loss or damage resulting
therefrom; provided, however, the Commencement Date of the Term and if
substantial completion of Landlord's work as hereinabove provide, and the
termination date of the Term shall be extended for an additional period
equal to the delay. In the event Landlord is unable to substantially
complete Landlord's Work and Tenant is unable to occupy Premises by
December 31, 1993, Tenant may terminate this Agreement, force majeure
excepted.
3. Landlord hereby covenants and agrees to complete the Tenant fit-up and
finish work (the "Landlord's Work") for the Premises in accordance with the
Plans and Specifications, provided, however, that Tenant shall be
responsible for and hereby covenants and agrees to pay any costs without
limitation incurred by Landlord in completing such Lease fit-up and finish
work due to any changes in Plans and Specification made after execution of
this Lease by ▇▇▇▇▇▇. Landlord warrants that all of such build-out of the
Premises shall also comply with all laws, orders, ordinances and
regulations of federal, state, country and municipal authorities having
jurisdiction over the Premises and Landlord shall promptly comply with any
directive order or citation made pursuant to such laws during the term of
this lease.
4. By occupying the Premises, Tenant shall be deemed to have accepted the
Premises "as is" and to have acknowledged that the Premises are suited for
the uses intended by ▇▇▇▇▇▇ and that Landlord has complied with all of its
covenants and obligations with respect to completion of the Premises and
delivery thereof to Tenant; provided, however, (i) Tenant shall have five
(5) days after the Commencement Date in which to deliver its "punch list"
to Landlord and Landlord shall have fifteen (15) days of delivery of the
"punch list" to begin correcting any defects noted on ▇▇▇▇▇▇'s punch list
which denote items not completed in accordance with the Plans and
Specifications and diligently pursue their completion: and (ii) Landlord
shall warrant said construction against defects for one (1) year. In the
event of any dispute concerning work performed or required to be performed
in the Premises by Landlord, the matter in dispute shall be submitted to
the architect for the Premises for determination, and his determination
with respect thereto as evidenced by his certificate shall be binding on
Landlord and Tenant.
5. Within ten (10) days from the date of execution of the Lease, Landlord
shall provide Tenant with complete Plans and Specifications for the
Premises for Tenant's review and approval. Tenant shall return Plans and
Specifications approved within five (5) days of receipt of Plans and
Specifications.
22
EXHIBIT "D"
CONTROL OF DANGEROUS/HAZARDOUS CHEMICALS AND MATERIALS
In consideration of existing and future legislation concerning the handling,
storage, use and disposition of dangerous/hazardous chemicals and materials,
Tenant acknowledges the risks and liabilities associated with same and agrees
to the following:
A. Tenant shall determine what laws, regulations and ordinance regarding the
handling, storage, use and disposition for dangerous/hazardous chemicals
and materials apply to Tenant's business with respect to the leased
premises. Tenant shall take all reasonable and necessary steps, including
any inspections, tests or studies, as required by such laws to cause prompt
and ongoing compliance therewith.
▇. ▇▇▇▇▇▇ agrees to immediately notify Landlord and the appropriate
authorities of any spills, accidents, or improper discharges of any
dangerous hazardous chemicals and material. Further, in addition to and in
further support of and compliance with other hold harmless and
indemnification obligations, Tenant acknowledges and assumes total
responsibility for any and all dangerous/hazardous chemicals and materials
it may handle, store, use and dispose of in or about Tenant's lease
premises. Such responsibility shall include, but not be Limited to,
medical costs and personal injury awards (compensatory and/or punitive),
environmental cleanups and related costs, governmental fines against
Landlord and/or Tenant resulting from ▇▇▇▇▇▇'s willful and/or negligent
handling, storage, use, disposition of dangerous/hazardous chemicals and
materials, and/or Tenant's non-compliance with applicable law.
C. Tenant shall, upon Owner or governmental request, disclose the type and
quantity of dangerous/hazardous chemicals and material Tenant is/has
handled, stored, used, disposed of in or about Tenant's leased premises.
D. Tenant shall endeavor to:
1. Maintain and control all inventories of dangerous/hazardous chemicals
and material handled, stored, used, disposed of in or about Tenant's
leased premises.
2. Educate managers, employees, and shipping personnel on the property
handling, storage, use, disposition of dangerous/hazardous chemicals
and materials.
3. Develop a dangerous/hazardous chemicals and materials accident plan.
4. Isolate key use and storage areas of dangerous/hazardous chemicals and
materials from ground waters, surface waters, and soils.
5. Keep informed about existing and future governmental requirements
concerning dangerous/hazardous chemicals and materials and Tenant's
respective obligations.
-20-
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EXHIBIT "'E"
SPECIAL STIPULATIONS TO
STANDARD INDUSTRIAL LEASE AGREEMENT
BETWEEN: NATIONAL LIFE INSURANCE COMPANY (LANDLORD)
AND SPECTRX, INC.
DATED: SEPTEMBER __, 1993
1. COMMON AREA MAINTENANCE: Tenant shall pay Landlord Three Hundred Nine and
16/100 Dollars, ($309.16) per month with the monthly fixed minimum rent
which is the Landlord's estimate of Tenant's share of the cost of common
Area Maintenance for 1992 in accordance with paragraph 5.2.
2. ▇▇▇▇▇▇ agrees to adhere to Plaza 85 Business Park Regulations as attached
hereto and made a part of this Lease.
3. ▇▇▇▇▇▇ agrees to adhere to Plaza 85 Business Park Signage Criteria as
attached hereto and made a part of this Lease.
4. Various construction materials may contain items that have been or may in
the future be determined to be hazardous (toxic) or undesirable and may
need to be specially treated/handled or removed. For example, some
transformers and other electrical components contain PCBs, and asbestos has
been used in components such as fire-proofing, heating and cooling systems,
air duct insulation, spray-on and tile acoustical materials, linoleum,
floor tiles, roofing, dry wall and plaster. Due to prior or current uses
of the Property or in the area, the Property may have hazardous or
undesirable metals, minerals, chemicals, hydrocarbons, or biological or
radioactive items in soil, water, building components above or below ground
containers or elsewhere in areas that may or may not be accessible or
noticeable. Such items may leak or other wise be released. Real estate
agents have no expertise in the detection or correction of hazardous or
undesirable items. Expert inspections are necessary. Current or future
laws may require clean up by past, present and/or future owners and/or
operators. It is the responsibility of the Seller/Landlord and
Buyer/Tenant to retain qualified experts to detect and correct such matters
and to consult with legal counsel of their choice to determine what
provisions, if any, they may wish to include in transaction documents
regarding the Property.
5. AMERICANS WITH DISABILITIES ACT DISCLOSURE: The United States Congress has
recently enacted the Americans With Disabilities Act. Among other things,
this act is intended to make many business establishments equally
accessible to persons with a variety of disabilities; modifications to real
property may be required. State and local laws also may mandate changes.
The real estate brokers in this transaction are not qualified to advise you
as to what, if any, changes may be required now, or in the future. Owners
and tenants should consult the attorneys and qualified design professionals
of their choice for information regarding these matters. Real estate
brokers cannot determine which attorneys or design professionals have the
appropriate expertise in this area.
-21-
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6. Fixed Minimum Rent shall be increased by the following schedule:
Months Per Square Foot Per Month
---------------- ----------------------- ------------------
1-12 $3.75 $3,050.94
13-24 $4.50 $3,661.13
25-36 $5.25 $4,271.31
37-60 $5.50 $4,474.71
7. Tenant will have the right to terminate this Lease after the anniversary of
the Thirty Sixth (36th) full calendar month of this Lease, with One Hundred
Eighty (180) days prior written notice, provided Tenant is not in default
of this Lease. The earliest possible termination date would be the last
day of the Thirty-Sixth (36th) full calendar month of this Lease. The
penalty for such termination shall be the payment of all unamortized costs
associated with this Lease. These unamortized costs include tenant
improvements, commissions, design and legal fees. The estimated penalty
will be Thirty Two Thousand and no/100 Dollars ($32,000.00). This amount
will decrease by One/Twenty-Fourth (1/24th) for each month of the Term in
excess of Thirty-Six (36) months.
8. Insert the following after Paragraph 5.2(a). Increases in Landlord
controllable operating cost (excluding utilities, taxes and insurance) will
be capped at five percent (5%) per annum.
9. ▇▇▇▇▇▇ represents, covenants and agrees that the leased premises can be
used by ▇▇▇▇▇▇ as contemplated under this Lease and ▇▇▇▇▇▇'s ability to so
use the lease Premises is a condition based on precedent to this Lease.
Landlord has obtained or will have obtained, as a condition to the
effectiveness of this Lease, the certificate of occupancy.
10. To the best of Landlord's actual knowledge, Landlord represents that no
leak, spill, discharge, omission or disposal of hazardous toxic substances
has occurred at the leased premises and that the soil, groundwater, soil
vapor on or under the leased premises is free of toxic or hazardous
substances as of the date of this Lease.
Landlord agrees to indemnify, defend and hold Tenant and its officers,
employees and agents harmless from any claims, judgements, damages, fines,
penalties, costs, liabilities (including sums paid in settlement of claims)
or loss including attorneys' fees, consultant's fees, and experts' fees
which arise during or after the Term in connection with the presence or
suspected presence of toxic or hazardous substances on or at the leased
premises or in the soil, groundwater, or soil vapor on or under the leased
premises, except to the extent that such toxic or hazardous substances are
present as a result of the negligence or willful misconduct of Tenant.
Without limiting the generality of the foregoing, this indemnification does
specifically cover costs incurred in connection with any investigation of
site conditions or any cleanup, remedial, removal or restoration work
required by any federal, state, or local governmental agency or political
subdivision because of the presence or suspected presence of toxic or
hazardous substances on or at the leased premises or in the soil,
groundwater or soil vapor on or under the leased premises except to the
extent that such toxic or hazardous substances are present as the result of
negligence or willful misconduct of Tenant. Nothing contained herein is
intended to make Landlord responsible for affirmative testing of toxic or
hazardous materials.
11. Landlord will replace seasonal flower beds four (4) times per year on
either side of entrance to Premises.
12. Tenant will enter into a maintenance service contract for the HVAC System,
but will not replace a "failed" system unless failure is due to Tenant's
lack of maintenance.
13. In Paragraph 7.4, after second line "wear and tear" add "and casualty if
damage covered by insurance expected".
14. In Paragraph 7.5 (c), third line after "payment", add "However, if Landlord
approves any alterations by Tenant during the Term of the Lease, then
Landlord should notify Tenant upon approval of such alteration work if the
improvements must be removed upon termination of the Lease".
15. In Paragraph 8.3 (a), at the end of the paragraph add the sentence, "Tenant
shall comply with all reasonable insurance regulations but under no
circumstances shall any such requirement impair any rights or privileges
conferred upon Tenant
-22-
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under the negotiated lease." Tenant shall provide the Landlord with an
original copy of the Certificate of Insurance, together with a copy of the
additional insured endorsement, for each policy required of tenant, naming
the Landlord and their agents as additional insured.
16. In Paragraph 8.5, all provisions set forth in this paragraph will be
reciprocal.
17. Base Year as it relates to Paragraph 10.1 shall be 1993.
18. In Paragraph 24.8 change the word twice to 1.5 times.
19. Upon execution of this Lease, Tenant will deposit first (1st) and sixtieth
(60th) month's base rental with Landlord. This prepayment of base rental
will be nonrefundable.
20. Renewal Option. Provide Tenant is not in default of the terms of the Lease
at the time of exercise of this option or on the commencement date of the
option period. Tenant shall have the right upon at least one hundred
eighty (180) days prior notice to extend this Lease one time for an
additional term of five (5) years. Base rent shall be equal to ninety-five
percent (95%) of the then current market value, but in no case less then
the prior year's base rental.
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AMENDMENT TO LEASE
THIS AGREEMENT, made and entered into this 11th day of March, 1996, by and
between Plaza 85, L.P., a Georgia Limited Partnership, (hereinafter called
Landlord) and SpectRx, Inc., (hereinafter called Tenant).
WITNESSETH
WHEREAS, the said Tenant and National Life Insurance Company, who have sold
their rights to Plaza ▇▇, ▇.▇., made and entered into a Lease Amendment dated
December 11, 1995 for premises consisting of approximately 16,255 square feet
located in Plaza ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇ ▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ for a term commencing January 1, 1996
and ending December 31, 2000.
NOW, THEREFORE, for valuable consideration paid by each of the parties to the
other, receipt and sufficiency of which are hereby acknowledged, the parties
hereto agree that the said lease shall be amended as follows:
1) The effective commencement date will be changed from January 1, 1996 to
April 1, 1996.
2) The effective ending date will be changed from December 31, 2000 to March
31, 2001.
3) The Rental Schedule for entire premises, 6015 D and 6025A, shall be as
follows:
Term Annual Rate PSF Monthly Payment
----------------------- --------------------- ---------------------
04/01/96 - 12/31/96 $5.08 $6,874.96
01/01/97 - 12/31/97 $5.30 $7,179.71
01/01/98 - 12/31/98 $5.53 $7,484.61
01/01/99 - 12/31/99 $5.87 $7,958.00
01/01/00 - 03/31/01 $5.97 $8,093.25
IT IS FURTHER UNDERSTOOD AND AGREED, that the Amendment as modified by the
Agreement between the parties hereto shall be and the same hereby is in all
other respects ratified, approved and confirmed.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the day and
year first above written.
LANDLORD:
Plaza 85, L.P., a Georgia Limited Partnership
BY:
------------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, III
General Partner
TENANT:
SpectRx, Inc.
BY:
------------------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇
-24-
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SECOND AMENDMENT TO LEASE
THIS AGREEMENT, made and entered into this ___ day of October 1996, by and
between Plaza 85, L.P., a Georgia Limited Partnership, (hereinafter called
Landlord) and SpectRx, Inc., (hereinafter called Tenant).
WITNESSETH
WHEREAS, the said Tenant and National Life Insurance Company, who have sold
their rights to Plaza 85, L.P., made and entered into a Lease dated September
21, 1993 for premises consisting of approximately 9,763 square feet located in
Plaza ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇, ▇ & ▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇▇▇ for a term commencing November 1, 1993 and ending October 30, 1998 and
amended by the First Amendment dated December 11, 1995 to include an additional
6,492 for a total of 16,255 square feet and expire March 31, 2001.
NOW, THEREFORE, for valuable consideration paid by each of the parties to the
other, receipt and sufficiency of which are hereby acknowledged, the parties
hereto agree that the said lease shall be amended as follows:
1) Beginning November 1, 1996 and ending December 31, 1999, Tenant will lease
an additional 5,120 square feet known as ▇▇▇▇ ▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇▇▇▇▇.
2) The Rental Schedule shall be adjusted as follows:
Monthly Payment for Monthly Payment for
Existing Space 6015 F
Approximately Approximately 5,120 Combined Monthly
Term 16,255 SF SF Payment
-------------------------- ---------------------- ----------------------- ----------------------
01/01/96 - 12/31/96 $6,874.96 $2,240.00 $ 9,114.96
01/01/97 - 12/31/97 $7,179.71 $2,240.00 $ 9,419.71
01/01/98 - 12/31/98 $7,484.61 $2,329.60 $ 9,814.21
01/01/99 - 12/31/99 $7,958.00 $2,422.78 $10,380.78
01/01/00 - 03/31/01 $8,093.25 N/A $ 8,093.25
3) Landlord will cut an 8' x 8' doorway as depicted in the attached Exhibit
"A", ▇▇▇▇▇▇▇▇'s Work. Other than this work, ▇▇▇▇▇▇ is taking space "as
is".
4) Landlord has inspected the roof of 6015 F and has made its best effort to
repair all leaks. Should Tenant find any leaks, Landlord will respond in a
timely manner.
-25-
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IT IS FURTHER UNDERSTOOD AND AGREED, that the said Amendment as modified by the
Agreement between the parties hereto shall be and the same hereby is in all
other respects ratified, approved and confirmed.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the day and
year first above written.
LANDLORD:
Plaza 85, L.P.
By: ▇▇▇▇▇▇▇/▇▇▇▇▇▇▇ - Plaza 85 L.P.
Its: General Partner
BY:
-------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, III
General Partner
TENANT:
SpectRx, Inc.
BY:
-------------------------------------
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THIRD AMENDMENT TO LEASE
THIS AGREEMENT, made and entered into this 12th day of November, 1996 by and
between Plaza 85, L.P., a Georgia Limited Partnership, (hereinafter called
Landlord) and SpectRx, Inc., (hereinafter called Tenant).
WITNESSETH
WHEREAS, the said Tenant and National Life Insurance, who have sold their
rights to Plaza 85, L.P., made and entered into a Lease dated September 21,
1993 for premises consisting of approximately 9,763 square feet located in
Plaza ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇, ▇ & ▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇▇▇ for a term commencing November 1, 1993 and ending October 30, 1998 and
amended by the First Amendment dated December 11, 1995 to include an additional
6,492 for a total of 16,255 square feet and expire March 31, 2001, and the
Second Amendment to include an additional 5,120 square feet which expires on
December 31, 1999.
NOW, THEREFORE, for valuable consideration paid by each of the parties to the
other, receipt and sufficiency of which are hereby acknowledged, the parties
hereto agree that the said lease shall be amended as follows:
1) Effective December 1, 1996 and ending June 30, 2000, Tenant will lease an
additional 8,700 square feet known as ▇▇▇▇ ▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇▇▇.
2) The Rental Schedule shall be adjusted as follows:
Existing Rental Rental Schedule for Combined Monthly
Term Schedule 6000A Payment
------------------------- ---------------------- ----------------------- -----------------------
12/01/96 - 12/31/96 $ 9,114.96 $2,849.25 $11,964.21
01/01/97 - 12/31/97 $ 9,419.71 $5,698.50 $15,118.21
01/01/98 - 12/31/98 $ 9,814.21 $5,926.44 $15,740.65
01/01/99 - 12/31/99 $10,380.78 $6,163.50 $16,544.28
01/01/00 - 06/30/00 $ 8,093.25 $6,410.04 $14,503.29
07/01/00 - 03/31/01 $ 8,093.25 N/A $ 8,093.25
3) Tenant Improvements - Landlord will provide an improvement allowance $5.75
per square foot, or $50,025.00 for the improvements in accordance with
drawings prepared by ▇▇▇▇ & Associates dated November 11, 1996, space
planning and construction fees included. The drawings are presently being
priced by S & E Contracting. Tenant shall pay for all costs in excess of
$50,025.000 except for the HVAC replacement costs of $10,885.00 for which
Tenant will pay only $3,265.50. Tenant's payment of improvements in excess
of $50,025.000 will be due within ten (10) days of Landlord furnishing
Tenant a copy of Contractor's estimate with Landlord's five percent (5%)
construction management fee included. Failure to pay such amount by the
due date will be treated as failure to pay rent and subject to the same
penalties and procedures outlined in the Lease Agreement.
4) Occupancy - Tenant may occupy the Premises upon completion of the
improvements and the execution of ▇▇▇▇▇▇'s Acceptance of Premises. The
completion date is estimated to be no later than December 13, 1996.
5) Security Deposit - Upon execution of this agreement, Tenant shall pay
Landlord $6,410.04 as a security deposit for the expanded Premises.
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IT IS FURTHER UNDERSTOOD AND AGREED, that the said Amendment as modified by the
Agreement between the parties hereto shall be and the same hereby is in all
other respects ratified, approved and confirmed.
IN WITNESS WHEREOF, the partes have executed this Agreement as of the day and
year first above written.
Landlord shall provide seasonal flowers in front of the building.
LANDLORD:
Plaza 85, L.P.
By: ▇▇▇▇▇▇▇/▇▇▇▇▇▇▇ - Plaza 85 L.P.
Its: General Partner
BY:
-------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, III
General Partner
-28-
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TENANT ESTOPPEL CERTIFICATE
Plaza ▇▇, ▇.▇.
c/o Brannen/▇▇▇▇▇▇▇ Company
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Bank South, N.A.
▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇, Mail Code 69
Atlanta, Georgia 30303
Attn: ▇. ▇▇▇▇▇ ▇▇▇▇▇
RE: LEASE (AS AMENDED AS DESCRIBED HEREIN, THE "LEASE") BETWEEN
NATIONAL LIFE INSURANCE COMPANY AS ASSIGNED TO AND ASSUMED
BY PLAZA 85, L.P. AS LANDLORD ("LANDLORD") AND SPECTRX, INC.
AS TENANT, DATED SEPTEMBER 21, 1993 FOR APPROXIMATELY 9,763
SQUARE FEET OF SPACE KNOWN AS 6025-A/B/C UNITY DRIVE
("BUILDING"), IN THE PLAZA 85 BUSINESS PARK ("PARK"),
NORCROSS, GEORGIA.
Ladies and Gentlemen:
Tenant understands that Bank South, N.A. ("Lender") intends to make a
loan to Plaza 85, L.P. ("Owner"), which loan will be secured in part by a first
in priority deed to secure debt encumbering the Park. Tenant presently leases
premises within the Building pursuant to the Lease, and in connection with the
foregoing, Tenant does hereby certify to Lender and Owner as follows:
a. The Lease as described above in the reference line of
this Certificate, and has not been amended or modified in any way
except by the following instruments (describe by title, date, and
parties):
(If none, initial here: /s/ MAS)
-------
There are no amendments or modifications of any kind to the Lease
except as indicated above; there are no other promises, agreements,
understandings, or commitments between Owner (or any prior landlord) and Tenant
relating to the premises leased under the Lease; and Tenant has not given Owner
any notice of termination thereunder.
b. There has been and is now no subletting of the leased
premises, or any part thereof, or assignment by Tenant of the Lease,
or any rights therein, to any party.
c. The Lease is in full force and effect and free from
default by either party.
32
d. The term of the Lease commenced on November 1, 1993,
and expires on October 31, 1998, unless renewed in accordance with the
provisions (if any) of the Lease.
e. The current monthly installment is $3,050.94.
f. As of the date hereof, Tenant has no outstanding
offsets or credits against, or deductions from, or "free rent" period
entitlements with respect to, its future rent obligations, except as
set forth below:
(If none, initial here: /s/ MAS)
-------
g. Tenant has paid to Owner (or to a prior landlord) a
security deposit of $0.00 (if none, insert "0"). Tenant made no
advance payment of rent other than for the current month.
h. There are no actions, whether voluntary or otherwise,
pending against Tenant under the bankruptcy, debtor reorganization,
moratorium or similar laws of the United States, any state thereof or
any other jurisdiction.
i. Tenant is in full and complete possession of its
leased premises in the Building and has accepted such leased premises,
including any work of Owner (or of a prior landlord) performed therein
pursuant to the terms and provisions of the Lease, is paying rent, and
is actively conducting its business therein. All improvement of any
kind required by the Lease to be installed or performed by Owner (or
by a prior landlord) are fully completed.
j. The undersigned agrees that upon notification by
▇▇▇▇▇▇ in writing that rental payments are to be made to Lender
because of a default under the loan with Owner, the undersigned will
cease making rental payments to Owner and will begin making such
rental payments directly to Lender.
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33
m. The undersigned representative of Tenant is duly
authorized and fully qualified to execute this instrument on behalf of
Tenant, thereby binding Tenant.
Tenant acknowledges and agrees that ▇▇▇▇▇▇ and Owner and their
respective successors and assigns shall be entitled to rely on Tenant's
certification set forth herein.
IN WITNESS WHEREOF, ▇▇▇▇▇▇ has executed this instrument this 20th day
of September, 1994.
SPECTRX, INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Title: President
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