1
EXHIBIT 10.10
LEASE
NORTHWOODS BUSINESS CENTER
0000 XXXXXXXXXX XXXXXXX
XXXXXXXX, XXXXXXX
Landlord: New England Mutual Life Insurance Company
Tenant: Vaxcel, Inc.
Date: As of November 23, 1993
This Lease consists of four parts:
Part I Cover Sheet
Part II Standard Lease Provisions
Part III Additional Provisions (if any) and
Part IV Exhibits
EXHIBIT A - Floor Plan of Premises
EXHIBIT B - Legal Description of Lot
EXHIBIT C - Omitted
EXHIBIT D - Tenant Improvements
EXHIBIT E - Omitted
EXHIBIT F - Omitted
EXHIBIT G - List of permitted substances
EXHIBIT H - Expansion Space
Form: Northwoods Business Center
TNE Asset No. 988
TNE Locator t:\Docs\988VXL.TPM
Last Revision date: 11/22/93
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PART I
COVER SHEET
The terms listed below shall have the following meanings throughout
this Lease:
DATE OF LEASE: As of November 23, 1993
LANDLORD: New England Mutual Life Insurance Company
TENANT: Vaxcel, Inc., a Georgia corporation
TENANT'S ADDRESS: 0000 Xxxxxxxxxx Xxxxxxx, Xxxxx 000
Xxxxxxxx, Xxxxxxx 00000
Attn: Mr. Xxxx Xxxxxx
Copy to: X. Xxxxxxx Null, Esq.
Long Xxxxxxxx & Xxxxxx
One Peachtree Center, Suite 5300
000 Xxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx 00000
MANAGING AGENT: LaVista Associates, Inc.
MANAGING AGENT'S 0000 Xxxxxxxxx Xxxxxxx Xxxxxx
ADDRESS: Xxxxxxxx, Xxxxxxx 00000
PREMISES: The area consisting of approximately 4,782 rentable
square feet located on the first floor of the
Building as shown on Exhibit A attached
BUILDING: The three buildings known as Northwoods Business
Center with a street address of 0000 Xxxxxxxxxx
Xxxxxxx, Xxxxxxxx, Xxxxxxx, and consisting of
approximately 110,056 rentable square feet
PROPERTY: The Building, other improvements and land (the
"Lot"), a legal description of which is Exhibit B
attached
TENANT'S 4.34% (4,782 rentable square feet in the Premises
PERCENTAGE: divided by 110,056 rentable square feet in the
Building)
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LANDLORD'S INITIALS TENANT'S INITIALS
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PERMITTED USES: Office, receiving, storing, shipping and selling
(other than retail) products, materials and
merchandise made and/or distributed by Tenant, and
laboratory and related facilities for Tenant's
research and development of vaccine and vaccine
delivery systems, all consistent with Paragraph 7.2
TENANT See Exhibit D attached hereto and made a part hereof
IMPROVEMENTS:
COMMENCEMENT DATE: See Paragraph 2.1 below
TERM: Five (5) years (plus any extension properly exercised
as provided in Additional Provisions, AP8)
BASE RENT: $181,285.62 payable as follows:
Annual
Rent Annual Rent
Months Per Month Rent p.r.s.f.
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1-12 $2,789.50 $33,474.00 $7.00
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13-24 $2,901.08 $34,812.96 $7.28
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25-36 $3,106.64 $36,199.74 $7.57
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37-48 $3,136.19 $37,634.34 $7.87
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49-60 $3,263.72 $39,164.58 $8.19
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LANDLORD'S SHARE OF $22,011.20 per real estate tax year
TAXES:
LANDLORD'S SHARE OF $14,230.00 per Lease Year
INSURANCE PREMIUMS:
SECURITY DEPOSIT: $33,474.00
PUBLIC LIABILITY $1,000,000 Combined Single Limit
INSURANCE AMOUNT:
BROKER(S): LaVista Associates, Inc. and Xxxxxxx & Xxxxxxxxx of
Georgia, Inc.
GUARANTOR(S): None
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LANDLORD'S INITIALS TENANT'S INITIALS
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TABLE OF CONTENTS OF STANDARD LEASE PROVISIONS
Page
ARTICLE I: PREMISES
1.1 Premises........................................................ 6
1.2 Common Areas.................................................... 6
ARTICLE II: TERM
2.1 Commencement Without Tenant Improvements........................ 7
2.2 Commencement With Tenant Improvements........................... 7
ARTICLE III: RENT
3.1 Base Rent....................................................... 7
3.2 Additional Rent for Operating Expenses, Taxes, and Capital
Costs........................................................... 8
ARTICLE IV: DELIVERY OF PREMISES AND TENANT IMPROVEMENTS
4.1 Condition of Premises........................................... 10
4.2 Delay in Possession............................................. 10
4.3 Delivery and Acceptance of Possession........................... 11
4.4 Early Occupancy................................................. 11
ARTICLE V: ALTERATIONS AND TENANT'S PERSONAL PROPERTY
5.1 Alterations..................................................... 11
5.2 Tenant's Personal Property...................................... 12
ARTICLE VI: LANDLORD'S COVENANTS
6.1 Services Provided by Landlord................................... 13
6.2 Repairs and Maintenance......................................... 13
6.3 Quiet Enjoyment................................................. 14
6.4 Insurance....................................................... 14
ARTICLE VII: TENANT'S COVENANTS
7.1 Repairs, Maintenance and Surrender.............................. 14
7.2 Use............................................................. 14
7.3 Assignment; Sublease............................................ 15
7.4 Indemnity....................................................... 15
7.5 Tenant's Insurance.............................................. 16
7.6 Payment of Taxes................................................ 16
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7.7 Environmental Assurances........................................ 16
7.8 Americans With Disabilities Act................................. 18
ARTICLE VIII: DEFAULT
8.1 Default......................................................... 18
8.2 Remedies of Landlord and Calculation of Damages................. 19
ARTICLE IX: CASUALTY AND EMINENT DOMAIN
9.1 Casualty........................................................ 20
9.2 Eminent Domain.................................................. 22
ARTICLE X: RIGHTS OF PARTIES HOLDING SENIOR INTERESTS
10.1 Subordination................................................... 22
10.2 Mortgagee's Consent............................................. 23
ARTICLE XI: GENERAL
11.1 Representations by Tenant....................................... 23
11.2 Notices......................................................... 23
11.3 No Waiver or Oral Modification.................................. 23
11.4 Severability.................................................... 23
11.5 Requests by Tenant.............................................. 23
11.6 Estoppel Certificate and Financial Statements................... 23
11.7 Waiver of Liability............................................. 24
11.8 Execution; Prior Agreements and No Representations.............. 24
11.9 Brokers......................................................... 24
11.10 Successors and Assigns.......................................... 24
11.11 Applicable Law and Lease Interpretation......................... 25
11.12 Costs of Collection, Enforcement and Disputes................... 25
11.13 Holdover........................................................ 25
11.14 Force Majeure................................................... 25
11.15 Limitation On Liability......................................... 25
11.16 Lease not to be Recorded........................................ 26
11.17 Security Deposit................................................ 26
11.18 Guaranty of Lease............................................... 26
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PART II STANDARD LEASE PROVISIONS
ARTICLE I PREMISES
1.1 Premises.
(a) Demise of Premises. This Lease (the "Lease") is made and entered
into by and between Landlord and Tenant and shall become effective as of the
Date of Lease. In consideration of the mutual covenants made herein, Landlord
hereby leases to Tenant, and Tenant hereby leases from Landlord, the Premises,
on all of the terms and conditions set forth in this Lease.
(b) Measurement. If, as a result of any subsequent measurement by
Landlord (which measurement shall be completed in accordance with standard
office building measurement practices utilized in the area in which the Building
is located), the areas of the Building or the Premises are determined to be more
or less than the areas described in the Lease, then all computations of rent and
other matters described in the Lease where area is a factor shall be recomputed.
Until Landlord remeasures the Building and the Premises, all measurements of
area contained in the Lease shall be deemed to be correct and binding upon the
Landlord and Tenant. *See Additional Provisions API.
(c) Intentionally Omitted
(d) Access to Premises. Landlord shall have reasonable access to the
Premises, at any time during the Term, to inspect Tenant's performance hereunder
and to perform any acts required of or permitted to Landlord herein, including,
without limitation, (i) the right to make any repairs or replacements Landlord
deems necessary, (ii) the right to show the Premises to prospective purchasers
and mortgagees, and (iii) during the last six (6) months of the Term, the right
to show the Premises to prospective tenants. Landlord shall at all times have a
key to the Premises, and Tenant shall not change any existing lock(s), nor
install any additional lock(s) without Landlord's prior consent. Except in the
case of any emergency, any entry into the Premises by Landlord shall be not less
than 24 hours advance notice.
1.2 Common Areas. Tenant shall have the right to use, in common with
other tenants, the Building's common lobbies, corridors, stairways, and
elevators necessary for access to the Premises, and the common walkways and
driveways necessary for access to the Building, the common toilets, corridors
and elevator lobbies of any multi-tenant floor, if any, and the parking areas
for the Building ("Common Areas"). Tenant's use of the Building parking areas
shall be on an unreserved, non-exclusive basis and solely for Tenant's employees
and visitors. Landlord shall not be liable to Tenant, and this Lease shall not
be affected, if any parking rights of Tenant hereunder are impaired by any law,
ordinance or other governmental regulation imposed after the Date of Lease. If
Landlord grants to any other tenant the exclusive right to use any particular
parking spaces, neither Tenant nor its visitors shall use such spaces. Use of
the Common Areas shall be only upon
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the terms set forth at any time by Landlord. Landlord may at any time and in any
manner make any changes, additions, improvements, repairs or replacements to the
Common Areas that it considers desirable, provided that Landlord shall use
reasonable efforts to minimize interference with Tenant's normal activities.
Such actions of Landlord shall not constitute constructive eviction or give rise
to any rent abatement or liability of Landlord to Tenant and shall use
reasonable efforts to ensure that Tenant and Tenant's invitees shall have access
to the Premises during normal business hours.
ARTICLE II TERM
2.1 Commencement Date*
*See Additional Provisions, AP2
ARTICLE III RENT
3.1 Base Rent.
(a) Payment of Base Rent. Tenant shall pay the Base Rent each month in
advance on the first day of each calendar month during the Term. If the
Commencement Date is other than the first day of the month, Tenant shall pay a
proportionate part of such monthly installment on the Commencement Date. An
adjustment in the Base Rent for the last month of the Term shall be made if the
Term does not end on the last day of the month. All payments shall be made to
Managing Agent at Managing Agent's Address or to such other party or to such
other place as Landlord may designate in writing, without prior demand and
without abatement, deduction or offset except as otherwise set forth herein,
charges to be paid by Tenant hereunder, other than Base Rent, shall be
considered additional rent for the purposes of this Lease, and the words "rent"
or "Rent" as used n this Lease shall mean both Base Rent and additional rent
unless the context specifically or clearly indicates that only Base Rent is
referenced.
(b) Late Payments. Tenant acknowledges that the late payment by Tenant
to Landlord of any rent or other sums due under this Lease will cause Landlord
to incur costs not contemplated by this Lease, the exact amount of such costs
being extremely difficult and impracticable to ascertain. Therefore, if any rent
or other sum due from Tenant is not received when due, Tenant shall pay to
Landlord no later than ten (10) calendar days after such date an additional sum
equal to 5% of such overdue payment. In addition to such late charge, all such
delinquent rent or other sums due to Landlord, including the late charge, shall
bear interest beginning on the date such payment was due at the then maximum
lawful rate permitted to be charged by Landlord. The notice and cure period
provided in Paragraph 8.1(a) does not apply to the foregoing late charges and
interest. If payments of any kind are returned for insufficient funds Tenant
shall pay to Landlord an additional handling charge of $50.00.
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3.2 Additional Rent for Operating Expenses, Taxes, and Capital Costs.
(a) Additional Rent. For each Lease Year, Tenant shall pay to Landlord
as additional rent Tenant's Percentage of Operating Expenses, Taxes in excess of
Landlord's Share of Taxes, and Capital Costs ("Tenant's Share of Expenses").
(b) Definitions. As used herein, the following terms shall have the
following meanings:
(i) Lease Year. Each successive 12 month period following
the Commencement Date
(ii) Operating Expenses. The total cost of operation of
the Property, including, without limitation, (1)
premiums in excess of Landlord's Share of Insurance
Premiums and deductibles* for insurance carried with
respect to the Property; (2) all costs of supplies,
materials, equipment, and utilities used in or
related to the operation, maintenance, and repair of
the Property or any part thereof (including
utilities, unless the cost of any utilities is to be
paid for separately by the Tenant pursuant to
Paragraph 6.1 (b)); (3) all labor costs, including
without limitation, salaries,** wages, payroll and
other taxes, unemployment insurance costs, and
employee benefits: (4) all maintenance, management,
janitorial, inspection, legal, accounting, and
service agreement costs related to the operation,
maintenance, and repair of the Property or any part
thereof, including, without limitation, service
contracts with independent contractors. Any of the
above services may be performed by Landlord or its
affiliates, provided that fees for the performance of
such services shall be reasonable and competitive
with fees charged by unaffiliated entities for the
performance of such services in comparable buildings
in the area. Operating Expenses shall not include
Taxes, leasing commissions; repair costs paid by
insurance proceeds or by any tenant or third party;
the initial construction cost of the Building or any
depreciation thereof; any debt service or costs
related to sale or financing of the Property; any
capital expenses, except* tenant improvements
provided for any tenant; or any special services
rendered to tenants (including Tenant) for which a
separate charge is made.** If the Building is less
than 100% occupied during any Lease Year, then in
determining the Operating Expenses, all Operating
Expenses that may reasonably be determined to vary in
accordance with the occupancy level of the Building,
shall be grossed up to reflect 100% occupancy by
multiplying the amount of such expenses by a
fraction, the numerator of which is the total
rentable square feet in the Building and the
denominator of which is the average square feet in
the Building that is occupied by tenants during the
Lease Year. For the purpose of calculating Tenant's
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Percentage of Operating Expenses, Operating Expenses,
excluding insurance costs, shall not increase by more
than 5% annually.
**See Additional Provisions, AP3
*(not to exceed Tenant's Percentage of $25,000.00 per
occurrence)
**for employees at or below the level of
administrative property manager
*as set forth in Paragraph 3.2(b)(vi) below
(v) Taxes. Any form of assessment, rental tax, license
tax, business license tax, levy, charge, tax or
similar imposition imposed by any authority having
the power to tax, including any city, county, state
or federal government, or any school, agricultural,
lighting, library, drainage, or other improvement or
special assessment district, as against the Property
or any part thereof or any legal or equitable
interest of Landlord therein, or against Landlord by
virtue of its interest therein, and any reasonable
costs incurred by Landlord in any proceedings for
abatement thereof, including, without limitation,
attorneys' and consultants' fees, and regardless of
whether any abatement is obtained. Landlord's income
and franchise taxes are excluded from Taxes.
(vi) Capital Costs. The annual cost of any capital
improvements to the Property made by Landlord that
are designed to increase safety, to reduce Operating
Expenses, or to comply with any governmental law or
regulation imposed after initial completion of the
Building, amortized over such period as Landlord
shall reasonably determine, in accordance with sound
accounting principles, consistently applied, together
with a fixed annual interest rate equal to the Prime
Rate plus 2% on the unamortized balance. The Prime
Rate shall be the prime rate published in the Wall
Street Journal on the date the construction is
completed.
(c) Estimate of Tenant's Share of Expenses. Before each calendar year
and from time to time as Landlord deems appropriate, Landlord shall give Tenant
estimates for the coming calendar year of Operating Expenses, Taxes in excess of
Landlord's Share of Taxes, Capital Costs, and Tenant's Share of Expenses.
Landlord shall make reasonable efforts to provide estimates not less than thirty
(30) days before the beginning of each calendar year. Tenant shall pay one
twelfth (1 /12) of the estimated amount of Tenant's Share of Expenses with each
monthly payment of Base Rent during the calendar year. Each calendar year,
Landlord shall give Tenant a statement (the "Share of Expenses Statement")
showing the Operating Expenses, Taxes in excess of Landlord's Share of Taxes,
and Capital Costs for the prior calendar year*, a calculation of Tenant's Share
of Expenses due for the prior Lease Year* and a summary of amounts already paid
by Tenant for the prior calendar year.* Landlord shall make reasonable efforts
to provide the Share
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of Expenses Statement within one hundred and twenty (120) days after the end of
the prior calendar year*. Any underpayment by Tenant shall be paid to Landlord
within thirty (30) days after delivery of the Share of Expenses Statement; any
overpayment shall be credited against the next installment of Base Rent due,
provided that any overpayment shall be paid to Tenant within thirty (30) days if
the Term has ended. No delay by Landlord in providing any Share of Expenses
Statement shall be deemed a waiver of Tenant's obligation to pay Tenant's Share
of Expenses. Notwithstanding anything contained in this paragraph, the total
rent payable by Tenant shall in no event be less than the Base Rent.
(d) Partial Year Calculation.
(i) First Lease Year. In the event the Term did not
commence on January lst, Tenant's Share of Expenses
for the first Lease Year* will be proportionately
reduced. In this case, Tenant shall pay Landlord
Tenant's Share of Expenses multiplied by a fraction
whose numerator equals the number of days between the
Commencement Date and December 31 and whose
denominator equals 365. (For example, if the
Commencement Date is September 1 in the Base Year,
Tenant shall pay in the first calendar year Tenant's
Share of Expenses times 122/365).
(ii) Last Lease Year. In the event the Term does not
expire on December 31st of the last calendar year;*
Tenant's Share of Expenses shall be proportionately
reduced.
ARTICLE IV DELIVERY OF PREMISES AND TENANT IMPROVEMENTS
4.1 Condition of Premises. Landlord shall deliver the Premises to
Tenant in its "as-is" condition. Tenant shall construct tenant improvements
pursuant to and in accordance with the terms set forth in Exhibit D of this
Lease ("Tenant Improvements"). Except as otherwise provided in this lease, such
Tenant Improvements shall become and remain the property of the Landlord.
4.2 Intentionally Omitted.
4.3 Delivery and Acceptance of Possession. Tenant shall accept
possession and enter in good faith occupancy of the entire Premises and commence
the operation of its business therein within thirty (30) days after the
Commencement Date. Tenant's taking possession of any part of the Premises shall
be deemed to be an acceptance and an acknowledgment by Tenant that (i) Tenant
has had an opportunity to conduct, and has conducted, such inspections of the
Premises as it deems necessary to evaluate its condition, (ii) except as
otherwise specifically provided herein, Tenant accepts possession of the
Premises in its then existing condition, "as-is", including all patent and
latent defects, (iii) Tenant Improvements have been completed in accordance with
the terms of
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this Lease, except for defects of which Tenant has given Landlord written notice
prior to the time Tenant takes possession, and (iv) neither Landlord, nor any of
Landlord's agents, has made any oral or written representations or warranties
with respect to such matters other than as set forth in this Lease.
4.4 Early Occupancy. During construction of the Tenant Improvements,
and prior to the Commencement Date, Tenant (and its contractors) may enter the
Premises subject to all of the provisions of this Lease (including Tenant's
obligations regarding indemnity and insurance), except those provisions
regarding Tenant's obligation to pay Rent, which obligation shall commence as
provided in Paragraph 2.1 of this Lease.
ARTICLE V ALTERATIONS AND TENANT'S PERSONAL PROPERTY
5.1 Alterations.
(a) Landlord's Consent. Tenant shall not make any alterations,
additions, installations, substitutes or improvements ("Alterations") in and to
the Premises without first obtaining Landlord's written consent. Landlord shall
not unreasonably withhold or delay its consent; provided, however, that Landlord
shall have no obligation to consent to Alterations of a structural nature or
Alterations that would violate the certificate of occupancy for the Premises or
any applicable law, code or ordinance or the terms of any superior lease or
mortgage affecting the Property. No consent given by Landlord shall be deemed as
a representation or warranty that such Alterations comply with laws, regulations
and rules applicable to the Property ("Laws"). Tenant shall pay Landlord's
reasonable costs of reviewing or inspecting any proposed Alterations and any
other costs that may be incurred by Landlord as a result of such Alterations.
(b) Workmanship. All Alterations shall be done at reasonable
times in a first-class workmanlike manner, by contractors approved by Landlord,
and according to plans and specifications previously approved by Landlord. All
work shall be done in compliance with all Laws, and with all regulations of the
Board of Fire Underwriters or any similar insurance body or bodies. Tenant shall
be solely responsible for the effect of any Alterations on the Building's
structure and systems, notwithstanding that Landlord has consented to the
Alterations, and shall reimburse Landlord on demand for any costs incurred by
Landlord by reason of any faulty work done by Tenant or its contractors. Upon
completion of Alterations, Tenant shall provide Landlord with a complete set of
"as-built" plans.
(c) Mechanics and Other Liens. Tenant shall keep the Property
and Tenant's leasehold interest therein free of any liens or claims of liens,
and shall bond or otherwise discharge to Landlord's satisfaction, any such liens
within ten (10) days of their filing. At Landlord's request, Tenant's contractor
shall provide payment, performance and lien indemnity bonds required by
Landlord, and Tenant shall provide evidence of such insurance as Landlord may
require, naming Landlord as an additional insured. Tenant
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shall indemnify Landlord and hold it harmless from and against any cost, claim,
or liability arising from any work done by or at the direction Tenant.
(d) Removal of Alterations. All Alterations affixed to the
Premises shall become part thereof and remain therein at the end of the Term.
5.2 Tenant's Personal Property.
(a) In General. Tenant may provide and install, and shall
maintain in good condition, all trade fixtures, personal property, equipment,
furniture and moveable partitions required in the conduct of its business in the
Premises. All of Tenant's personal property, trade fixtures, equipment,
furniture, movable partitions, and any Alterations not affixed to the Premises
shall remain Tenant's property. Landlord and Tenant specifically acknowledge and
agree that any and all case work and cabinet work to be installed by Tenant
shall be deemed and construed to be trade fixtures, and may be removed by Tenant
upon the expiration or earlier termination of this Lease and Tenant shall
restore any damage occasioned by such removal.
(b) Intentionally Omitted.
(c) Payment of Taxes. Tenant shall pay before delinquency all
taxes levied against Tenant's personal property or trade fixtures in the
Premises and any Alterations installed by or on behalf of Tenant. If any such
taxes are levied against Landlord or its property, or if the assessed value of
the Premises is increased by the inclusion of a value placed on Tenant's
property, Landlord may pay such taxes, and Tenant shall upon demand repay to
Landlord Tenant's Percentage of the portion of such taxes resulting from such
increase.
*The Premises will be heated and cooled by separate units presently installed
that serve only the Premises. Electricity serving such heating and air
conditioning units shall be separately metered in accordance with Paragraph
6.1(b), below.
ARTICLE V LANDLORD'S COVENANTS
6.1 Services Provided by Landlord.
(a) Services. Landlord shall provide services, utilities,
facilities and supplies equal in quality to those customarily provided by
landlords in buildings of a similar design in the area in which the Property is
located. Landlord shall provide reasonable additional Building operation
services upon reasonable advance request of Tenant at reasonable rates from time
to time established by Landlord.
(b) Separately Metered Utilities. The Premises will be
separately metered or submetered as of the Commencement Date, and the costs of
utilities for the Premises
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shall not be included as an Operating Expense. Tenant shall pay the cost of all
separately metered utilities directly to the utility company.
(c) Graphics and Signs. Landlord shall provide, at Landlord's
expense, identification of Tenant's name and suite numerals at the main entrance
door to the Premises and the exterior directory, if any serving the building of
which the Premises are a part. All signs, notices, graphics and decorations of
every kind or character which are - visible in or from the Common Areas or the
exterior of the Premises shall be subject to Landlord's prior written approval,
which Landlord shall have the right to withhold in its absolute and sole
discretion.
(d) Right to Cease Providing Services. In case of Force
Majeure or in connection with any repairs, alterations or additions to the
Property or the Premises, or any other acts required of or permitted to Landlord
herein, Landlord may reduce or suspend service of the Building's utilities,
facilities or supplies, provided that Landlord shall use reasonable diligence to
restore such services, facilities or supplies as soon as possible. No such
reduction or suspension shall constitute an actual or constructive eviction or
disturbance of Tenant's use or possession of the Premises. See Additional
Provisions, AP9.
6.2 Repairs and Maintenance. Landlord shall repair and maintain (i) the
Common Areas, (ii) the structural portions of the Building, (iii) the exterior
walls of the Building (including exterior windows and glazing), (iv) the roof,
and (v) the basic plumbing, electrical, mechanical and heating, ventilating and
air-conditioning systems serving the Premises, in the manner and to the extent
customarily provided by landlords in similar buildings in the area. Tenant shall
pay for such repairs as set forth in Paragraph 3.2. If any maintenance, repair
or replacement is required because of any act, omission or neglect of duty by
Tenant or its agents, employees, invitees or contractors, the cost thereof up to
the full amount of the deductible of Landlord's insurance coverage shall be paid
by Tenant to Landlord as additional rent within thirty (30) days after billing.
6.3 Quiet Enjoyment. Upon Tenant's paying the rent and performing its
other obligations, Landlord shall permit Tenant to peacefully and quietly hold
and enjoy the Premises, subject to the provisions of this Lease.
6.4 Insurance. Landlord shall insure the Property, including the
Building and Tenant Improvements and approved Alterations, if any, against
damage by fire and standard extended coverage perils, and shall carry public
liability insurance, all in such reasonable amounts as would be carried by a
prudent owner of a similar building in the area. Landlord may carry any other
forms of insurance as it or its mortgagee may deem advisable. Insurance obtained
by Landlord shall not be in lieu of any insurance required to be maintained by
Tenant. Landlord shall not carry any insurance on Tenant's Property, and shall
not be obligated to repair or replace any of Tenant's Property.
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ARTICLE VII TENANT'S COVENANTS
7.1 Repairs, Maintenance and Surrender.
(a) Repairs and Maintenance. Tenant shall keep the Premises in
good order and condition, and shall promptly repair any damage to the Premises
excluding glass in exterior walls. Tenant shall also pay to repair any damage to
the rest of the Property, including glass in exterior walls, up to the full
amount of the deductible of Landlord's insurance coverage, if such damage is
attributable to Tenant's negligence or misuse caused by Tenant or its agents,
employees, or invitees, licensees or independent contractors. All repairs shall
be made in a workmanlike manner and any replacements or substitutions shall be
of a quality, utility, value and condition similar to or better than the
replaced or substituted item.
(b) Surrender. At the end of the Term, Tenant shall peaceably
surrender the Premises in good order, repair and condition, except for
reasonable wear and tear, and Tenant shall remove Tenant's Property, repairing
any damage caused by such removal and restoring the Premises and leaving them
clean and neat. Any property not so removed shall be deemed abandoned and may be
retained by Landlord or may be removed and disposed of by Landlord in such
manner as Landlord shall determine. Tenant shall be responsible for costs and
expenses incurred by Landlord in disposing any such abandoned property, and
making any incidental repairs and replacements to the Premises reasonable wear
and tear excepted.
7.2 Use.
(a) General Use. Tenant shall use the Premises only for the
Permitted Uses, and shall not use or permit the Premises to be used in violation
of any law or ordinance or of any certificate of occupancy issued for the
Building or the Premises, or of the Rules and Regulations. Tenant shall not
cause, maintain or permit any nuisance in, on or about the Property, or commit
or allow any waste in or upon the Property. *Tenant shall not use utility
services in excess of amounts reasonably determined by Landlord to be within the
normal range of demand for the Permitted Uses.
*Except for separately metered utilities which Tenant shall use safely,
(b) Obstructions and Exterior Displays. Tenant shall not
obstruct any of the Common Areas or any portion of the Property outside the
Premises, and shall not, except as otherwise previously approved by Landlord,
place or permit any signs, decorations, curtains, blinds, shades, awnings,
aerials or flagpoles, or the like, that may be visible from outside the
Premises. If prior to the Date of Lease, Landlord designates a standard window
covering for use throughout the Building, Tenant shall use this standard window
covering to cover all windows in the Premises.
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(c) Floor Load. Tenant shall not place a load upon the floor
of the Premises exceeding the load per square foot such floor was designed to
carry, as determined by applicable building code.
(d) Compliance with Insurance Policies. Tenant shall not keep
or use any article in the Premises, or permit any activity therein, which is
prohibited by any insurance policy covering the Building, or would result in an
increase in the premiums thereunder.
(e) Rules and Regulations. Tenant shall observe and comply
with reasonable rules and regulations promulgated from time to time by Landlord
and delivered to Tenant ( the "Rules and Regulations"), and all modifications
thereto as made by Landlord and put into effect from time to time. Landlord
shall not be responsible to Tenant for the violation or non-performance by any
other tenant or occupant of the Building of the Rules and Regulations.
7.3 Assignment: Sublease. Except as hereinafter provided, Tenant shall
not assign its rights under this Lease nor sublet the whole or any part of the
Premises without Landlord's prior written consent. In the event that Landlord
grants such consent, Tenant shall remain primarily liable to Landlord for the
payment of all rent and for the full performance of the obligations under this
Lease and any excess rents collected by Tenant shall be paid to Landlord.** Any
assignment or subletting which does not conform with this Paragraph 7.3 shall be
void and a default hereunder.
7.4 Indemnity. Tenant, at its expense, shall defend (with counsel
satisfactory to Landlord), indemnify and hold harmless Landlord and its agents,
employees, invitees, licensees and contractors from and against any cost, claim,
action, liability or damage of any kind arising from (i) Tenant's use and
occupancy of the Premises or the Property or any activity done or permitted by
Tenant in, on, or about the Premises or the Property, (subject to the provisions
of Paragraph 11.7 of this Lease), (ii) any breach or default by Tenant of its
obligations under this Lease, or (iii) any negligent, tortious, or illegal act
or omission of Tenant, its agents, employees, invitees, licensees or
contractors. (Subject to the provisions of Paragraph 11.7 of this Lease)
Landlord shall not be liable to Tenant or any other person or entity for any
damages arising from any act or omission of any other tenant of the Building.
The obligations of Tenant in this Paragraph shall survive the expiration or
termination of this Lease.
**Tenant shall, however, be entitled to assign or sublet all or any portion of
the Premises to Cytrx Corporation, Vet Life, Inc., or any entity controlling,
controlled by, or under direct or indirect common control with Tenant, or any
subsidiary or affiliate thereof.
7.5 Tenant's Insurance. Tenant shall maintain with responsible
companies qualified to do business, in good standing in the state in which the
Premises are located and otherwise acceptable to Landlord and at its sole
expense the following insurance: (i) comprehensive general liability insurance
covering the Premises insuring Landlord as well
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as Tenant with limits which shall, at the commencement of the Term, be at least
equal to the Public Liability Insurance Amount and from time to time during the
Term shall be for such higher limits, if any, as are customarily carried in the
area in which the Premises are located with respect to similar properties, (ii)
workers' compensation insurance with statutory limits covering all of Tenant's
employees working in the Premises, and (iii) property insurance insuring
Tenant's Property for the full replacement value of such items. There shall be
no deductible for liability policies and a deductible not greater than $5,000
for property insurance policies. Tenant shall deposit promptly with Landlord
certificates for such insurance, and all renewals thereof, bearing the
endorsement that the policies will not be canceled until after thirty (30) days'
written notice to Landlord. All policies shall be taken out with insurers with a
rating of A-IX by Best's and otherwise acceptable to Landlord.
7.6 Payment of Taxes. If at any time during the Term, any political
subdivision of the state in which the Property is located, or any other
governmental authority, levies or assesses against Landlord a tax or excise on
rents or other tax (excluding income tax), however described, including but not
limited to assessments, charges or fees required to be paid, by way of
substitution for or as a supplement to real estate taxes, or any other tax on
rent or profits in substitution for or as a supplement to a tax levied against
the Property, Building or Landlord's personal property, then Tenant will pay to
Landlord as additional rent its proportionate share based on Tenant's Percentage
of said tax or excise.
7.7 Environmental Assurances.
(a) Covenants.
(i) Tenant shall not cause any medical waste
Hazardous Materials to be used, generated,
stored or disposed of on, under or about, or
transported to or from, the Premises unless
the same is specifically approved in advance
by Landlord in writing other than small
quantities of retail, household, and office
chemicals customarily sold over-the-counter
to the public and those items identified on
Exhibit G attached hereto which are related
to Tenant's Permitted Uses.
(ii) Tenant shall comply with all obligations
imposed by Environmental Laws, and all other
restrictions and regulations upon the use,
generation, storage or disposal of medical
waste or Hazardous Materials at, to or from
the Premises.
(iii) Tenant shall deliver promptly to Landlord
true and complete copies of all notices
received by Tenant from any governmental
authority with respect to the use,
generation,
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storage or disposal by Tenant of medical
waste or Hazardous Materials at, to or from
the Premises and shall immediately notify
Landlord both by telephone and in writing of
any unauthorized discharge of medical waste
or Hazardous Materials or of any condition
that poses an imminent hazard to the
Property, the public or the environment.
(iv) Tenant shall complete fully, truthfully and
promptly any questionnaires sent by Landlord
with respect to Tenant's use of the Premises
and its use, generation, storage and
disposal of medical waste or Hazardous
Materials at, to or from the Premises.
(v) Tenant shall permit entry onto the Premises
by Landlord or Landlord's representatives
upon receipt of not less than 24 hours prior
notice, or in case of emergency or imminent
danger, immediately to verify and monitor
Tenant's compliance with its covenants set
forth in this Paragraph and to perform other
environmental inspections of the Premises.
(vi) If Landlord conducts any environmental
inspections because it has reason to believe
that Tenant's activities have or are likely
to result in a violation of Environmental
Laws or a release of medical waste or
Hazardous Materials on the Property, then
Tenant shall pay to Landlord, as additional
rent, the costs incurred by Landlord for
such inspections, so long as it has been
reasonably determined that Tenant in fact
has violated such Environmental Laws or
released medical waste or Hazardous
Materials on the Property.
(vii) Tenant shall cease immediately upon notice
from Landlord any activity which violates or
creates a serious risk of violation of any
Environmental laws.
(viii) After notice to and reasonable approval -by
Landlord, Tenant shall promptly remove,
clean-up, dispose of or otherwise remediate,
in accordance with Environmental Laws and
good commercial practice, any medical waste
or Hazardous Materials on, under or about
the Property resulting from Tenant's
activities on the Property.
(b) Indemnification. Tenant shall indemnify, defend with counsel
acceptable to Landlord and hold Landlord harmless from and against any claims,
damages, costs,
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liabilities or losses (including, without limitation, any decrease in the value
of the Property, loss or restriction of any area of the Property, and adverse
impact of the marketability of the Property or Premises) arising out of Tenant's
use, generation, storage or disposal of medical waste or Hazardous Materials at,
to or from the Premises.
(c) Definitions. Hazardous Materials shall include but not be limited
to substances defined as "hazardous substances", "toxic substances", or
"hazardous wastes" in the federal Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended; the federal Hazardous
Materials Transportation Act, as amended; and the federal Resource Conservation
and Recovery Act, as amended; those substances defined as "hazardous
substances", "materials", or "wastes" under the law of the state in which the
Premises are located; and as such substances are defined in any regulations
adopted and publications promulgated pursuant to said laws ("Environmental
Laws"); materials containing asbestos or urea formaldehyde; gasoline and other
petroleum products; flammable explosives; radon and other natural gases; and
radioactive materials.
(d) Survival. The obligations of Tenant in this Paragraph shall survive
the expiration or termination of this Lease.
7.8 Americans With Disabilities Act. Tenant shall comply with the
Americans with Disabilities Act of 1990 ("ADA") and the regulations promulgated
thereunder. Tenant hereby expressly assumes all responsibility for compliance
with the ADA relating to the Premises and the activities conducted by Tenant
within the Premises. Any Alterations to the Premises made by Tenant for the
purpose of complying with the ADA or which otherwise require compliance with the
ADA shall be done in accordance with this Lease; provided, that Landlord's
consent to such Alterations shall not constitute either Landlord's assumption,
in whole or in part, of Tenant's responsibility for compliance with the ADA, or
representation or confirmation by Landlord that such Alterations comply with the
provisions of the ADA.
ARTICLE VIII DEFAULT
8.1 Default. The occurrence of any one or more of the following events
shall constitute a default hereunder by Tenant:
(a) The failure by Tenant to make any payment of Base Rent or
additional rent or any other payment required hereunder, as and when due, where
such failure shall continue for a period of five (5) days after written notice
thereof from Landlord to Tenant; provided, that Landlord shall not be required
to provide such notice more than twice during the Term with respect to
non-payment of Rent, the third such non-payment constituting a default without
requirement of notice;
(b) Intentionally Omitted
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(c) The failure by Tenant to observe or perform any of the
express or implied covenants or provisions of this Lease to be observed or
performed by Tenant, other than as specified in clauses (a) above, where such
failure shall continue for a period of more than thirty (30) days after written
notice thereof from Landlord to Tenant; provided, however, that if the nature of
Tenant's default is such that more than thirty (30) days are reasonably required
for its cure, then Tenant shall not be deemed to be in default if Tenant
commences such cure within said thirty (30) day period, diligently prosecutes
such cure to completion, and completes such cure no later than ninety (90) days
from the date of such notice from Landlord;
(d) The failure by Tenant, Guarantor (if any), or any present
or future guarantor of all or any portion of Tenant's obligations under this
Lease to pay its debts as they become due, or Tenant or any such Guarantor (if
any) becoming insolvent, filing or having filed against it a petition under any
chapter of the United States Bankruptcy Code, 11 U.S.C. Paragraph 101 et seq.
(or any similar petition under any insolvency law of any jurisdiction) and such
petition is not dismissed within sixty (60) days thereafter, proposing any
dissolution, liquidation, composition, financial reorganization or
recapitalization with creditors, making an assignment or trust mortgage for the
benefit of creditors, or if a receiver, trustee, custodian or similar agent is
appointed or takes possession with respect to any property or business of Tenant
or Guarantor (if any); or
(e) If the leasehold estate under this Lease or any
substantial part of the property or assets of Tenant or of Guarantor of this
leasehold is taken by execution, or by other process of law, or is attached or
subjected to any involuntary encumbrance if such attachment or other seizure
remains undismissed or undischarged for a period of ten business (10) days after
the levy thereof.
8.2 Remedies of Landlord and Calculation of Damages.
(a) Remedies. In the event of any default by Tenant, whether
or not the Term shall have begun, in addition to any other remedies available to
Landlord at law or in equity, Landlord may, at its option and without further
notice exercise any or all of the following remedies:
(i) Terminate the Lease and upon notice to
Tenant of termination of the Lease all
rights of Tenant hereunder shall thereupon
come to an end as fully and completely as if
the date such notice is given were the date
originally fixed for the expiration of the
Term, and Tenant shall then quit and
surrender the Premises to Landlord and
Landlord shall have the right, without
judicial process, to re-enter the Premises.
No such expiration or termination of the
Lease shall relieve Tenant of its liability
and obligation under the Lease.
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(ii) Enter the Premises and cure any default by
Tenant and in so doing, Landlord may make
any payment of money or perform any other
act. All sums so paid by Landlord, and all
incidental costs and expenses, including
reasonable attorneys' fees, shall be
considered additional rent under this Lease
and shall be payable to Landlord immediately
on demand, together with interest from the
date of demand to the date of payment at the
maximum lawful rate permitted to be charged
by Landlord.
(b) Calculation of Damages. If this Lease is terminated as provided in
Paragraph 8.2 or otherwise, Tenant, until the end of the Term, or what would
have been such Term in the absence of any such event, shall be liable to
Landlord, as damages for Tenant's default, for the amount of the Base Rent and
all additional rent and other charges which would be payable under this lease by
Tenant if this Lease were still in effect, less the net proceeds of any
reletting of the Premises actually collected by Landlord after deducting all
Landlord's expenses in connection with such reletting, including, without
limitation, all repossession costs, brokerage and management commissions,
operating expenses, legal expenses, reasonable attorneys' fees, alteration costs
and expenses of preparation of the Premises for such reletting. Tenant shall pay
such damages to Landlord monthly on the days on which the Base Rent would have
been payable as if this Lease were still in effect, and Landlord shall be
entitled to recover from Tenant such damages monthly as the same shall arise. In
lieu of the foregoing computation of damages, Landlord may elect, at its sole
option, to receive liquidated damages in one payment equal to the total amount
of Base Rent and additional rent reserved in this Lease from the date of default
to the date of expiration of the Term discounted at a fixed annual interest rate
equal to the Prime Rate plus 2%. The Prime Rate shall be the prime rate
published in the Wall Street Journal on the date of Landlord's election to
accelerate the rents hereunder. Whether or not the Lease is terminated, Landlord
shall in no way be responsible or liable for any failure to relet the Premises
or for any failure to collect any rent upon such reletting.
(c) No Limitations. Nothing contained in this Lease shall
limit or prejudice the right of Landlord to prove for and obtain in proceedings
for bankruptcy or insolvency by reason of the termination of this Lease, an
amount equal to the maximum allowed by any statute or rule of law in effect at
the time when, and governing the proceedings in which, the damages are to be
provided, whether or not the amount be greater, equal to, or less than the
amount of the loss or damages referred to above.
(d) Cumulative Remedies. Landlord's remedies under this Lease
are cumulative and not exclusive of any other remedies to which Landlord may be
entitled in case of Tenant's default or threatened default under this Lease,
including, without limitation, the remedies of injunction and specific
performance.
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ARTICLE IX CASUALTY AND EMINENT DOMAIN
9.1 Casualty.
(a) Casualty in General. If, during the Term, the Premises,
the Building or the Lot, are wholly or partially damaged or destroyed by fire or
other casualty, and the casualty renders the Premises totally or partially
inaccessible or unusable by Tenant in the ordinary conduct of Tenant's business,
then Landlord shall, within thirty (30) days of the date of the damage, give
Tenant a notice ("Damage Notice") stating whether, according to Landlord's good
faith estimate, the damage can be repaired within one hundred fifty (150) days
from the date of damage ("Repair Period"), without the payment of overtime or
other premiums. The parties' rights and obligations shall then be governed
according to whether the casualty is an Insured Casualty or an Uninsured
Casualty as set forth in the following Paragraphs.
(b) Insured Casualty. if the casualty results from a risk, the
loss to Landlord from which is fully covered by insurance maintained by Landlord
or for Landlord's benefit (except for any deductible amount), it shall be an
"Insured Casualty" and governed by this Paragraph 9.1 (b). In such event, if the
Damage Notice states that the repairs can be completed within the Repair Period
without the payment of overtime or other premiums, then Landlord shall promptly
proceed to make the repairs, this Lease shall remain in full force and effect,
and Base Rent shall be reduced, during the period between the casualty and
completion of the repairs, in proportion to the portion of the Premises that is
inaccessible or unusable during that period and which is, in fact, not utilized
by Tenant. Base Rent shall not be reduced by reason of any portion of the
Premises being unusable or inaccessible for a period of five (5) business days
or less. If the Damage Notice states that the repairs cannot, in Landlord's
estimate, be completed within the Repair Period without the payment of overtime
or other premiums, then either party may, terminate this Lease by written notice
given to the other within thirty (30) days after the giving of the Damage
Notice. If either party elects to terminate this Lease, the lease shall
terminate as of the date of the occurrence of such damage or destruction and
Tenant shall vacate the Premises five (5) business days from the date of the
written notice terminating the Lease. If neither party so terminates, then this
Lease shall remain in effect, Landlord shall make repairs, and Base Rent shall
be proportionately reduced as set forth above during the period when the
Premises is inaccessible or unusable and is not used by Tenant.
(c) Uninsured Casualty. If the casualty is not an Insured
Casualty as set forth in the previous Paragraph, it shall be an "Uninsured
Casualty" governed by this Paragraph 9.1 (c). In such event, if the Damage
Notice states that the repairs can be completed within the Repair Period without
the payment of overtime or other premiums, Landlord may elect, by written notice
given to Tenant within thirty (30) days after the Damage Notice, to make the
repairs, in which event this Lease shall remain in effect and Base Rent shall be
proportionately reduced as set forth above. If Landlord does not so
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elect to make the repairs, or if the Damage Notice states that the repairs
cannot be made within the Repair Period, this Lease shall terminate as of the
date of the casualty and Tenant shall vacate the Premises five (5) business days
from the date of Landlord's written notice to Tenant terminating the Lease.
(d) Casualty within final six months of Term. Notwithstanding
anything to the contrary contained in this Paragraph 9.1, if the Premises or the
Building is wholly or partially damaged or destroyed within the final nine (9)
months of the Term of this Lease, Landlord shall not be required to repair such
casualty and either Landlord or Tenant may elect to terminate this Lease.
(e) Tenant Improvements and Alterations. If Landlord elects to
repair after a casualty in accordance with this Paragraph 9.1, Landlord shall
cause Tenant Improvements and Alterations which Landlord has approved, to be
repaired and restored at Landlord's sole expense. Landlord shall have no
responsibility for any personal property placed or kept in or on the Premises or
the Building by Tenant or Tenant's agents, employees, invitees or contractors
and Landlord shall not be required to repair any damage to, or make any repairs
to or replacements of, Tenant's personal property.
(f) Exclusive Remedy. This Paragraph 9.1 shall be Tenant's
sole and exclusive remedy in the event of damage or destruction to the Premises
or the Building. No damages, compensation or claim shall be payable by Landlord
for any inconvenience, any interruption or cessation of Tenant's business, or
any annoyance, arising from any damage to or destruction of all or any portion
of the Premises or the Building.
(g) Waiver of Subrogation. Landlord and Tenant shall use
reasonable efforts to cause each insurance policy obtained by each of them to
provide that the insurer waives all right of recovery by way of subrogation
against either Landlord or Tenant in connection with any loss or damage covered
by such policy.
9.2 Eminent Domain.
(a) Eminent Domain in General. If the whole of the Premises,
or so much of the Premises as to render the balance unusable by Tenant, shall be
taken or appropriated under the power of eminent domain or condemnation (a
"Taking"), either Landlord or Tenant may terminate this Lease and the
termination date shall be the date of the Order of Taking, or the date
possession is taken by the Taking authority, whichever is earlier. If any part
of the Property is the subject of a Taking and such Taking materially affects
the normal operation of the Building or Common Areas, Landlord may elect to
terminate this Lease. A sale by Landlord under threat of a Taking shall
constitute a Taking for the purpose of this Paragraph 9.2. No award for any
partial or entire Taking shall be apportioned. Landlord shall receive (subject
to the rights of Landlord's mortgagees) and Tenant hereby assigns to Landlord
any award which may be made and any other proceeds in connection with such
Taking, together with all rights of Tenant to such award or proceeds, including,
without limitation, any award or compensation for the
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value of all or any part of the leasehold estate; provided that nothing
contained in this Paragraph 9.2(a) shall be deemed to give Landlord any interest
in or to require Tenant to assign to Landlord any separate award made to Tenant
for (i) the taking of Tenant's personal property, or (ii) interruption of or
damage to Tenant's business, or (iii) Tenant's moving and relocation costs.
(b) Reduction in Base Rent. in the event of a Taking which
does not result in a termination of the Lease, Base Rent shall be
proportionately reduced based on the portion of the Premises rendered unusable,
and Landlord shall restore the Premises or the Building to the extent of
available proceeds or awards from such Taking. Landlord shall be required to
repair or restore any damage to the Tenant Improvement and Alterations which
Landlord has approved which would become the Property of Landlord at the end of
the Term to the extent of available proceeds or awards from such taking.
(c) Sole Remedies. This Paragraph 9.2 sets forth Tenant's and
Landlord's sole remedies for Taking. Upon termination of this Lease pursuant to
this Paragraph 9.2, Tenant and Landlord hereby agree to release each other from
any and all obligations and liabilities with respect to this Lease except such
obligations and liabilities which arise or accrue prior to such termination.
ARTICLE X RIGHTS OF PARTIES HOLDING SENIOR INTERESTS
10.1 Subordination. This Lease shall be subject and subordinate to any
and all mortgages, deeds of trust and other instruments in the nature of a
mortgage, ground lease or other matters or record ("Senior Interests") which now
or at any time hereafter encumber the Property and Tenant shall, within twenty
(20) days of Landlord's request, execute and deliver to Landlord such recordable
written instruments as shall be necessary to show the subordination of this
Lease to such Senior interests. Notwithstanding the foregoing , if any holder of
a Senior Interest succeeds to the interest of Landlord under this Lease, then,
so long as Tenant is not in default of its obligations hereunder, this Lease
shall continue in full force and effect and Tenant shall attorn to such holder
and to recognize such holder as its landlord.
10.2 Mortgagee's Consent. No assignment of the Lease and no agreement
to make or accept any surrender, termination or cancellation of this Lease and
no agreement to modify so as to reduce the Rent, change the Term, or otherwise
materially change the rights of Landlord under this Lease, or to relieve Tenant
of any obligations or liability under this Lease, shall be valid unless
consented to by Landlord's mortgagees of record, if any.
ARTICLE XI GENERAL
11.1 Representations by Tenant. Tenant represents and warrants that any
financial statements provided by it to Landlord were true, correct and complete
when provided, and that no material adverse change has occurred since that date
that would
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render them inaccurate or misleading. Tenant represents and warrants that those
persons executing this Lease on Tenant's behalf are duly authorized to execute
and deliver this Lease on its behalf, and that this Lease is binding upon Tenant
in accordance with its terms, and simultaneously with the execution of this
Lease, Tenant shall deliver evidence of such authority to Landlord in form
satisfactory to Landlord.
11.2 Notices. Any notice required or permitted hereunder shall be in
writing. Notices shall be addressed to Landlord c/o Managing Agent at Managing
Agent's Address and to Tenant at Tenant's Address. Any communication so
addressed shall be deemed duly given when delivered by hand, one day after being
sent by Federal Express (or other guaranteed one day delivery service) or three
days after being sent by registered or certified mail, return receipt requested.
Either party may change its address by giving notice to the other.
11.3 No Waiver or Oral Modification. No provision of this Lease shall
be deemed waived by Landlord or Tenant except by a signed written waiver. No
consent to any act or waiver of any breach or default, express or implied, by
Landlord or Tenant, shall be construed as a consent to any other act or waiver
of any other breach or default.
11.4 Severability. If any provision of this Lease, or the application
thereof in any circumstances, shall to any extent be invalid or unenforceable,
the remainder of this Lease shall not be affected thereby, and each provision
hereof shall be valid and enforceable to the fullest extent permitted by law.
11.5 Requests by Tenant. Tenant shall pay, on demand, all costs
incurred by Landlord, including without limitation reasonable attorneys' fees,
in connection with any matter requiring Landlord's review or consent or any
other requests made by Tenant under this Lease, regardless of whether such
request is granted by Landlord.
11.6 Estoppel Certificate and Financial Statements.
(a) Estoppel Certificate. Within ten (10) days after written
request by Landlord, Tenant shall execute, acknowledge and deliver to Landlord a
written statement certifying (i) that this Lease is unmodified and in full force
and effect, or is in full force and effect as modified and stating the
modifications: (ii) the amount of Base Rent and the date to which Base Rent and
additional rent have been paid in advance; (iii) the amount of any security
deposited with Landlord; and (iv) that Landlord is not in default hereunder or,
if Landlord is claimed to be in default, stating the nature of any claimed
default, and (v) such other matters as may be reasonably requested by Landlord.
Any such statement may be relied upon by a purchaser, assignee or lender.
Tenant's failure to execute and deliver such statement within the time required
shall be a default under this Lease and shall also be conclusive upon Tenant
that this Lease is in full force and effect and has not been modified except as
represented by Landlord; and there are no uncured defaults in Landlord's
performance and Tenant has no right of offset, counterclaim or deduction against
rent.
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(b) Financial Statements. Tenant shall, without charge
therefore, at any time, within ten (10) days following a request by Landlord,
deliver to Landlord, or to any other party designated by Landlord, a true and
accurate copy of Tenant's most recent unaudited financial statements. Except in
the case of a default by Tenant hereunder, Landlord agrees that it shall not
request such financial statements from Tenant more frequently than two times
during any one calendar year. All requests made by Tenant regarding renewals or
expansions must be accompanied by Tenant's most recent financial statements. All
requests made by Tenant regarding subleases, or assignments must be accompanied
by Tenant's prospective subtenant's and prospective assignee's most recent
financial statements.
11.7 Waiver of Liability. Landlord and Tenant each hereby waive all
rights of recovery against the other and against the officers, employees,
agents, and representatives of the other, on account of loss by or damage to the
waiving party or its property or the property of others under its control, to
the extent that such loss or damage is insured against under any insurance
policy that either may have in force at the time of the loss or damage. Each
party shall notify its insurers that the foregoing waiver is contained in this
Lease.
11.8 Execution, Prior Agreements and No Representations. This Lease
shall not be binding and enforceable until executed by authorized
representatives of Landlord and Tenant. This Lease contains all of the
agreements of the parties with respect to the subject matter hereof and
supersedes all prior dealings, whether written or oral, between them with
respect to such subject matter. Each party acknowledges that the other has made
no representations or warranties of any kind except as may be specifically set
forth in this Lease.
11.9 Brokers. Each party represents and warrants that it has not dealt
with any real estate broker or agent in connection with this Lease or its
negotiation except Broker. Each party shall indemnify the other and hold it
harmless from any cost, expense, or liability (including costs of suit and
reasonable attorneys' fees) for any compensation, commission or fees claimed by
any other real estate broker or agent in connection with this Lease or its
negotiation by reason of any act or statement of the indemnifying party.
11.10 Successors and Assigns. This Lease shall be binding upon and
inure to the benefit of the parties hereto and their respective successors and
assigns; provided, however, that only the original Landlord named herein shall
be liable for obligations accruing before the beginning of the Term, and
thereafter the original Landlord named herein and each successive owner of the
Premises shall be liable only for obligations accruing during the period of
their respective ownership.
11.11 Applicable Law and Lease Interpretation. This Lease shall be
construed, governed and enforced according to the laws of the state in which the
Property is located. In construing this Lease, Paragraph headings are for
convenience only and shall be disregarded. Any recitals herein or exhibits
attached hereto are hereby incorporated into
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this Lease by this reference. Time is of the essence of this Lease and every
provision contained herein. The parties acknowledge that this Lease was freely
negotiated by both parties, each of whom was represented by counsel;
accordingly, this Lease shall be construed according to the fair meaning of its
terms, and not against either party.
11.12 Costs of Collection, Enforcement and Disputes. Tenant shall pay
all costs of collection, including reasonable attorneys' fees, incurred by
Landlord in connection with any default by Tenant. If either Landlord or Tenant
institutes any action to enforce the provisions of this Lease or to seek a
declaration of rights hereunder, the prevailing party shall be entitled to
recover its reasonable attorneys' fees and court costs as part of any award.
Landlord and Tenant hereby waive trial by jury in any action, proceeding or
counterclaim brought by either of the parties hereto against the other, on or in
respect to any matter whatsoever arising out of or in any way connected with
this Lease, the relationship of Landlord and Tenant hereunder, Tenant's use or
occupancy of the Premises, and/or claim of injury or damage.
11.13 Holdover. If Tenant holds over in occupancy of the Premises after
the expiration of the Term, Tenant shall, at the election of Landlord become a
tenant at sufferance only on a month-to-month basis subject to the terms and
conditions herein specified, so far as applicable. Tenant shall pay rent during
the holdover period, at a base rental rate equal to one hundred fifty percent of
the Base Rent in effect at the end of the Term, plus the amount of Tenant's
Share of Expenses then in effect. Tenant shall also be liable for all damages
sustained by Landlord on account of such holding over.
11.14 Force Majeure. If Landlord or Tenant is prevented from or delayed
in performing any act required of it hereunder, and such prevention or delay is
caused by strikes, labor disputes, inability to obtain labor, materials, or
equipment, inclement weather, acts of God, governmental restrictions,
regulations, or controls, judicial orders, enemy or hostile government actions,
civil commotion, fire or other casualty, or other causes beyond such party's
reasonable control ("Force Majeure"), the performance of such act shall be
excused for a period equal to the period of prevention or delay. A party's
financial inability to perform its obligations shall in no event constitute
Force Majeure. Nothing in this Paragraph shall excuse or delay Tenant's
obligation to pay any rent or other charges due under this Lease.
11.15 Limitation On Liability. Landlord, and its partners, directors,
officers, shareholders, trustees or benefactors, shall not be liable to Tenant
for any damage to loss of personal property in, or to any personal injury
occurring in, the Premises, unless such damage, loss or injury is the result of
the gross negligence of Landlord or its agents as determined by a final
non-appeal judicial proceeding. The obligations of Landlord under this Lease do
not constitute personal obligations of the individual partners, directors,
officers, shareholders, trustees or beneficiaries of Landlord, and Tenant shall
not seek recourse against the partners, directors, officers, shareholders,
trustees or beneficiaries of Landlord, or any of their personal assets for
satisfaction of any liability with respect to this
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27
Lease. in the event of any default by Landlord under this Lease, Tenant's sole
and exclusive remedy shall be against the Landlord's interest in the Property.
11.16 Lease not to be Recorded. Tenant agrees that it will not record
this Lease. Both parties shall, upon the request of either, execute and deliver
a notice or short form of this Lease in such form, if any, as may be permitted
by applicable statute. If this Lease is terminated before the Term expires the
parties shall execute, deliver and record an instrument acknowledging such fact
and the actual date of termination of this Lease, and Tenant hereby appoints
Landlord its attorney-in-fact, coupled with an interest, with full power of
substitution to execute such instrument.
11.17 Security Deposit. Upon the execution and delivery of this Lease,
Tenant shall pay to Landlord the Security Deposit, which shall be held as
security for Tenant's performance as herein provided and refunded to the Tenant
at the end of the Term subject to the Tenant's satisfactory compliance with the
conditions hereof. The Security Deposit may be commingled with other funds of
Landlord and no interest shall accrue thereon or be payable by Landlord with
respect to the Security Deposit. If all or any part of the Security Deposit is
applied to an obligation of Tenant hereunder, Tenant shall immediately upon
request by Landlord restore the Security Deposit to its original amount.
11.18 Guaranty of Lease. If Landlord and Tenant intend for this Lease
to be guaranteed by the Guarantor, upon the execution and delivery of this
Lease, and as a condition to the effectiveness of this Lease, Tenant shall cause
Guarantor, if any, to execute and deliver to Landlord a guaranty in the form
attached as Exhibit F. It shall constitute a default under this Lease if any
Guarantor fails or refuses, upon reasonable request by Landlord, to give: (i)
evidence of the due execution of the guaranty called for by this Lease, (ii)
current unaudited financial statements of Guarantor as may from time to time be
requested by Landlord; provided, however, that except in the case of a default
by Tenant hereunder, Guarantor shall not be required to submit such financial
statements more frequently than two times during any one calendar year, (iii) an
estoppel certificate, or (iv) written confirmation that the guaranty is still in
effect, substantially in the form of the estoppel certification described in
Paragraph 11.6(a) above.
IN WITNESS WHEREOF, Landlord and Tenant have executed this Lease, which
includes the cover sheet, the foregoing Standard Provisions, Additional
Provisions, and Exhibits attached to this Lease, with the intent that each of
the parties shall be legally bound thereby and that this Lease shall become
effective as of the Date of Lease.
NEW ENGLAND MUTUAL LIFE VAXCEL, INC.
INSURANCE COMPANY
By:_________________________ By:__________________________
Name:_______________________ Name:________________________
Title:______________________ Title:_______________________
Date:_______________________ Date:________________________
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28
PART III ADDITIONAL PROVISIONS
The following provisions ("Additional Provisions") identified below and
attached and/or set forth below are included as part of the Lease between
Landlord and Tenant. Capitalized terms used in any of the Additional Provisions
and not otherwise defined shall have the meanings given such terms in Part I and
Part II of this Lease. Unless express reference is made to a provision in Part I
and Part II of this Lease for the purpose of modifying such provision, in the
event of any conflict between the Additional Provisions and the provisions of
Part I and Part II of this Lease, the provisions contained in Parts I and II
shall control.
AP1) Notwithstanding the foregoing, in no event shall the rentable
square footage of the Building or the Premises change during the first five
years of the Term unless Tenant exercises its option to expand the Premises. If
Landlord remeasures the Building or the Premises at any time prior to the time
Tenant exercises either of its options to renew this Lease, the rentable square
footage of the Building and/or the Premises shall change commencing on the
effective date of such renewal term to the extent there is an actual change in
the amount of space resulting from such remeasurement. Regardless of the
remeasurement results, for the purposes of any calculations based on the square
footage of the Building or the Premises, the rentable square footage of the
Building or of the Premises shall not be increased nor decreased by more than
five (5%) percent.
AP2) The Commencement Date of this Lease shall be the earlier of (i)
January 23, 1994 or (ii) the date Tenant occupies all of the Premises for the
conduct of its business. Notwithstanding the foregoing, prior to the
Commencement Date, Tenant may occupy for the conduct of its business, the office
portion of the Premises, which office portion which consists of approximately
1,806 rentable square feet, upon the issuance of all necessary valid occupancy
permits for the office portion of the Premises, and pursuant to the terms and
conditions of this Lease. The Base Rent for the office portion of the Premises
prior to the Commencement Date shall be $7.00 per rentable square foot,
commencing on the first date of such occupancy, payable monthly, in advance on
the first day of each month (and prorated for any partial months). Rent shall
commence for the entire Premises on January 2-3, 1994, regardless of whether
Tenant has completed the improvements to the Premises or taken occupancy.
AP3) , legal fees incurred for negotiating leases or collecting rents
from other tenants, costs of advertising space for lease in the Building, costs
directly and solely related to the maintenance and operation of the entity that
constitutes Landlord, such as accounting fees incurred solely for the purpose of
reporting Landlord's financial condition, or costs of renovating space in the
Building vacated by a tenant.
AP4) Lavista Associates, Inc. is acting as Agent for Landlord in this
transaction and is to be paid a commission by Landlord. Lavista Associates, Inc.
is not acting as Agent in this transaction for Tenant.
29
Xxxxxxx & Xxxxxxxxx of Georgia, Inc. is acting as Agent for Tenant in
this transaction and is to be paid a commission by Landlord. Xxxxxxx & Wakefield
of Georgia, Inc. is not acting as Agent in this transaction for Landlord.
AP5) Tenant shall have the right to terminate this Lease as of November
30, 1996, provided (i) Tenant is not then in default under this Lease, (ii)
Tenant provides written notice to Landlord of such termination no later than
August 1, 1996, (iii) Tenant pays at the time Tenant delivers such notice to
Landlord a termination fee in the amount of $18,817.14, and (iv) Tenant pays at
the time Tenant delivers such notice to Landlord an amount equal to the
unamortized cost of all tenant improvements and leasing commissions paid by
Landlord, which tenant improvements and leasing commissions shall be amortized
over a initial five (5) year term of this Lease with respect to the initial
Tenant Improvements and leasing commission (if Tenant exercises its option to
expand the Premises as provided below, the tenant improvements and leasing
commissions with respect to the Expansion Space shall be amortized over the
remaining portion of the then remaining term of the lease with respect to the
Expansion Space as such term may be extended in accordance with AP8 below. If
Tenant elects exercise its option to expand into the Expansion Space as provided
below, and Tenant elects its option to terminate the Lease as provided herein,
then the termination fee referred to in AP5(iii) above shall be increased by an
amount equal to $3.93 times the number of rentable square feet leased by Tenant
pursuant to its Expansion Option.
AP6) Landlord acknowledges receipt, subject to collection, of the
security deposit of $33,474.00, the first month's Base Rent of $2,789.50 and
first month's Additional Rent of $235.1 2 totaling $36,498.62.
AP7) Provided Tenant has not exercised its option to terminate this
Lease provided in AP5 above, Landlord hereby grants to Tenant (a) a first right
to lease that part of the Building designated as Suite 210 and marked "Expansion
Space" on Exhibit H attached hereto and consisting of approximately 2,400 square
feet (the "Expansion Space") if the Expansion Space is or becomes available for
occupancy before the fourth anniversary of the Commencement Date. If Tenant
desires to Lease the Expansion Space, and if the Expansion Space is then
available, Tenant may Lease the Expansion Space by giving Landlord notice at any
time on or before the date that is four (4) years from the Commencement Date and
Landlord and Tenant shall enter into an amendment to this Lease adding the
Expansion Space to the Premises. Expansion Space leased pursuant to this Section
AP7(a) shall be leased to Tenant upon the same terms and conditions in this
Lease, including, without limitation, the Term (as may be extended pursuant to
AP8 below) and the Base Rent due and payable hereunder. Base Rent and Additional
Rent shall commence upon the first to occur of the date on which Tenant occupies
such
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LANDLORD'S INITIALS TENANT'S INITIALS
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30
expansion space for purposes of conducting its business in the ordinary course
or ninety (90) days from the date on which Landlord and Tenant enter into a
supplemental agreement to this Lease incorporating such expansion space as part
of the Premises for the purpose of calculating Tenant's Percentage, Tenant's
Share of Operating Expenses and otherwise. Tenant shall submit its plans and
specification for such expansion space not later than fifteen (1 5) days
following the date of execution of such lease amendment. The approval of such
plans and specifications and the construction of Tenant Improvements in such
expansion space shall be governed in all respects by the terms and conditions of
the work letter attached to this Lease as Exhibit "D". In addition, Landlord
shall provide Tenant with an allowance in the amount of $1.40 per square foot of
expansion space taken by Tenant for each Lease Year (prorated for partial Lease
Years) remaining in the term (as the same may be extended pursuant to AP8 below)
up to a maximum of $16,800.00, which allowance shall be disbursed at the time
and in the manner set forth in such work letter; and
(b) A right of first refusal to lease the Expansion Space if during the
first four years after the Commencement Date, Landlord receives an offer
("Offer") to lease the Expansion Space which Landlord intends to accept,
Landlord shall first send Tenant notice of Landlord's desire to lease such
Expansion Space and Tenant shall have five (5) days subsequent to the date of
receipt by Tenant of notice from Landlord in which to exercise its option to
lease the Expansion Space Base Rent for the Expansion Space shall be the greater
of the Base Rent specified in AP7(a) above or the Base Rent specified in the
Offer. If Tenant does not, within such five (5) day period, elect to lease the
Expansion Space as set forth above, Landlord shall be free to lease such
Expansion Space to pursuant to the Offer. If the terms of the Offer change
materially, or if the transaction contemplated in the Offer is not completed,
then Landlord shall again notify Tenant in accordance with this Section AP7(b)
of such material change and any subsequent Offers.
Notwithstanding the foregoing, Tenant's right to lease the Expansion
Space is subject to the additional condition precedent that at the time Tenant
exercises its right to lease such Expansion Space Tenant shall not be in default
under this Lease beyond applicable grace or cure periods, if any.
AP8) So long as Tenant is not in default, Tenant may exercise the right
and option to extend and renew this Lease upon the same terms and conditions set
forth herein for two (2) additional successive periods of three (3) years each
following the expiration of the initial five (5) year Term by giving Landlord
written notice of the extension at lease six (6) months in advance of the
expiration of such initial Term or any extension of such Term, as the case may
be. During each Lease Year during any such extension term, Base Rent shall be
increased by four percent (4%) over the Base Rent due and payable during the
immediately preceding Lease Year.
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LANDLORD'S INITIALS TENANT'S INITIALS
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31
AP9) , provided however, that if the utility service to the Premises is
interrupted for reasons within the reasonable control of Landlord, and as a
result of such interruption the Premises are rendered untenantable and Tenant
does not use the Premises for three consecutive business days, then the Base
Rent shall xxxxx until such service is restored.
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LANDLORD'S INITIALS TENANT'S INITIALS
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32
GLOSSARY
Term Paragraph In Which
Definition Appears
ADA 7.8
Additional Provisions Part III
Alterations 5.1
Base Rent Cover Sheet
Broker(s) Cover Sheet
Building Cover Sheet
Capital Costs 3.2
Commencement Date 2.1
Common Areas 1.2
Damage Notice 9.1
Date of Lease Cover Sheet
Force Majeure 11.14
Guarantor(s) Cover Sheet
Hazardous Materials 7.7
Landlord Cover Sheet
Landlord's Lien 5.2
Landlord's Share of Insurance Premiums Cover Sheet
Landlord's Share of Taxes Cover Sheet
Laws 5.1
Lease Year 3.2
Managing Agent Cover Sheet
Managing Agent's Address Cover Sheet
Notice 2.2
Operating Expenses 3.2
Permitted Uses Cover Sheet
Premises Cover Sheet
Property Cover Sheet
Public Liability Insurance Amount Cover Sheet
Repair Period 9.1
Security Deposit Cover Sheet
Senior Interests 10.1
Taxes 3.2
Tenant Cover Sheet
Tenant Improvements 4.1
Tenant's Address Cover Sheet
Tenant's Percentage Cover Sheet
Tenant's Share of Expenses 3.2
Term Cover Sheet
33
EXHIBIT A
PREMISES
[DIAGRAM]
34
EXHIBIT B
LOT
Northwoods Xxx 0, Xxxxx X, Xxxxx X - 0000 Xxxxxxxxxx Parkway
ALL THAT TRACT or parcel of land lying and being in Land Lots 256, 257, 270 and
271 of the 6th District of Gwinnett County, Georgia and being more particularly
described as follows:
TO FIND THE POINT OF BEGINNING. begin at a point formed by the southeasterly
margin of the right-of-way of Northwoods Circle (variable right-of-way). with
the southwesterly margin of the right-of-way of Northwoods Parkway (variable
right-of-way). if said margins were extended to form an angle instead of a
curve; thence running along the southwesterly margin of the right-of-way of
Northwoods Parkway. a distance of 642.72 feet to a point, which point is the
POINT OF BEGINNING; from the POINT OF BEGINNING, as thus established, continue
along said margin, along the arc of a curve to the left (said arc being
subtended a chard bearing South 38(degree)00'00" East, a distance of 120.19
feet). a distance of 120.21 feet to a point; thence continuing along said margin
South 40(degree)02'30" East, a distance of 227.84 feet to a point; thence
continuing along said margin along an arc of a curve to the right (said arc
being subtended a chord bearing South 30(degree)11'00" East, a distance of
119.81 feet), a distance of 120.40 feet to a point; thence leaving said margin
and running South 52(degree)36'30" West. a distance of 265.93 feet to a point;
thence running South 03(degree)24'30" West. a distance of 151.27 feet to a
point; thence running South 35(degree)13'00" West, a distance of 104.04 feet to
a point; thence running South 56(degree)35'30" West, a distance of 112.61 feet
to a point; thence running South 75(degree)01'30" West, a distance of 89.02 feet
to a point; thence running North 78(degree)411'30" West, a distance of 71.39
feet to a point; thence running North 44(degree)24'30" West. a distance of 68.59
feet to a print; thence running North 30(degree)57'45" West, a distance of 210
00 feet to a point; thence running South 82(degree)51'15" West, a distance of
62.67 feet to a point located on the easterly margin of the right-of-way of
Northwoods Circle (60-foot right-of-way): thence running along the easterly and
northeasterly margin of said right-of-way, along an arc of a curve-to the left
(said arc being subtended by a chord bearing North 22(degree)41'00" West. a
distance of 296.98 feet). a distance of 300.70 feet to a point; thence leaving
said margin and running North 59(degree)05'30" East, a distance of 267.83 feet
to a point; thence running North 59(degree)25'15" East, a distance of 409.93
feet to a point-located on the southwesterly margin of the right-of-way of
Northwoods Parkway, said point being the POINT OF BEGINNING, said property
containing 9.352 acres. as shown an that certain As-Built Survey for
Crow-Childress-Xxxxxx 12 and New England Mutual Life Insurance Company, dated
April 7, 1986. prepared by Tri County Land Surveying, Xxxxxx & Associates
Engineers, and bearing the seal of X.X. Xxxxxxxxxxx, GRLS No. 1692.
35
EXHIBIT D
TENANT IMPROVEMENTS
Attach copy of Tenant Improvements.
36
EXHIBIT D
TENANT IMPROVEMENTS
Tenant shall improve the Premises as follows:
1. Tenant, at its expense, shall construct, furnish or install all improvements,
equipment or fixtures within the Premises that are necessary for Tenant's
occupancy and use of the Premises (hereinafter referred to as "Tenant's Work").
Tenant's Work shall be in conformity with plans submitted to and approved by
Landlord and shall be performed in accordance with the following provisions:
(a) Tenant shall cause all plans, drawings and specifications for
Tenant's Work ("Plans and Specifications") to be prepared by licensed architects
and, where appropriate, mechanical, electrical and structural engineers.
Tenant's Plans and Specifications shall include such layouts, plans,
specifications and details as are required by Landlord, including, without
limitation, detailed information with respect to architectural design, color,
mechanical systems and electrical systems.
(b) Within 15 days following the date of execution of this Lease by
Landlord, Tenant shall prepare and submit to Landlord for its approval two sets
of Tenant's Plans and Specifications. Landlord shall renew same and shall
submit, within three business days of receipt thereof, its approval thereof or a
list of suggested modifications and/or additions. If the Plans and
Specifications are not approved by Landlord, Tenant shall, within 12 days of
receipt of Landlord's disapproval, prepare and resubmit to Landlord revised
Plans and Specifications for consideration by Landlord until such time as
Landlord gives Tenant written notice of its final approval thereof. In the event
that Tenant has failed timely to submit or resubmit preliminary drawings to
landlord, or in the event that Landlord shall disapprove the Plans and
Specifications resubmitted by Tenant, Landlord shall have the right to cancel
this Lease by notice to the Tenant, or to require Tenant to further revise and
resubmit the Plans and Specifications. Landlord's failure to timely respond to
the Plans and Specifications shall be deemed to indicate Landlord's approval
thereof.
(c) After approval of Tenant's final Plans and Specifications by
Landlord, and tender of possession of the Premises by Landlord to Tenant (which
tender shall occur upon execution of this Lease) Tenant shall proceed forthwith
to commence the performance of Tenant's Work and shall diligently pursue such
work to completion. Tenant's contractors and subcontractors shall be acceptable
to and approved by Landlord in writing and shall be subject to administrative
supervision by Landlord in their use of the Property and Premises and their
relationship with Landlord's contractors or contractors of other tenants on the
Property. Contractors and subcontractors engaged by Tenant shall employ persons
and means to insure so far as may be possible the progress of Tenant's Work
without interruption on account of strikes, work stoppage or similar causes of
37
delay. Tenant's entry into the Premises prior to the Commencement Date for the
performance of Tenant's Work shall be subject to all of the terms and conditions
of this Lease except the payment of Rent. Any damage to the Building caused by
Tenant or its contractors or subcontractors in connection with the performance
of Tenant's Work shall be repaired at Tenant's expense.
(d) Any changes in Tenant's Work from the final plans and
specifications approved by landlord shall be subject to Landlord's approval, and
Tenant shall pay all reasonable costs incurred by Landlord in reviewing any
requested change.
(e) Upon completion of Tenant's Work Tenant shall furnish to Landlord
for its permanent files one reproducible set of "as built" drawings showing
Tenant's Work as constructed or installed in the Premises.
2. Construction of Tenant Work. Tenant shall, at Tenant's expense, procure all
permits and licenses and make all contracts necessary for the construction of
Tenant's Work. Tenant shall, at Tenant's expense, also obtain a construction
bond through its contractor naming Landlord and Tenant as dual obligees prior to
contractor beginning any work. Tenant's Work shall be done only by a contractor
approved in writing by Landlord prior to the commencement of Tenant's Work,
which approval shall not be unreasonably withheld. Landlord hereby approved
Xxxxxx Construction for construction of Tenant's Work. All Tenant's Work shall
conform to applicable statutes, ordinances, regulations, and codes and shall be
in accordance and compliance with the Plans and Specifications approved by
Landlord.
3. Completion of Tenant Work. Tenant shall complete Tenant's Work on or before
the Commencement Date of the Term.
4. Insurance and Indemnity. Tenant shall require its contractors and
subcontractors to furnish Landlord or Landlord's contractor with evidence of
insurance coverage (including but not limited to general liability and workers'
compensation insurance) as may be required by Landlord prior to the performance
of any work by Tenant's contractors or subcontractors. Tenant also agrees to
indemnify and hold Landlord harmless from and against any claims, actions,
losses, costs, fees (including attorneys' fees) or damages resulting from the
intentional or negligent acts or omissions of Tenant, its agents, employees,
contractors, or subcontractors in the performance of Tenant's Work.
5. Special Provisions Applicable to Tenant's Work. Tenant's Work shall be
performed in a first-class and workmanlike manner and all improvements
constructed pursuant thereto shall be in good and usable condition at the date
of completion. Tenant and Tenant's contractors are limited to performing their
work, including any storage for construction purposes, within the Premises only.
Tenant shall be responsible for daily removal from the Premises and the Property
of all trash, rubbish, and surplus materials resulting from any work being
performed in the Premises. Tenant shall exercise extreme care and diligence in
removing such trash, rubbish, or surplus materials from the Premises
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38
to avoid littering, marring, or damaging the Property, the Common Areas or any
of the other offices located on the Property. If any such trash, rubbish, or
surplus materials are not promptly removed from the Property in accordance with
the provisions hereof, or if any of the offices on the Property, or Common Areas
are littered, marred, or damaged, Landlord may cause same to be removed or
repaired, as the case may be, at Tenant's cost and expense. In the event
Landlord incurs any costs or expenses in performing the above, Tenant shall pay
the Landlord the amount of any such cost and expenses promptly upon demand
therefor. Tenant shall require its agents, employees, contractors, or
subcontractors to cause all materials or supplies to be delivered to the
Premises prior to 9:30 a.m. on the day of each such delivery.
6. Roof. Tenant shall not penetrate, puncture, or otherwise go upon or work upon
any portion of any roof, including, but not limited to that portion of the roof
over the Premises, without obtaining the prior written consent of Landlord. The
approval by Landlord of the Plans and Specifications does not constitute such
prior written consent unless otherwise expressly provided in the Plans. In the
event Landlord shall grant its consent to Tenant as provided above, Tenant
shall, at Tenant's sole cost and expense, be responsible for assuring that upon
completion of the installation of any items upon the roof or of other work
thereon that all necessary flashing, patching, and other repair that may, in the
sole discretion of Landlord, be necessary to return the roof to a waterproof
condition is performed in a first-class and workmanlike manner.
7. Lien Waivers, etc. Upon completion of Tenant's Work in accordance with the
Plans and Specifications, Tenant shall give Landlord written notice thereof and
shall simultaneously with such written notice furnish Landlord with the
following documents all in a form and substance acceptable to Landlord:
a. A detailed breakdown of the cost of Tenant's Work;
b. All necessary certificates of occupancy issued by the
appropriate governmental authorities.
c. Affidavits from all contractors, subcontractors, materialmen,
suppliers, architects, engineers, and all other persons
performing work or supplying materials and/or services on or
about the Premises in connection with Tenant's Work stating
that the cost of all such labor, material, supplies and
services incorporated in Tenant's Work has been paid in full,
and waivers of all liens and claims arising as a result of
such work; and
d. An estoppel certificate from Tenant.
8. Structural Work. Notwithstanding anything to the contrary contained in this
Lease, if any work required or proposed to be performed by Tenant shall be
structural or shall affect the structural integrity of any building on the
Property or any portion thereof, Landlord shall have the right, but not the
obligation, to do such work for Tenant and
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39
Tenant shall reimburse Landlord for all of Landlord's costs and expenses in
connection therewith plus an amount equal to ten percent (10%) thereof for
overhead plus an additional amount equal to ten percent (10%) of such total
costs and overhead for profit.
9. Allowance for Tenant's Work. Landlord shall contribute as reimbursement for
Tenant's Work an amount not to exceed $33,474.00 (the "Tenant Improvement
Allowance"). Tenant shall be solely responsible for all other costs and expenses
for Tenant's Work. The entire $33,474.00 must be used for improvements to the
Premises and for no personal or other use, except for payments to Tenant
pursuant to the provisions of this Exhibit "D". Landlord shall disburse the
Tenant Improvement Allowance in the amount of $33,474.00 upon Tenant's
compliance with all appropriate procedures identified in this Exhibit "D" and
completing or furnishing Landlord with evidence of all the following items:
a. See (d), below;
b. Obtaining and furnishing all of the required construction
permits;
c. See 1(c) and 7(a);
d. Affidavit from the architect that prepared the Plans and
Specifications certifying that all improvements to the
Premises have been completed substantially in accordance with
the Plans and Specifications;
e. Full and final Lien Waivers from all involved contractors and
subcontractors for the amount of all improvements;
f. A certificate of occupancy issued by the appropriate governing
authorities;
g. Performance Bond issued by a surety company reasonably
satisfactory to Landlord in an amount not less than the entire
amount of Tenant's Improvements, naming Landlord and Tenant as
dual obligees thereunder, and otherwise in form and substance
satisfactory to Landlord.
The Tenant Improvement Allowance shall be paid upon Tenant's occupancy of the
Premises and evidence of completion of the items above.
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40
EXHIBIT G
List of Permitted Substances
1. Inorganic Chemicals (Approximately 1 to 2 pounds of each):
Sodium Chloride, Sodium Phosphates, Potassium Phosphates,
Magnesium Chloride.
2. Acids (Approximately 1 pint of each):
Hydrochloric Acid, Sulfuric Acid, Nitric Acid
3. Solvents (Approximately 1 gallon of each):
Hexane, Ethanol, Methanol
4. Miscellaneous (Approximately 1 gallon (liquids) or 1 pound (solids) of
each:
Detergents, Cosmetic oil (shark liver oil), Protein (dried
skim milk)
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EXHIBIT H
EXPANSION SPACE
[DIAGRAM]
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