EXHIBIT 10.40
STANDARD INDUSTRIAL LEASE
AMERICAN INDUSTRIAL REAL ESTATE ASSOCIATION
1. Parties. This Lease, dated for reference purposes only, October 17, 1994,
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is made by and between RSH PROPERTIES, L.L.C., a Georgia limited liability
company (herein called "Lessor") and KING MAILING SERVICES, INC., a Georgia
corporation (herein called "Lessee").
2. Premises, Parking and Common Areas.
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2.1 Premises. Lessor hereby leases to Lessee and Lessee leases from
Lessor for the term, at the rental, and upon all of the conditions set forth
herein, real property situated in the County of DeKalb, State of Georgia,
consisting of approximately 10.400 square feet of office/warehouse space in a
free-standing building at ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, herein
referred to as the "Premises. The Premises are a building, herein referred to
as the "Building." The Premises, the Building, the land upon which the same are
located, along with all other buildings and improvements thereon, are herein
collectively referred to as the "Industrial Center."
3. Term.
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3.1 Term. The term of this Lease shall commence on October 17, 1994 and
end on October 31, 1997 unless sooner terminated pursuant to any provision
hereof.
4. Rent.
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4.1 Base Rent. Lessee shall pay to Lessor, as Base Rent for the Premises,
without any offset or deduction, except as may be otherwise expressly provided
in this Lease, on the 1st day of each month of the term hereof, monthly payments
in advance of $2,600.00 for the period October 17, 1994 through October 31,
1995; $2,816.67 for the period November 1, 1995 through ______________________.
Rent for any period during the term hereof which is for less than one month
shall be a pro rata portion of the Base Rent. Rent shall be payable in lawful
money of the United States to Lessor at the address stated herein or to such
other persons or at such other places as Lessor may designate in writing.
4.2 Operating Expenses. Lessee shall pay to Lessor as reimbursement or
directly all Operating Expenses, as hereinafter defined.
(a) "Operating Expenses" is defined, for purposes of this Lease, as
all costs incurred by Lessor, if any, for
(i) The operation, repair and maintenance, in neat, clean,
good order and condition, of the following:
(A) The Common Areas, including parking areas, loading and
unloading areas, trash areas, roadways, sidewalks, walkways,
parkways, driveways, landscaped areas, striping, bumpers,
irrigation systems, Common area lighting facilities and fences
and gates;
(B) Trash disposal services;
(C) Tenant directories;
(D) Fire detection systems including sprinkler system
maintenance and repair;
(E) Security services;
(F) Any other service to be provided by Lessor that is
elsewhere in this Lease stated to be an "Operating Expense;"
(ii) Any deductible portion of an insured loss concerning any
of the items or matters described in this paragraph 4.2;
(iii) The cost of the premiums for the liability and property
insurance policies to be maintained by Lessor under paragraph 8
hereof;
(iv) The amount of the real property tax to be paid by Lessor
under paragraph 10.1 hereof;
(v) The cost of water, gas and electricity to service the
Common Areas.
(b) The inclusion of the improvements, facilities and services set
forth in paragraph 4.2(b)(i) of the definition of Operating Expenses shall
not be deemed to impose an obligation upon Lessor to either have said
improvements or facilities or to provide those services unless the
Industrial Center already has the same, Lessor already provides the
services, or Lessor has agreed elsewhere in this Lease to provide the same
or some of them.
5. Security Deposit. Lessee shall deposit with Lessor upon execution hereof
$-0- as security for Lessee's faithful performance of Lessee's obligations
hereunder. If Lessee fails to pay rent or other charges due hereunder, or
otherwise defaults with respect to any provision of this Lease. Lessor may use,
apply or retain all or any portion of said deposit for the payment of any rent
or other charge in default or for the payment of any other sum to which Lessor
may become obligated by reason of Lessees default, or to compensate Lessor for
any loss or damage which Lessor may suffer thereby.
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If Lessor so uses or applies all or any portion of said deposit, Lessee shall
within ten (10) days after written demand therefor deposit cash with Lessor in
an amount sufficient to restore said deposit to the full amount then required of
Lessee. If the monthly rent shall, from time to time, increase during the term
of this Lease, Lessee shall, at the time of such increase, deposit with Lessor
additional money as a security deposit so that the total amount of the security
deposit held by lessor shall at all times bear the same proportion to the then
current Base Rent as the initial security deposit bears to the initial Base Rent
set forth in paragraph 4, Lessor shall not be required to keep said security
deposit separate from its general accounts. If Lessee performs all of Lessee's
obligations hereunder, said deposit, or so much thereof as has not theretofore
been applied by Lessor, shall be returned, without payment of interest or other
increment for its use, to Lessee (or, at Lessor's option, to the last assignee,
if any, of Lessee's interest hereunder) at the expiration of the term hereof,
and after Lessee has vacated the Premises. No trust relationship is created
herein between Lessor and Lessee with respect to said Security Deposit.
6. Use.
6.1 Use. The Premises shall be used and occupied only for
office/warehouse or for any other use which is reasonably comparable and for no
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other purpose.
6.2 Compliance with Law.
Lessee shall, at Lessee's expense, promptly comply with all applicable
statutes, ordinances, rules, regulations, orders, covenants and restrictions of
record, and requirements of any fire insurance underwriters or rating bureaus,
now in effect or which may hereafter come into effect, whether or not they
reflect a change in policy from that now existing, during the term or any part
of the term hereof, relating in any manner to the Premises and the occupation
and use by Lessee of the Premises and of the Common Areas. Lessee shall not use
nor permit the use of the Premises or the Common Areas in any manner that will
tend to create waste or a nuisance or shall tend to disturb other occupants of
the Industrial Center.
6.3 Condition of Premises.
Except as otherwise provided in this Lease, Lessee hereby accepts the
Premises in their condition existing as of the Lease commencement date or the
date that Lessee takes possession of the Premises, which ever is earlier,
subject to all applicable zoning, municipal, county and state laws, ordinances
and regulations governing and regulating the use of the Premises, and any
covenants or restrictions of record, and accepts this Lease subject thereto and
to all matters disclosed thereby and by any exhibits attached hereto. Lessee
acknowledges that neither Lessor nor Lessor's agent has made any representation
or warranty as to the present or future suitability of the Premises for the
conduct of Lessee's business.
7. Maintenance, Repairs, Alterations and Common Area Services.
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7.1 Lessee's Obligations. Lessee, at Lessee's expense, shall keep in
good condition and repair the foundations, exterior walls, structural condition
f interior bearing walls, and roof of the Premises, as well as the parking lots,
walkways, driveways, landscaping, fences, signs and utility installations of the
Common Areas and all parts thereof. Lessor shall not be obligated to paint the
exterior or interior surface of exterior walls, nor shall Lessor be required to
maintain, repair or replace windows, doors or plate glass of the Premises.
Lessor shall have no obligation to make repairs under this paragraph 7.1.
Lessee expressly waives the benefits of any statute now or hereafter in effect
which would otherwise afford Lessee the right to make repairs at Lessor's
expense or to terminate this Lease because of Lessor's failure to keep the
Premises in good order, condition and repair. Lessor shall not be liable for
damages or loss of any kind or nature by reason of Lessor's failure to furnish
any Common Area Services when such failure is caused by accident, breakage,
repairs, strikes, lockout, or other labor disturbances or disputes or any
character, or by any other cause beyond the reasonable control of Lessor.
7.2 Lessee's Obligations.
(a) Lessee, at Lessee's expense, shall keep in good order, condition
and repair the Premises and every part thereof (whether or not the damaged
portion of the Premises or the means of repairing the same are reasonably
or readily accessible to Lessee) including, without limiting the generality
of the foregoing, all plumbing, heating, ventilating and air conditioning
systems (Lessee shall procure and maintain, at Lessee's expense, a
ventilating and air conditioning system maintenance contract), electrical
and lighting facilities and equipment within the Premises, fixtures,
interior walls and interior surfaces of exterior walls, ceilings, windows,
doors, plate glass, and skylights located within the Premises.
(b) If Lessee fails to perform Lessee's obligations under this
paragraph 7.1 or 7.2 or under any other paragraph of this Lease, Lessor may
enter upon the Premises after ten (10) days prior written notice to Lessee
(except in the case of emergency, in which no notice shall be required),
perform such obligations on Lessee's behalf and put the Premises in good
order, condition and repair, and the cost thereof together with interest
thereon at the maximum rate then allowable by law shall be due and payable
as additional rent to Lessor together with Lessee's next Base Rent
installment.
(c) On the last day of the term hereof, or on any sooner termination,
Lessee shall surrender the Premises to Lessor in the same condition as
received, ordinary wear and tear excepted, clean and free of debris. Any
damage or deterioration of the Premises shall not be deemed ordinary wear
and tear if the same could have been prevented by good maintenance
practices. Lessee shall repair any damage to the Premises occasioned by
the installation or removal of Lessee's trade fixtures, alterations,
furnishings and equipment. Notwithstanding anything to the contrary
otherwise stated in this Lease, Lessee shall leave the air lines, power
panels, electrical distribution systems, lighting fixtures, space heaters,
air conditioning, plumbing and fencing on the Premises in good operating
condition.
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7.3 Alterations and Additions.
(a) Lessee shall not, without Lessor's prior written consent make any
alterations, improvements, additions, or Utility Installations in, or about
the Premises, or the Industrial Center, except for nonstructural
alterations to the Premises not exceeding $2,500 in cumulative costs,
during the term of this Lease. In any event, whether or not in excess of
$2,500 in cumulative cost, Lessee shall make no change or alteration to the
exterior of the Premises nor the exterior of the Building nor the
Industrial Center without Lessor's prior written consent. As used in this
paragraph 7.3 the term "Utility Installation" shall mean carpeting, window
coverings, air lines, power panels, electrical distribution systems,
lighting fixtures, space heaters, air conditioning, plumbing, and fencing.
Lessor may require that Lessee remove any or all of said alterations,
improvements, additions or Utility Installations at the expiration of the
term, and restore the Premises and the Industrial Center to their prior
condition. Lessor may require Lessee to provide Lessor, at Lessee's sole
cost and expense, a lien and completion bond in an amount equal to one and
one-half times the estimated cost of such improvements, to insure Lessor
against any liability for mechanic's and material man's liens and to insure
completion of the work. Should Lessee make any alterations, improvements,
additions or Utility Installations without the prior approval of Lessor,
Lessor may, at any time during the term of this Lease, require that Lessee
remove any or all of the same.
(b) Any alterations, improvements, additions or Utility Installations
in or about the Premises or the Industrial Center that Lessee shall desire
to make and which requires the consent of the Lessor shall be presented to
Lessor in written form, with proposed detailed plans. If Lessor shall give
its consent, the consent shall be deemed conditioned upon Lessee acquiring
a permit to do so from appropriate governmental agencies, the furnishing of
a copy thereof to Lessor prior to the commencement of the work and the
compliance by Lessee of all conditions of said permit in a prompt and
expeditious manner.
(c) Lessee shall pay, when due, all claims for labor or materials
furnished or alleged to have been furnished to or for Lessee at or for use
in the Premises, which claims are or may be secured by any mechanics or
materialmen's lien against the Premises, or the Industrial Center, or any
interest therein. Lessee shall give Lessor not less than ten (10) days
notice prior to the commencement of any work in the Premises, and Lessor
shall have the right to pose notices of non-responsibility in or on the
Premises or the Building as provided by law. If Lessee shall, in good
faith, contest the validity of any such lien, claim or demand, then Lessee
shall, at it sole expense defend itself and Lessor against the same and
shall pay and satisfy any such adverse judgment that may be rendered
thereon before the enforcement thereof against the Lessor or the Premises
or the Industrial Center, upon the condition that if Lessor shall require.
Lessee shall furnish to Lessor a surety bond satisfactory to Lessor in an
amount equal to such contested lien claim or demand indemnifying Lessor
against liability for the same and holding the Premises and the Industrial
Center free from the effect of such
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lien or claim. In addition, Lessor may require Lessee to pay Lessor's
attorneys fees and costs in participating in such action if Lessor shall
decide it is to Lessor's best interest to do so.
(d) All alterations, improvements, additions and Utility Installations
(whether or not such Utility Installations constitute trade fixtures of
Lessee), which may be made on the Premises, shall be the property of Lessor
and shall remain upon and be surrendered with the Premises at the
expiration of the Lease term. Unless Lessor requires their removal
pursuant to paragraph 7.3(a). Notwithstanding the provisions of this
paragraph 7.3(d), Lessee's machinery and equipment, other than that which
is affixed to the Premises so that it cannot be removed without material
damage to the Premises, and other than Utility Installations, shall remain
the property of Lessee and may be removed by Lessee subject to the
provisions of paragraph 7.2.
7.4 Utility Additions. Lessor reserves the right to install new or
additional utility facilities throughout the Building and the Common Areas for
the benefit of Lessor or Lessee, including, but not by way of limitation, such
utilities as plumbing, electrical systems, security systems, communication
systems, and fire protection and detection systems, so long as such
installations do not unreasonably interfere with Lessee's use of the Premises.
8. Insurance; Indemnity.
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8.1 Liability Insurance -- Lessee. Lessee shall, at Lessee's expense,
obtain and keep in force during the term of this Lease a policy of Combined
Single Limit Bodily Injury and Property Damage insurance insuring Lessee and
Lessor against any liability arising out of the use, occupancy or maintenance of
the Premises and the Industrial Center. Such insurance shall be in an amount
not less than $500,000.00 per occurrence. The policy shall insure performance
by Lessee of the indemnity provisions of this paragraph 8. The limits of said
insurance shall not, however, limit the liability of Lessee hereunder.
8.2 Property Insurance. Lessee shall obtain and keep in force during the
term of this Lease a policy or policies of insurance covering loss or damage to
the Industrial Center improvements including Lessee's personal property,
fixtures, equipment or tenant improvements, in an amount not to exceed the full
replacement value thereof, as the same may exist from time to time, providing
protection against all perils included within the classification of fire,
extended coverage, vandalism, malicious mischief, flood (in the event same is
required by a lender having a lien on the Premises) special extended perils
("all risk" as such term is used in the insurance industry), plate glass
insurance and such other insurance as Lessor deems advisable. In addition, in
the event that the Premises shall suffer an insured loss as defined in paragraph
9.1(g) hereof, the deductible amounts under the casualty insurance policies
relating to the Premises shall be paid by Lessee.
8.3 Insurance Policies. Insurance required hereunder shall be in
companies holding a "General Policyholders Rating" of at least B plus, or such
other rating as may be required by a lender having a lien on the Premises, as
set forth in the most current issue of "Best's Insurance Guide."
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Lessee shall not do or permit to be done anything which shall invalidate the
insurance policies carried by Lessor. Lessee shall deliver to Lessor copies of
liability insurance policies required under paragraph 8.1 or certificates
evidencing the existence and amounts of such insurance within seven (7) days
after the commencement date of this Lease. No such policy shall be cancelable
or subject to reduction of coverage or other modifications except after thirty
(30) days prior written notice to Lessor. Lessee shall, at least thirty (30)
days prior to the expiration of such policies, furnish Lessor with renewals or
"binders" thereof.
8.4 Waiver of Subrogation. Lessee and lessor each hereby release and
relieve the other, and waive their entire right of recovery against the other
for loss or damage arising out of or incident to the perils insured against
which perils occur in, on or about the Premises, whether due to the negligence
of Lessor or Lessee or their agents, employees, contractors and/or invitees.
Lessee and lessor shall, upon obtaining the policies of insurance required give
notice to the insurance carrier or carriers that the foregoing mutual waiver of
subrogation is contained in this Lease.
8.5 Indemnity. Lessee shall indemnify and hold harmless Lessor from and
against any and all claims arising from Lessee's use of the Industrial Center,
or from the conduct of Lessee's business or from any activity, work or things
done, permitted or suffered by Lessee in or about the Premises or elsewhere and
shall further indemnify and hold harmless Lessor from and against any and all
claims arising from any breach or default in the performance of any obligation
on Lessee's part to be performed under the terms of this Lease, or arising from
any act or omission of Lessee, or any of Lessee's agents, contractors, or
employees, and from and against all costs, attorney's fees, expenses and
liabilities incurred in the defense of any such claim or any action or
proceeding brought thereon; and in case any action or proceeding be brought
against Lessor by reason of any such claim. Lessee upon notice from lessor
shall defend the same at Lessee's expense by counsel reasonably satisfactory to
Lessor and Lessor shall cooperate with Lessee in such defense, Lessee, as a
material part of the consideration to lessor, hereby assumes all risk of damage
to property of Lessee or injury to persons, in, upon or about the Industrial
Center arising from any cause and lessee hereby waives all claims in respect
thereof against Lessor.
8.6 Exemption of Lessor from Liability. Lessee hereby agrees that Lessor
shall not be liable for injury to Lessee's business or any loss of income
therefrom or for damage to the goods, wares, merchandise or other property of
Lessee, Lessee's employees, invitees, customers, or any other person in or about
the Premises or the Industrial Center, nor shall Lessor be liable for injury to
the person of Lessee, Lessee's employees, agents or contractors, whether such
damage or injury is caused by or results from fire, steam, electricity, gas,
water or rain, or from the breakage, leakage, obstruction or other defects of
pipes, sprinklers, wires, appliances, plumbing, air conditioning or lighting
fixtures, or from any other cause, whether said damage or injury results from
conditions arising upon the Premises or upon other portions of the Industrial
Center, or from other sources or places and regardless of whether the cause of
such damage or injury or the means of repairing the same is inaccessible to
Lessee. Lessor shall not be liable for any damages arising from any act or
neglect of any other lessee, occupant or user of the Industrial Center, nor from
the failure of Lessor to enforce the provisions of any other lease of the
Industrial Center.
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9. Damage or Destruction.
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9.1 Definitions.
(a) "Premises Partial Damage" shall mean if the Premises are damaged
or destroyed to the extent that the cost of repair is less than fifty
percent of the then replacement cost of the Premises.
(b) "Premises Total Destruction" shall mean if the Promises are
damaged or destroyed to the extent that the cost of repair is fifty percent
or more of the then replacement cost of the Premises.
(c) "Premises Building Partial Damage" shall mean if the Building of
which the Premises are a part is damaged or destroyed to the extent that
the cost to repair is less than fifty percent of the then replacement cost
of the Building.
(d) "Premises Building Total Destruction" shall mean if the Building
of which the Premises are a part is damaged or destroyed to the extent that
the cost to repair is fifty percent or more of the then replacement cost of
the Building.
(e) "Industrial Center Buildings" shall mean all of the buildings on
the Industrial Center site.
(f) "Industrial Center Buildings Total Destruction" shall mean if the
Industrial Center Buildings are damaged or destroyed to the extent that the
cost of repair is fifty percent or more of the then replacement cost of the
Industrial Center Buildings.
(g) Insured Loss" shall mean damage or destruction which was covered
by an event required to be covered by the insurance described in paragraph
8. The fact that an Insured Loss has a deductible amount shall not make
the loss an uninsured loss.
(h) "Replacement Cost" shall mean the amount of money necessary to be
spent in order to repair or rebuild the damaged area to the condition that
existed immediately prior to the damage occurring excluding all
improvements made by lessees.
9.2 Premises Partial Damage; Premises Building Partial Damage.
(a) Insured Loss: Subject to the provisions of paragraphs 9.4 and
9.5. If at any time during the term of this Lease there is damage which is
an Insured Loss and which falls into the classification of other Premises
Partial Damage or Premises Building Partial Damage, then Lessor shall, at
Lessor's expense, repair such damage to the Premises, but not Lessee's
fixtures, equipment or tenant improvements as reasonably possible and this
Lease shall continue in full force and effect.
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(b) Uninsured Loss: Subject to the provisions of paragraphs 9.4 and
9.6, if at any time during the form of this Lease there is damage which is
not an Insured Loss and which falls within the classification of Premises
Partial Damage or Premises Building Partial Damage, unless caused by a
negligent or willful act of Lessee (in which event Lessee shall make the
repairs at Lessee's expense), which damage prevents Lessee from using the
Premises, Lessor may at Lessor's option either (i) repair such damage as
soon as reasonably possible at Lessor's expense, in which event this Lease
shall continue in full force and effect, or (ii) give written notice to
Lessee within thirty (30) days after the date of the occurrence of such
damage of Lessor's intention to cancel and terminate this Lease as of the
date of the occurrence of such damage. In the event Lessor elects to give
such notice of Lessor's intention to cancel and terminate this Lease,
Lessee shall have the right within ten (10)days after the receipt of such
notice to give written notice to Lessor of Lessee's intention to repair
such damage at Lessee's expense, without reimbursement form Lessor, in
which event this Lease shall continue in full force and effect, and Lessee
shall proceed to make such repairs as soon as reasonably possible if Lessee
does not give notice within such 10-day period this Lease shall be canceled
and terminated as of the date of the occurrence of such damage.
9.3 Premises Total Destruction; Premises Building Total Destruction;
Industrial Center Buildings Total Destruction.
(a) Subject to the provisions of paragraphs 9.4 and 9.5, if at any
time during the term of this Lease there is damage, whether or not it is an
Insured Loss, and which fails into the classifications of either (i)
Premises Total Destruction, or (ii) Premises Building Total Destruction, or
(iii) Industrial Center Buildings Total Destruction, then Lessor may at
Lessor's option either (i) repair such damage or destruction, but not
Lessee's fixtures, equipment or tenant improvements, as soon as reasonably
possible at Lessor's expense, and this Lease shall continue in full force
and effect, or (ii) give written notice to Lessee within thirty (30) days
after the date of occurrence of such damage of Lessor's intention to cancel
and terminate this Lease, in which case this Lease shall be canceled and
terminated as of the date of the occurrence of such damage.
9.4 Damage near End of Term.
(a) Subject to paragraph 9.4(b), if at any time during the last six
months of the term of this Lease there is substantial damage, whether or
not an Insured Loss, which falls within the classification of Premises
Partial Damage, Lessor may at Lessor's option cancel and terminate this
Lease as of the date of occurrence of such damage by giving written notice
to Lessee of Lessor's election to do so within 30 days after the date of
occurrence of such damage.
(b) Notwithstanding paragraph 9.4(a), in the event that Lessee has an
option to extend of renew this Lease, and the time within which said option
may be exercised has not yet expired, Lessee shall exercise such option, if
it is to be exercised at all, no later than
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twenty (20) days after the occurrence of an Insured Loss falling within the
classification of Premises Partial Damage during the last six months of the
term of this Lease, if Lessee duly exercises such option during said twenty
(20) day period. Lessor shall, at Lessor's expense repair such damage, but
not Lessee' fixtures, equipment or tenant improvements, as soon as
reasonably possible and this Lease shall continue in full force and effect,
if Lessee fails to exercise such option during said twenty 920) day period,
then Lessor may at Lessor's option terminate and cancel this Lease as of
the expiration of said twenty (20) day period by giving written notice to
Lessee of lessor's election to do so within ten (10) days after the
expiration of said twenty (20) day period, notwithstanding any term or
provision in the grant of option to the contrary.
9.5 Abatement of Rent; Lessee's Remedies.
(a) In the event lessor repairs or restores the Premises pursuant to
the provisions of this paragraph 9, the rent payable hereunder for the
period during which such damage, repair or restoration continues shall be
abated in proportion to the degree to which Lessee's use of the Premises is
impaired. Except for abatement of rent, if any, Lessee shall have no claim
against Lessor for any damage suffered by reason of any such damage,
destruction, repair or restoration.
(b) If Lessor shall be obligated to repair or restore the Premises
under the provisions of this paragraph 9 and shall not commence such repair
or restoration within ninety (90) days after such obligation shall accrue.
Lessee may at Lessee's option cancel and terminate this Lease by giving
Lessor written notice of Lessee's election to do so at any time prior to
the commencement of such repair or restoration. In such event this Lease
shall terminate as of the date of such notice.
9.6 Termination -- Advance Payments. Upon termination of this Lease
pursuant to this paragraph 9, an equitable adjustment shall be made concerning
advance rent and any advance payments made by Lessee to Lessor. Lessor shall,
in addition, return to Lessee so much of Lessee's security deposit as has not
theretofore been applied by Lessor.
9.7 Waiver. Lessor and Lessee waive the provisions of any statute which
relate to termination of leases when leased property is destroyed and agree that
such event shall be governed by the terms of this Lease.
10. Real Property Taxes.
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10.1 Payment of Taxes. Lessee shall pay the real property tax, as defined
in paragraph 10.3 applicable to the Industrial Center.
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10.2 Definition of "Real Property Tax." As used herein, the term
"real property tax" shall include any form of real estate tax or assessment,
general, special, ordinary or extraordinary, and any license fee, commercial
rental tax, improvement bond or bonds, levy or tax (other than inheritance,
personal income or estate taxes) imposed on the Industrial Center or any portion
thereof by any authority having the direct or indirect power to tax, including
any city, county, state or federal government, or any school, agricultural,
sanitary, fire, street, drainage or other improvement district thereof, as
against any legal or equitable interest of lessor in the Industrial Center or in
any portion thereof, as against Lessor's right to rent or other income
therefrom, and as against Lessor's business of leasing the Industrial Center.
The term "real property tax" shall also include any tax, fee, levy, assessment
or charge (i) in substitution of, partially or totally, any tax, fee, levy,
assessment or charge hereinabove included within the definition of "real
property tax," or (ii) the nature of which was hereinbefore included within the
definition of "real property tax," or (iii) which is imposed for a service or
right not charged prior to June 1, 1978, or, if previously charged, has been
increased before June 1, 1978, or (iv) which is imposed as a result of a
transfer, either partial or total, of Lessor's interest in the Industrial Center
or which is added to a tax or charge hereinbefore included within the definition
of real property tax by reason of such transfer, or (v) which is imposed by
reason of this transaction, any modifications or changes hereto, or any
transfers hereof.
10.3 Personal Property Taxes.
(a) Lessee shall pay prior to delinquency all taxes assessed against
and levied upon trade fixtures, furnishings, equipment and all other
personal property of Lessee contained in the Premises or elsewhere. When
possible, Lessee shall cause said trade fixtures, furnishings, equipment
and all other personal property to be assessed and billed separately from
the real property of Lessor.
(b) I any of Lessee's said personal property shall be assessed with
Lessor's real property, Lessee shall pay to lessor the taxes attributable
to Lessee within ten (10) days after receipt of a written statement setting
forth the taxes applicable to Lessee's property.
11. Utilities. Lessee shall pay for all water, gas, heat, light, power,
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telephone and other utilities and services supplied to the Premises, together
with any taxes thereon.
12. Assignment and Subletting.
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12.1 Lessor's Consent Required. Lessee shall not voluntarily or by
operation of law assign, transfer, mortgage, sublet, or otherwise transfer or
encumber all or any part of Lessee's interest in the Lease or in the Premises,
without Lessor's prior written consent, which Lessor shall not unreasonably
withhold. lessor shall respond to Lessee's request for consent hereunder in a
timely manner and any attempted assignment, transfer, mortgage, encumbrance or
subletting without such consent shall be void, and shall constitute a breach of
this Lease without the need for notice to Lessee under paragraph 13.1.
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12.2 Lessee Affiliate. Notwithstanding the provisions of paragraph 12.1
hereof, Lessee may assign or sublet the Premises, or any portion thereof,
without Lessor's consent, to any corporation which controls, is controlled by or
is under common control with Lessee, or to any corporation resulting from the
merger or consolidation with Lessee, or to any person or entity which acquires
all the assets of Lessee as a going concern of the business that is being
conducted on the Premises, all of which are referred to as "Lessee Affiliate,"
provided that before such assignment shall be effective said assignee shall
assume, in full, the obligations of Lessee under this Lease. Any such assignment
shall not, in any way, affect or limit the liability of Lessee under the terms
of this Lease even if after such assignment or subletting the terms of this
Lease are materially changed or altered without the consent of Lessee, the
consent of whom shall not be necessary.
12.3 Terms and Conditions of Assignment. Regardless of Lessor's consent,
no assignment shall release Lessee of Lessee's obligations hereunder or after
the primary liability of Lessee to pay the Base Rent and to perform all other
obligations to be performed by Lessee hereunder, Lessor may accept rent from any
person other than Lessee pending approval or disapproval of such assignment.
Neither a delay in the approval or disapproval of such assignment nor the
acceptance of rent shall constitute a waiver or estoppel of Lessor's right to
exercise its remedies for the breach of any of the terms or conditions of this
paragraph 12 of this Lese. Consent to one assignment shall not be deemed
consent to any subsequent assignment. In the event of default by any assignee
of Lessee or any successor of Lessee, in the performance of any of the terms
hereof. Lessor may proceed directly against Lessee without the necessity of
exhausting remedies against said assignee. Lessor may consent to subsequent
assignments of this Lease or amendments or modifications to this Lease with
assignees of Lessee, without notifying Lessee, or any successor of Lessee, and
without obtaining its or their consent thereto and such action shall not relieve
Lessee of liability under this Lease.
12.4 Terms and Conditions Applicable to Subletting. Regardless of Lessor's
consent, the following terms and conditions shall apply to any subletting by
Lessee of all or any part of the Premises and shall be included in subleases:
(a) Lessor hereby assigns and transfers to lessor all of Lessee's
interest in all rentals and income arising from any sublease heretofore or
hereafter made by Lessee, and Lessor may collect such rent and income and
apply same toward Lessee's obligations under this Lease; provided, however,
that until a default shall occur in the performance of Lessee's obligations
under this Lease, Lessee may receive, collect and enjoy the rents accruing
under such sublease. Lessor shall not, by reason of this or any other
assignment of such sublease to Lessor nor by reason of the collection of
the rents from a sublessee, be deemed liable to the sublessee for any
failure of Lessee to perform and comply with any of Lessee's obligations to
such sublessee under such sublease. Lessee hereby irrevocably authorizes
and directs any such sublessee, upon receipt of a written notice from
Lessor stating that a default exists in the performance of Lessee's
obligations under this Lease, to pay to Lessor the rents due and to become
due under the sublease. Lessee agrees that such sublessee shall have the
right to rely upon any such statement and request from Lessor, and that
such sublessee shall pay such rents to Lessor without any obligation or
right to inquire as to whether such default exists and
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notwithstanding any notice from or claim from Lessee to the contrary,
Lessee shall have no right or claim against such sublessee or Lessor for
any such rents so paid by said sublessee to Lessor.
(b) No sublease entered into by Lessee shall be effective unless and
until it has been approved in writing by Lessor. In entering into any
sublease, Lessee shall use only such form of sublease as is satisfactory to
Lessor, and once approved by Lessor, such sublease shall not be changed or
modified without Lessor's prior written consent. Any sublessee shall, by
reason of entering into a sublease under this Lease, be deemed, for the
benefit of Lessor, to have assumed and agreed to conform and comply with
each and every obligation herein to be performed by Lessee other than such
obligations as are contrary to or inconsistent with provisions contained in
a sublease to which Lessor has expressly consented in writing.
(c) If Lessee's obligations under this Lease have been guaranteed by
third parties, then a sublease, and Lessor's consent thereto shall not be
effective unless said guarantors give their written consent to such
sublease and the terms thereof.
(d) The consent by Lessor to any subletting shall not release Lessee
from its obligations or alter the primary liability of Lessee to pay the
rent and perform and comply with all of the obligations of Lessee to be
performed under the Lease.
(e) The consent by lessor to any subletting shall not constitute a
consent to any subsequent subletting by Lessee or to any assignment or
subletting by the sublessee. However, Lessor may consent to subsequent
sublettings and assignments of subletting, any amendments or modifications
thereto without notifying Lessee or anyone else liable on the Lease or
sublease and without obtaining their consent and such actions shall not
relieve such persons from liability.
(f) In the event of any default under this Lease, Lessor may proceed
directly against Lessee, any guarantors or anyone else responsible for the
performance of this Lease, including the sublessee, without first
exhausting Lessor's remedies against any other person or entity responsible
therefor to Lessor or any security held by Lessor or Lessee.
(g) In the event Lessee shall default in the performance of its
obligations under this Lease, Lessor, at it option and without any
obligation to do so, may require any subleases to attorn to Lessor in which
event Lessor shall undertake the obligations of Lessee under such sublease
from the time of the exercise of said option to the termination of such
sublease; provided, however, Lessor shall not be liable for any prepaid
rents or security deposit paid by such sublessee to Lessee or for any other
prior defaults of Lessee under such sublease.
(h) Each and every consent required of Lessee under a sublease shall
also require the consent of Lessor.
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(i) No sublessee shall further assign or sublet all or any part of the
Premises without Lessor's prior written consent.
(j) Lessor's written consent to any subletting of the Premises by
Lessee shall not constitute an acknowledgment that no default then exists
under this Lease of the obligations to be performed by Lessee nor shall
such consent be deemed a waiver of any then existing default except as may
be otherwise stated by Lessor at the time.
(k) With respect to any subletting to which Lessor has consented
Lessor agrees to deliver a copy of any notice of default by lessee to the
sublessee. Such sublessee shall have the right to cure a default of Lessee
within ten (10) days after service of said notice of default upon such
sublessee and the sublessee shall have a right of reimbursement and offset
from and against lessee for any such defaults cured by the sublessee.
12.5 Attorney's Fees. In the event Lessee shall assign or sublet the
Premises or request the consent of Lessor to any assignment or subletting or if
Lessee shall request the consent of Lessor for any act Lessee proposes to do
then Lessee shall pay Lessor's reasonable attorneys fees incurred in connection
therewith, such attorneys fees not to exceed $350.00 for each such request.
13. Default Remedies.
----------------
13.1 Default. The occurrence of any one or more of the following events
shall constitute a material default of this Lease by Lessee:
(a) The vacating or abandonment of the Premises by Lessee.
(b) The failure by Lessee to make any payment of rent or any other
payment required to be made by lessee hereunder as and when due where such
failure shall continue for a period of three (3) days after written notice
thereof from Lessor to Lessee. In the event that Lessor serves Lessee with
a Notice to Pay Rent or Quit pursuant to applicable Unlawful Detainer
statutes such Notice to Pay Rent or Quit shall also constitute the notice
required by this subparagraph.
(c) Except as otherwise provided in this Lease, the failure by Lessee
to observe or perform any of the covenants, conditions or provisions of
this Lease to be observed or performed by Lessee, other than described in
paragraph (b) above, where such failure shall continue for a period of
thirty (30) days after written notice thereof from Lessor to Lessee;
provided, however that the nature of Lessee's noncompliance is such that
more than thirty (3) days are reasonably required for its cure, then Lessee
shall not be deemed to be in default if Lessee commenced such cure within
said thirty (30) day period and thereafter diligently prosecutes such cure
to completion. To the extent permitted by law, such tared (30) day
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notice shall constitute the sole and exclusive notice required to be given
to Lessee under applicable Unlawful Detainer statutes.
(d) (i) The making by Lessee of any general arrangement or general
assignment for the benefit of creditors: (ii) Lessee becomes a "debtor" as
defined in 11 U.S.C. (S) 101 or any successor statute thereto (unless in
the case of a petition filed against Lessee, the same is dismissed within
sixty (60) days; (iii) the appointment of a trustee or receiver to take
possession of substantially all of Lessee's assets located at the Premises
or of Lessee's interest in this Lease where possession is not restored to
Lessee within thirty (30) days; or (iv) the attachment, execution or other
judicial seizure of substantially all of Lessee's assets located at the
Premises or of Lessee's interest in this Lease, where such seizure is not
discharged within thirty (30) days. In the event that any provision of
this paragraph 13.1(d) is contrary to any applicable law such provision
shall be of no force or effect.
(e) The discovery by Lessor that any financial statement given to
Lessor by Lessee any assignee of Lessee, any subtenant of Lessee, any
successor in interest of Lessee or any guarantor of Lessee's obligation
hereunder, was materially false.
13.2 Remedies. In the event of any such material default by Lessee, Lessor
may at any time thereafter, with or without notice or demand and without
limiting Lessor in the exercise of any right or remedy which Lessor may have by
reason of such default:
(a) Terminate Lessee's right to possession of the Premises by any
lawful means, in which case this Lease and the term hereof shall terminate
and Lessee shall immediately surrender possession of the Premises to Lessor
in such event Lessor shall be entitled to recover from Lessee all damages
incurred by Lessor by reason of Lessee's default including but not limited
to, the cost of recovering possession of the Premises, expenses of
reletting, including necessary renovation and alteration of the Premises,
reasonable attorney's fees, and any real estate commission actually paid;
the worth at the time of award by the court having jurisdiction thereof of
the amount by which the unpaid rent for the balance of the term after the
time of such award exceeds the amount of such rental loss for the same
period that Lessee proves could be reasonably avoided, that portion of the
leasing commission paid by Lessor pursuant to paragraph 15 applicable to
the unexpired term of this Lease.
(b) Maintain Lessee's right to possession in which case this Lease
shall continue in effect whether or not lessee shall have vacated or
abandoned the Premises. In such event Lessor shall be entitled to enforce
all of Lessor's rights and remedies under this Lease, including the right
to recover the rent as it becomes due hereunder.
(c) Pursue any other remedy now or hereafter available to Lessor under
the laws or judicial decisions of the state wherein the Premises are
located. Unpaid installments of rent and other unpaid monetary obligations
of Lessee under the terms of this Lease shall bear interest from the date
due at the maximum rate then allowable by law.
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13.3 Default by Lender. Lessor shall not be in default unless Lessor fails
to perform obligations required of Lessor within a reasonable time, but in no
event later than thirty (30) days after written notice by Lessor to Lessor and
to the holder of any first mortgage or deed of trust covering the Premises whose
name and address shall have theretofore been furnished to Lessee in writing,
specifying wherein Lessor has failed to perform such obligation; provided,
however, that if the nature of Lessor's obligation is such that more than thirty
(30) days are required for performance then Lessor shall not be in default if
Lessor commences performance within such thirty (30) day period and thereafter
diligence prosecutes the same to completion.
13.4 Late Charges. Lessee hereby acknowledges that late payment by the
Lessee to Lessor of Base Rent or other sums due hereunder will cause Lessor to
incur costs not contemplated by this Lease, the exact amount of which will be
extremely difficult to ascertain. Such costs include, but are not limited to,
processing and accounting charges, and late charges which may be imposed on
Lessor by the terms of any mortgage or trust deed covering the Property.
Accordingly, if any installment of Base Rent or any other sum due from Lessee
shall not be received by Lessor or Lessor's designee within ten (10) days after
such amount shall be due then without any requirement for notice to Lessee.
Lessee shall pay to Lessor a late charge equal to 6% of such overdue amount.
The parties hereby agree that such late charge represents a fair and reasonable
estimate of the costs Lessor will incur by reason of late payment by Lessee.
Acceptance of such late charge by lessor shall in no event constitute a waiver
of Lessee's default with respect to such overdue amount nor prevent Lessor from
exercising any of the other rights and remedies granted hereunder. In the event
that a late charge is payable hereunder whether or not collected for three (3)
consecutive installments of any of the aforesaid monetary obligations of Lessee
then Base Rent shall automatically become due and payable quarterly in advance,
rather than monthly, notwithstanding paragraph 4.1 or any other provision of
this Lease to the contrary.
14. Condemnation. If the Premises or any portion thereof or the industrial
------------
Center are taken under the owner of eminent domain, or sold under the threat of
the exercise of said power (all of which are herein called "condemnation"), this
Lease shall terminate as to the part so taken as of the date the condemning
authority takes title or possession whichever first occurs. If more than ten
percent of the floor area of the Premises of more than twenty-five percent of
that portion of the Common Areas designated as parking for the industrial Center
is taken by condemnation. Lessee may, at Lessee's option, to be exercised in
writing only within ten (10) days after Lessor shall have given Lessee written
notice of such taking (or in the absence of such notice, within ten (10) days
after the condemning authority shall have taken possession) terminate this Lease
as of the date the condemning authority takes such possession, if Lessee does
not terminate this Lease in accordance with the foregoing this Lease shall
remain in full force and effect as to the portion of the premises remaining,
except that the rent shall be reduced in the proportion that the floor area of
the premises taken bears to the total floor area of the Premises. No reduction
of rent shall occur if the only area taken is that which does not have the
Premises located thereon. Any award for the taking of all or any part of the
Premises under the power of eminent domain or any payment made under threat of
the exercise of such power shall be the property of Lessor, whether such award
shall be made as compensation for diminution in value of the leasehold or for
the taking of the fee, or as severance damages; provided,
16
however, that Lessee shall be entitled to any award for loss of or damage to
Lessee's trade fixtures and removable personal property. In the event that his
Lease is not terminated by reason of such condemnation, Lessor shall to the
extent of severance damages received by Lessor in connection with such
condemnation, repair any damage to the Premises caused by such condemnation
except to the extent that Lessee has been reimbursed therefor by the condemning
authority. Lessee shall pay any amount in excess of such severance damages
required to complete such repair.
15. Estoppel Certificate.
--------------------
(a) Each party (as "responding party") shall at any time upon not less
than ten (10) days prior written notice from the other party ("requesting
party") execute, acknowledge and deliver to the requesting party a
statement in writing (i) certifying that this Lease is unmodified and in
full force and affect (or, if modified, stating the nature of such
modification and certifying that this Lease, as so modified, is in full
force and effect) and the date to which the rent and other charges are paid
in advance. In any, and (ii) acknowledging that there are not to the
responding party's knowledge, any uncured defaults on the part of the
requesting party, or specifying such defaults if any are claimed. Any such
statement may be conclusively relied upon by any prospective purchaser or
encumbrancer of the Premises or of the business of the requesting party.
(b) At the requesting party's option, the failure to deliver such
statement within such time shall be a material default of this Lease by the
party who is to respond without any further notice to such party, or it
shall be conclusive upon such party that (i) this Lease is in full force
and effect, without modification except as may be represented by the
requesting party, (ii) there are no uncured defaults in the requesting
party's performance, and (iii) if Lessor is the requesting party, not more
than one month's rent has been paid in advance.
(c) If Lessor desires to finance, refinance, or sell the Property, or
any part thereof, Lessee hereby agrees to deliver to any lender or
purchaser designated by Lessor such financial statements of Lessee as may
be reasonably required by such lender or purchaser. Such statements shall
include the past three (3) years' financial statements of Lessee. All such
financial statements shall be received by Lessor and such lender or
purchaser in confidence and shall be used only for the purposes herein set
forth.
16. Lessor's Liability. The term "Lessor" as used herein shall mean only the
------------------
owner or owners, at the time in question, of the fee title or a lessee's
interest in a ground lease of the Industrial Center, and except as expressly
provided in paragraph 15, in the event of any transfer of such title or
interest, Lessor herein named (and in case of any subsequent transfers then the
grantor) shall be relieved from and after the date of such transfer of all
liability as respects Lessor's obligations thereafter to be performed, provided
that any funds in the hands of Lessor or the then grantor at the time of such
transfer, in which Lessee has an interest, shall be delivered to the grantee.
The obligations contained in this Lease to be performed by Lessor shall subject
as aforesaid, be binding on Lessor's successors and assigns, only during their
respective periods of ownership.
17
17. Severability. The invalidity of any provision of this Lease as determined
------------
by a court of competent jurisdiction, shall in no way affect the validity of any
other provision hereof.
18. Interest on Past-due Obligations. Except as expressly herein provided, any
--------------------------------
amount due to Lessor not paid when due bear interest at the maximum rate then
allowable by law from the date due. Payment of such interest shall not excuse or
cure any default by lessee under this Lease; provided, however, that interest
shall not be payable on late charges incurred by Lessee nor on any amounts upon
which late charges are paid by Lessee.
19. Time of Essence. Time is of the essence with respect to the obligations to
---------------
be performed under this Lease.
20. Additional Rent. All monetary obligations of Lessee to Lessor under the
---------------
terms of this Lease including but not limited to, Lessee's Share of Operating
Expenses and insurance and tax expenses payable shall be deemed to be rent.
21. Incorporation of Prior Agreements; Amendments. This Lease contains all
---------------------------------------------
agreements of the parties with respect to any matter mentioned herein. No prior
or contemporaneous agreement or understanding pertaining to any such matter
shall be effective. This Lease may be modified in writing only, signed by the
parties in interest at the time of the modification. Lessee acknowledges that
Lessee assumes all responsibility regarding the Occupational Safety Health Act,
the legal use and adaptability of the Premises and the compliance thereof with
all applicable laws and regulations in effect during the term of this Lease
except as otherwise specifically stated in this Lease
22. Notices. Any notice required or permitted to be given hereunder shall be
-------
in writing and may be given by personal delivery or by certified mail, and if
given personally or by mail, shall be deemed sufficiently given if addressed to
Lessee or to Lessor at the address noted below the signature of the respective
parties, as the case may be. Either party may be notice to the other specific a
different address for notice purposes except that upon Lessee's taking
possession of the Premises, the premises shall constitute Lessee's address for
notice purposes. A copy of all notices required or permitted to be given to
Lessor hereunder shall be concurrently transmitted to such party or parties at
such addresses as Lessor may from time to time hereafter designate by notice to
Lessee.
23. Waivers. No waiver by Lessor or any provision hereof shall be deemed a
-------
waiver of any other provision hereof or of any subsequent breach by Lessee of
the same or any other provisions, Lessor's consent to or approval of, any act
shall not be deemed to render unnecessary the obtaining of Lessor's consent or
approval of any subsequent act by Lessee. The acceptance of rent hereunder by
Lessor shall not be a waiver of any preceding breach by Lessee of any provision
hereof, other than the failure of Lessee to pay the particular rent so accepted,
regardless of Lessor's knowledge of such preceding breach at the time of
acceptance of such rent.
24. Recording. Either Lessor or Lessee shall upon request of the other,
---------
execute, acknowledge and deliver to the other a "short form" memorandum of this
Lease for recording purposes.
18
25. Holding Over. If Lessee, with Lessor's consent, remains in possession of
------------
the Premises or any part thereof after the expiration of the term hereof, such
occupancy shall be a tenancy from month to month upon all the provisions of this
Lease pertaining to the obligations of Lessee, out all Options, if any, granted
under the terms of this Lease shall be deemed terminated and be of no further
effect during said month to month tenancy.
26. Cumulative Remedies. No remedy or election hereunder shall be deemed
-------------------
exclusive but shall, wherever possible, be cumulative with all other remedies at
law or in equity.
27. Covenants and Conditions. Each provision of this Lease performable by
------------------------
Lessee shall be deemed both a covenant and a condition.
28. Binding Effect Choices of Law. Subject to any provisions hereof
-----------------------------
restricting assignment or subletting by Lessee and subject to the provisions of
paragraph 17, this Lease shall bind the parties, their personal representatives,
successors and assigns. This Lease shall be governed by the laws of the State
where the Industrial Center is located and any litigation concerning this Lease
between the parties hereto shall be initiated in the county in which the
Industrial Center is located.
29. Subordination.
-------------
(a) This Lease and any Option granted hereby at Lessor's option shall
be subordinate to any ground lease, mortgage, deed of trust, or any other
hypothecation or security now or hereafter placed upon the Industrial
Center and to any and all advances made on the Security thereto and to all
renewals, modifications, consolidations, replacements and extensions
thereof. Notwithstanding such Subordination, Lessee's right to quiet
possession of the Premises shall not be disturbed if Lessee is not in
default and so long as Lessee shall pay the rent and observe and perform
all of the provisions of this Lease, unless this Lease is otherwise
terminated pursuant to its terms, if any mortgagee, trustee or ground
lessor shall elect to have this Lease and any Options granted hereby prior
to the lien of its mortgage, deed of trust or ground lease, and shall give
written notice thereof to Lessee, this Lease and such Options shall be
deemed prior to such mortgage, deed of trust or ground lese, whether this
Lease or such Options are dated prior or subsequent to the date of said
mortgage, deed of trust or ground lease or the date of recording thereof.
(b) Lessee agrees to execute any documents required to effectuate an
attornment, a subordination or to make this Lease or any Option granted
herein prior to the lien of any mortgage, deed of trust or ground lease, as
the case may be. Lessee's failure to execute such documents within ten
(10) days after written demand shall constitute a material default by
Lessee hereunder without further notice to Lessee or, at Lessor's option,
Lessor shall execute such documents on behalf of Lessee as Lessee's
attorney-in-fact. Lessee hereby make constitute and irrevocably appoint
Lessor at Lessee's attorney-in-fact and in Lessee's name, place and stead,
to execute such documents in accordance with this paragraph 30(b).
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30. Attorney's Fees. If either party or the broker(s) named herein bring an
---------------
action to enforce the terms hereof or declare rights hereunder, the prevailing
party in any such action, on trial or appeal, shall be entitled to his
reasonable attorney's fees to be paid by the losing party as fixed by the court.
The provisions of this paragraph shall inure to the benefit of the broker named
herein who seeks to enforce a right hereunder.
31. Lessor's Access. Lessor and Lessor's agents shall have the right to enter
---------------
the Premises at reasonable times for the purpose of inspecting the same, showing
the same to prospective purchasers, lenders, or lessees, and making such
alterations, repairs, improvements or additions to the Premises or to the
building of which they are part as Lessor may deem necessary or desirable.
Lessor may at any time place on or about the Premises or the Building any
ordinary "For Sale" signs and Lessor may at any time during the last 120 days of
the term hereof place on or about the Premises any ordinary "For Lease" signs.
All activities of Lessor pursuant to this paragraph shall be without abatement
of rent, nor shall Lessor have any liability to Lessee for the same.
32. Auctions. Lessee shall not conduct, nor permit to be conducted, either
--------
voluntarily or involuntarily, any auction upon the Premises or the Common Areas
without first having obtained Lessor's prior written consent. Notwithstanding
anything to the contrary in this Lease. Lessor shall not be obligated to
exercise any standard of reasonableness in determining whether to grant such
consent.
33. Signs. Lessee shall not place any sign upon the Premises of the Industrial
-----
Center without Lessor's prior written consent. Under no circumstances shall
Lessee place a sign on any roof of the Industrial Center.
34. Merger. The voluntary or other surrender of this Lease by Lessee, or a
------
mutual cancellation thereof, or a termination by Lessor, shall not work a
merger, and shall, at the option of Lessor, terminate all or any existing
subtenancies or may, at the option of Lessor, operate as an assignment to Lessor
of any or all of such subtenancies.
35. Consents. Except for paragraph 33 hereof, wherever in this Lease the
--------
consent of one party is required to an act of the other party such consent shall
not be unreasonably withheld or delayed.
36. Guarantor. In the event that there is a guarantor of this Lease, said
---------
guarantor shall have the same obligations as Lessee under this Lease.
37. Quiet Possession. Upon Lessee paying the rent for the Premises and
----------------
observing and performing all of the covenants, conditions and provisions on
Lessee's part to be observed and performed hereunder, Lessee shall have quiet
possession of the Premises for the entire term hereof subject to all of the
provisions of this Lease. The individuals executing this Lease on behalf of
Lessor represent and warrant to Lessee that they are fully authorized and
legally capable of executing this Lease on behalf of Lessor and that such
execution is binding upon all parties holding an ownership interest in the
Property.
20
38. Security Measures. Lessee hereby acknowledges that Lessor shall have no
-----------------
obligation whatsoever to provide guard service or other security measures for
the benefit of the Premises or the Industrial Center. Lessee assumes all
responsibility for the protection of Lessee, its agents, and invitees and the
property of Lessee and of Lessee's agents and invitees from acts of third
parties. Nothing herein contained shall prevent Lessor, Lessor's sole option,
from providing security protection for the Industrial Center or any part thereof
as set forth in paragraph 4.2(b).
39. Easements. Lessor reserves to itself the right, from time to time, to
---------
grant such easements, rights and dedications that Lessor deems necessary or
desirable, and to cause the recordation of Parcel Maps and restrictions so long
as such easements, rights, dedications, Maps and restrictions do not
unreasonably interfere with the use of the Premises by Lessee. Lessee shall
sign any of the aforementioned documents upon request of Lessor and failure to
do so shall constitute a material default of this Lease by Lessee without the
need for further notice to Lessor.
40. Performance Under Protest. If at any time a dispute shall arise as to any
-------------------------
amount or sum of money to be paid by one party to the other under the provisions
hereof, the party against whom the obligation to pay the money is asserted shall
have the right to make payment "under protest" and such payment shall not be
regarded as a voluntary payment, and there shall survive the right on the part
of said party to institute suit for recovery of such sum. If it shall be
adjudged in at there was no legal obligation on the part of said party to pay
such sum or any part thereof, said party shall be entitled to recover such sum
or so much thereof as it was not legally required to pay under the provisions of
this Lease.
41. Authority. If Lessee is a corporation, trust, or general or limited
---------
partnership, each individual executing this Lease on behalf of such entity
represents and warrants that he or she is duly authorized to execute and deliver
this Lease on behalf of said entity. If Lease corporation, trust or
partnership, Lessee shall, within thirty (30) days after execution of this Lease
deliver to Lessor evidence of such authority satisfactory to Lessor.
42. Conflict. Any conflict between the printed provisions of this Lease and
--------
the typewritten or handwritten provisions, if any, shall be controlled by the
typewritten or handwritten provisions.
43. Offer. Preparation of this Lese by lessor or Lessor's agent and submission
-----
of same to Lessee shall not be deemed an offer to lease. This Lease shall
become binding upon Lessor and lessee only when fully executed by lessor and
lessee.
44. Addendum. Attached hereto is an addendum or addenda containing paragraphs
--------
________ through __________ when constitute a part of this Lease.
LESSOR AND LESSEE HAVE CAREFULLY READ AND REVIEWED THIS LESE AND EACH TERM AND
PROVISION CONTAINED HEREIN AND BY EXECUTION OF THIS LEASE, SHOW THEIR INFORMED
AND VOLUNTARY CONSENT THERETO. THE PARTIES HEREBY AGREE THAT, AT THE TIME THIS
LEASE IS EXECUTED THE TERMS OF THIS
21
LEASE ARE COMMERCIALLY REASONABLE AND EFFECTUATE THE INTENT AND PURPOSE OF
LESSOR AND LESSEE WITH RESPECT TO THE PREMISES.
THIS LEASE HAS BEEN PREPARED FOR SUBMISSION TO YOUR ATTORNEY FOR APPROVAL
REPRESENTATION OR RECOMMENDATION IS MADE BY THE AMERICAN INDUSTRIAL REAL
ESTATE ASSOCIATION OR BY THE REAL ESTATE BROKER OR ITS AGENTS OR EMPLOYEES
AS TO THE LEGAL SUFFICIENCY, LEGAL EFFECT, OR TAX CONSEQUENCES OF THIS
LEASE OR THE TRANSACTION RELATING THERETO. THE PARTIES SHALL RELY SOLELY
UPON THE ADVICE OF THEIR OWN LEGAL COUNSEL AS TO THE LEGAL AND TAX
CONSEQUENCES OF THIS LEASE.
LESSOR LESSEE
RSH PROPERTIES, L.L.C., a Georgia
limited liability company KING MAILING SERVICES, INC.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇ (SEAL) By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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Member Title: /s/Chairman of the Board
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Executed on October 17, 1994 Executed on October 17, 1994
ADDRESS FOR NOTICES AND RENT ADDRESS FOR NOTICES
c/o Phoenix Communications, Inc. c/o Phoenix Communications, Inc.
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
For these forms write the American Industrial Real Estate Association, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇., ▇▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ (213) 887-8777
22
FIRST AMENDMENT TO STANDARD INDUSTRIAL LEASE
THIS FIRST AMENDMENT TO STANDARD INDUSTRIAL LEASE (the "Amendment") is made
and entered into as of the 1st day of July, 1996, by and between RSH PROPERTIES,
L.L.C., a Georgia limited liability company (the "Lessor") and KING MAILING
SERVICES, INC., a Georgia corporation (the "Lessee").
WITNESSETH:
THAT, WHEREAS, Lessor and Lessee entered into a certain Standard industrial
Lease (the "Lease") dated October 17, 1994; and
WHEREAS, Lessor and Lessee desire to amend certain terms and provision of
the Lease, as hereinafter set forth.
NOW, THEREFORE, for and in consideration of the sum of Ten and No/100
Dollars ($10.00) in hand paid by each party hereto to the other party hereto,
the parties hereto, intending to be legally bound, do hereby agree as follows:
45. Paragraph 4.1 of the Lease is hereby amended by deleting the words and
numbers "October 31, 1996; and $3,033.33 for the period of November 1,
1996 through October 31, 1997" and by inserting in lieu thereof the
words and numbers "June 30, 1996; $3,316.67 for the period July 1, 1996
through October 31, 1996; and $3,533.33 for the period November 1, 1996
through October 31, 1997".
46. This Amendment shall be governed by and construed in accordance with
the laws of the State of Georgia.
47. Except as herein specifically amended, all terms and provisions of the
Lease shall remain in full force and effect and unamended.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
signed, sealed and delivered as of the day and year first above written.
LESSOR:
RSH PROPERTIES, L.L.C., a Georgia limited
liability company
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇ (SEAL)
--------------------------
Member
LESSEE:
KING MAILING SERVICES, INC., a Georgia
corporation
By: /s/▇▇▇▇ ▇▇▇▇▇▇▇▇▇
---------------------------
Title: Chairman
-----------------------
SECOND AMENDMENT TO STANDARD INDUSTRIAL LEASE
THIS SECOND AMENDMENT TO STANDARD INDUSTRIAL LEASE (the "Amendment") is
made and entered into as of the 1st day of July, 1997, by and between RSH
PROPERTIES, L.L.C., a Georgia limited liability company (the "Lessor") and KING
MAILING SERVICES, INC., a Georgia corporation (the "Lessee").
WITNESSETH:
THAT, WHEREAS, Lessor and Lessee entered into a certain Standard industrial
Lease dated October 17, 1994, which Standard Industrial Lease was amended by
that certain First Amendment to Standard Industrial Lease between Lessor and
Lessee, dated as of July 1, 1996 (the Standard Industrial Lease, amended by the
First Amendment to Standard Industrial Lease, is hereinafter referred to as the
"Lease"); and
WHEREAS, Lessor and Lessee desire to provide for a five (5) year extension
of the Term of the Lease as hereinafter set forth;
NOW, THEREFORE, for and in consideration of the sum of Ten and No/100
Dollars ($10.00) in hand paid by each party hereto to the other party hereto,
the parties hereto, intending to be legally bound, do hereby agree as follows:
48. All capitalized words and phrases used in this Amendment shall have the
meanings ascribed to them in the Lease, unless specified herein to the
contrary.
49. The Lease is hereby amended to provide a five (5) year extension of the
Term, which five (5) year extension commences on November 1, 1997 and
continues through October 31, 2002. All terms and provisions of the
Lease during the five (5) year extension shall remain in full force and
effect except that the monthly amount of Base Rent for the Premises
under the Lease shall be as follows:
$3,674.66 for the period November 1, 1997 through October 31, 1998;
$3,821.65 for the period November 1, 1998 through October 31, 1999;
$3,974.52 for the period November 1, 1999 through October 31, 2000;
$4,133.50 for the period November 1, 2000 through October 31, 2001; and
$4,298.84 for the period November 1, 2001 through October 31, 2002;
50. This Amendment shall be governed by and construed in accordance with
the laws of the State of Georgia. This Amendment shall be binding upon
and shall inure to the benefit of the parties hereto and their
respective successors and assigns.
51. Except as herein specifically amended, all terms and provisions of the
Lease shall remain in full force and effect and unamended.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
signed, sealed and delivered as of the day and year first above written.
LESSOR:
RSH PROPERTIES, L.L.C., a Georgia limited
liability company
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇ (SEAL)
-------------------------------
Member
LESSEE:
KING MAILING SERVICES, INC., a Georgia
corporation
By: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
----------------------------------
Title: Chairman
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