Exhibit 10.15
LEASE AGREEMENT
BETWEEN
FIRST XXXXXX ASSOCIATES
"LANDLORD"
AND
UNITED STATES CAN COMPANY
"TENANT"
1. PREMISES................................................................................................2
2. TERM....................................................................................................2
3. RENTAL..................................................................................................2
4. AGENT'S COMMISSION......................................................................................4
5. UTILITY BILLS...........................................................................................4
6. USE OF PREMISES.........................................................................................5
7. REPAIRS BY LANDLORD.....................................................................................5
9. REPAIRS AND MAINTENANCE BY TENANT.......................................................................6
10. HVAC MAINTENANCE........................................................................................6
11. GROUND MAINTENANCE......................................................................................6
12. TAXES...................................................................................................6
13. DESTRUCTION OF OR DAMAGE TO PREMISES....................................................................8
14. INSURANCE AND WAIVER....................................................................................8
15. GOVERNMENTAL ORDERS....................................................................................10
16. CONDEMNATION...........................................................................................10
17. ASSIGNMENT AND SUBLETTING..............................................................................11
18. REMOVAL OF FIXTURES & EQUIPMENT........................................................................11
19. EVENTS OF TENANT DEFAULT...............................................................................11
20. LANDLORD'S DEFAULT; TENANT'S RIGHT TO CURE.............................................................11
21. REMEDIES UPON DEFAULT..................................................................................12
22. EXTERIOR SIGNS.........................................................................................12
23. ENTRY FOR CARDING, ETC.................................................................................13
24. EFFECT OF TERMINATION OF LEASE.........................................................................13
25. LOAN DEED..............................................................................................13
26. MEMORANDUM OF LEASE....................................................................................14
27. HOLDING OVER...........................................................................................14
28. ATTORNEYS' FEES AND HOMESTEAD..........................................................................14
29. RIGHTS CUMULATIVE......................................................................................15
30. WAIVER OF RIGHTS.......................................................................................15
31. DISCLOSURE OF OWNERSHIP................................................................................15
32. HAZARDOUS MATERIALS....................................................................................15
33. TIME OF ESSENCE........................................................................................18
34. DEFINITIONS............................................................................................19
35. REMOVAL OF LEASEHOLD IMPROVEMENTS......................................................................19
36. PROMPT PAYMENTS........................................................................................19
37. RENEWAL OPTIONS........................................................................................19
38. GUARANTY OF LANDLORD'S OBLIGATION......................................................................20
39. INTENTIONALLY OMITTED..................................................................................21
40. PURCHASE OPTION........................................................................................21
41. TERMINATION RIGHTS.....................................................................................21
42. NOTICES................................................................................................21
43. PROTECTIVE COVENANTS...................................................................................22
44. QUIET ENJOYMENT........................................................................................22
45. SPECIAL STIPULATIONS...................................................................................22
12803705 01754168 35
12803705 01754168
ATTACHMENTS
EXHIBIT A- LEGAL DESCRIPTION OF LAND
EXHIBIT B - PROTECTIVE COVENANTS
EXHIBIT C - LANDLORD'S ESTOPPEL
EXHIBIT D - LANDLORD'S GUARANTY
CONSTRUCTION ADDENDUM
PURCHASE ADDENDUM
EXPANSION ADDENDUM
LEASE
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THIS LEASE, made this 15 day of June, 2001 (the "date of this Lease"), by and between FIRST XXXXXX ASSOCIATES,
first party (hereinafter called "Landlord"); and UNITED STATES CAN COMPANY, second party (hereinafter called "Tenant"):
W I T N E S S E T H:
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1........PREMISES
The Landlord, for and in consideration of the rents, covenants, agreements, and stipulations hereinafter mentioned,
provided for and contained, to be paid, kept and performed by the Tenant, has leased and rented, and by these presents
leases and rents unto the said Tenant, and said Tenant hereby leases and takes upon the terms and conditions which
hereinafter appear, the following described property (hereinafter called "Premises"), to wit: an approximately 185,122
usable square foot ( as determined and measured from outside of outer wall to outside of outer wall, "USF") facility
consisting of approximately 10,258 USF of administrative offices, and approximately 174,864 USF manufacturing and
warehouse space together with [sixteen (16)] acres of land (the "Land") located in Coweta County, Georgia, as described
in Exhibit "A" attached hereto, which shall be constructed in accordance with the Construction Addendum attached hereto.
In connection with the Substantial Completion (as defined in the Construction Addendum) of the Premises, the Architect of
Record (as defined in the Construction Addendum) shall certify to Landlord and Tenant the USF of the Premises (the
"Certified Square Footage").
2. TERM
The Tenant shall have and hold the Premises for a term of fifteen (15) years, beginning on the Commencement Date (as
determined by the Construction Addendum) and ending on the last day of the 180th month thereafter (the "term"), at
midnight, unless sooner terminated as hereinafter provided.
3. RENTAL
Beginning on the Commencement Date and until the end of the 60th full calendar month thereafter, "Monthly Rent" shall
equal $60,278.00. Note: The Monthly Rent as of the date of this Lease has been calculated using a maximum project cost
figure of $6,528,870 ("Maximum Cost") as previously agreed upon by Landlord and Tenant and a rent constant of 11.079%
($6,528,870 x 11.079% / 12 = $60,278.00). To the extent that the aggregate bids received and accepted by Landlord for
the construction work attributable to the construction cost portion of the Maximum Cost (the "Construction Work Aggregate
Bids") is less than $4,875,500, including contractor's overhead and profit at 11.5% (an amount representing 98% of
$4,975,000, the construction portion of the Maximum Cost), the Monthly Rent shall be adjusted downward in an amount equal
to (a) the difference between $4,875,500 and the Construction Work Aggregate Bids times (b) 11.079 % divided by (c) 12.
For example, if the Construction Work Aggregate Bids equal $4,775,500, the Monthly Rent would be decreased by $923.25
($4,875,500 - $4,775,500 x 11.079% / 12). In the event that the Construction Work Aggregate Bids equal or exceed
$4,875,500, no adjustment to Monthly Rent shall be made.
Monthly Rent for months 61 through 120 will equal $66,292.00, product of Monthly Rent for month 60 multiplied by
1.0997771. For example, if Monthly Rent for month 60 is $60,278.00, then Monthly Rent for months 61 through 120 will
equal $66,292.00.
Monthly Rent for months 121 through 180 will equal $70,750.00, product of Monthly Rent for month 120 multiplied
by 1.067248. For example, if the Monthly Rent for month 120 is $66,292.00, then Monthly Rent for months 121 through 180
will equal $70,750.00.
Notwithstanding the specific amount of Monthly Rent set forth above, Monthly Rent may be adjusted by the terms of
Paragraph 1(b) of the Construction Addendum to account for Change Orders (as defined in the Construction Addendum).
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Monthly Rent shall be paid promptly on the first day of each month in advance during the term of this Lease.
4. AGENT'S COMMISSION
Landlord shall pay the commission due Xxxxxx X. Xxxxxxx, Xx. ("Broker") in accordance with that certain Commission
Agreement Lease dated between Landlord and Broker (the "Commission Agreement"). Broker has and does hereby relieve and
release Landlord and Tenant from any liability for commissions, fees or otherwise in connection with the transaction
contemplated by this Lease or the purchase of the Land other than under the Commission Agreement. Broker acknowledges
that it has represented Tenant and not Landlord. Subject to the foregoing, Landlord represents and warrants, that it has
not engaged any broker, finder or any other person who would be entitled to any commission or fee in respect of the
execution of this Lease and any other transaction contemplated by this Lease; and agrees to indemnify and hold harmless
Tenant against and in respect to any and all losses, liabilities or expenses which may be incurred by Tenant as a result
of any claim which may be asserted by any such broker, finder or other person on the basis of any arrangements or
agreements made or alleged to have been made on behalf of Landlord. Other than the Broker, Tenant represents and
warrants, that it has not engaged any broker, finder or any other person who would be entitled to any commission or fee
in respect of the execution of this Lease and any other transaction contemplated by this Lease; and agrees to indemnify
and hold harmless Landlord against and in respect to any and all losses, liabilities or expenses which may be incurred by
Landlord as a result of any claim which may be asserted by any such broker, finder or other person on the basis of any
arrangements or agreements made or alleged to have been made on behalf of Tenant other than the Commission Agreement.
5. UTILITY BILLS
Tenant shall pay all utility bills, including, but not limited to, water, sewer, gas, electricity, fuel, light and heat
bills for the Premises, and Tenant shall pay all charges for garbage collection services or other sanitary services
rendered to the Premises or used by Tenant in connection therewith. If Tenant fails to pay any of said utility bills or
charges for garbage collection or other sanitary services within ten (10) days of when due, Landlord may pay the same and
such payment shall be added to and become part of the next rental payment due under this Lease.
6. USE OF PREMISES
The Premises may be used for any lawful purpose that complies with the terms of the Protective Covenants attached hereto
as Exhibit "B" (the "Permitted Use"). The Premises shall not be used for any illegal purposes, nor in any manner to
create a nuisance or trespass, nor in any manner to change its current operation the result of which would be to
materially change the insurance rating on the Premises. Landlord shall obtain, at Landlord's cost, an ALTA title
insurance policy, with coverage in the amount of One Million Dollars ($1,000,000) in favor of Tenant insuring its
leasehold estate in the Premises containing a zoning 3.1 endorsement (including parking and loading docks coverage).
7. REPAIRS BY LANDLORD
Landlord, at its sole cost and expense, agrees to keep in good repair the roof, roof structure, foundations, foundation
walls, load bearing walls, floor systems, and parking lot of the Premises, and underground utility and sewer pipes
outside the exterior walls of the building, except repairs rendered necessary by the negligence of Tenant, its agents,
employees or invitees. Landlord gives to Tenant exclusive control of the Premises and shall be under no obligation to
inspect said Premises. Tenant shall promptly report in writing to Landlord any defective conditions known to it which
Landlord is required to repair.
8. WARRANTY
Landlord expressly warrants to Tenant, which warranty shall run for the twelve (12)-month period from and after the date
of Substantial Completion, that the Initial Improvements will be constructed in a good and workmanlike manner,
substantially in accordance with all applicable laws, rules, codes, ordinances and regulations and the Final Plans, that
all materials incorporated therein will be of good quality and new unless otherwise required or permitted by the Final
Plans, and will be free of material defects ("Landlord's Warranty").
The Landlord's Warranty includes labor and materials. If within twelve (12) months after the date of Substantial
Completion of the Initial Improvements any of the construction performed by Landlord is found to be not in accordance
with the standards in the Construction Addendum, Landlord shall correct such defects, and any other damaged materials or
finishes that are part of the Initial Improvements, promptly after receipt of written notice from Tenant. Tenant shall
give notice promptly after discovery of the condition. Landlord's Warranty as set forth above is expressly intended to
survive Substantial Completion and completion of the construction of the Initial Improvements, acceptance and/or
occupancy of the Premises by Tenant, and the payment of Monthly Rent or other amounts payable under this Lease by Tenant,
for the full twelve (12)-month period herein set forth. Landlord shall assign to Tenant or make Tenant a co-beneficiary
of all warranties (including without limitation statutory and implied warranties, rights and remedies) that are
assignable and applicable to those portions of the Initial Improvements (including equipment and systems) that Tenant is
obligated to maintain or repair under this Lease; and, to the extent such warranties are not assignable or otherwise
enforceable by Tenant, Landlord shall use reasonable efforts to enforce such warranties on behalf of Tenant, if and as
applicable; provided, however, that such assignment shall not impair or affect Landlord's Warranty or other obligations
hereunder.
9. REPAIRS AND MAINTENANCE BY TENANT
Tenant shall perform all maintenance and repair of the Premises, and shall make all necessary replacements to the
improvements, except as provided in Paragraph 7 above. Tenant shall, at Tenant's sole cost and expense, put, keep,
replace, maintain and repair the Premises (including, but not limited to heating and air conditioning equipment,
warehouse lighting, office lighting, outside lighting, electrical systems, plumbing) so that at all times the Premises
shall be in good order and repair, and in a good and safe condition, and Tenant shall not cause or permit any waste or
deterioration to the Premises normal wear and tear excluded. Tenant's obligations hereunder shall include, without
limitation, the obligation to make all needed restorations, renewals and repairs to, or replacements of, the
improvements, whether interior or exterior, whether structural or non-structural, whether foreseen or unforeseen, whether
ordinary or extraordinary, and regardless of the time remaining in the term of this Lease, except as provided in
Paragraphs 7, 8, 13 and 16 hereof.
In the event Tenant fails to make any repairs, or maintain the Premises, in accordance with the provisions of
this Lease, the Landlord may, but shall not be obligated, to make said repairs, or maintenance, and xxxx Tenant for the
cost of the same. Said amount shall be paid by Tenant within thirty (30) days of billing as part of the rental due
thereon.
10. HVAC MAINTENANCE
Tenant shall maintain a service contract on all heating, ventilating, and air conditioning equipment with a reputable
HVAC contractor throughout the term of this Lease and any extension thereof, provided Tenant's maintenance of such
service contract shall in no way limit Landlord's obligations under Landlord's Warranty.
11. GROUND MAINTENANCE
Landlord will install grass, shrubs, trees, pine straw, etc. (hereinafter called the "Landscaping"). Tenant agrees, at
Tenant's expense, to maintain the Landscaping as required by the Protective Covenants (as defined in Paragraph 43 below).
12. TAXES
Landlord shall, without notice or demand, pay directly to the appropriate authority and discharge on or before the last
day on which the same may be paid without penalty, all taxes, rates and charges, and other governmental impositions and
charges of every kind and nature whatsoever, together with all interest and penalties thereon (collectively, "Taxes"),
which shall or may during the term of this Lease be levied, assessed or imposed on the Premises or any part thereof, or
Landlord's interest in the Land and the improvements located thereon, or any buildings, appurtenances, or equipment now
or hereafter erected or placed thereon or therein or any part thereof, in each case which has been approved by Tenant in
writing. Landlord shall provide Tenant with written notice of the amount of Taxes for each calendar year during the term
(together with a copy of the xxxx) no later than seven (7) days after receipt of same. Tenant shall then pay Landlord
the Taxes for such calendar year at least seven (7) days prior to the date such Taxes are due and payable without
penalty. Landlord shall then pay such Taxes before they are due and payable without penalty (subject to Tenant's right
to protest Taxes as provided below). If Landlord fails to timely pay any Taxes after Tenant has timely paid Landlord for
such Taxes, Tenant may directly pay the Taxes to the appropriate taxing authorities in which case Landlord shall
immediately return the subject Taxes payment to Tenant and pay Tenant any penalties resulting from Landlord's failure to
timely pay such Taxes with interest on such Taxes payment and any penalty thereon at the Prime Rate (as defined in
Paragraph 21 below) plus 2.5% from the date such Taxes were due and payable without penalty to the date such Taxes, any
penalty and such interest component are paid to Tenant. Landlord shall be responsible, at its sole cost and expense, for
the timely payment of any and all special assessments, sanitary assessments, recapture agreements and any other taxes,
including, without limitation, assessments and taxes related to common roads and utilities, that originate from
improvements performed on real property other than the Land or that benefit real estate in addition to the Land or that
relate to improvements that are shared by parties in addition to the Tenant (e.g., access roads through the business park
of which the Land is a part and utility lines that lie within such common roads) (collectively, "Special Assessments").
All Taxes assessed or imposed in lieu of or in addition to the foregoing, shall be paid by Landlord, together with all
interest and penalties thereon, under or by virtue of all present or future laws, ordinances, requirements, orders,
directions, rules or regulations of the federal, state, county and city or local governments and of all other
governmental authorities whatsoever. Tenant shall pay directly to the appropriate taxing authority all taxes which
shall, prior to or during the term of this Lease be levied, assessed or imposed on or become a lien upon the personal
property of Tenant located upon the Premises. Landlord shall be deemed to have complied with the covenants of this
Paragraph if payment of such Taxes shall have been made within any grace period allowed by law or by the governmental
authority imposing the same during which payment is permitted without penalty or interest, and either before the same
shall become a lien upon the Premises or shall become delinquent. Landlord shall, within thirty (30) days after the time
above provided for the payment by Landlord thereof, produce and deliver to Tenant reasonably satisfactory evidence of
such payment.
All such Taxes (except the Taxes and assessments levied on the personal property of Tenant) which become due and
are payable in the calendar year in which the term commences or expires, shall be apportioned pro-rata between Landlord
and Tenant in accordance with the respective portions of such period during which the term shall be in effect.
Tenant shall have the right to contest or review in good faith by legal proceedings, or in such other manner as
it may deem suitable (which, if instituted, Tenant shall conduct at its own expense, and free of any expense to Landlord,
and, if necessary, in the name of Landlord, with the reasonable cooperation of Landlord), any Taxes, and cause Landlord
to withhold payment of such Taxes. Notwithstanding the foregoing Landlord may promptly pay all such items if at any time
the Premises or any part thereof shall be in reasonable danger of being foreclosed upon by reason of such nonpayment of
Taxes. The legal proceedings herein referred to shall include appropriate proceedings for review of tax assessments and
appeals from orders therein and appeals from any judgment, decrees or orders, but all such proceedings shall be begun as
soon as reasonably possible after the imposition or assessment of any contested items and shall be prosecuted to final
adjudication with reasonable dispatch. In the event of any reduction, cancellation or discharge, Landlord shall pay the
amount finally levied or assessed against the Premises or adjudicated to be due and payable on any such contested items
and if there shall be any refund with respect thereto, Tenant shall be entitled to the same. Tenant shall also be
entitled to any rebate or refund relating to Taxes accruing during the term.
Nothing herein contained shall be construed to require Tenant to pay, or reimburse Landlord for, any inheritance,
estate, succession, transfer, gift, franchise, income, profit or excess profit, capital stock, capital levy, corporate or
incorporated business tax or other similar tax that is or may be imposed upon Landlord, its successors or assigns, or
upon the rent payable by Tenant unless such taxes shall be levied instead and in lieu of real estate taxes upon the real
property and improvements hereby demised.
Landlord covenants and agrees to file the ad valorem real estate tax return as required, and within the time
provided, by law, covering the interest of Landlord and Tenant in the Premises.
13. DESTRUCTION OF OR DAMAGE TO PREMISES
If the Premises are totally destroyed whether by storm, fire, lightning, earthquake or other casualty or otherwise, this
Lease shall terminate as of the date of such destruction, and rental shall be accounted for as between Landlord and
Tenant as of that date. If the Premises are damaged but not totally destroyed by any such casualties, rental shall xxxxx
in such proportion as use of the Premises has been destroyed, and Landlord shall restore Premises to substantially the
same condition as before damage as speedily as is practicable, whereupon full rental shall recommence. If however the
Premises cannot reasonably be expected to be completely repaired within one hundred eighty (180) days or the damage
materially impairs Tenant's ability to conduct its business from the Premises, Tenant may immediately terminate this
Lease.
14. INSURANCE AND WAIVER
Throughout the term of this Lease, Tenant, at Tenant's own cost and expense shall:
(a) Keep the buildings and all other improvements, including all fixtures but excluding trade fixtures, insured
against loss or damage by fire with extended coverage, all such insurance to be in an aggregate amount which
shall be not less than one hundred percent (100%) of the full replacement value, without deduction for
depreciation, and all such insurance to be carried with such insurance companies and in such form as shall be
reasonably satisfactory companies and in such form as shall be reasonably satisfactory to Landlord, and Tenant
shall provide Landlord with a certificate of insurance evidencing such coverage. Deductibles, if any shall be an
obligation of the Tenant and in no case more than five hundred thousand dollars ($500,000.00). If Tenant so
elects, or if Tenant does not provide documentation of insurance coverage on the building and all other
improvements within ten (10) days after being requested to do so, Landlord may provide such coverage on behalf of
Tenant at a cost not to exceed Landlord's actual cost for such coverage.
(b) Provide and keep in force a commercial general liability insurance policy with an insurance company authorized to
do business in the State of Georgia. Such policy shall name the Landlord as an additional insured, and shall be
in the amount of not less than One Million Dollars ($1,000,000) with respect to any one accident, One Million
Dollars ($1,000,000) with respect to injury or death of any one person, Two Hundred Fifty Thousand Dollars
($250,000) with respect to damage to property and umbrella coverage of not less than Four Million Dollars
($4,000,000); provided, however, that such policy may be in a lesser amount if an excess liability policy or
policies are carried by Tenant in such amounts that the effect of the aggregate coverage is as stated above.
Such policy shall cover the entire Premises as well as xxx xxxxxxx, xxxxx, xxxxxxx and sidewalks included
therein, and the Tenant shall provide the Landlord with a certificate of such insurance.
All insurance provided by Tenant as required by this Paragraph shall include the interest of the Landlord and any
first mortgagee of the Premises, as their respective interests may appear, and in such form as shall be reasonably
satisfactory to Landlord and Tenant. All policies shall provide that loss, if any, payable thereunder with regard to
Premises coverage, shall be payable to Landlord and to the holder of such mortgage, as their respective interests may
appear.
At least thirty (30) days prior to the expiration of each such policy, Tenant shall deliver to Landlord the new
certificate for renewal insurance.
Tenant shall not violate or knowingly permit to be violated any of the conditions or provisions of such policy.
Tenant and Landlord shall cooperate in connection with the collection of any insurance monies that may be due in the
event of loss.
Each such policy (including renewal insurance) or certificate therefore issued by the insurer shall contain an
agreement by the insurer that such policy shall not be canceled without at least thirty (30) days prior written notice to
Landlord.
Any insurance provided for in this Paragraph may be effected by a policy or policies of blanket insurance;
provided, however, that the amount of the total insurance allocated to the Premises shall be such as to furnish in
protection the equivalent of separate policies in the amounts herein required, and provided further that in all other
respects, any such policy or policies shall comply with the other provisions of this Lease.
To the extent not expressly prohibited by law and except to the extent caused by the negligence or wilful
misconduct of, or a breach of this Lease by Landlord or its agents, employees or contractors, Tenant releases Landlord
and all agents thereof, their respective agents and employees from and waives all claims for damages to property
sustained by Tenant, resulting directly or indirectly from fire or other casualty or cause, or from any existing or
future condition, defect or occurrence in the Premises, or from any equipment or appurtenance therein becoming out of or
in need of repair or replacement, or from any accident in or about the Land. This paragraph shall apply especially, but
not exclusively, to damage caused by water, snow, frost, steam, excessive heat or cold, sewerage, gas, odors or noise, or
the bursting or leaking of pipes or plumbing fixtures, falling plaster, broken glass, sprinkling or air conditioning
devices or equipment, or flooding of basements, and shall apply whether the damage was due to any of the acts
specifically enumerated above, or from any other thing or circumstance, whether of a like nature or of a wholly different
nature.
To the extent not expressly prohibited by law and except to the extent caused by the negligence or wilful
misconduct of, or a breach of this Lease by Tenant or its agents, employees or contractors, Tenant or its agents,
employees or contractors, Landlord releases Tenant and all agents thereof, their respective agents and employees from and
waives all claims for damages to property sustained by Landlord, resulting directly or indirectly from fire or other
casualty or cause, or from any existing or future condition, defect or occurrence in the Premises or any part thereof, or
from any accident in or about the Land.
Inasmuch as the mutual waivers set forth above will preclude the assignment of any such claim by subrogation (or
otherwise) to an insurance company (or any other person), Landlord and Tenant each agree to give to each insurance
company which has issued, or in the future may issue, its policies of physical damage insurance, written notice of the
terms of this mutual waiver, and to have said insurance policies property endorsed, if necessary, to waive any
subrogation rights and to prevent the invalidation of said insurance coverage by reason of said waiver.
15. GOVERNMENTAL ORDERS
Landlord warrants to Tenant that the Premises, in its state existing on the Commencement Date does not violate any
covenants or restrictions of record, or any applicable building code, regulation, law (including The Americans with
Disabilities Act) or ordinance in effect on the Commencement Date. In the event it is determined that this warranty has
been violated then it shall be the obligation of the Landlord after written notice from Tenant, to promptly, at
Landlord's sole cost and expense rectify any such violation.
Tenant agrees, at its own expense, promptly to comply with all requirements of any legally constituted public
authority made necessary by reason of Tenant's occupancy of the Premises. Landlord agrees promptly to comply with any
such requirements relating to the Premises not made necessary by reason of Tenant's occupancy.
16. CONDEMNATION
If the whole of the Premises, or such portion thereof as will in Tenant's reasonable judgment make the Premises unusable
for Tenant's purposes, be condemned by any legally constituted authority for any public use or purpose, then in either of
said events the term hereby granted shall cease from the date when possession thereof is taken by public authorities, and
rental shall be accounted for as between Landlord and Tenant as of said date. Such termination, however, shall be
without prejudice to the rights of either Landlord or Tenant to recover compensation and damage caused by condemnation
from the condemnor. It is further understood and agreed that neither the Tenant nor Landlord shall have any rights in
any award made to the other by any condemnation authority notwithstanding the termination of the Lease as herein provided.
17. ASSIGNMENT AND SUBLETTING
Tenant may not assign this Lease or sublease the Premises, or any part thereof, to others without the prior written
consent of Landlord, which consent shall not be unreasonably withheld, conditioned or delayed. If Tenant assigns this
Lease or subleases all or any portion of the Premises, Tenant shall remain liable to Landlord for all of Tenant's
obligations under this Lease.
Notwithstanding the foregoing, Tenant shall have the right to sublease all or any portion of the Premises, or assign this
Lease, to any affiliate, successor entity or person by merger, consolidation, liquidation, reorganization or otherwise,
or in connection with the sale to any entity or person of all or substantially all of the assets or stock of Tenant,
whether or not there may be a change in Tenant's name, without having to secure Landlord's approval therefore.
18. REMOVAL OF FIXTURES & EQUIPMENT
Tenant shall, prior to the expiration of this Lease or any extension or renewal thereof, remove all fixtures and
equipment which Tenant has placed in the Premises and repair all damage to the Premises caused by such removal.
Upon expiration of this Lease, if Tenant shall fail to remove any of its property within a reasonable time after written
notice from Landlord, Landlord shall have the right to store or dispose of any of Tenant's property thereafter remaining
on the property. Any such property shall be considered Landlord's property and title thereto shall vest in Landlord.
19. EVENTS OF TENANT DEFAULT
The following events shall be deemed to be events of default by Tenant under this Lease (hereinafter any one of which may
be referred to as an "Event of Tenant Default"): (i) Tenant shall fail to pay any installment of rental due hereunder,
including additional rent or any other charge or assessment against Tenant pursuant to the terms hereof within ten (10)
days after notice of such late payment is furnished by Landlord as elsewhere provided herein; provided, however, if more
than two (2) payments due of Tenant hereunder in any one (1) calendar year are not made until after notice of such late
payment is furnished by Landlord as aforesaid, then it shall be an event of default hereunder by Tenant if any subsequent
payment due of Tenant hereunder in the same calendar year is not made within five (5) days of the date when due;
(ii) Tenant shall fail to comply with any term, provision, covenant or warranty made under this Lease by Tenant, other
than the payment of the rental or any other charge or assessment payable by Tenant, and shall not cure such failure
within thirty (30) days after notice thereof to Tenant; provided, however, that if the default is not reasonably
susceptible to cure within said thirty (30) days, Tenant shall have such additional time as may be necessary to affect a
cure so long as Tenant is diligently pursuing a cure; (iii) Tenant shall make a general assignment for the benefit of
creditors, or shall admit in writing its inability to pay its debts as they become due, or shall file a petition in
bankruptcy, or shall be adjudicated as bankrupt or insolvent, or shall file a petition in any proceeding seeking any
reorganization, arrangement, composition, readjustment, liquidation, dissolution or similar relief under any present or
future statute, law or regulation, or shall file an answer admitting or fail timely to contest the material allegations
of a petition filed against it in any such proceeding; (iv) a proceeding is commenced against Tenant or any guarantor of
this Lease seeking any reorganization, arrangement, composition, readjustment, liquidation, dissolution or similar relief
under any present or future statute, law or regulation, and such proceeding shall not have been dismissed within ninety
(90) days after the commencement thereof; (v) a receiver or trustee shall be appointed for the Premises or for all or
substantially all of the assets of Tenant or of any guarantor of this Lease; or (vi) Tenant shall do or permit to be done
anything which creates a lien upon the Premises and such lien is not removed or discharged or bonded over within sixty
(60) days after the filing thereof.
20. LANDLORD'S DEFAULT; TENANT'S RIGHT TO CURE
If Landlord shall fail to perform any term or provision under this Lease required to be performed by Landlord, Landlord
shall not be deemed to be in default hereunder nor subject to any claims for damages of any kind, unless and until such
failure shall have continued for a period of ten (10) days (in the case of a monetary default) and thirty (30) days (in
the case of a non-monetary default) after written notice thereof by Tenant; provided if the nature of Landlord's failure
is such that more than thirty (30) days are reasonably required in order to cure, Landlord shall not be in default if
Landlord commences to cure such failure within such thirty (30) day period, and thereafter diligently pursues the cure of
such failure to completion (and in fact effects said cure within ninety (90) days after notice thereof). If Landlord
shall fail to cure within the times permitted for cure herein, Landlord shall be subject to all remedies as may be
available to Tenant at law or in equity (subject to the other provisions of this Lease, including the right to cure the
default and offset such amounts expended against rent due hereunder).
Notwithstanding the foregoing, in the event of Landlord's failure, after receipt of written notice from Tenant,
to perform repairs that are the obligation of Landlord under this Lease, or fails to promptly commence and thereafter
diligently pursue to completion any Landlord obligations under this Lease, Tenant shall have the right of self-help to
perform such repairs or maintenance, on seven (7) days' notice (or, in case of an emergency, on notice reasonable under
the circumstances to Landlord; which notice may be given after Tenant undertakes the repairs depending on the severity of
the emergency). In the event Tenant so undertakes such repairs, Landlord shall promptly reimburse Tenant for all
reasonable expenses incurred by Tenant in connection therewith. Upon a monetary default by Landlord, the amount due
Tenant shall bear interest at the Prime Rate plus 2.5%, which amount Tenant may offset against rents coming due under
this Lease.
21. REMEDIES UPON DEFAULT
Upon the occurrence of any Event of Tenant Default, Landlord shall have the option to pursue without any notice or demand
whatsoever remedies (i) or (ii) and (iii) as follows: (i) terminate this Lease, in which event Tenant shall immediately
surrender the Premises to Landlord and if Tenant fails to do so, Landlord may without prejudice to any other remedy which
it may have for possession or arrearages in rent, enter upon and take possession of the Premises and expel or remove
Tenant and any other person who may be occupying said Premises or any part thereof without being liable for prosecution
or any claim of damages therefor; Tenant hereby agreeing to pay to Landlord on demand the amount of all loss and damage
which Landlord may suffer by reason of such termination, whether through inability to relet the Premises on satisfactory
terms or otherwise; or (ii) terminate Tenant's right of possession (but not this Lease) and enter upon and take
possession of the Premises and expel or remove Tenant and any other person who may be occupying said Premises or any part
thereof, by entry, dispossessory suit or otherwise, without thereby releasing Tenant from any liability hereunder,
without terminating this Lease, and without being liable for prosecution of any claim or damages therefor and, if
Landlord so elects, make such alterations, redecorations and repairs as, in Landlord's reasonable judgment, may be
necessary to relet the Premises, and Landlord shall use commercially reasonable efforts to relet the Premises or any
portion thereof in Landlord's or Tenant's name, but for the account of Tenant, for such term or terms (which may be for a
term extending beyond the term of this Lease) and at such rental or rentals and upon such other terms as Landlord may
deem advisable, with or without advertisement, and by private negotiations, and receive the rent therefor, Tenant hereby
agreeing to pay to Landlord the deficiency, if any, between all rent reserved hereunder and the total rental applicable
to the Lease Term hereof obtained by Landlord re-letting, and Tenant shall be liable for Landlord's reasonable expenses
in re-decorating and restoring the Premises and all costs incident to such re-letting, including broker's commissions and
lease assumptions, and in no event shall Tenant be entitled to any rentals received by Landlord in excess of the amounts
due by Tenant hereunder, and (iii) enter upon the Premises without being liable for prosecution or any claim of damages
therefor, and do whatever Tenant is obligated to do under the terms of this Lease; and Tenant agrees to reimburse
Landlord on demand for any expenses including, without limitation, reasonable attorneys' fees which Landlord may incur in
thus effecting compliance with Tenant's obligations under this Lease and Tenant further agrees that Landlord shall not be
liable for any damages resulting to Tenant from such action, whether caused by negligence of Landlord or otherwise.
If this Lease is terminated by Landlord as a result of the occurrence of any Event of Tenant Default, Landlord may
declare to be due and payable immediately, the present value (calculated with a discount factor of the Prime Lending Rate
plus two and one-half percent [2.5%] per annum) of the difference between (x) the entire amount of rent and other charges
and assessments which would become due and payable during the remainder of the Lease term determined as though this Lease
had not been terminated (including, but not limited to, increases in rent pursuant to Article 6 hereof), and (y) the then
fair market rental value of the Premises for the remainder of the Lease term. Upon the acceleration of such amounts,
Tenant agrees to pay the same at once, together with all rent and other charges and assessments theretofore due, at
Landlord's address as provided herein, it being agreed that such payment shall not constitute a penalty or forfeiture but
shall constitute liquidated damages for Tenant's failure to comply with the terms and provisions of this Lease (Landlord
and Tenant agreeing that Landlord's actual damages in such event are impossible to ascertain and that the amount set
forth above is a reasonable estimate thereof).
Pursuit of any of the foregoing remedies shall not preclude pursuit of any other remedy herein provided or any other
remedy provided by law or at equity, nor shall pursuit of any remedy herein provided constitute an election of remedies
thereby excluding the later election of an alternate remedy, or a forfeiture or waiver of any rental or other charges and
assessments payable by Tenant and due to Landlord hereunder or of any damages accruing to Landlord by reason of violation
of any of the terms, covenants, warranties and provisions herein contained. No reentry or taking possession of the
Premises by Landlord or any other action taken by or on behalf of Landlord shall be construed to be an acceptance of a
surrender of this Lease or an election by Landlord to terminate this Lease unless written notice of such intention is
given to Tenant. Forbearance by Landlord to enforce one or more of the remedies herein provided upon an event of default
shall not be deemed or construed to constitute a waiver of such default. In determining the amount of loss or damage
which Landlord may suffer by reason of termination of this Lease or the deficiency arising by reason of any reletting of
the Premises by Landlord as above provided, allowance shall be made for the expense of repossession.
22. EXTERIOR SIGNS
Tenant may erect and maintain signs on or about the Premises provided that any and all signs placed on the Premises by
Tenant shall be maintained in compliance with rules and regulations governing such signs, and Tenant shall be responsible
to Landlord for any damage caused by installation, use or maintenance of said signs. Tenant, upon the expiration of this
Lease and any extension or renewal thereof, shall remove such signs and agrees upon removal of said signs to repair all
damage incident to such removal.
23. ENTRY FOR CARDING, ETC.
Landlord may card the Premises "For Rent" or "For Sale" one hundred eighty (180) days before the termination of this
Lease. Provided Landlord takes reasonable steps to minimize interference with Tenant's enjoyment and use of the
Premises, Landlord may enter the Premises at reasonable hours upon prior reasonable notice to Tenant to exhibit same to
prospective purchasers or, during the last year of the term only, to tenants and to make repairs required of Landlord
under the terms hereof.
24. Intentionally omitted
25. LOAN DEED
Landlord shall have the right to place a deed to secure debt against the Premises as security for a loan to be obtained
by Landlord (a "Deed to Secure Debt"). Tenant agrees that if it sends a notice of Landlord's default under any of the
terms of this Lease to Landlord that Tenant will also send a copy of any such notice to the holder of the Deed to Secure
Debt of which it has notice of (a "Lender"), and in the event any notice specifies some default on the part of Landlord,
Tenant agrees to afford the holder of the Deed to Secure Debt the same amount of time to effect a cure of such default
for and on behalf of Landlord, and such time period shall run concurrently with Landlord's time period to cure the
default. Within ten (10) business days after written request from Landlord, Tenant shall execute, acknowledge and
deliver to Landlord a statement in writing (i) certifying that this Lease is unmodified and in full force and effect (or,
if modified, stating the nature of such modification and certifying that this Lease, as so modified, is in full force and
effect), the dates to which rental and any other charges payable by Tenant hereunder are paid in advance, if any, (ii)
acknowledging that there are not, to Tenant's knowledge, any uncured defaults on the part of the Landlord hereunder (or
specifying such defaults if any are claimed), and (iii) in case of a transfer of Landlord's interest, attorning to the
transferee. Tenant hereby acknowledges that prospective lending agencies or transferees may rely on the statement.
Tenant shall subordinate this Lease to any first priority Deed to Secure Debt which hereinafter encumbers
Landlord's interest in the Premises, and to all renewals, modifications, consolidations, replacements and extensions
thereof, provided such subordination shall only be effective upon execution by Tenant, Landlord and such Lender of a
subordination, non-disturbance and attornment agreement (a "SNDA") in a commercially reasonable form acceptable to
Tenant, Landlord and such Lender. As of the date of this Lease, there is no Deed to Secure Debt encumbering the
Landlord's interest in the Premises. If any Lender so elects, this Lease and the interest of Tenant hereunder shall be
deemed to be superior to any such Deed to Secure Debt whether this Lease was executed before or after such instrument,
and in that event, such Lender shall have the same rights with respect to this Lease as if it had been executed and
delivered prior to the execution and delivery of such Deed to Secure Debt and had been assigned to such Lender. In
confirmation of any election by the Lender to make this Lease superior to the Deed to Secure Debt, Tenant shall, at
Landlord's reasonable request, execute any certificate or instrument evidencing such priority. In the event of the
enforcement by the Lender under any such Deed to Secure Debt of the remedies provided for by law or by such Deed to
Secure Debt, Tenant will, upon request of any person or party succeeding to the interest of Landlord as a result of such
enforcement, automatically become the Tenant of such successor-in-interest without change in the terms or other
provisions of this Lease. Any SNDA will provide in substance that (a) so long as no Event of Tenant Default shall be
continuing under this Lease, no action to foreclose the Deed to Secure Debt shall terminate this Lease or invalidate or
constitute a breach of any of the terms or conditions hereof, (b) Tenant will attorn to the purchaser at any foreclosure
sale or the grantee in any conveyance in lieu of foreclosure as Landlord of the Premises, (c) Tenant will, upon written
request of such purchaser or grantee, execute such reasonable additional instruments as may be necessary or appropriate
to evidence such attornment, and (d) so long as no Event of Tenant Default shall be continuing under this Lease, Tenant's
right to possession and enjoyment of the Premises shall be and remain undisturbed and unaffected by such Lender or by any
foreclosure proceedings thereunder.
Landlord agrees that, upon execution of this Lease and from time to time thereafter, as reasonably required by
Tenant, Landlord shall promptly deliver to Tenant a statement in the form attached hereto as Exhibit "C".
26. MEMORANDUM OF LEASE
Tenant may record a memorandum of this Lease that Landlord will join in signing.
27. HOLDING OVER
If Tenant remains in possession of the Premises after the expiration of the term hereof, with Landlord's acquiescence and
without any express agreement of parties, Tenant shall be a tenant at will at the rental rate which is in effect at end
of this Lease; and there shall be no renewal of this Lease by operation of law. If Tenant remains in possession of the
Premises after expiration of the term hereof without Landlord's acquiescence, then Tenant shall be a tenant at sufferance
and, commencing on the date following the date of such expiration, the Monthly Rent payable under Paragraph 3 above
shall, for each month or fraction thereof during which Tenant so remains in possession, be 125% of the Monthly Rent
otherwise payable under Paragraph 3 above.
28. ATTORNEYS' FEES AND HOMESTEAD
If any suit or action shall be brought to recover any rental, and/or other amounts due, under this Lease, to enforce or
interpret any of the terms, covenants or conditions of this Lease, or for the recovery of possession of the Premises, the
prevailing party shall be entitled to recover from the other party, as part of the prevailing party's costs, court costs
and reasonable attorneys' fees and expenses, the amount of which shall be fixed by the court and shall be made a part of
any judgment rendered. Tenant waives all homestead rights and exemptions which he may have under any law as against any
obligation owing under this Lease.
29. RIGHTS CUMULATIVE
All rights, powers and privileges conferred hereunder upon parties hereto shall be cumulative and not restrictive of
those given by law.
30. WAIVER OF RIGHTS
No failure of either party to exercise any power given such party hereunder, or to insist upon strict compliance by the
other party of its obligations hereunder and no custom or practice of the parties at variance with the terms hereof shall
constitute a waiver by such party of its right to demand exact compliance with the terms hereof.
31. DISCLOSURE OF OWNERSHIP
The owner of the Premises is First Xxxxxx Associates, whose address is 0000 Xxxxx Xxxxx Xxxxxxx Xxxxx, Xxxxxx, Xxxxxxx
00000. Service of process and demands and notices as to the Landlord shall be made on Xxxx X. Xxxxxx, whose address is
0000 Xxxxx Xxxxx Xxxxxxx Xxxxx, Xxxxxx, Xxxxxxx.
32. HAZARDOUS MATERIALS
The following terms shall have the following meanings herein:
(a) "Environmental Laws" means any current or future legal requirement of any Governmental Authority pertaining to
(a) the protection of health, safety, and the environment, (b) the conservation, management, or use of natural
resources or wildlife, (c) the protection or use of surface water and groundwater, (d) the management,
manufacture, possession, presence, use, generation, transportation, treatment, storage, disposal, release,
threatened release, abatement, removal, remediation or handling of, or exposure to, any hazardous or toxic
substance or material and includes, without limitation, the Comprehensive Environmental Response, Compensation,
and Liability Act of 1980, as amended by the Superfund Amendments and Reauthorization Act of 1986, 42 U.S.C. 9601
et seq., Solid Waste Disposal Act, as amended by the Resource Conservation and Recovery Act of 1976 and Hazardous
and Solid Waste Amendment of 1984, 42 U.S.C. 6901 et seq., Federal Water Pollution Control Act, as amended by the
Clean Water Act of 1977, 33 U.S.C. 1251 et seq., Clean Air Act of 1966, as amended, 42 U.S.C. 7401 et seq., Toxic
Substances Control Act of 1976, 15 U.S.C. 2601 et seq., Hazardous Materials Transportation Act, 49 U.S.C. 49
U.S.C. App. 1801 et seq., Occupational Safety and Health Act of 1970, as amended, 29 U.S.C. 651 et seq., Oil
Pollution Control of 1990, 33 U.S.C. 2701 et seq., Emergency Planning and Community Right-to-Know Act of 1986, 42
U.S.C. 11001 et seq., National Environmental Policy Act of 1969, 42 U.S.C. 4321 et seq., Safe Drinking Water Act
of 1974, as amended, 42 U.S.C. 300(f) et seq., any analogous implementing or successor law, and any amendment,
rule, regulation, order, or directive issued thereunder.
(b) "Current Environmental Claim" means any investigation, written notice, violation, written demand, written
allegation, action, suit, injunction, judgment, order, consent decree, penalty, fine, lien, proceeding, or
written claim whether administrative, judicial, or private in nature arising from Tenant's activities during
Tenant's actual occupation of the Premises or events, to the extent within the control of Tenant, or its
employees, agents or contractors, which occur on the Premises during Tenant's occupancy of the Premises arising
(a) pursuant to or in connection with an actual or alleged violation of any Environmental Law by Tenant (b) in
connection with any Hazardous Material actually used by Tenant on or at the Premises (c) from any assessment,
abatement, removal, remedial, corrective, or other response action required by any Environmental Law or other
order of a Governmental Authority in connection with (a) or (b) of this paragraph only, or (d) from any actual or
alleged damage, injury, threat, or harm to health, safety, natural resources, or the environment in connection
with (a) or (b) of this paragraph only.
(c) "Unrelated Current Environmental Claim" means any investigation, written notice, violation, written demand,
written allegation, action, suit, injunction, judgment, order, consent decree, penalty, fine, lien, proceeding,
or written claim whether administrative, judicial, or private in nature arising from any activities other than
Tenant's (or its agent's, employee's or contractor's) on the Premises, and any surrounding facilities and/or land
owned by Landlord, or events which occur on the Premises, and any surrounding facilities and/or land owned by
Landlord which are unrelated to Tenant's occupancy of the Premises and arising (a) pursuant to or in connection
with an actual or alleged violation of any Environmental Law by any person or entity other than Tenant (or its
agents, employees or contractors) (b) in connection with any Hazardous Material actually used by any person or
entity other than Tenant (or its agents, employees or contractors) on or at the Premises, and any surrounding
facilities and/or land owned by Landlord (c) from any assessment, abatement, removal, remedial, corrective, or
other response action required by any Environmental Law or other order of a Governmental Authority in connection
with (a) or (b) of this paragraph, or (d) from any actual or alleged damage, injury, threat, or harm to health,
safety, natural resources, or the environment in connection with (a) or (b) of this paragraph.
(d) "Prior Environmental Claim" means any investigation, written notice, violation, written demand, written
allegation, action, suit, injunction, judgment, order, consent decree, penalty, fine, lien, proceeding, or
written claim whether administrative, judicial, or private in nature from activities or events taking place prior
to Tenant's actual occupancy of the Premises arising (a) pursuant to or in connection with an actual or alleged
violation of any Environmental Law by Lessor, any prior tenant or any third party (b) in connection with any
Hazardous Material used by Lessor, any prior tenant or any third party on or at the Premises, and any surrounding
facilities and/or land owned by Landlord (c) from any assessment, abatement, removal, remedial, corrective, or
other response action required by any Environmental Law or other order of a Governmental Authority in connection
with (a) or (b) of this paragraph, or (d) from any actual or alleged damage, injury, threat, or harm to health,
safety, natural resources, or the environment in connection with (a) or (b) of this paragraph.
(e) "Subsequent Environmental Claim" means any investigation, written notice, violation, written demand, written
allegation, action, suit, injunction, judgment, order, consent decree, penalty, fine, lien, proceeding, or
written claim whether administrative, judicial, or private in nature from activities or events taking place
subsequent to Tenant's actual occupancy of the Premises and arising (a) pursuant to or in connection with an
actual or alleged violation of any Environmental Law by Lessor, any subsequent tenant or subtenant or any third
party (b) in connection with any Hazardous Material used by Lessor, any subsequent tenant or subtenant or any
third party on or at the Premises, (c) from any assessment, abatement, removal, remedial, corrective, or other
response action required by any Environmental Law or other order of a Governmental Authority in connection with
(a) or (b) of this paragraph, or (d) from any actual or alleged damage, injury, threat, or harm to health,
safety, natural resources, or the environment in connection with (a) or (b) of this paragraph.
(f) "Governmental Authority" shall mean any agency, board, bureau, commission, department or body of any municipal,
county, state or federal government unit, or any subdivision thereof.
(g) "Hazardous Materials" means any substance, material or waste defined as toxic or hazardous or regulated in or
under any Environmental Laws.
(h) Substantive obligations:
i. Tenant shall not cause or permit any materials regulated under the Environmental Laws to be generated,
manufactured, transported, treated, stored, disposed of, handled, processed, produced or released on the Premises except
in substantial compliance with all applicable Environmental Laws. Tenant shall not introduce any Hazardous Material onto
the Premises, except as may be customarily used in connection with the Permitted Use.
ii. Tenant shall promptly notify Landlord of any Current Environmental Claim Tenant receives from any Governmental
Authority or private entity.
iii. Upon reasonable notice and during normal business hours, Landlord and Landlord's agents and employees shall have
the right, but not the obligation, to enter and inspect the Premises to determine Tenant's compliance with this Paragraph
30. Landlord and Landlord's agent may conduct such environmental tests of the Premises only in accordance with the
following conditions: (1) Landlord and Landlord's agent give reasonable advance notice to Tenant of the nature, scope or
duration and location of any environmental tests to be performed; (2) Landlord and Landlord's agent conducts such tests
in accordance with applicable testing protocols contained in any Environmental Laws; (3) Landlord and Landlord's agent
permits Tenant and/or its designated representative to attend and/ or participate in all such environmental tests; (4)
Landlord and/or Landlord's agent conduct no environmental tests of any of Tenant's personal property (including but not
limited to any machinery, inventory, or supplies located at the Premises) and (5) Landlord and/or Landlord's agent
conduct any such environmental tests at its or their sole expense.
iv. If any Current Environmental Claim gives rise to liability under any Environmental Law that requires remediation,
Tenant shall promptly take any and all action required by the Environmental Laws.
v. Tenant shall indemnify, defend and hold harmless Landlord from all claims, judgments, causes of action, damages,
costs, fines, penalties, liability, losses, expenses (including but not limited to actual reasonable attorneys' fees and
costs, actual reasonable engineering fees and actual reasonable environmental consulting fees) arising from or
attributable to any Current Environmental Claim, provided that Landlord (I) promptly notifies Tenant in writing of such
claim, (ii) provides reasonable and timely assistance, information and authority and cooperates fully in Tenant's defense
of such claim and/or settlement thereof, and (iii) permits Tenant to control the defense and/or settlement thereof. In
the event a conflict of interest exists which, under the applicable canons of ethics, would prevent counsel for Tenant
from jointly representing and/or defending Landlord and Tenant, Tenant shall reimburse Landlord for its reasonable costs
and expenses of defending any such claim, (including but not limited to actual reasonable attorneys' fees and costs,
actual reasonable engineering fees and actual reasonable environmental consulting fees).
vi. Landlord shall indemnify, defend and hold harmless Tenant from all claims, judgments, causes of action, damages,
costs, fines, penalties, liability, losses, expenses (including but not limited to actual reasonable attorneys' fees and
costs, actual reasonable engineering fees and actual reasonable environmental consulting fees) arising from or
attributable to any Unrelated Current Environmental Claim, Prior Environmental Claim or Subsequent Environmental Claim,
provided that Tenant (I) promptly notifies Landlord in writing of such claim, (ii) provides reasonable and timely
assistance, information and authority and cooperates fully in Landlord's defense of such claim and/or settlement thereof,
and (iii) permits Landlord to control the defense and/or settlement thereof. In the event a conflict of interest exists
which, under the applicable canons of ethics, would prevent counsel for landlord from jointly representing and/or
defending Landlord and Tenant, Landlord shall reimburse Tenant for its reasonable costs and expenses of defending any
such claim, (including but not limited to actual reasonable attorneys' fees and costs, actual reasonable engineering fees
and actual reasonable environmental consulting fees).
I. Within five (5) days after the date of this Lease, Landlord shall deliver to Tenant a Phase I Environmental
Assessment Report (the "Phase I") for the Land certified to Tenant as of a date no earlier than thirty (30) days prior to
the date of this Lease. Tenant may, based on the results of the Phase I, elect to terminate this Lease by providing
Landlord written notice within ten (10) business days after Tenant's receipt of the Phase I. If Tenant does not
terminate this Lease as a result of its review of the Phase I, Landlord shall provide Tenant with an updated Phase I
re-certified to Tenant as of a date no earlier than November 15, 2001 (the "Updated Phase I"), and if the Updated Phase I
shows material adverse changes in the environmental condition of the Premises as compared to the results of the Phase I,
Tenant may, by providing written notice to Landlord, compel Landlord to remediate the environmental condition of the
Premises to the reasonable satisfaction of Tenant. If Landlord fails to remediate the environmental condition of the
Premises to the reasonable satisfaction of Tenant within thirty (30) days after the date of Tenant's notice, Tenant shall
thereafter have the right to terminate this Lease by providing written notice to Landlord.
33. TIME OF ESSENCE
Time is of the essence of this Lease.
34. DEFINITIONS
"Landlord" as used in this Lease shall include first party, its heirs, representatives, assigns and successors in title
to the Premises. "Tenant" shall include second party, and if this Lease shall be validly assigned or sublet, shall
include also Tenant's assignees or sublessees, as to the Premises covered by such assignment or sublease. "Agent" shall
include third party, his successors, assigns, heirs and representatives. "Landlord", "Tenant", and "Agent" include male
and female, singular and plural, corporation, partnership or individual, as may fit the particular parties.
35. REMOVAL OF LEASEHOLD IMPROVEMENTS
All improvements to the Premises performed by Tenant during the term of this Lease and all Initial Improvements, at
Landlord's option, shall be removed within fifteen (15) days after the termination of this Lease at Tenant's expense.
36. PROMPT PAYMENTS
Any payment of Monthly Rent or any payment of additional rent not received by Landlord by the tenth (10th) day after the
date due shall bear a handling fee of five percent (5%) of the amount due to cover expenses incurred by Landlord such as
bookkeeping, personnel, processing and other costs not contemplated hereunder and incapable of exact computation;
provided that with respect to the first (1st) payment in any given calendar year that is more than ten (10) business days
past due, Landlord shall first provide Tenant with notice that the payment at issue is then-due and Tenant shall
thereafter have five (5) days to make such payment before being responsible for the handling fee. Landlord and Tenant
agree that said fee represents a fair and reasonable estimate of Landlord's expenses. Upon the failure of Tenant to paid
said handling fee, after a notice in writing from Landlord, or Landlord's agent, or Landlord's managing agent, within
five (5) days after receipt of such notice, such failure shall constitute an act of default under the provisions of
Paragraph 19 of this Lease. The postmark of the United States Postal Service shall be evidence of the date of mailing.
The handling fee shall be in addition to the remedies available to Landlord pursuant to Paragraph 21 and shall in no way
be construed to limit those remedies.
37. RENEWAL OPTIONS
Tenant shall have the option to renew this Lease, provided Tenant is in compliance with all terms of this Lease, for two
(2) additional terms of five (5) years each, commencing upon the expiration of the initial term or the first additional
term, as the case may be, with not less than one hundred eighty (180) days prior written notice to Landlord of Tenant's
intent to exercise this option. The option rates to be agreed upon by the parties are to be the then-current market rate
for properties similar to the Premises in Coweta County's industrial market ("Current Market Rate"); provided that if in
the opinion of the appraiser(s) Coweta County's industrial market is not sufficiently large enough for the appraiser(s)
to determine an equitable Current Market Rate for the Premises, the appraiser(s) may expand the market they are taking
into account when determining the Current Market Rate to include as many neighboring communities as may be necessary to
equitably determine the Current Market Rate.
In the event of the failure of the parties to agree as to Current Market Rate by sixty (60) days after Tenant
provides Landlord with written notice of its intent to exercise this option (the "Negotiation Period"), such dispute
shall be determined by arbitration as herein provided. Landlord and Tenant, within twenty (20) business days after
expiration of the Negotiation Period shall each simultaneously submit to the other, in a sealed envelope, its good faith
estimate of the Current Market Rate (collectively referred to as the "Estimates"). If the higher of such Estimates is
not more than one hundred seven percent (107%) of the lower of such Estimates, then the Current Market Rate shall be the
average of the two Estimates. If the Current Market Rate is not so resolved pursuant to the preceding sentence, Landlord
and Tenant, within twenty (20) business days after the exchange of Estimates, shall each select an appraiser to determine
which of the two Estimates most closely reflects the Current Market Rate. Each appraiser selected pursuant to this
Paragraph 37 shall be certified as an MAI appraiser and shall have had at least five (5) years experience within the
previous ten (10) years as a real estate appraiser working in the Coweta County, Georgia industrial market, with working
knowledge of current rental rates and market practices. For purposes of this Lease, an "MAI" appraiser means an
individual who holds an MAI designation conferred by, and is an independent member of, the American Appraisal Institute
(or its successor organization, or in the event there is no successor organization, the organization and designation most
similar) and who is not affiliated with Landlord or Tenant. Upon selection, Landlord's and Tenant's appraisers shall work
together in good faith to agree upon which of the two Estimates most closely reflects the subject Current Market Rate.
The Estimate chosen by such appraisers shall be binding on both Landlord and Tenant as the base rent rate for such
renewal option period. If either Landlord or Tenant fails to appoint an appraiser within the twenty (20) business day
period referred to above, the appraiser appointed by the other party shall be the sole appraiser for the purposes
hereof. If the two appraisers cannot agree upon which of the two Estimates most closely reflects the Current Market Rate
within twenty (20) days after their appointment, then, within ten (10) days after the expiration of such twenty (20) day
period, the two (2) appraisers shall select a third appraiser meeting the aforementioned criteria (or, if such two
appraisers are unable to select a third appraiser, such selection shall be made by the President of the Atlanta chapter
of BOMA). Once the third appraiser has been selected as provided for above, then, as soon thereafter as practicable but
in any case within fourteen (14) days, the appraiser shall make his determination of which of the two Estimates most
closely reflects the Current Market Rate and such appraiser shall not select anything other than one of the two Estimates
from Landlord and Tenant and such Estimate shall be binding on both Landlord and Tenant as the Current Market Rate. If
the third appraiser believes that expert advice would materially assist him/her, such appraiser may retain one or more
qualified persons, to provide such expert advice. The party whose Estimate is not selected as the Current Market Rate
shall pay the costs of the third appraiser and of any experts retained by the third appraiser. Any fees of any
appraiser, counsel or experts engaged directly by Landlord or Tenant, however, shall be borne by the party retaining such
appraiser, counsel or expert.
38. GUARANTY OF LANDLORD'S OBLIGATION
As a condition precedent to all obligations of Tenant under this Lease, Landlord shall have delivered to Tenant a
guaranty in the form attached hereto as Exhibit "D" executed by Xxxx X. Xxxxxx & Associates, Inc. (the "Landlord
Guaranty").
39. INTENTIONALLY OMITTED
40. PURCHASE OPTION
Landlord hereby grants to Tenant a right to purchase the Premises at any time prior to the Commencement Date in
accordance with the provisions of the Purchase Addendum attached hereto and incorporated herein.
41. TERMINATION RIGHTS
Notwithstanding anything in this Lease to the contrary, and in addition to all other express termination rights granted
to Tenant under this Lease, Tenant shall have the option to terminate this Lease in its entirety as follows:
(i) effective upon five (5) days' written notice to Landlord in the event that Landlord does not acquire fee
simple title to the Land by July 1, 2001; or
(ii) effective upon five (5) days' written notice to Landlord in the event Landlord has not substantially
commenced construction of the Premises on or before August 1, 2001; or
(iii) effective as of the last day of the one hundred twentieth (120th) month after the Commencement Date (the
"Early Termination Date"); provided that Tenant provides Landlord with written notice of its election to so terminate not
later than the last day of the one hundred eighty (108th) month after the Commencement Date. Exercise of the foregoing
right to terminate shall not affect Tenant's obligation to pay Monthly Rent from and after such election to terminate
through and including the Early Termination Date.
In the event that Tenant terminates this Lease pursuant to either (i) or (ii) above, Landlord shall remain liable
to Tenant for all costs and expenses incurred by Tenant in connection with this Lease as more explicitly set forth in the
Landlord Guaranty (as hereinafter defined).
In the event that Tenant terminates this Lease pursuant to (iii) above, Tenant shall pay to Landlord a
termination fee equal to eighteen (18) months of Monthly Rent in effect at the time Tenant sends its notice to terminate,
and if Landlord has built the Expansion (as defined in the Expansion Addendum attached hereto), Tenant shall also pay
Landlord all of Landlord's unamortized costs as of the Early Termination Date with respect to the Expansion (collectively
[if applicable], the "Termination Payment"). The Termination Payment shall be paid to Landlord not later than the Early
Termination Date.
42. NOTICES
Any formal notices which any party may or must give to any other party under this Lease shall be in writing and shall be
sent either by (i) certified or registered mail, (in which case notice shall be deemed given three (3) business days
after the date the notice was deposited in the U.S. Mail with postage prepaid) or (ii) nationally recognized overnight
delivery service (in which case notice shall be deemed given one (1) business day after deposit with, and payment to,
such service) or (iii) facsimile (in which case notice shall be deemed given upon transmission of the facsimile with a
confirmation that the facsimile was received), provided a copy of such facsimile notice is deposited with the U.S. Mail
(with postage paid) no later than the next business day after transmission of the facsimile, in any case to the following:
LANDLORD:
0000 Xxxxx Xxxxx Xxxxxxx Xxxxx
Xxxxxx, Xxxxxxx 00000
Facsimile:(000) 000-0000
Attn: Xx. Xxxxxx X. Xxxxxxxx
TENANT:
000 Xxxx Xxxxxxxxxxx Xxxx, Xxxxx 000
Xxxxxxx, Xxxxxxxx 00000
Facsimile: (000) 000-0000
Attn: General Counsel
with a copy to:
Xxxxx, Xxxxx & Xxxxx
000 X. XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx, 00000
Facsimile: (000) 000-0000
Attn: Xxxxxxxxx X. Xxxxxx, Esq.
43. PROTECTIVE COVENANTS
The Protective Covenants set forth in Exhibit "B" attached hereto are hereby made a part of this Lease. Landlord
represents and warrants that the Premises were constructed in accordance with and, as of the effective date of this
Lease, comply with the Protective Covenants. Tenant acknowledges and agrees that it will comply with the terms of the
Protective Covenants applicable to the use and operation of the Premises.
44. QUIET ENJOYMENT
So long as no Event of Tenant Default is continuing under this Lease, Landlord shall not disturb Tenant's peaceful and
quiet enjoyment of the Premises subject to the terms of this Lease.
45. SPECIAL STIPULATIONS
In so far as the following stipulations conflict with any of the foregoing provisions, the following shall control:
A. This Lease together with the Exhibits and Addenda attached hereto contains the entire agreement of the parties
hereto and no representations, inducements, promises or agreements, oral or otherwise, between the parties not embodied
herein, shall be of any force or effect.
B. Neither party shall be deemed in default for failure to perform any of the terms, covenants and conditions of
this Lease or the Construction Addendum on such party's part to be performed, if such failure is due in whole or in part
to any strike, lockout, labor dispute (whether legal or illegal), civil disorder, failure of power, restrictive
governmental laws and regulations, riots, insurrections, war, fuel shortages, accidents, casualties, Acts of God, acts
caused directly or indirectly by the other party, the other party's agents, employees or invitees (any such event be
deemed a "Force Majeure Event" for purposes of this Lease).
46. TEMPORARY SECURITY DEPOSIT
Promptly after Tenant receives from Landlord a signed copy of this Lease, Tenant shall post with Landlord the amount of
$60,278.00 to be held by Landlord as a temporary security deposit for Tenant's performance of its obligations under this
Lease. Landlord shall apply such security deposit to the payment of the first (1st) installment of Monthly Rent due
under this Lease.
IN WITNESS WHEREOF, the parties herein have hereunto set their hands and seals the day and year first above written.
LANDLORD:
FIRST XXXXXX ASSOCIATES
By 1998 Augustus Partners, LP, Managing General Partner
By 1998 Winston Management Company, LLC, General Partner
By: __/s/ Xxxx X. Rooker__________________
--------------------------------------
Title: Member
By: __/s/ Xxxxxxx X. Rooker_______________
---------------------------------------
Title: Member
TENANT:
UNITED STATES CAN COMPANY
By: __/s/ Xxxxxx X. Vollman________________
------------------------
Title: __Vice President______________________
--------------
EXHIBIT A
Legal Description of Land
The Legal Description of the Land shall be appended to this Lease once available. Tenant will have the opportunity to
verify that the legal description provided by Landlord is the correct legal description is the correct legal description
for the property described in Exhibit 2 to the Construction Addendum.
EXHIBIT B
Protective Covenants
EXHIBIT C
Landlord's Estoppel
EXHIBIT D
Landlord's Guaranty
CONSTRUCTION ADDENDUM
---------------------
ATTACHED TO AND A PART OF THE
------------------------------
LEASE AGREEMENT
---------------
Dated June ____, 0000, Xxxxxxx
XXXXX XXXXXX XXXXXXXXXX
Xxx
XXXXXX XXXXXX CAN COMPANY
1. Standard Specifications and Final Plans; Change Orders.
(a) Preparation of Final Plans. Landlord shall furnish or perform at Landlord's sole cost and expense those items of
---------------------------
construction and those improvements ("Initial Improvements") provided for in the scope of work description and
---------------------
specifications (the "Specifications") attached as Exhibit 1, as depicted on the site plan (the "Site Plan") attached
-------------- --------- ----------
hereto has Exhibit 2 and the building space plan (the "Building Space Plan") attached as Exhibit 3 and, subject to the
--------- -------------------- ---------
provisions of this Addendum, in accordance with the schedule set forth herein (the "Schedule"). Landlord shall provide
--------
Tenant with final working drawings and specifications for the Initial Improvements (the "Final Plans") which are
------------
consistent with the Specifications, Site Plan and Building Space Plan no later than July 1, 2001. Tenant shall respond
promptly to any inquiries by Landlord during the development of the Final Plans and, to the extent requested by Landlord,
shall cooperate with Landlord and Landlord's architect in developing the Final Plans. When Landlord requests Tenant to
specify details or layouts, Tenant shall specify the same within ten (10) days thereafter so as not to delay completion
of the Final Plans or the Initial Improvements. Any delay in the completion of the Final Plans or the Initial
Improvements caused by any Tenant failure to respond timely to Landlord's requests shall be an Excusable Delay (as
hereinafter defined).
(b) Change Orders. The Specifications define the entire scope of Landlord's obligation to construct or provide the
-------------
Initial Improvements. Subject to this paragraph, however, Landlord shall make additions or changes to the Specifications
requested by Tenant. If Tenant shall desire any such changes, Tenant shall so advise Landlord in writing (a "Change
-------
Order Request") as promptly as possible so as not to delay the orderly development of the Final Plans. All reasonable
--------------
costs incurred by Landlord in having any Change Order Request reviewed and evaluated shall be reimbursed by Tenant within
thirty (30) days after demand. Such costs shall include, but not be limited to, the reasonable costs of architects,
engineers, and consultants in reviewing and designing any such changes and the cost of contractors in providing cost
estimates and constructability, functionality and product availability analyses. Tenant acknowledges and agrees that (i)
Tenant shall bear all costs and expenses associated with incorporating into the Final Plans and the Initial Improvements
any Change Order Request accepted by Landlord, including without limitation an administrative fee to Landlord equal to
ten percent (10%) of the increased cost resulting from such change (if the change Order will result in a cost savings,
Tenant shall not be obligated to pay any administrative fee as to such Change Order); and (ii) any delays in the
development of the Final Plans or completion of the Initial Improvements resulting from addressing Tenant's Change Order
Request and incorporating any such change into the Final Plans and Initial Improvements shall constitute an Excusable
Delay (as defined in Paragraph 5 below). Upon agreement between Landlord and Tenant on the change that will be
------------
incorporated into the Final Plans and Initial Improvements as a result of a Change Order Request, and the cost of such
change, the Landlord and Tenant shall execute a change order (a "Change Order") setting forth the parties' agreement as
-------------
to such terms.
Tenant may elect to pay for any Change Order that will increase costs by either:
(x) paying Landlord the Change Order cost and associated administrative fee at the time when Landlord
will be funding the construction of the portion of the Initial Improvements reflected by the Change Order, or
(y) by compelling Landlord to pay for such increased costs and increasing the Monthly Rent to account
for Landlord's payment of such Change Order additional cost and the associated administrative fee.
To the extent that Tenant elects to pay for any increased costs as provided for in (y) above, Monthly Rent shall
be increased by applying a rent constant of 11.079% to the first $200,000 of increased costs and a rent constant of 13.0%
to any excess above $200,000. For example, if the aggregate Change Order cost is $210,000, Monthly Rent would be
increased by $1,955.00 ($200,000 x 11.079% / 12 + $10,000 x 13.0% / 12). To the extent the aggregate Change Order costs
result in a net savings, Monthly Rent shall be adjusted downward by applying a rent constant of 11.079% to such net
savings.
(c) Approval of Final Plans. Landlord shall submit the Final Plans to Tenant for its approval and Tenant shall
------------------------
advise Landlord, within fifteen (15) days thereafter, of its approval or disapproval of such Final Plans. If Tenant
shall not make an objection to the proposed Final Plans or any element or aspect thereof within the fifteen (15) day
period set forth above, then such Final Plans or the portions not objected to by Tenant shall be deemed approved.
Resolution of any objection by Tenant to the Final Plans shall be governed by Paragraph 3 below.
-----------
(d) Commencement of Construction Before Final Plans. Landlord may commence construction prior to finalization of the
------------------------------------------------
Final Plans and Tenant agrees that it shall cooperate with Landlord in reviewing and approving portions of the Final
Plans for different stages or elements of the work so that construction can proceed on a "fast track" basis. The
approval process for such portions of the Final Plans shall be substantially as set forth above.
(e) Change Orders During Construction. In the event that subsequent to the completion and approval of the Final
----------------------------------
Plans Tenant desires to make a change in the work provided for therein, the parties shall proceed in accordance with the
foregoing provisions relating to changes requested during the development of the Final Plans.
(f) Tenant Participation. Tenant, or its designated representative, shall have the right to submit up to three (3)
---------------------
contractors and/or subcontractors for the bidding of each trade. Landlord shall consult with Tenant's representative
during the bidding and negotiating process for the construction of the Initial Improvements, but shall retain control
over selection of contractors and the bidding and negotiation of contracts. Landlord anticipates that it will enter into
a stipulated sum construction contract and that major subcontracts will be bid. Tenant, and/or Tenant's representative,
shall be given full access to the construction site and all contracts, applications for payment, payment records and
other construction documentation in order to monitor the construction.
2. Project Representatives. Landlord hereby designates Xxxx Xxxxxx to serve as Landlord's representative and Tenant
------------------------
hereby designates Xxx Xxxxxxxx and Xxxxxxx Xxxx to serve as Tenant's representative during the design and construction of
the Initial Improvements. All communications between Landlord and Tenant relating to the design and construction of the
Initial Improvements shall be forwarded to or made by such party's representative. In addition, no Change Order shall be
binding on Landlord unless executed by Xxxx Xxxxxx and no Change Order shall be binding on Tenant unless executed by Xxx
Xxxxxxxx, its Director of Operations. Nothwithstanding the foregoing, in the event that its representative is
unavailable, either party may designate a replacement representative on either a temporary or permanent basis by
notifying the other party in writing of such replacement designation.
3. Dispute Resolution.
------------------
(a) Conference of Senior Representatives. The parties shall make good faith efforts to resolve any dispute which may
------------------------------------
arise under this Construction Addendum in an expedient manner. In the event, however, that any dispute arises, either
party may notify the other party of its intent to invoke the dispute resolution procedure herein set forth by delivering
written notice to the other party. In such event, if the parties' respective representatives are unable to reach
agreement on the subject dispute within ten (10) business days after delivery of such notice, then each party shall,
within five (5) business days thereafter, designate a senior executive officer of its management to meet at a mutually
agreed location to resolve the dispute.
(b) Arbitration. Subject to the dollar limitation set forth below, disputes as to any work required to be performed
-----------
by Landlord hereunder that are not resolved within five (5) days by agreement between the designated executive officers,
may be submitted to arbitration if either party so elects, by delivering written notice to the other party within ten
(10) days after the expiration of such five (5) day period. In such event, the subject dispute shall be resolved by
arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association, subject to the
requirement that a single arbitrator unaffiliated with either party shall decide each matter in dispute within fifteen
(15) days of the date of his selection, based solely upon the written statements of position submitted by each party and
subject to the right of Landlord to join in any such arbitration the Architect of Record and any contractor whose work is
the subject of any such arbitration. The parties consent to the jurisdiction of any appropriate court to enforce these
arbitration provisions and to enter judgments upon the decision of the arbitration. Unless otherwise required by state
law, arbitration shall be conducted in Atlanta, Georgia. In the event of an arbitration, the losing party shall pay the
cost of arbitrator and the arbitration, but each party shall bear its own attorneys' fees and costs in preparing for and
participating in such arbitration. Only those disputes described above that involve an amount in controversy in excess
of $500,000 shall be subject to mandatory arbitration pursuant to this Paragraph 3 provided that in any arbitration
------------
between Landlord and contractor, either Landlord or Tenant shall be entitled to require that Tenant participate and be
bound as a party-in-interest. No other disputes shall be subject to arbitration. Without limiting the generality of the
preceding sentence, disputes as to the date of Substantial Completion shall not be subject to mandatory arbitration
hereunder.
4. Tenant's Installations. Subject to applicable ordinances and building codes governing Tenant's right to enter
-----------------------
and perform work in the Premises, Tenant and Tenant's contractors shall be allowed to install Tenant's improvements,
machinery, equipment, fixtures, or other personal property on the Premises beginning when such installation will not
materially and adversely interfere with Landlord's completion of construction (such date when Tenant may begin to install
its improvements is herein referred to as the "Early Occupancy Date"). The Early Occupancy Date is: (i) October 16,
----------------------
2001, as to the production area of the Premises so as to allow Tenant or its contractors to install the water piping,
electrical conduit, air piping and resin system, (ii) November 16, 2001, as to the mechanical room of the Premises so as
to allow Tenant or its contractors to set the utility equipment and proceed with water piping and electrical connections
to all of the support equipment, and (iii) December 11, 2001, as to the production room and facilities to enable Tenant
or its contractors to drive an 18 wheel truck into the plant to unload the production equipment and to allow for the
installation and testing of the production equipment. After the Early Occupancy Date and before Substantial Completion,
Landlord and Tenant shall reasonably cooperate with each other and use commercially reasonable efforts to not interfere
with the other's (or their contractor's) work being performed in the Premises and Tenant, and its agents, employees and
contractors, shall comply in all material respects with Landlord's safety program which it has received a copy of.
5. Substantial Completion.
----------------------
(a) Determination of Substantial Completion. Landlord shall diligently proceed with the construction of the Initial
----------------------------------------
Improvements to achieve Substantial Completion on or before January 26, 2002. "Substantial Completion" shall be deemed
-----------------------
to have occurred on the date when all of the following events have occurred: (i) the architect who prepared the Final
Plans ("Architect of Record") certifies that the Initial Improvements have been completed in substantial accordance with
-------------------
the Final Plans subject only to completion of punch list items which do not interfere with the utilization of the Initial
Improvements for the purposes for which they were intended, (ii) the Premises contain at least 183,000 USF of Certified
Square Footage as determined and measured from the outside of the outer wall to outside of outer wall, (iii) Coweta
County has issued a certificate of occupancy (and if the certificate of occupancy is temporary, it may only be subject to
the completion of immaterial items which do not interfere with the Tenant's operation and Landlord shall obtain a
permanent, unconditional certificate of occupancy prior to the date any such temporary certificate of occupancy lapses,
expires or terminates) for the Premises allowing the Tenant to beneficially occupy the Premises and conduct its business
therefrom, (iv) Tenant has received from Landlord the Updated Phase I, and (v) at least: one hundred two (102) days have
elapsed since Landlord delivered to Tenant occupancy of that portion of the Premises as required by Paragraph 4(i) above,
--------------
seventy one (71) days have elapsed since Landlord delivered to Tenant occupancy of that portion of the Premises as
required by Paragraph 4(ii) above, and, forty six (46) days have elapsed since Landlord delivered to Tenant occupancy of
---------------
that portion of the Premises as required by Paragraph 4(iii) above (each an Early Occupancy Date). Such date when
-----------------
Substantial Completion has occurred is referred to in the Lease and this Construction Addendum as the "Commencement
--------------
Date." Notwithstanding anything contained herein or in the Lease to the contrary, subject to applicable laws, codes and
ordinances, Tenant may begin to operate its business from the Premises prior to the Commencement Date provided Tenant
shall only begin to be obligated to pay Monthly Rent and Taxes when Substantial Completion is achieved. Landlord
covenants that if the Premises contain less than 183,000 USF as the Certified Square Footage, Landlord shall cause the
Premises to contain at least 185,122 USF within thirty (30) days after the original determination of Certified Square
Footage.
(b) Inspection and Punch List. Landlord shall notify Tenant in writing approximately ten (10) days before the
---------------------------
estimated date of Substantial Completion. Within five (5) business days of the anticipated date of Substantial
Completion, Landlord and Tenant shall jointly inspect the Improvements and agree upon a punch list of items in accordance
with the Final Plans needing completion or correction. As soon as Substantial Completion has been achieved, Landlord
shall notify Tenant in writing of such date. Landlord shall use all reasonable diligent efforts to complete all punch
list items within thirty (30) days after agreement upon the punch list, subject, however, to long lead time items which
must be ordered and to seasonal requirements for any landscaping and exterior work.
6. Excusable Delay. In connection with the construction of the Initial Improvements, if, and to the extent, any
----------------
delay in such construction is caused solely by the act or neglect of Tenant, or those acting for or under Tenant,
including without limitation failure of Tenant to approve Final Plans, or by a Force Majeure Event , or by a failure of
Coweta County to both sell Landlord the Land and grade the Land on or before July 1, 2001 ("Excusable Delay"), then the
----------------
scheduled date to achieve Substantial Completion (January 26, 2002) shall be extended day-for-day for such delay provided
Landlord provides Tenant written notice within two (2) business days after the occurrence of any event of Excusable Delay
commences, failing which Landlord may not claim Excusable Delay.
7. Delay Damages and Termination. If, for any reason other than Excusable Delay, the Commencement Date shall not
-----------------------------
have occurred on or before January 26, 2002, then Landlord shall pay to Tenant, as liquidated damages and not as a
penalty, the sum of $8,800.00 for each day from and after the scheduled Commencement Date until the Commencement Date is
achieved, in liquidated damages. Delay damages shall be due and payable every two (2) weeks no later than seven (7) days
after the expiration of the two (2) week period. If, for any reason other than an Excusable Delay, the Commencement Date
is not achieved by March 31, 2002, then Tenant may terminate this Lease by written notice to Landlord on or before ten
(10) days after such date, in which case all of Landlord's and Tenant's obligations hereunder shall terminate, and
neither party shall have any further obligations to the other with respect to this Lease. Tenant may also pursue any
other damages provided at law or in equity as a result of any delay or termination of this Lease.
43
===========================================================================================================================
Tenant: UNITED STATES CAN COMPANY
Address:
Landlord: FIRST XXXXXX ASSOCIATES
12803705 01754168
Exhibit 1
to
Construction Addendum
SPECIFICATIONS
--------------
Exhibit 2
to
Construction Addendum
SITE PLAN
---------
Exhibit 3
to
Construction Addendum
BUILDING SPACE PLAN
-------------------
PURCHASE ADDENDUM
-----------------
ATTACHED TO AND A PART OF THE LEASE AGREEMENT
DATED June _______, 0000, XXXXXXX
XXXXX XXXXXX XXXXXXXXXX
xxx
XXXXXX XXXXXX CAN COMPANY
Subject to and in accordance with the terms of this Purchase Addendum, Tenant shall have the right and option
(the "Purchase Option") to purchase the Premises. Tenant shall exercise the Purchase Option by delivering written notice
----------------
("Purchase Option Notice") to Landlord no later than November 12, 2001.
----------------------
1. Purchase Price. The purchase price shall be $6,528,870 (subject to adjustments due to Change Orders).
--------------
2. Closing The closing shall be conducted through an escrow established at a title company acceptable to both
-------
Landlord and Tenant. All deliveries shall be deposited in escrow and all closing deliveries and disbursements shall be
made through the escrow. The closing shall occur on a date reasonable acceptable to Landlord and Tenant but in no event
earlier than the Commencement Date and no later than 90 days following the Commencement Date.
3. Inspection. Tenant may revoke its election to exercise the Purchase Option by notice to Landlord within the
-----------
30-day period after it elects the Purchase Option if Tenant is not satisfied with any aspect of the Premises, in which
case this Lease shall continue in full force and effect.
4. Title. Landlord shall convey to Tenant fee simple title to the Premises by special warranty deed (warranting
-----
title by, through, or under Landlord, but not otherwise) subject only to all matters of record and those matters which a
correct survey would show but free and clear of any liens or any other exceptions created by, under, or through
Landlord. Tenant shall have the absolute right to approve title to the Property, and if title is not satisfactory,
Tenant may revoke its election to exercise the Purchase Option by giving notice to Landlord (x) within the inspection
period in Paragraph (3) above and, (y) with respect to any title exceptions of which Purchaser is notified after such
inspection period but before the closing, at any time before the closing. Landlord shall assign to Tenant all its right,
title and interest in and to all contracts, warranties, permits, approvals, and other intangible property related to the
Premises except for any tradename or other similar rights related to the Premises, which Landlord shall retain.
5. Prorations. There shall be no proration of taxes or other expenses.
----------
6. Lease Termination. The Lease shall be terminated as of the closing. All rent and other payments due by Tenant
------------------
to Landlord under this Lease shall be prorated to the date of closing and shall be deposited into the escrow and
disbursed to Landlord at closing.
7. Risk of Loss. Risk of loss shall remain with Landlord, subject to Tenant's obligations under this Lease, until
------------
the closing. If any condemnation is instituted or threatened against the Premises or the Premises are damaged, either
party may terminate the purchase transaction, and the Lease shall remain in full force and effect.
EXPANSION ADDENDUM
------------------
ATTACHED TO AND A PART OF THE LEASE AGREEMENT
DATED June 15, 2001,
between
FIRST XXXXXX ASSOCIATES
and
UNITED STATES CAN COMPANY
(a) Expansion Option.
----------------
(i) Subject to subparagraph (b) below, Tenant shall have the option no more than two (2) times during the term of
this Lease (the "Expansion Option"), to be exercised by delivery of written notice ("Expansion Option Notice") to
---------------- -----------------------
Landlord to cause Landlord to construct the Expansion as provided herein and to include the Expansion as part of the
Premises as of Substantial Completion thereof (as defined in the Construction Addendum) of the Expansion (the "Expansion
----------
Commencement Date"). Tenant shall specify to Landlord the date upon which the Expansion must be Substantially Completed
-----------------
in the Expansion Option Notice.
(ii) The monthly Base Rent for the Premises shall be increased effective upon the Expansion Commencement Date. The
increase in monthly Base Rent shall be calculated pursuant to subparagraph (b) below.
(iii) If Tenant shall exercise the Expansion Option as provided herein, Landlord shall design and construct the
expansion of the original Premises to contain up to an aggregate of 50,000 square feet of additional leaseable and usable
space with parking for 20 additional cars (the "Expansion"). The Expansion shall be designed and constructed by Landlord
---------
as a connected expansion of the original Premises, utilizing a common demising wall, between the original Premises and
the Expansion full and free access of persons and full and free handling and processing of inventory. The design and
construction of the Expansion shall be performed in a manner consistent with the Construction Addendum, subject to the
following:
(1) Landlord shall commence preparation of the design of the Expansion within thirty (30) days after exercise by
Tenant of the Expansion Option. The final plans and specifications for the Expansion shall be prepared by Landlord and
approved by Tenant in a manner consistent with the provisions of the Construction Addendum for the preparation and
approval of the Final Plans for the Initial Improvements.
(2) Except as agreed otherwise by Landlord and Tenant, the Expansion shall be substantially similar in all respects
to the original Premises, including without limitation the type and quality of materials and the exterior and interior
appearance and finish.
(b) Increase in Monthly Rent.
_________The increase in Monthly Rent associated with the addition of the Expansion to the Premises shall equal
the Total Project Cost (as defined in the Construction Addendum) for the Expansion plus interest on the Total Project
Cost for the Expansion at the interest rate per annum that Landlord can borrow at in the marketplace to fund construction
of the Expansion ("Landlord's Market Borrowing Rate") amortized in equal monthly installments over the balance of the
initial term of the Lease remaining as of the Expansion Commencement Date. Promptly after the determination of the Total
Project Cost for the Expansion and the resulting adjustment to Monthly Rent, the parties shall enter into an amendment to
the Lease confirming the addition of the Expansion to the Premises and such increase in Monthly Rent and the Expansion
Commencement Date. Notwithstanding the foregoing, if Tenant believes that Landlord's Market Borrowing Rate is too high,
Tenant may elect to require Landlord to borrow from an alternative financing source designated by Tenant in which case
the increase in Monthly Rent associated with the addition of the Expansion to the Premises shall be computed based on the
interest rate charged to Landlord from such alternative funding source.
(c) For purposes of the definition of "Total Project Cost" set forth below, the Landlord shall categorized such
improvement and development costs as follows:
o infrastructure costs (Land development costs);
o fiscal requirements, platting and site preparation;
o contractor's overhead and profit;
o architectural and engineering fees;
o legal fees;
o construction materials testing and inspection;
o labor and materials to construct the Initial Improvements and related infrastructure and improvements;
o costs of securing construction and permanent financing;
o permit fees, sales taxes and fees payable to contractors;
o project landscaping, including related design fees and permits;
o water, gas and electrical hookup fees and related miscellaneous costs;
o builder's risk insurance;
o a prorated share of Taxes assessed and operating expenses incurred during the construction period (beginning upon
acquisition and ending on the Commencement Date);
o title insurance on the Total Project Cost;
o Landlord's average cost of coverage for liability insurance during the construction period;
o services for verification of compliance with city ordinances and other laws;
o a 10% administrative cost with respect to any Change Orders that increase costs;
o imputed interest at the Prime Rate (as defined in the Lease) on the cost used to determine Monthly Rent (imputed
interest accrues on actual cost as and when incurred up to the Commencement Date); and
o fee payable to Tenant's designated representative.
(d) Total Project Cost. For purposes of the Lease and this Expansion Addendum, "Total Project Cost" shall mean the
------------------
sum of improvement and development costs - i.e. costs incurred by Landlord from delivery of the Expansion Option Notice
by the Tenant through project close-out to prepare the Land and construct the Expansion and related on-site paving,
landscaping and utility lines.
