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LEASE AGREEMENT
THIS LEASE AGREEMENT is dated this 27th day of JANUARY, 2000, between
PRUCROW INDUSTRIAL PROPERTIES, L.P. ("Landlord") and the Tenant named below.
TENANT: Healthtronics, Inc., a Georgia corporation
TENANT'S REPRESENTATIVE: Xxxxx Xxxx
ADDRESS AND PHONE NO.: 0000 Xxxx Xxx Xxxxxxx, Xxxxx X,
Xxxxxxxx, Xxxxxxx 00000
PREMISES: That portion of the Building, being Suite
A, containing approximately 27,475 rentable
square feet, as determined by Landlord, as
shown on EXHIBIT A situated on a portion of
that certain real property legally
described in EXHIBIT A-1 attached hereto.
PROJECT: West Oak Center (consisting of
approximately 220,578 square feet)
BUILDING: Building I
TENANT'S PROPORTIONATE SHARE
OF PROJECT: 12.46%
TENANT'S PROPORTIONATE SHARE
OF BUILDING: 50%
LEASE TERM: Beginning on the Commencement Date and
ending on the last day of the 84th full
calendar month thereafter.
COMMENCEMENT DATE: March 1, 2000
MONTHLY BASE RENT:
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MONTHS MONTHLY BASE RENT
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1-12 $8,500
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13-24 $16,036
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25-36 $16,517
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37-48 $17,013
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49-60 $17,523
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61-72 $18,049
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73-84 $18,590
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INITIAL ESTIMATED MONTHLY 1. Utilities: To be paid separately in accordance with Paragraph 7 herein.
OPERATING EXPENSE PAYMENTS: 2. Common Area Charges $801
(estimates only and subject to 3. Taxes: $900
adjustment to actual costs and 4. Insurance: $115
expenses according to the
provisions of this Lease)
INITIAL ESTIMATED MONTHLY OPERATING
EXPENSE PAYMENTS: $1,816
INITIAL MONTHLY BASE RENT AND
OPERATING EXPENSE PAYMENTS: $10,316
SECURITY DEPOSIT: $16,036.00
TENANT'S BROKER: Advantis, GVA
LANDLORD'S BROKER: TC Atlanta, Inc.
ADDENDA: Rules and Regulations; Exhibit A
(Premises); Exhibit A-I (Legal Description
of Real Property); Exhibit B (Intentionally
Deleted); Exhibit C (Construction
Addendum); Exhibit D (Renewal Option -
Market Rate).
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1. GRANTING CLAUSE. In consideration of the obligation
of Tenant to pay rent as herein provided and in consideration of the other
terms, covenants, and conditions hereof, Landlord leases to Tenant, and Tenant
leases from Landlord, the Premises, to have and to hold for the Lease Term,
subject to the terms, covenants and conditions of this Lease.
2. ACCEPTANCE OF PREMISES. Except as may otherwise be
expressly provided in a Construction Addendum attached hereto (if any), Tenant
shall accept the Premises on the Commencement Date in its "AS-IS" condition,
subject to all applicable laws, ordinances, regulations, covenants and
restrictions, and Landlord shall have no obligation to perform or pay for any
repair or other work therein, except as hereinafter provided. Landlord has made
no representation or warranty as to the suitability of the Premises for the
conduct of Tenant's business, and Tenant waives any implied warranty that the
Premises are suitable for Tenant's intended purposes. TENANT ACKNOWLEDGES THAT
(1) IT HAS INSPECTED AND ACCEPTS THE PREMISES IN AN "AS IS, WHERE IS" CONDITION
(UNLESS OTHERWISE EXPRESSLY PROVIDED IN A CONSTRUCTION ADDENDUM ATTACHED
HERETO, IF ANY), (2) THE BUILDINGS AND IMPROVEMENTS COMPRISING THE SAME ARE
SUITABLE FOR THE PURPOSE FOR WHICH THE PREMISES ARE LEASED AND LANDLORD HAS
MADE NO WARRANTY, REPRESENTATION, COVENANT, OR AGREEMENT WITH RESPECT TO THE
MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE OF THE PREMISES, (3) THE
PREMISES ARE IN GOOD AND SATISFACTORY CONDITION (EXCEPTING THE TENANT
IMPROVEMENTS WHICH HAVE NOT BEEN COMPLETED AS OF THE DATE HEREOF), (4) NO
REPRESENTATIONS AS TO THE REPAIR OF THE PREMISES, NOR PROMISES TO ALTER,
REMODEL OR IMPROVE THE PREMISES HAVE BEEN MADE BY LANDLORD (UNLESS OTHERWISE
EXPRESSLY PROVIDED IN A CONSTRUCTION ADDENDUM ATTACHED HERETO, IF ANY), AND (5)
THERE ARE NO REPRESENTATIONS OR WARRANTIES, EXPRESSED, IMPLIED OR STATUTORY,
THAT EXTEND BEYOND THE DESCRIPTION OF THE PREMISES. Except as provided in
Paragraph 10, in no event shall Landlord have any obligation for any defects in
the Premises or any limitation on its use. The taking of possession of the
Premises shall be conclusive evidence that Tenant accepts the Premises and that
the Premises were in good condition at the time possession was taken except for
items that are Landlord's responsibility under Paragraph 10 and any punchlist
items agreed to in writing by Landlord and Tenant.
3. USE. (a) Subject to Tenant's compliance with all
zoning ordinances and Legal Requirements (as hereinafter defined), the Premises
shall be used only for the purpose of receiving, storing, shipping and selling
(but limited to wholesale sales) products, materials and merchandise made
and/or distributed by Tenant; training on, service and repair of, and testing
in a reasonable manner of lithotripsy, ossatripsy and equitripsy or related
equipment ("Tenant's Equipment") in the warehouse portion of the Premises; and
for such other lawful purposes as may be incidental thereto; however, no retail
sales may be made from the Premises. Tenant shall not conduct or give notice of
any auction, liquidation, or going out of business sale on the Premises. Tenant
will use the Premises in a careful, safe and proper manner and will not commit
waste, overload the floor or structure of the Premises or subject the Premises
to use that would damage the Premises. Tenant shall not permit any
objectionable or unpleasant odors, smoke, dust, gas, noise, or vibrations to
emanate from the Premises, or take any other action that would constitute a
nuisance or would disturb, unreasonably interfere with, or endanger Landlord or
any tenants of the Project. Outside storage, including without limitation,
storage of trucks and other vehicles, is prohibited without Landlord's prior
written consent; provided, however, Landlord hereby consents to Tenant's
overnight parking for up to five (5) consecutive nights of operative vehicles
and trucks in the parking areas immediately adjacent to the Premises.
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(b) Tenant, at its sole expense, shall use and occupy
the Premises in compliance with all laws, including, without limitation, the
Americans With Disabilities Act, orders, judgments, ordinances, regulations,
codes, directives, permits, licenses, covenants and restrictions now or
hereafter applicable to the Premises (collectively, "Legal Requirements"). The
Premises shall not be used as a place of public accommodation under the
Americans With Disabilities Act or similar state statutes or local ordinances
or any regulations promulgated thereunder, all as may be amended from time to
time. Tenant shall, at its expense, make any alterations or modifications,
within or without the Premises, that are required by Legal Requirements related
to Tenant's specific use or occupation of the Premises. Tenant will not use or
permit the Premises to be used for any purpose or in any manner that would void
Tenant's or Landlord's insurance, increase the insurance risk, or cause the
disallowance of any sprinkler credits. If any increase in the cost of any
insurance on the Premises or the Project is caused by Tenant's use or
occupation of the Premises, or because Tenant vacates the Premises, then Tenant
shall pay the amount of such increase to Landlord. Any entrance into or
occupation of the Premises by Tenant prior to the Commencement Date shall be
subject to all obligations of Tenant under this Lease.
(c) Tenant and its employees and invitees shall have the
non-exclusive right to use, in common with others, any areas designated by
Landlord from time to time as common areas for the use and enjoyment of all
tenants and occupants of the Project, subject to such reasonable rules and
regulations as Landlord may promulgate from time to time.
4. BASE RENT. Tenant shall pay Base Rent in the amount
set forth on the first page of this Lease. The first month's Base Rent, the
Security Deposit, and the first monthly installment of estimated Operating
Expenses (as hereafter defined) shall be due and payable on the date hereof,
and Tenant promises to pay to Landlord in advance, without demand, deduction or
set-off, monthly installments of Base Rent on or before the first day of each
calendar month succeeding the Commencement Date. Payments of Base Rent for any
fractional calendar month shall be prorated. All payments required to be made
by Tenant to Landlord hereunder shall be payable at such address as Landlord
may specify from time to time by written notice delivered in accordance
herewith. The obligation of Tenant to pay Base Rent and other sums to Landlord
and the obligations of Landlord under this Lease are independent obligations.
Tenant shall have no right at any time to xxxxx, reduce, or set-off any rent
due hereunder except where expressly provided in this Lease. Tenant
acknowledges that late payment by Tenant to Landlord of any rent due hereunder
will cause Landlord to incur costs not contemplated by this Lease, the exact
amount of such costs being extremely difficult and impractical to determine.
Therefore, if Tenant is delinquent in any monthly installment of Base Rent,
estimated Operating Expenses or other sums due and payable hereunder for more
than five (5) days, Tenant shall pay to Landlord on demand a late charge equal
to five percent (5%) of such delinquent sum. The parties agree that such late
charge represents a fair and reasonable estimate of the costs that Landlord
will incur by reason of such late payment by Tenant. The provision for such
late charge shall be in addition to all of Landlord's other rights and remedies
hereunder or at law and shall not be construed as a penalty.
5. SECURITY DEPOSIT. The Security Deposit shall be
held by Landlord as security for the performance of Tenant's obligations under
this Lease. The Security Deposit is not an advance rental deposit or a measure
of Landlord's damages in case of Tenant's default. Upon each occurrence of an
Event of Default (hereinafter defined), Landlord may use all or part of the
Security Deposit to pay delinquent payments due under this Lease, and the cost
of any damage, injury, expense or liability caused by such Event of Default,
without prejudice to any other remedy provided herein or provided by law.
Tenant shall pay Landlord on demand the amount that will restore the Security
Deposit to its original amount. Landlord's obligation respecting the Security
Deposit is that of a debtor, not a trustee; no interest shall accrue thereon.
The Security Deposit shall be the property of Landlord, but shall be paid to
Tenant when Tenant's obligations under this Lease have been completely
fulfilled. Landlord shall be released from any obligation with respect to the
Security Deposit upon transfer of this Lease and the Premises to a person or
entity assuming Landlord's obligations under this Paragraph 5.
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6. OPERATING EXPENSE PAYMENTS. (a) During each month of
the Lease Term, on the same date that Base Rent is due, Tenant shall pay
Landlord an amount equal to 1/12 of the annual cost, as estimated by Landlord
from time to time, of Tenant's Proportionate Share (hereinafter defined) of
Operating Expenses for the Project. Payments thereof for any fractional
calendar month shall be prorated.
(b) The term "Operating Expenses" means all costs and
expenses incurred by Landlord with respect to the ownership, maintenance, and
operation of the Project including, but not limited to costs of: Common Area
utilities; maintenance, repair and replacement of all portions of the Project,
including without limitation, paving and parking areas, roads, alleys, and
driveways; mowing, snow removal, landscaping, and exterior painting; the cost
of maintaining utility lines, fire sprinklers and fire protection systems,
exterior lighting and mechanical and building systems serving the Building or
Project; amounts paid to contractors and subcontractors for work or services
performed in connection with any of the foregoing; charges or assessments of
any association to which the Project is subject; fees payable to tax
consultants and attorneys for consultation and contesting taxes; environmental
insurance or environmental management fees; the cost of any insurance
deductibles for insurance required to be maintained by Landlord hereunder;
property management fees payable to a property manager, including any affiliate
of Landlord, or if there is no property manager, an administration fee payable
to Landlord equal to the amount of reasonable property management fees that
would have been payable to a third party property manager had one been retained
to manage the Project; security services, if any; trash collection, sweeping
and removal; and additions or alterations made by Landlord to the Project or
the Building in order to comply with Legal Requirements (other than those
expressly required herein to be made by Tenant) or that are appropriate to the
continued operation of the Project or the Building as a bulk
warehouse/industrial or service center facility in the market area, provided
that the cost of such additions or alterations that are required to be
capitalized for federal income tax purposes shall be amortized on a straight
line basis over a period equal to the lesser of the useful life thereof for
federal income tax purposes or ten (10) years and included in Operating
Expenses only to the extent of the amortized amount for the respective calendar
year. In addition, Operating Expenses shall include (i) Taxes (hereinafter
defined) for each calendar year during the Lease term, and (ii) the cost of
insurance maintained by Landlord for the Project for each calendar year during
the Lease term.
(c) Notwithstanding the foregoing, Operating Expenses do
not include (i) costs, expenses, depreciation or amortization for capital
repairs and capital replacements required to be made by Landlord under
Paragraph 10 of this Lease; (ii) debt service under mortgages or ground rent
under ground leases; (iii) costs of restoration to the extent of net insurance
proceeds received by Landlord with respect thereto; (iv) leasing commissions or
the costs of renovating space for tenants; or (v) any costs or legal fees
incurred in connection with any particular tenant. The cost of any repairs or
replacements which are classified as capital improvements under generally
accepted accounting principles shall be amortized with interest over the lesser
of the useful life of the improvement or ten (10) years and included in
Operating Expenses only to the extent of the amortized amount for the
respective calendar year.
(d) If Tenant's total payments of Operating Expenses for
any year are less than Tenant's Proportionate Share of actual Operating
Expenses for such year, then Tenant shall pay the difference to Landlord within
thirty (30) days after notice, and if more, then Landlord shall retain such
excess and credit it against Tenant's next payments. For purposes of
calculating Tenant's Proportionate Share of Operating Expenses, a year shall
mean a calendar year except the first year, which shall begin on the
Commencement Date, and the last year, which shall end on the expiration of this
Lease.
(e) With respect to Operating Expenses which Landlord
allocates to the entire Project, Tenant's "Proportionate Share" shall be the
percentage set forth on the first page of this Lease as Tenant's Proportionate
Share of the Project as reasonably adjusted by Landlord in the future for
changes in the physical size of the Premises or the Project; and, with respect
to Operating Expenses which Landlord allocates only to the Building, Tenant's
"Proportionate Share" shall be the percentage set forth on the first page of
this Lease as Tenant's Proportionate Share of the Building as reasonably
adjusted by Landlord in the
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future for changes in the physical size of the Premises or the Building.
Landlord may equitably increase Tenant's Proportionate Share for any item of
expense or cost reimbursable by Tenant that relates to a repair, replacement,
or service that benefits only the Premises or only a portion of the Project or
Building that includes the Premises or that varies with occupancy or use. The
estimated Operating Expenses for the Premises set forth on the first page of
this Lease are only estimates, and Landlord makes no guaranty or warranty that
such estimates will be accurate.
7. UTILITIES. Tenant shall pay for all water, gas,
electricity, heat, light, power, telephone, sewer, sprinkler services, refuse
and trash collection, and other utilities and services used on the Premises,
all maintenance charges for utilities, and any storm sewer charges or other
similar charges for utilities imposed by any governmental entity or utility
provider, together with any taxes, penalties, surcharges or the like pertaining
to Tenant's use of the Premises. Landlord may cause at Tenant's expense any
utilities to be separately metered or charged directly to Tenant by the
provider. Tenant shall pay its share of all charges for jointly metered
utilities based upon consumption, as reasonably determined by Landlord. Tenant
agrees to limit use of water and sewer for normal restroom use. No interruption
or failure of utilities shall result in the termination of this Lease or the
abatement of rent; provided, however, that if the interruption or cessation of
utilities resulted from a cause within Landlord's exclusive control and the
Premises are not usable by Tenant for the conduct of Tenant's business as a
result thereof, Base Rent shall be abated for the period which commences ten
(10) days after the date Tenant gives to Landlord written notice of such
interruption until such time as the utilities required for the conduct of
Tenant's business are restored. Tenant shall not be entitled to such abatement
if Tenant is in fact conducting business in the Premises during such
interruption of utilities.
8. TAXES. Landlord shall pay all taxes, assessments and
governmental charges (collectively referred to as "Taxes") that either (a)
accrue against the Project during the Lease Term if such Taxes are payable in
advance, or (b) are assessed against the Project during the Lease Term if such
Taxes are payable in arrears. Taxes shall be included as part of the Operating
Expenses charged to Tenant pursuant to Paragraph 6 hereof during each year of
the Lease Term, based upon Landlord's reasonable estimate of the amount of
Taxes, and shall be subject to reconciliation and adjustment pursuant to
Paragraph 6 once the actual amount of Taxes is known. Landlord may contest by
appropriate legal proceedings the amount, validity, or application of any Taxes
or liens thereof and any costs incurred in such contest may be included as part
of Taxes. In the event that any capital levies or other taxes are assessed or
imposed on Landlord upon the rents payable to Landlord under this Lease or any
franchise tax, any excise, transaction, sales or privilege tax, assessment, levy
or charge is measured by or based, in whole or in part, upon such rents from
the Premises and/or the Project or any portion thereof, the same shall be paid
by Tenant to Landlord monthly in estimated installments or upon demand, at the
option of Landlord, as additional rent; provided, however, in no event shall
Tenant be liable for any net income taxes imposed on Landlord unless such net
income taxes are in substitution for any Taxes payable hereunder. If any such
tax or excise is levied or assessed directly against Tenant, then Tenant shall
be responsible for and shall pay the same at such times and in such manner as
the taxing authority shall require. Tenant shall be liable for all taxes levied
or assessed against any personal property or fixtures placed in the Premises,
whether levied or assessed against Landlord or Tenant, and if any such taxes
are levied or assessed against Landlord or Landlord's property and (a) Landlord
pays them or (b) the assessed value of Landlord's property is increased thereby
and Landlord pays the increased taxes, then Tenant shall pay to Landlord such
taxes within ten (10) days after Landlord's request therefor.
9. INSURANCE. (a) Landlord shall maintain all risk
property insurance covering the full replacement cost of the Building
(excluding foundations), less a commercially reasonable deductible if Landlord
so chooses. Landlord may, but is not obligated to, maintain such other
insurance and additional coverages as it may deem necessary, including, but not
limited to, commercial liability insurance, flood insurance, and rent loss
insurance. All such insurance shall be included as part of the Operating
Expenses charged to Tenant pursuant to Paragraph 6 hereof. The Project or
Building may be included in a blanket policy (in which case the cost of such
insurance allocable to the Project or Building will be determined by
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Landlord based upon the insurer's cost calculations). Tenant shall also
reimburse Landlord for any increased premiums or additional insurance which
Landlord deems reasonably necessary as a result of Tenant's use of the
Premises.
(b) Effective as of the earlier of: (1) the date Tenant
enters or occupies the Premises; or (2) the Commencement Date, and continuing
during the Lease Term, Tenant, at its expense, shall obtain and maintain in
full force the following insurance coverage: (i) all risk property insurance
covering the full replacement cost of all property and improvements installed
or placed in the Premises by Tenant or for Tenant's benefit; (ii) worker's
compensation insurance with no less than the minimum limits required by law;
(iii) employer's liability insurance with such limits as required by law; and
(iv) commercial liability insurance, with a minimum limit of $1,000,000 per
occurrence and a minimum umbrella limit of $2,000,000, for a total minimum
combined general liability and umbrella limit of $3,000,000 (together with such
additional umbrella coverage as Landlord may reasonably require) for property
damage, personal injuries, or deaths of persons occurring in or about the
Premises. Landlord may from time to time require reasonable increases in any
such limits. The commercial liability policies shall name Landlord and
Landlord's agents as additional insureds, insure on an occurrence and not a
claims-made basis, be issued by insurance companies which are reasonably
acceptable to Landlord, not be cancelable unless thirty (30) days prior written
notice shall have been given to Landlord, contain a hostile fire endorsement or
amended pollution endorsement, and a contractual liability endorsement and
provide primary coverage to Landlord (any Policy issued to Landlord providing
duplicate or similar coverage shall be deemed excess over Tenant's policies).
Such certificates, or at Landlord's option, copies of the policies evidencing
coverage shall be delivered to Landlord by Tenant at least ten (10) days
prior to the Commencement Date and fifteen (15) days prior to each renewal of
said insurance. If Tenant fails to comply with the foregoing insurance
requirements or to deliver to Landlord copies of such policies and certificates
evidencing the coverage required herein, Landlord, in addition to any remedy
available pursuant to this Lease or otherwise, may, but shall not be obligated
to, obtain such insurance and Tenant shall pay to Landlord on demand the
premium costs thereof, plus an administrative fee of fifteen percent (15%) of
the cost.
(c) The all risk property insurance obtained by Landlord
and Tenant shall include a waiver of subrogation by the insurers and all rights
based upon an assignment from its insured, against Landlord or Tenant, their
officers, directors, employees, managers, agents, invitees and contractors, in
connection with any loss or damage thereby insured against. The failure of a
party to insure its property shall not void this waiver. Notwithstanding
anything to the contrary contained herein, Tenant hereby waives any claims
against Landlord, and its officers, directors, employees, managers, agents,
invitees and contractors for any loss or damage insured against or required to
be insured against hereunder (whether by self-insurance or otherwise),
regardless of whether the negligence or fault of Landlord caused such loss.
Landlord hereby waives any claims against Tenant, and its officers, directors,
employees, managers, agents, invitees and contractors for any loss or damage
insured against or required to be insured against hereunder to the extent
insurance proceeds are received therefor, regardless of whether the negligence
or fault of Tenant caused such loss; however, Landlord's waiver shall not apply
to any deductible amounts maintained by Landlord under its insurance.
10. LANDLORD'S REPAIRS. This Lease is intended to be a
net lease; accordingly, Landlord's maintenance and repair obligations are
limited to the repair, maintenance and replacement of the Building's roof, and
maintenance of the foundation piers and structural members of the exterior
walls, reasonable wear and tear and uninsured losses and damages caused by
Tenant, its agents, employees and contractors excluded. The term "walls" as used
in this Paragraph 10 shall not include windows, glass or plate glass, doors or
overhead doors, special store fronts, dock bumpers, dock plates or levelers, or
office entries, all of which shall be maintained by Tenant. All such windows,
glass or plate glass, doors or overhead doors, special store fronts, dock
bumpers, dock plates or levelers, or office entries shall be delivered to
Tenant in good working order as of the Commencement Date. Tenant shall promptly
give Landlord written notice of any repair required by Landlord pursuant to
this Paragraph 10, after which Landlord shall have a reasonable opportunity to
repair such item. Landlord shall also maintain in good
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repair and condition the parking areas and other common areas of the Building,
including, but not limited to driveways, alleys, landscape and grounds
surrounding the Premises, the cost of such maintenance, repair and replacement
of the Common Areas to be paid in accordance with Paragraph 6 hereof.
Notwithstanding anything to the contrary contained in Xxxxxxxxx 0, Xxxxxxxx
shall maintain and repair the roof, the cost of such maintenance and repair to
be excluded when calculating Tenant's Proportionate Share of Operating
Expenses.
11. TENANT'S REPAIRS. (a) Subject to Landlord's
obligation in Xxxxxxxxx 00, Xxxxxx, at its sole expense, shall repair, replace
and maintain in good condition all portions of the Premises and all areas,
improvements and systems exclusively serving the Premises including, without
limitation, dock, dock equipment and loading areas, dock doors, plumbing,
water, and sewer lines up to points of common connection, entries, doors,
ceilings, windows, interior walls, and the interior side of demising walls, and
heating, ventilation and air conditioning systems, and other building and
mechanical systems serving the Premises. Such repair and replacements include
capital expenditures and repairs whose benefit may extend beyond the Term.
Maintenance and repair of the heating, ventilation and air conditioning systems
and other mechanical and building systems serving the Premises shall be at
Tenant's expense pursuant to maintenance service contracts entered into by
Tenant or, at Landlord's written election, by Landlord (but at Tenant's
expense). The scope of services and contractors under such maintenance
contracts shall be subject to Landlord's prior written approval.
(b) In the event that any repair or maintenance
obligation required to be performed by Tenant hereunder may affect the
structural integrity of the Building (e.g., roof, foundation, structural members
of the exterior walls), prior to commencing any such repair, Tenant shall
provide Landlord with written notice of the necessary repair or maintenance and
a brief summary of the structural component or components of the Building that
may be affected by such repair or maintenance. Within ten (10) business days
after Landlord's receipt of Tenant's written notice, Landlord shall have the
right, but not the obligation, to elect to cause such repair or maintenance to
be performed by Landlord, or a contractor selected and engaged by Landlord, but
at Tenant's sole cost and expense. The foregoing sentence is not intended to
obligate Tenant to pay for repairs or maintenance to those structural items
which are Landlord's responsibility pursuant to Paragraph 10 above, but shall
only require Tenant to pay for the repair and maintenance to such structural
components to the extent such repair or maintenance is necessitated due to the
performance of Tenant's repair and maintenance obligations pursuant to this
Paragraph 11.
(c) Within the fifteen (15) day period prior to the
expiration or termination of this Lease, Tenant shall deliver to Landlord a
certificate from an engineer reasonably acceptable to Landlord certifying that
the hot water equipment and the HVAC system are then in good repair and working
order. If Tenant fails to perform any repair or replacement for which it is
responsible, Landlord may perform such work and be reimbursed by Tenant within
ten (10) days after demand therefor. Subject to Paragraphs 9 and 15, Tenant
shall bear the full cost of any repair or replacement to any part of the
Building or Project that results from damage caused by Tenant, its agents,
contractors, or invitees.
(d) Landlord warrants to Tenant that the heating,
ventilation and air conditioning ("HVAC") system in the Premises shall be in
good working order as of the Commencement Date. Tenant shall have a thirty (30)
day period beginning with the Commencement Date to notify Landlord of any
defects that exist in any such system. If Tenant delivers to Landlord written
notice of any such defect, Landlord shall promptly repair the defect in
question. In the event Tenant has not delivered to Landlord written notice of a
defect in the HVAC system within such 30-day period, the HVAC system shall
conclusively be deemed to be in good working order and Tenant shall thereafter
maintain such system in good repair and condition as required by this Lease;
provided, however, notwithstanding anything to the contrary contained herein,
Tenant shall not be required to pay more that $1,000.00 per HVAC unit, per
occurrence for the repair of any existing HVAC unit. Any and all reasonable
costs above the $1,000.00 limit shall be borne by Landlord so long as Landlord
has been afforded the opportunity to review the service contract as provided in
subparagraph (a) above and Tenant notifies Landlord in writing at least 24
hours
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prior to beginning any repair on any HVAC unit. The foregoing $1,000.00 limit
shall apply only to repairs of existing HVAC units, and shall not apply to
repairs of any new HVAC units that may be installed in the Premises following
the Commencement Date. The term "existing HVAC unit(s)" shall refer to those
HVAC units existing in the Premises upon the Commencement Date. Notwithstanding
the foregoing cap on repairs of existing HVAC units, there shall be no cap on
Tenant's expenses for the maintenance of such HVAC system (whether existing or
new).
12. TENANT-MADE ALTERATIONS AND TRADE FIXTURES. (a) Any
alterations, additions, or improvements made by or on behalf of Tenant to the
Premises ("Tenant-Made Alterations") shall be subject to Landlord's prior
written consent, which consent shall not be unreasonably withheld for
Tenant-Made Alterations that (i) do not affect the structural components or
exterior of the Building (including without limitation, roof membrane, the dock
and loading areas, truck doors, entry doors or windows), or the mechanical,
plumbing or building systems of the Building, and (ii) are not visible from
outside the Premises or Building. Tenant agrees that it shall not be deemed
unreasonable for Landlord to condition its consent to any Tenant-Made
Alteration on Tenant's agreement to remove the same and repair any damage
caused by such removal at the expiration or earlier termination of this Lease.
Tenant shall cause, at its expense, all Tenant-Made Alterations to comply with
insurance requirements and with Legal Requirements and shall construct at its
expense any alteration or modification required by Legal Requirements as a
result of any Tenant-Made Alterations.
(b) All Tenant-Made Alterations shall be constructed in
a good and workmanlike manner by contractors reasonably acceptable to Landlord
and only good grades of materials shall be used. All plans and specifications
for any Tenant-Made Alterations shall be submitted to Landlord for its
approval. Landlord may monitor construction of the Tenant-Made Alterations.
Tenant shall reimburse Landlord for its costs in reviewing plans and
specifications and in monitoring construction not to exceed five percent (5%)
of the total cost of such Tenant-Made Alterations. Landlord's right to review
plans and specifications and to monitor construction shall be solely for its
own benefit, and Landlord shall have no duty to see that such plans and
specifications or construction comply with applicable laws, codes, rules and
regulations.
(c) Tenant shall provide Landlord with the identities
and mailing addresses of all persons performing work or supplying materials,
prior to beginning such construction, and Landlord may post on and about the
Premises notices of non-responsibility pursuant to applicable law. Tenant shall
furnish security or make other arrangements satisfactory to Landlord to assure
payment for the completion of all work free and clear of liens and Tenant or
Tenant's contractor shall provide certificates of insurance for worker's
compensation and other coverage in amounts and from an insurance company
satisfactory to Landlord protecting Landlord against liability for personal
injury or property damage during construction. Upon completion of any
Tenant-Made Alterations, Tenant shall deliver to Landlord sworn statements
setting forth the names of all contractors and subcontractors who did work on
the Tenant-Made Alterations and final lien waivers from all such contractors
and subcontractors.
(d) Upon surrender of the Premises, all Tenant-Made
Alterations and any leasehold improvements constructed by Landlord or Tenant
shall remain on the Premises as Landlord's property, except to the extent
Landlord's requires removal at Tenant's expense of any such items or Landlord
and Tenant have otherwise agreed in writing in connection with Landlord's
consent to any Tenant-Made Alterations. Prior to the expiration or termination
of this Lease, Tenant, at its sole expense, shall repair any and all damage
caused by such removal. Notwithstanding the foregoing, Landlord hereby agrees
that Tenant shall not be required to remove the Tenant Improvements (as defined
in the Construction Addendum attached hereto).
(e) Tenant, at its own cost and expense and without
Landlord's prior approval, may erect such shelves, bins, machinery and trade
fixtures (collectively "Trade Fixtures") in the ordinary course of its business
provided that such items do not alter the basic character of the Premises, do
not overload or
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damage the Premises, and may be removed without injury to the Premises, and the
construction, erection, and installation thereof complies with all Legal
Requirements and with Landlord's requirements set forth above. Prior to the
expiration or termination of this Lease, Tenant, at its sole expense, shall
remove its Trade Fixtures and shall repair any and all damage caused by such
removal.
13. SIGNS. All signs, decorations, advertising media,
blinds, draperies and other window treatment or bars or other security
installations visible from outside the Premises shall be subject to Landlord's
prior written approval and shall conform in all respects to Landlord's
requirements. Tenant shall not make any changes to the exterior of the
Premises, install any exterior lights, decorations, balloons, flags, pennants,
banners, or painting, or erect or install any signs, windows or door lettering,
placards, decorations, or advertising media of any type which can be viewed
from the exterior of the Premises, without Landlord's prior written consent.
Landlord shall not be required to notify Tenant of whether it consents to any
sign until it (a) has received detailed, to-scale drawings thereof specifying
design, material composition, color scheme, and method of installation, and (b)
has had a reasonable opportunity to review them. Landlord shall not
unreasonably withhold its consent to Tenant's signage provided (a) such signage
complies with all applicable codes, ordinances and other Legal Requirements,
(b) such signage is consistent in size, color, materials, and quality with the
existing signage of other tenants occupying a similar amount of space at the
Project and (c) such signage is compatible with the design and image of the
Building and Project. Upon surrender or vacation of the Premises, Tenant shall
have removed all signs and repair, paint, and/or replace the building facia
surface to which its signs are attached. Tenant shall obtain all applicable
governmental permits and approvals for sign and exterior treatments.
14. PARKING. Tenant shall be entitled to park in common
with other tenants of the Project in those areas designated for nonreserved
parking. During the term of this Lease, Tenant shall have the non-exclusive
right to use up to seventy (70) parking spaces, being those parking spaces
immediately adjacent to the front, back and sides of the Premises, at all times
(7 days per week, 24 hours per day). Landlord may allocate parking spaces among
Tenant and other tenants in the Project at Landlord's sole discretion. Landlord
shall not be responsible for enforcing Tenant's parking rights against any
third parties.
15. RESTORATION. (a) If at any time during the Lease
Term the Premises are damaged by a fire or other casualty, Landlord shall
notify Tenant within sixty (60) days after such damage as to the amount of time
Landlord reasonably estimates it will take to restore the Premises. If the
restoration time is estimated to exceed 180 days from the date Landlord
receives all permits, approvals, and licenses required to begin reconstruction,
either Landlord or Tenant may elect to terminate this Lease upon notice to the
other party given no later than thirty (30) days after Landlord's notice. If
neither party elects to terminate this Lease or if Landlord estimates that
restoration will take 180 days or less, then, subject to receipt of sufficient
insurance proceeds, Landlord shall promptly restore the Premises excluding the
improvements installed by Tenant or by Landlord and paid by Tenant, subject to
delays arising from the collection of insurance proceeds or from Force Majeure
events. Tenant at Tenant's expense shall promptly perform, subject to delays
arising from the collection of insurance proceeds, or from Force Majeure
events, all repairs or restoration not required to be done by Landlord and
shall promptly re-enter the Premises and commence doing business in accordance
with this Lease. Notwithstanding the foregoing, either party may terminate this
Lease upon thirty (30) days written notice to the other if the Premises are
damaged during the last year of the Lease Term and Landlord reasonably
estimates that it will take more than thirty (30) days to repair such damage.
(b) If the Premises are destroyed or substantially
damaged by any peril not covered by the insurance maintained by Landlord or any
Landlord's mortgagee requires that insurance proceeds be applied to the
indebtedness secured by its mortgage (defined hereinafter), Landlord may
terminate this Lease by delivering written notice of termination to Tenant
within thirty (30) days after such destruction or damage or such requirement is
made known by any such Landlord's mortgagee, as applicable,
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whereupon all rights and obligations hereunder shall cease and terminate, except
for any liabilities of Tenant which accrued prior to Lease termination.
(c) If such damage or destruction is caused by the
negligent, willful or intentional act(s) or omission(s) of Tenant, its
employees, agents or contractors, Tenant shall pay to Landlord with respect to
any damage to the Premises and/or Project the amount of the commercially
reasonable deductible under Landlord's insurance policy within ten (10) days
after presentment of Landlord's invoice.
(d) Base Rent and Operating Expenses shall be abated for
the period of repair and restoration in the proportion which the area of the
Premises, if any, which is not usable by Tenant bears to the total area of the
Premises. Such abatement shall be the sole remedy of Tenant, and except as
provide herein, Tenant waives any right to terminate the Lease by reason of
damage or casualty loss.
16. CONDEMNATION. If any part of the Premises or the
Project should be taken for any public or quasi-public use under governmental
law, ordinance, or regulation, or by right of eminent domain, or by private
purchase in lieu thereof (a "Taking" or "Taken"), and (a) the Taking would
prevent or materially interfere with Tenant's use of the Premises, (b) in
Landlord's judgment would materially interfere with or impair its ownership or
operation of the Project or (c) as a result of such Taking, Landlord's mortgagee
accelerates the payment of any indebtedness securing all or a portion of the
Project, then upon written notice by Landlord this Lease shall terminate and
Base Rent shall be apportioned as of said date. If part of the Premises shall be
Taken, and this Lease is not terminated as provided above, the Base Rent payable
hereunder during the unexpired Lease Term shall be reduced to such extent as may
be fair and reasonable under the circumstances, and Landlord shall restore the
Premises to its condition prior to the Taking; provided, however, Landlord's
obligation to so restore the Premises shall be limited to the award Landlord
receives in respect of such Taking that is not required to be applied to the
indebtedness secured by a mortgage. In the event of any such Taking, Landlord
shall be entitled to receive the entire price or award from any such Taking
without any payment to Tenant, and Tenant hereby assigns to Landlord Tenant's
interest, if any, in such award. Tenant shall have the right, to the extent that
same shall not diminish Landlord's award, to make a separate claim against the
condemning authority (but not Landlord) for such compensation as may be
separately awarded or recoverable by Tenant for moving expenses and damage to
Tenant's Trade Fixtures, if a separate award for such items is made to Tenant.
17. ASSIGNMENT AND SUBLETTING. (a) Without Landlord's
prior written consent, Tenant shall not assign this Lease or sublease the
Premises or any part thereof or mortgage, pledge, or hypothecate its leasehold
interest or grant any concession or license within the Premises (each being a
"Transfer") and any attempt to do any of the foregoing shall be void and of no
effect. For purposes of this Paragraph 17, a transfer of the ownership interests
controlling Tenant shall be deemed a Transfer of this Lease unless such
ownership interests are publicly traded. Landlord agrees not to unreasonably
withhold or condition its consent to a proposed assignment of this Lease or
subletting of the Premises to a party which (i) is, in the reasonable judgment
of Landlord, of a character or reputation or is engaged in a business which
would not be harmful to the image and reputation of the Project and can
reasonably be expected to perform the obligations of "Tenant" hereunder; (ii)
will not use the Premises in a manner that would conflict with any exclusive use
agreement or other similar agreement entered into by Landlord with any other
tenant of the Project; and (iii) proposes to use the Premises so as to not
materially increase the pedestrian or vehicular traffic to the Premises or the
Project. Without limiting the foregoing, Landlord may withhold its consent (and
it shall not be deemed unreasonable), to any such assignment or subletting of
the Premises to any party (A) which is a governmental entity (or subdivision or
agency thereof), (B) would use the Premises, in whole or in part, for other than
Tenant's permitted use hereunder, (C) which is a prospective tenant that has
delivered to, or received from, Landlord a written proposal to lease space in
the Project before Tenant or its agent contacts such party, or (D) which intends
to use, store, or generate any Hazardous Materials in, on or about the Premises.
Landlord's agreement not to unreasonably withhold its consent shall apply only
to the first assignment or sublease under this Lease, and Landlord may withhold
its consent in its sole discretion to any further or subsequent assignment or
sublease. Notwithstanding the above, Tenant may assign or sublet
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the Premises, or any part thereof, to any entity controlling Tenant, controlled
by Tenant or under common control with Tenant (a "Tenant Affiliate"), without
the prior written consent of Landlord; provided, however, Tenant shall provide
at least ten (10) days written notice prior to assigning this Lease to, or
entering into any sublease with, any Tenant Affiliate. Tenant shall reimburse
Landlord for all of Landlord's reasonable out-of-pocket expenses (not to exceed
$1,000.00) in connection with any Transfer, other than to a Tenant Affiliate.
Upon Landlord's receipt of Tenant's written notice of a desire to assign or
sublet the Premises, or any part thereof (other than to a Tenant Affiliate),
Landlord may, by giving written notice to Tenant within fifteen (15) days after
receipt of Tenant's notice, terminate this Lease with respect to the space
described in Tenant's notice, as of the date specified in Tenant's notice for
the commencement of the proposed assignment or sublease.
(b) Notwithstanding any Transfer, Tenant and any
guarantor or surety of Tenant's obligations under this Lease shall at all times
remain fully responsible and liable for the payment of the rent and for
compliance with all of Tenant's other obligations under this Lease (regardless
of whether Landlord's approval has been obtained for any such Transfer). In the
event that the rent due and payable by a sublessee or assignee (or a combination
of the rental payable under such sublease or assignment plus any bonus or other
consideration therefor or incident thereto) exceeds the rental payable under
this Lease, then Tenant shall be bound and obligated to pay Landlord as
additional rent hereunder all such excess rental and other excess consideration
within ten (10) days following receipt thereof by Tenant.
(c) If this Lease is assigned or if the Premises is
subleased (whether in whole or in part) or in the event of the mortgage, pledge,
or hypothecation of Tenant's leasehold interest or grant of any concession or
license within the Premises or if the Premises be occupied in whole or in part
by anyone other than Tenant, then upon a default by Tenant hereunder Landlord
may collect rent from the assignee, sublessee, mortgagee, pledgee, party to whom
the leasehold interest was hypothecated, concessionee or licensee or other
occupant and, except to the extent set forth in the preceding subparagraph,
apply the amount collected to the next rent payable hereunder; and all such
rentals collected by Tenant shall be held in trust for Landlord and immediately
forwarded to Landlord. No such transaction or collection of rent or application
thereof by Landlord, however, shall be deemed a waiver of these provisions or a
release of Tenant from the further performance by Tenant of its covenants,
duties, or obligations hereunder. Any approved assignment or sublease shall be
expressly subject to the terms and conditions of this Lease. Landlord's consent
to any Transfer shall not waive Landlord's rights as to any subsequent
Transfers.
18. INDEMNIFICATION. (a) Tenant agrees to indemnify,
defend (with counsel reasonably acceptable to Landlord) and hold harmless
Landlord, and Landlord's agents, employees and contractors, from and against any
and all claims, demands, losses, liabilities, causes of action, suits,
judgments, damages, costs and expenses (including attorneys' fees) arising from
any occurrence on the Premises, the use and occupancy of the Premises, or from
any activity, work, or thing done, permitted or suffered by Tenant in or about
the Premises or due to any other act or omission of Tenant, its subtenants,
assignees, invitees, employees, contractors and agents, or from Tenant's failure
to perform its obligations under this Lease (other than any loss arising from
the sole or gross negligence of Landlord or its agents), EVEN THOUGH CAUSED OR
ALLEGED TO BE CAUSED BY THE JOINT, COMPARATIVE, OR CONCURRENT NEGLIGENCE OR
FAULT OF LANDLORD OR ITS AGENTS, AND EVEN THOUGH ANY SUCH CLAIM, CAUSE OF
ACTION, OR SUIT IS BASED UPON OR ALLEGED TO BE BASED UPON THE STRICT LIABILITY
OF LANDLORD OR ITS AGENTS. THIS INDEMNITY PROVISION IS INTENDED TO INDEMNIFY
LANDLORD AND ITS AGENTS AGAINST THE CONSEQUENCES OF THEIR OWN NEGLIGENCE OR
FAULT AS PROVIDED ABOVE WHEN LANDLORD OR ITS AGENTS ARE JOINTLY, COMPARATIVELY,
OR CONCURRENTLY NEGLIGENT WITH TENANT. This indemnity provision shall survive
termination or expiration of this Lease. The furnishing of insurance required
hereunder shall not be deemed to limit Tenant's obligations under this Xxxxxxxxx
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(x) Landlord agrees to indemnify, defend and hold harmless Tenant, and
Tenant's agents, employees and contractors, from and against any and all claims,
demands, losses, liabilities, causes of action, suits, judgments, damages, costs
and expenses (including reasonable attorneys' fees) resulting from claims by
third parties for injuries to any person and damage to or loss of property
occurring in or about the Project and arising solely from the negligence or
intentional misconduct of Landlord, its employees, contractors, or agents.
19. INSPECTION AND ACCESS. Upon twenty-four (24) hours
verbal or written notice to Tenant (except in the event of an emergency, where
no notice shall be required), Landlord and its agents, representatives, and
contractors may enter the Premises at any reasonable time to inspect the
Premises and to make such repairs as may be required or permitted pursuant to
this Lease and for any other business purpose. Upon twenty-four (24) hours
verbal or written notice to Tenant, Landlord and Landlord's representatives may
enter the Premises during business hours for the purpose of showing the Premises
to prospective purchasers or, during the last six (6) months of the Lease Term,
to prospective tenants. Landlord may erect a suitable sign on the Premises
stating the Premises are available to let or that the Project is available for
sale. Landlord may grant easements, make public dedications, designate common
areas and create restrictions on or about the Premises, provided that no such
easement, dedication, designation or restriction materially interferes with
Tenant's use or occupancy of the Premises. At Landlord's request, Tenant shall
execute such instruments as may be necessary for such easements, dedications or
restrictions.
20. QUIET ENJOYMENT. If Tenant shall perform all of the
covenants and agreements herein required to be performed by Tenant, Tenant
shall, subject to the terms of this Lease, at all times during the Lease Term,
have peaceful and quiet enjoyment of the Premises against any person claiming
by, through or under Landlord, but not otherwise.
21. SURRENDER. No act by Landlord shall be an acceptance
of a surrender of the Premises, and no agreement to accept a surrender of the
Premises shall be valid unless it is in writing and signed by Landlord. Upon
termination of the Lease Term or earlier termination of Tenant's right of
possession, Tenant shall surrender the Premises to Landlord in the same
condition as received, broom clean, ordinary wear and tear and casualty loss and
condemnation covered by Paragraphs 15 and 16 excepted. Any Trade Fixtures,
Tenant-Made Alterations and property not so removed by Tenant as permitted or
required herein shall be deemed abandoned and may be stored, removed, and
disposed of by Landlord at Tenant's expense, and Tenant waives all claims
against Landlord for any damages resulting from Landlord's retention and
disposition of such property. All obligations of Tenant hereunder not fully
performed as of the termination of the Lease Term shall survive the termination
of the Lease Term, including without limitation, indemnity obligations, payment
obligations with respect to Operating Expenses and all obligations concerning
the condition and repair of the Premises.
22. HOLDING OVER. If Tenant fails to vacate the Premises
after the termination of the Lease Term, Tenant shall be a tenant at will or at
sufferance, and Tenant shall pay, in addition to any other rent or other sums
then due Landlord, a daily base rental equal to 150% of the Base Rent in effect
on the expiration or termination date, even if Landlord consents to such
holdover (which consent shall be effective only if in writing). Tenant shall
also be liable for all Operating Expenses incurred during such holdover period.
In addition, Tenant shall be liable for all damages (including attorneys' fees
and expenses) of whatever type (including consequential damages) incurred by
Landlord as a result of such holding over. No holding over by Tenant, whether
with or without consent of Landlord, shall operate to extend this Lease except
as otherwise expressly provided, and this Paragraph 22 shall not be construed as
consent for Tenant to retain possession of the Premises.
23. EVENTS OF DEFAULT. Each of the following events shall
be an event of default ("Event of Default") by Tenant under this Lease:
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(i) Tenant shall fail to pay any installment of Base Rent
or any other payment required herein when due, and such failure shall continue
for a period of ten (10) days from the date such payment was due.
(ii) Tenant or any guarantor or surety of Tenant's
obligations hereunder shall (A) make a general assignment for the benefit of
creditors; (B) commence any case, proceeding or other action seeking to have an
order for relief entered on its behalf as a debtor or to adjudicate it a
bankrupt or insolvent, or seeking reorganization, arrangement, adjustment
liquidation, dissolution or composition of it or its debts or seeking
appointment of a receiver, trustee, custodian or other similar official for it
or for all or of any substantial part of its property (collectively a
"proceeding for relief"); (C) become the subject of any proceeding for relief
which is not dismissed within sixty (60) days of its filing or entry; or (D) die
or suffer a legal disability (if Tenant, guarantor, or surety is an individual)
or be dissolved or otherwise fail to maintain its legal existence (if Tenant,
guarantor or surety is a corporation, partnership or other entity).
(iii) Any insurance required to be maintained by Tenant
pursuant to this Lease shall be cancelled or terminated or shall expire or shall
be reduced or materially changed, except, in each case, as permitted in this
Lease.
(iv) Tenant shall fail to occupy or shall vacate the Premises
or shall fail to continuously operate its business at the Premises for the
permitted use set forth herein, whether or not Tenant is in monetary or other
default under this Lease.
(v) Tenant shall attempt or there shall occur any
assignment, subleasing or other transfer of Tenant's interest in or with respect
to this Lease except as otherwise permitted in this Lease.
(vi) Tenant shall fail to discharge or bond over any lien
placed upon the Premises in violation of this Lease within thirty (30) days
after any such lien or encumbrance is filed against the Premises.
(vii) Tenant shall fail to execute any instrument of
subordination or attornment or any estoppel certificate within the time periods
set forth in Paragraphs 27 and 29 respectively following Landlord's request for
the same.
(viii) Tenant shall breach any of the requirements of
Paragraph 30 and such failure shall continue for a period of five (5) business
days or more after notice from Landlord to Tenant.
(ix) Tenant shall fail to comply with any provision of
this Lease other than those specifically referred to in this Paragraph 23, and
except as otherwise expressly provided herein, such default shall continue for
more than thirty (30) days after Landlord shall have given Tenant written notice
of such default.
24. LANDLORD'S REMEDIES. (a) Upon each occurrence of an
Event of Default and so long as such Event of Default shall be continuing,
Landlord may at any time thereafter at its election: terminate this Lease or
Tenant's right of possession, (but Tenant shall remain liable as hereinafter
provided) and/or pursue any other remedies at law or in equity. Upon the
termination of this Lease or termination of Tenant's right of possession, it
shall be lawful for Landlord, without formal demand or notice of any kind, to
re-enter the Premises by summary dispossession proceedings or any other action
or proceeding authorized by law and to remove Tenant and all persons and
property therefrom. If Landlord re-enters the Premises, Landlord shall have the
right to keep in place and use, or remove and store, all of the furniture,
fixtures and equipment at the Premises.
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(b) If Landlord terminates this Lease, Landlord may
recover from Tenant the sum of: all Base Rent and all other amounts accrued
hereunder to the date of such termination; the cost of reletting the whole or
any part of the Premises, including without limitation brokerage fees and/or
leasing commissions incurred by Landlord, and costs of removing and storing
Tenant's or any other occupant's property, repairing, altering, remodeling, or
otherwise putting the Premises into condition acceptable to a new tenant or
tenants, and all reasonable expenses incurred by Landlord in pursuing its
remedies, including reasonable attorneys' fees and court costs; and an amount in
cash equal to the then present value of the Base Rent and other amounts payable
by Tenant under this Lease as would otherwise have been required to be paid by
Tenant to Landlord during the period following the termination of this Lease
measured from the date of such termination to the expiration date stated in this
Lease. Such present value shall be calculated at a discount rate equal to the
90-day U.S. Treasury xxxx rate at the date of such termination.
(c) If Landlord terminates Tenant's right of possession
(but not this Lease), Landlord may, but shall be under no obligation to, relet
the Premises for the account of Tenant for such rent and upon such terms as
shall be satisfactory to Landlord without thereby releasing Tenant from any
liability hereunder and without demand or notice of any kind to Tenant. For the
purpose of such reletting Landlord is authorized to make any repairs, changes,
alterations, or additions in or to the Premises as Landlord deems reasonably
necessary or desirable. If the Premises are not relet, then Tenant shall pay to
Landlord as damages a sum equal to the amount of the rental reserved in this
Lease for such period or periods, plus the cost of recovering possession of the
Premises (including attorneys' fees and costs of suit), the unpaid Base Rent and
other amounts accrued hereunder at the time of repossession, and the costs
incurred in any attempt by Landlord to relet the Premises. If the Premises are
relet and a sufficient sum shall not be realized from such reletting [after
first deducting therefrom, for retention by Landlord, the unpaid Base Rent and
other amounts accrued hereunder at the time of reletting, the cost of recovering
possession (including attorneys' fees and costs of suit), all of the costs and
expense of repairs, changes, alterations, and additions, the expense of such
reletting (including without limitation brokerage fees and leasing commissions)
and the cost of collection of the rent accruing therefrom] to satisfy the rent
provided for in this Lease to be paid, then Tenant shall immediately satisfy and
pay any such deficiency. Any such payments due Landlord shall be made upon
demand therefor from time to time and Tenant agrees that Landlord may file suit
to recover any sums falling due from time to time. Notwithstanding any such
reletting without termination, Landlord may at any time thereafter elect in
writing to terminate this Lease for such previous breach.
(d) Exercise by Landlord of any one or more remedies
hereunder granted or otherwise available shall not be deemed to be an acceptance
of surrender of the Premises and/or a termination of this Lease by Landlord,
whether by agreement or by operation of law. Any law, usage, or custom to the
contrary notwithstanding, Landlord shall have the right at all times to enforce
the provisions of this Lease in strict accordance with the terms hereof; and the
failure of Landlord at any time to enforce its rights under this Lease strictly
in accordance with same shall not be construed as having created a custom in any
way or manner contrary to the specific terms, provisions, and covenants of this
Lease or as having modified the same. Tenant and Landlord further agree that
forbearance or waiver by Landlord to enforce its rights pursuant to this Lease
or at law or in equity, shall not be a waiver of Landlord's right to enforce one
or more of its rights in connection with any subsequent default. A receipt by
Landlord of rent or other payment with knowledge of the breach of any covenant
hereof shall not be deemed a waiver of such breach, and no waiver by Landlord of
any provision of this Lease shall be deemed to have been made unless expressed
in writing and signed by Landlord. To the greatest extent permitted by law,
Tenant waives the service of notice of Landlord's intention to re-enter as
provided for in any statute, or to institute legal proceedings to that end, and
also waives all right of redemption in case Tenant shall be dispossessed by a
judgment or by warrant of any court or judge. The terms "enter," "re-enter,"
"entry" or "re-entry," as used in this Lease, are not restricted to their
technical legal meanings. Any reletting of the Premises shall be on such terms
and conditions as Landlord in its sole discretion may determine (including
without limitation a term different than the remaining Lease Term, rental
concessions, alterations and repair of the Premises, lease of less than the
entire Premises to any tenant and leasing any or all other portions of the
Project before reletting the
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Premises). Landlord shall not be liable, nor shall Tenant's obligations
hereunder be diminished because of, Landlord's failure to relet the Premises or
collect rent due in respect of such reletting.
25. TENANT'S REMEDIES/LIMITATION OF LIABILITY. Landlord
shall not be in default hereunder unless Landlord fails to perform any of its
obligations hereunder within thirty (30) days after written notice from Tenant
specifying such failure (unless such performance will, due to the nature of the
obligation, require a period of time in excess of thirty (30) days, then after
such period of time as is reasonably necessary). All obligations of Landlord
hereunder shall be construed as covenants, not conditions; and Tenant may not
terminate this Lease for breach of Landlord's obligations hereunder. All
obligations of Landlord under this Lease will be binding upon Landlord only
during the period of its ownership of the Premises and not thereafter. The term
"Landlord" in this Lease shall mean only the owner, for the time being of the
Premises, and in the event of the transfer by such owner of its interest in the
Premises, such owner shall thereupon be released and discharged from all
obligations of Landlord thereafter accruing, but such obligations shall be
binding during the Lease Term upon each new owner for the duration of such
owner's ownership. Any liability of Landlord under this Lease or arising out of
the relationship between Landlord and Tenant shall be limited solely to
Landlord's interest in the Building, and in no event shall any personal
liability be asserted against Landlord in connection with this Lease nor shall
any recourse be had to any other property or assets of Landlord.
26. WAIVER OF JURY TRIAL. TENANT AND LANDLORD WAIVE ANY
RIGHT TO TRIAL BY JURY OR TO HAVE A JURY PARTICIPATE IN RESOLVING ANY DISPUTE,
WHETHER SOUNDING IN CONTRACT, TORT, OR OTHERWISE, BETWEEN LANDLORD AND TENANT
ARISING OUT OF THIS LEASE OR ANY OTHER INSTRUMENT, DOCUMENT, OR AGREEMENT
EXECUTED OR DELIVERED IN CONNECTION HEREWITH OR THE TRANSACTIONS RELATED HERETO.
27. SUBORDINATION. (a) This Lease and Tenant's interest
and rights hereunder are and shall be subject and subordinate at all times to
the lien of any first mortgage, now existing or hereafter created on or against
the Project or the Premises, and all amendments, restatements, renewals,
modifications, consolidations, refinancing, assignments and extensions thereof,
without the necessity of any further instrument or act on the part of Tenant.
Tenant agrees, at the election of the holder of any such mortgage, to attorn to
any such holder. The provisions of this Paragraph 27 shall be self-operative and
no further instrument shall be required to effect such subordination or
attornment; however, Tenant agrees to execute, acknowledge and deliver such
instruments, confirming such subordination and such instruments of attornment as
shall be requested by any such holder within ten (10) days of such request.
Tenant's obligation to furnish each such instrument requested hereunder in the
time period provided is a material inducement for Landlord's execution of this
Lease and any failure of Tenant to timely deliver each instrument shall be
deemed an Event of Default. Tenant hereby appoints Landlord attorney in fact for
Tenant irrevocably (such power of attorney being coupled with an interest) to
execute, acknowledge and deliver any such instrument and instruments for and in
the name of the Tenant and to cause any such instrument to be recorded.
(b) Notwithstanding the foregoing, any such holder may at
any time subordinate its mortgage to this Lease, without Tenant's consent, by
notice in writing to Tenant, and thereupon this Lease shall be deemed prior to
such mortgage without regard to their respective dates of execution, delivery or
recording and in that event such holder shall have the same rights with respect
to this Lease as though this Lease had been executed prior to the execution,
delivery and recording of such mortgage and had been assigned to such holder.
The term "mortgage" whenever used in this Lease shall be deemed to include
deeds of trust, security assignments and any other encumbrances, and any
reference to the "holder" of a mortgage shall be deemed to include the
beneficiary under a deed of trust.
(c) Tenant shall not seek to enforce any remedy it may
have for any default on the part of Landlord without first giving written notice
by certified mail, return receipt requested, specifying
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the default in reasonable detail to any mortgage holder whose address has been
given to Tenant, and affording such mortgage holder a reasonable opportunity to
perform Landlord's obligations hereunder. Notwithstanding any such attornment or
subordination of a mortgage to this Lease, the holder of any mortgage shall not
be liable for any acts of any previous landlord, shall not be obligated to
install any tenant improvements, and shall not be bound by any amendment to
which it did not consent in writing nor any payment of rent made more than one
month in advance.
(d) Following mutual execution of this Lease, Landlord
shall use commercially reasonable efforts to deliver to Tenant a
non-disturbance, subordination, and attornment agreement from any existing
mortgage holder.
28. MECHANIC'S LIENS. Tenant has no express or implied
authority to create or place any lien or encumbrance of any kind upon, or in any
manner to bind the interest of Landlord or Tenant in, the Premises or to charge
the rentals payable hereunder for any claim in favor of any person dealing with
Tenant, including those who may furnish materials or perform labor for any
construction or repairs. Tenant covenants and agrees that it will pay or cause
to be paid all sums legally due and payable by it on account of any labor
performed or materials furnished in connection with any work performed on the
Premises and that it will save and hold Landlord harmless from all loss, cost or
expense based on or arising out of asserted claims or liens against the
leasehold estate or against the interest of Landlord in the Premises or under
this Lease. Tenant shall give Landlord immediate written notice of the placing
of any lien or encumbrance against the Premises and cause such lien or
encumbrance to be discharged within thirty (30) days of the filing or recording
thereof; provided, however, Tenant may contest such liens or encumbrances as
long as such contest prevents foreclosure of the lien or encumbrance and Tenant
causes such lien or encumbrance to be bonded or insured over in a manner
satisfactory to Landlord within such thirty (30) day period.
29. ESTOPPEL CERTIFICATES. Tenant agrees, from time to
time, within ten (10) days after request of Landlord, to execute and deliver to
Landlord, or Landlord's designee, any estoppel certificate requested by
Landlord, stating that this Lease is in full force and effect, the date to which
rent has been paid, that Landlord is not in default hereunder (or specifying in
detail the nature of Landlord's default), the termination date of this Lease and
such other matters pertaining to this Lease as may be requested by Landlord.
Tenant's obligation to furnish each estoppel certificate in a timely fashion is
a material inducement for Landlord's execution of this Lease and any failure of
Tenant to timely deliver each estoppel certificate shall be deemed an Event of
Default. No cure or grace period provided in this Lease shall apply to Tenant's
obligation to timely deliver an estoppel certificate. Tenant hereby irrevocably
appoints Landlord as its attorney in fact to execute on its behalf and in its
name any such estoppel certificate if Tenant fails to execute and deliver the
estoppel certificate within ten (10) days after Landlord's written request
thereof.
30. ENVIRONMENTAL REQUIREMENTS. (a) Except for Hazardous
Material contained in products used by Tenant in de minimis quantities for
ordinary cleaning and office purposes, Tenant shall not permit or cause any
party to bring any Hazardous Material upon the Premises or transport, store,
use, generate, manufacture, dispose, or release any Hazardous Material on or
from the Premises without Landlord's prior written consent. Tenant, at its sole
cost and expense, shall operate its business in the Premises in strict
compliance with all Environmental Requirements and all requirements of this
Lease. Tenant shall complete and certify to disclosure statements as requested
by Landlord from time to time relating to Tenant's transportation, storage, use,
generation, manufacture, or release of Hazardous Materials on the Premises, and
Tenant shall promptly deliver to Landlord a copy of any notice of violation
relating to the Premises or Project of any Environmental Requirement.
(b) The term "Environmental Requirements" means all applicable
present and future statutes, regulations, ordinances, rules, codes, judgments,
permits, authorizations, orders, policies or other similar requirements of any
governmental authority, agency or court regulating or relating to health,
safety, or environmental conditions on, under, or about the Premises or the
environment, including without limitation,
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the following: the Comprehensive Environmental Response, Compensation and
Liability Act; the Resource Conservation and Recovery Act; the Clean Air Act;
the Clean Water Act; the Toxic Substances Control Act and all state and local
counterparts thereto, and any common or civil law obligations including, without
limitation, nuisance or trespass, and any other requirements of Paragraphs 4 and
31 of this Lease. The term "Hazardous Materials" means and includes any
substance, material, waste, pollutant, or contaminant that is or could be
regulated under any Environmental Requirement or that may adversely affect human
health or the environment, including, without limitation, any solid or hazardous
waste, hazardous substance, asbestos, petroleum (including crude oil or any
fraction thereof, natural gas, synthetic gas, polychlorinated biphenyls (PCBs),
and radioactive material). For purposes of Environmental Requirements, to the
extent authorized by law, Tenant is and shall be deemed to be the responsible
party, including without limitation, the "owner" and "operator" of Tenant's
"facility" and the "owner" of all Hazardous Materials brought on the Premises by
Tenant, its agents, employees, contractors or invitees, and the wastes,
by-products, or residues generated, resulting, or produced therefrom.
(c) Tenant, at its sole cost and expense, shall remove all
Hazardous Materials stored, disposed of or otherwise released by Tenant, its
assignees, subtenants, agents, employees, contractors or invitees onto or from
the Premises, in a manner and to a level satisfactory to Landlord in its sole
discretion, but in no event to a level and in a manner less than that which
complies with all Environmental Requirements and does not limit any future uses
of the Premises or require the recording of any deed restriction or notice
regarding the Premises. Tenant shall perform such work at any time during the
period of the Lease upon written request by Landlord or, in the absence of a
specific request by Landlord, before Tenant's right to possession of the
Premises terminates or expires. If Tenant fails to perform such work within the
time period specified by Landlord or before Tenant's right to possession
terminates or expires (whichever is earlier), Landlord may at its discretion,
and without waiving any other remedy available under this Lease or at law or
equity (including without limitation an action to compel Tenant to perform such
work), perform such work at Tenant's cost. Tenant shall pay all costs incurred
by Landlord in performing such work within ten (10) days after Landlord's
request therefor. Such work performed by Landlord is on behalf of Tenant and
Tenant remains the owner, generator, operator, transporter, and/or arranger of
the Hazardous Materials for purposes of Environmental Requirements. Tenant
agrees not to enter into any agreement with any person, including without
limitation any governmental authority, regarding the removal of Hazardous
Materials that have been disposed of or otherwise released onto or from the
Premises without the written approval of the Landlord.
(d) Tenant shall indemnify, defend, and hold Landlord harmless
from and against any and all losses (including, without limitation, diminution
in value of the Premises or the Project and loss of rental income from the
Project), claims, demands, actions, suits, damages (including, without
limitation, punitive damages), expenses (including, without limitation,
remediation, removal, repair, corrective action, or cleanup expenses), and costs
(including, without limitation, actual attorneys' fees, consultant fees or
expert fees and including, without limitation, removal or management of any
asbestos brought into the Premises or disturbed in breach of the requirements of
this Paragraph 30, regardless of whether such removal or management is required
by law) which are brought or recoverable against, or suffered or incurred by
Landlord as a result of any release of Hazardous Materials or any breach of the
requirements under this Paragraph 30 by Tenant, its agents, employees,
contractors, subtenants, assignees or invitees, regardless of whether Tenant had
knowledge of such noncompliance. The obligations of Tenant under this Paragraph
30 shall survive any termination of this Lease.
(e) Landlord shall have access to, and a right to perform
inspections and tests of, the Premises to determine Tenant's compliance with
Environmental Requirements, its obligations under this Paragraph 30, or the
environmental condition of the Premises. Access shall be granted to Landlord
upon Landlord's prior notice to Tenant and at such times so as to minimize, so
far as may be reasonable under the circumstances, any disturbance to Tenant's
operations. Such inspections and tests shall be conducted at Landlord's expense,
unless such inspections or tests reveal that Tenant has not complied with any
Environmental Requirement, in which case Tenant shall reimburse Landlord for the
reasonable cost of such
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inspection and tests. Landlord's receipt of or satisfaction with any
environmental assessment in no way waives any rights that Landlord holds
against Tenant. Tenant shall promptly notify Landlord of any communication or
report that Tenant makes to any governmental authority regarding any possible
violation of Environmental Requirements or release or threat of release of any
Hazardous Materials onto or from the Premises. Tenant shall, within five (5)
days of receipt thereof, provide Landlord with a copy of any documents or
correspondence received from any governmental agency or other party relating to
a possible violation of Environmental Requirements or claim or liability
associated with the release or threat of release of any Hazardous Materials
onto or from the Premises.
(f) In addition to all other rights and remedies
available to Landlord under this Lease or otherwise, Landlord may, in the event
of a breach of the requirements of this Paragraph 30 that is not cured within
thirty (30) days following notice of such breach by Landlord, require Tenant to
provide financial assurance (such as insurance, escrow of funds or third party
guarantee) in an amount and form satisfactory to Landlord. The requirements of
this Paragraph 30 are in addition to and not in lieu of any other provision in
the Lease.
31. RULES AND REGULATIONS. Tenant shall, at all times during the
Lease Term and any extension thereof, comply with all reasonable rules and
regulations at any time or from time to time established by Landlord covering
use of the Premises and the Project. The current rules and regulations are
attached hereto. In the event of any conflict between said rules and
regulations and other provisions of this Lease, the other terms and provisions
of this Lease shall control. Landlord shall not have any liability or
obligation for the breach of any rules or regulations by other tenants in the
Project.
32. SECURITY SERVICE. Tenant acknowledges and agrees that, while
Landlord may (but shall not be obligated to) patrol the Project, Landlord is not
providing any security services with respect to the Premises and that Landlord
shall not be liable to Tenant for, and Tenant waives any claim against Landlord
with respect to, any loss by theft or any other damage suffered or incurred by
Tenant in connection with any unauthorized entry into the Premises or any other
breach of security with respect to the Premises.
33. FORCE MAJEURE. Landlord shall not be held responsible for
delays in the performance of its obligations hereunder when caused by strikes,
lock outs, labor disputes, acts of God, inability to obtain labor or materials
or reasonable substitutes therefor, governmental restrictions, governmental
regulations, governmental controls, delay in issuance of permits, enemy or
hostile governmental action, civil commotion, fire or other casualty, and other
causes beyond the reasonable control of Landlord ("Force Majeure").
34. ENTIRE AGREEMENT. This Lease constitutes the complete and
entire agreement of Landlord and Tenant with respect to the subject matter
hereof. No representations, inducements, promises or agreements, oral or
written, have been made by Landlord or Tenant, or anyone acting on behalf of
Landlord or Tenant, which are not contained herein, and any prior agreements,
promises, negotiations, or representations are superseded by this Lease. This
Lease may not be amended except by an instrument in writing signed by both
parties hereto.
35. SEVERABILITY. If any clause or provision of this Lease is
illegal, invalid or unenforceable under present or future laws, then and in
that event, it is the intention of the parties hereto that the remainder of
this Lease shall not be affected thereby. It is also the intention of the
parties to this Lease that in lieu of each clause or provision of this Lease
that is illegal, invalid or unenforceable, there be added, as a part of this
Lease, a clause or provision as similar in terms to such illegal, invalid or
unenforceable clause or provision as may be possible and be legal, valid and
enforceable.
36. BROKERS. (a) Tenant represents and warrants that it has dealt
with no broker, agent or other person in connection with this transaction and
that no broker, agent or other person brought about this transaction, other
than Advantis GVA, and Tenant agrees to indemnify and hold Landlord
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harmless from and against any claims by any other broker, agent or other person
claiming a commission or other form of compensation by virtue of having dealt
with Tenant with regard to this leasing transaction.
(b) All parties hereto acknowledge that Advantis GVA has
acted on behalf of Tenant and that TC Atlanta, Inc. has acted on behalf of
Landlord. Landlord will pay a commission to Advantis GVA and TC Atlanta, Inc.
pursuant to separate commission agreements.
37. MISCELLANEOUS. (a) Any payments or charges due from Tenant to
Landlord hereunder shall be considered rent for all purposes of this Lease.
(b) If and when included within the term "Tenant" as
used in this instrument, there is more than one person, firm or corporation,
each shall be jointly and severally liable for the obligations of Tenant.
(c) All notices required or permitted to be given under
this Lease shall be in writing and shall be sent by registered or certified
mail, return receipt requested, or by a reputable national overnight courier
service, postage prepaid, or by hand delivery and, if to Tenant, addressed to
Tenant at the address for Tenant noted on the first page of this Lease, and if
to Landlord, addressed to Landlord at c/o Prudential Real Estate Investors, 8
Campus Drive, 4th Floor, Arbor Circle South, Parsippany, New Jersey 07054-4493,
Attention: Xxxxxxx X. Xxxxxxxx, with a copy to c/o Crow Holdings Industrial
Trust, 0000 XxXxxxxx Xxxxxx, Xxxxx 000, Xxxxxx, Xxxxx 00000, Attention: Xxxxx
X. Xxxxxxxxx, with a copy to Xxxxx and Xxxx LLP, 00 Xxxxx Xxxxxxx Xxxxxx, Xxxxx
0000, Xxxxxxx, Xxxxxxx 00000-0000, Attention: Xxxx Xxxxxx/Xxxxx Xxxxxxxxx.
Either party may by notice given aforesaid change its address for all
subsequent notices. Except where otherwise expressly provided to the contrary,
notice shall be deemed given upon delivery.
(d) Except as otherwise expressly provided in this
Lease or as otherwise required by law, Landlord retains the absolute right to
withhold any consent or approval.
(e) At Landlord's request from time to time Tenant shall
furnish Landlord with true and complete copies of its most recent annual and
quarterly financial statements prepared by Tenant or Tenant's accountants and
any other financial information or summaries that Tenant typically provides to
its lenders or shareholders. So long as Tenant is a publicly traded
corporation, Tenant shall only be required to provide to Landlord the same
annual and quarterly financial statements as provided to the public. In the
event Tenant is not a publicly traded corporation, such annual statements shall
be audited by an independent certified public accountant at Tenant's sole cost
and expense. If Tenant is not a publicly traded corporation, Landlord shall
hold such financial statements and information in confidence, and shall not
disclose the same except: (i) to Landlord's lenders or potential lenders, (ii)
to potential purchasers of all or a portion of the Project, (iii) otherwise as
reasonably necessary for the operation of the Project or administration of
Landlord's business or (iv) if disclosure is required by any judicial or
administrative order or ruling.
(f) Neither this Lease nor a memorandum of lease shall
be filed by or on behalf of Tenant in any public record. Landlord may prepare
and file, and upon request by Landlord, Tenant will execute a memorandum of
lease.
(g) Each party acknowledges that it has had the
opportunity to consult counsel with respect to this Lease, and therefore, the
normal rule of construction to the effect that any ambiguities are to be
resolved against the drafting party shall not be employed in the interpretation
of this Lease or any exhibits or amendments hereto.
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(h) The submission by Landlord to Tenant of this Lease
shall have no binding force or effect, shall not constitute an option for the
leasing of the Premises, nor confer any right or impose any obligations upon
either party until execution of this Lease by both parties.
(i) Words of any gender used in this Lease shall be held
and construed to include any other gender, and words in the singular number
shall be held to include the plural, unless the context otherwise requires. The
captions inserted in this Lease are for convenience only and in no way define,
limit or otherwise describe the scope or intent of this Lease, or any provision
hereof, or in any way affect the interpretation of this Lease.
(j) Any amount not paid by Tenant within five (5) days
after its due date in accordance with the terms of this Lease shall bear
interest from such due date until paid in full at the lesser of the highest
rate permitted by applicable law or fifteen percent (15%) per year. It is
expressly the intent of Landlord and Tenant at all times to comply with
applicable law governing the maximum rate or amount of any interest payable on
or in connection with this Lease. If applicable law is ever judicially
interpreted so as to render usurious any interest called for under this Lease,
or contracted for, charged, taken, reserved, or received with respect to this
Lease, then it is Landlord's and Tenant's express intent that all excess
amounts theretofore collected by Landlord be credited on the applicable
obligation (or, if the obligation has been or would thereby be paid in full,
refunded to Tenant), and the provisions of this Lease immediately shall be
deemed reformed and the amounts thereafter collectible hereunder reduced,
without the necessity of the execution of any new document, so as to comply
with the applicable law, but so as to permit the recovery of the fullest amount
otherwise called for hereunder.
(k) Construction and interpretation of this Lease shall
be governed by the laws of the state in which the Project is located, excluding
any principles of conflicts of laws.
(l) Time is of the essence as to the performance of
Tenant's obligations under this Lease.
(m) All exhibits and addenda attached hereto are hereby
incorporated into this Lease and made a part hereof. In the event of any
conflict between such exhibits or addenda (other than the rules and
regulations) and the terms of this Lease, such exhibits or addenda shall
control. In the event of a conflict between the rules and regulations attached
hereto and the terms of this Lease, the terms of this Lease shall control.
(n) if either party should prevail in any litigation
instituted by or against the other related to this Lease, the prevailing party,
as determined by the court, shall receive from the non-prevailing party all
costs and reasonable attorneys' fees (payable at standard hourly rates)
incurred in such litigation, including costs on appeal, as determined by the
court.
38. INTENTIONALLY DELETED.
39. LIMITATION OF LIABILITY OF PRISA, LANDLORD'S PARTNERS, AND
OTHERS. Tenant agrees that any obligation or liability whatsoever of Landlord
which may arise at any time under this Lease, or any obligation or liability
which may be incurred by Landlord pursuant to any other instrument,
transaction, or undertaking contemplated hereby, shall not be personally
binding upon, nor shall resort for the enforcement thereof be had to the
property of, The Prudential Insurance Company of America (one of the limited
partners of PruCrow Industrial Properties, L.P.), or "PRISA," a division within
Prudential, or PRISA's clients, the constituent partners of Landlord, or any of
their respective directors, officers, representatives, employees or agents,
regardless of whether such obligation or liability is in the nature of
contract, tort, or otherwise.
40. INTENTIONALLY DELETED.
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[SIGNATURES ON FOLLOWING PAGE]
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IN WITNESS WHEREOF, Landlord and Tenant have executed this Lease as of
the day and year first above written.
TENANT:
HEALTHTRONICS, INC., a Georgia corporation
By: /s/ Xxx X. Xxxxx
------------------------------------------
Name: Xxx X. Xxxxx
----------------------------------------
Title: Pres.
---------------------------------------
LANDLORD:
PRUCROW INDUSTRIAL PROPERTIES, L.P.,
a Delaware limited partnership
By: PruCrow, L.L.C., its sole general partner
By:
--------------------------------------
Xxxxxxx X. Xxxxxxxx,
Representative of the
Executive Committee
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RULES AND REGULATIONS
In the event of a conflict between the following Rules and Regulations
and the terms of the Lease to which this Addendum is attached, the terms of the
Lease shall control.
1. The sidewalk, entries, and driveways of the Project shall not
be obstructed by Tenant, or its agents, or used by them for any purpose other
than ingress and egress to and from the Premises.
2. Tenant shall not place any objects, including antennas,
outdoor furniture, etc., in the parking areas, landscaped areas or other areas
outside of its Premises, or on the roof of the Project.
3. Except for seeing-eye dogs, no animals shall be allowed in
the offices, halls, or corridors in the Project.
4. Tenant shall not disturb the occupants of the Project or
adjoining buildings by the use of any radio or musical instrument or by the
making of loud or improper noises.
5. If Tenant desires telegraphic, telephonic or other electric
connections in the Premises, Landlord or its agent will direct the electrician
as to where and how the wires may be introduced; and, without such direction,
no boring or cutting of wires will be permitted. Any such installation or
connection shall be made at Tenant's expense.
6. Tenant shall not install or operate any steam or gas engine
or boiler, or other mechanical apparatus in the Premises, except as
specifically approved in the Lease. The use of oil, gas or inflammable liquids
for heating, lighting or any other purpose is expressly prohibited. Explosives
or other articles deemed extra hazardous shall not be brought into the Project.
7. Parking any type of recreational vehicles is specifically
prohibited on or about the Project. Except for the overnight parking of
operative vehicles or as expressly permitted in the Lease, no vehicle of any
type shall be stored in the parking areas at any time. In the event that a
vehicle is disabled, it shall be removed within 48 hours. There shall be no
"For Sale" or other advertising signs on or about any parked vehicle. All
vehicles shall be parked in the designated parking areas in conformity with all
signs and other markings. All parking will be open parking, and no reserved
parking, numbering or lettering of individual spaces will be permitted except
as specified by Landlord.
8. Tenant shall maintain the Premises free from rodents, insects
and other pests.
9. Landlord reserves the right to exclude or expel from the
Project any person who, in the judgment of Landlord, is intoxicated or under
the influence of liquor or drugs or who shall in any manner do any act in
violation of the Rules and Regulations of the project.
10. Tenant shall not cause any unnecessary labor by reason of
Tenant's carelessness or indifference in the preservation of good order and
cleanliness. Landlord shall not be responsible to Tenant for any loss of
property on the Premises, however occurring, or for any damage done to the
effects of Tenant by the janitors or any other employee or person.
11. Tenant shall give Landlord prompt notice of any defects in
the water, lawn sprinkler, sewage, gas pipes, electrical lights and fixtures,
heating apparatus, or any other service equipment affecting the Premises.
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12. Tenant shall not permit storage outside the Premises,
including without limitation, outside storage of trucks and other vehicles, or
dumping of waste or refuse or permit any harmful materials to be placed in any
drainage system or sanitary system in or about the Premises.
13. All moveable trash receptacles provided by the trash disposal
firm for the Premises must be kept in the trash enclosure areas, if any,
provided for that purpose.
14. No auction, public or private, will be permitted on the
Premises or the Project.
15. No awnings shall be placed over the windows in the Premises
except with the prior written consent of Landlord.
16. The Premises shall not be used for lodging, sleeping or
cooking or for any immoral or illegal purposes or for any purpose other than
that specified in the Lease. No gaming devices shall be operated in the
Premises.
17. Tenant shall ascertain from Landlord the maximum amount of
electrical current which can safely be used in the Premises, taking into
account the capacity of the electrical wiring in the Project and the Premises
and the needs of other tenants, and shall not use more than such safe capacity.
Landlord's consent to the installation of electric equipment shall not relieve
Tenant from the obligation not to use more electricity than such safe capacity.
18. Tenant assumes full responsibility for protecting the
Premises from theft, robbery and pilferage.
19. Tenant shall not install or operate on the Premises any
machinery or mechanical devices of a nature not directly related to Tenant's
ordinary use of the Premises and shall keep all such machinery free of
vibration, noise and air waves which may be transmitted beyond the Premises.
20. Tenant shall not introduce, disturb or release asbestos or
PCBs onto or from the Premises.
21. Tenant shall at all times conduct its operations in a good
and workmanlike manner, employing best management practices to minimize the
threat of any violation of Environmental Requirements.
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EXHIBIT A
[FLOOR PLAN]
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EXHIBIT A-1
LEGAL DESCRIPTION OF PROJECT
Approximately 27,475 square feet of a 54,950 square foot masonry and steel
office and warehouse building located in Land Lots 804, 805, 851, 852, 853,
871, 877, and 878 of the 16th District, Marietta, Xxxx County, Georgia, more
commonly known as 0000 Xxxx Xxx Xxxxxxx, Xxxxx X, Xxxxxxxx, Xxxxxxx, 00000.
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EXHIBIT B
INTENTIONALLY DELETED.
28
CONSTRUCTION ADDENDUM
(CONSTRUCTION ALLOWANCE)
ATTACHED TO AND A PART OF LEASE AGREEMENT
DATED JANUARY 27, 2000 BETWEEN
PRUCROW INDUSTRIAL PROPERTIES, L.P. (LANDLORD)
AND
HEALTHTRONICS, INC. (TENANT)
(a) Subject to Landlord's receipt of all necessary
governmental permits, licenses and approvals, Landlord, at Landlord's sole
expense, agrees to furnish or perform those items of construction and those
improvements ("Landlord Improvements") specified below:
- Shell building consisting of concrete slab floor and roof
(b) In addition to the Landlord Improvements, subject to
Landlord's receipt of all required governmental permits, licenses and
approvals, Landlord agrees to furnish or perform or cause to be performed those
items of construction and those improvements set forth in those certain pricing
drawings prepared by Xxxxxxxxx & Associates dated December 23, 1999 attached
hereto as EXHIBIT 1 (the "Tenant Improvements").
(c) Landlord shall pay for the Tenant Improvements up to
a maximum amount of $160,000.00 (the "Construction Allowance"). In the event
the cost of the Tenant Improvements exceeds the Construction Allowance, such
overage shall be borne exclusively by Tenant and Tenant shall, within five (5)
days after written demand therefor, reimburse Landlord for any and all costs
and expenses exceeding the Construction Allowance. Landlord makes no
representation or warranty whatsoever as to the total cost of the Tenant
Improvements and Tenant acknowledges that the cost of the Tenant Improvements
may exceed the Construction Allowance. The cost of the Tenant Improvements
shall include all architectural, space planning and engineering fees, costs of
ADA compliance, any and all licensing or permit fees, and a construction
management fee of five percent (5%) of the total cost of the Tenant
Improvements (excluding the construction management fee). Failure of Tenant to
pay to Landlord any amount in excess of the Construction Allowance when due
shall be deemed an Event of Default under the Lease. NOT WITHSTANDING ANYTHING
TO THE CONTRARY CONTAINED HEREIN, TENANT SHALL NOT BE OBLIGATED TO REIMBURSE
LANDLORD FOR ANY CONSTRUCTION COST THAT EXCEEDS TENANTS APPROVED BID (AS HEREIN
AFTER DESCRIBED) UNLESS SUCH COST ARE REQUIRED BY LOCAL BUILDING CODE OR
TENANTS CHANGE ORDERS.
(d) Landlord shall present to Tenant a bid (the "Bid")
from a qualified contractor acceptable to Landlord for Tenant's review and
approval. Tenant shall have a period of five (5) calendar days in which to
approve or disapprove the Bid. If Tenant does not advise Landlord in writing of
its disapproval of the Bid within such five (5) day period, the same shall be
deemed approved by Tenant in all respects. If Tenant disapproves of the Bid,
Tenant shall, within said five (5) day period, provide to Landlord in writing a
reduced scope of Tenant Improvements to reduce the amount of the Bid. Landlord
shall then obtain a revised bid (the "Revised Bid") based on the reduced scope
of Tenant Improvements and Tenant shall have a period of five (5) calendar days
after receipt in which to approve or disapprove the Revised Bid. If Tenant does
not advise Landlord in writing of its disapproval of the Revised Bid within
such five (5) day period, the same shall be
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deemed approved by Tenant in all respects. if Tenant disapproves of the Revised
Bid, Tenant shall, within said five (5) day period, provide to Landlord in
writing a further reduced scope of Tenant Improvements to reduce the amount of
the Revised Bid. This process shall continue until Tenant approves a Bid or
Revised Bid. Notwithstanding anything to the contrary contained herein, the
time required for Tenant to approve a Bid or Revised Bid shall not serve to
delay the Commencement Date or Tenant's obligations to commence paying rent on
such date, or to extend the term of this Lease.
(e) Landlord shall involve Tenant in the process of
developing final plans and specifications (the "Plans and Specs") for the
Tenant Improvements, such Plans and Specs not to require any construction
beyond the general scope of the Tenant Improvements described herein. Final
Plans and Specs shall be submitted to Tenant for its approval, such approval
not to be unreasonably withheld or delayed. If Tenant does not advise Landlord
in writing of its disapproval of the Plans and Specs, and a detailed
explanation of the reasons therefor, within ten (10) days after Landlord's
delivery of the Plans and Specs, the same shall be deemed approved by Tenant in
all respects. If Tenant shall desire any changes, Tenant shall so advise
Landlord in writing and Landlord shall determine whether such changes can be
made in a reasonable and feasible manner. If Landlord agrees to make such
reasonable changes, Landlord shall revise the Plans and Specs and resubmit the
same to Tenant for its reasonable approval. If Tenant does not advise Landlord
in writing of its disapproval of the revised Plans and Specs, and a detailed
explanation of the reasons therefor, within five (5) days after Landlord's
delivery of the revised Plans and Specs, the same shall be deemed approved by
Tenant in all respects. Any and all costs of reviewing any requested changes,
and any and all costs of making any changes to the Tenant Improvements which
Tenant may request and which Landlord may agree to shall be at Tenant's sole
cost and expense and if Landlord so requests, shall be paid to Landlord upon
demand and before execution of the change order.
(f) Upon receipt of all required permits, approvals and
licenses, Landlord shall proceed with and complete the construction of the
Landlord Improvements and Tenant Improvements. As soon as such improvements have
been substantially completed, Landlord shall notify Tenant in writing of the
date that the Tenant Improvements were Substantially Completed. "Substantial
Completion" or "Substantially Completed" means that in the reasonable opinion of
Landlord's design professional, the improvements to the Premises required to be
made by Landlord pursuant to this Addendum have been completed substantially in
accordance with the Plans and Specs and are in good and satisfactory condition,
subject only to punchlist items that do not prevent Tenant from using the
Premises for its intended use. The date of Substantial Completion, unless an
earlier date is specified as the Commencement Date in this Lease or otherwise
agreed to in writing between Landlord and Tenant, shall be the "Commencement
Date." unless the completion of such improvements was delayed due to Tenant's
acts or omissions, including, without limitation, delays resulting from Tenant's
failure to timely respond to the initial Plans and Specs, failure to timely
respond to revisions to the Plans and Specs, failure to timely respond to the
proposed space plans, failure to timely respond to construction documents,
failure to timely respond to governmental requirement in the permitting process,
changes to the Plans and Specs or such improvements required by Tenant after the
space plan or Plans and Specs have been agreed upon (each being a "Tenant
Delay"), in which case the Commencement Date shall be the date such improvements
would have been completed but for the Tenant Delay. After the Commencement Date,
Tenant shall, upon demand, execute and deliver to Landlord a letter of
acceptance of delivery of the Premises.
(g) The failure of Tenant to take possession of or to
occupy the Premises shall not serve to relieve Tenant of obligations arising on
the Commencement Date or delay the payment of
30
rent by Tenant. Subject to applicable ordinances and building codes governing
Tenant's right to occupy or perform work in the Premises and Landlord's prior
written approval, Landlord may allow Tenant to install its machinery,
equipment, fixtures, or other personal property on the Premises during the
final stages of completion of construction provided that Tenant does not
thereby interfere with the completion of construction or cause any labor
dispute as a result of such installations. In the event of Tenant's entry
and/or work in or about the Premises during the final stages of completion of
construction, Tenant does hereby agree to assume all risk of loss or damage to
its machinery, equipment, fixtures, and other personal property and to
indemnify, defend, and hold Landlord harmless from any loss or damage to such
property, and all liability, loss, or damage arising from any injury to the
Project or the property of Landlord, its contractors, subcontractors, or
materialmen, and any death or personal injury to any person or persons arising
out of Tenant's installations, whether or not any such loss, damage, liability,
death, or personal injury was caused by Landlord's negligence. Delay in putting
Tenant in possession of the Premises shall not serve to extend the term of this
Lease or to make Landlord liable for any damages arising therefrom.
(h) Except for incomplete punch list items, upon the
Commencement Date, Tenant shall have and hold the premises as the same shall
then be without any liability or obligation on the Part of Landlord for making
any further alterations or improvements of any kind in or about the Premises.
31
EXHIBIT 1
[FLOORPLAN]
32
EXHIBIT D
RENEWAL OPTION
(MARKET RATE)
ATTACHED TO AND A PART OF LEASE AGREEMENT
DATED JANUARY 27, 2000 BETWEEN
PRUCROW INDUSTRIAL PROPERTIES, L.P. (LANDLORD)
AND
HEALTHTRONICS, INC. (TENANT)
(a) Provided that as of the time of the giving of the
Renewal Notice and the Commencement Date of the Renewal Term (as those terms
are hereinafter defined), (x) Tenant is the Tenant originally named herein, (y)
Tenant actually occupies all of the Premises initially demised under this Lease
and any space added to the Premises, and (z) no Event of Default exists or
would exist but for the passage of time or the giving of notice, or both, then
Tenant shall have the right to extend the Lease Term for an additional term of
three (3) years (such additional term is hereinafter called the "Renewal Term")
commencing on the day following the expiration of the Lease Term (hereinafter
referred to as the "Commencement Date of the Renewal Term"). Tenant shall give
Landlord written notice (hereinafter called the Renewal Notice") of its
election to extend the term of the Lease Term at least 180 days, but not more
than 270 days, prior to the scheduled expiration date of the Lease Term.
(b) The Base Rent payable by Tenant to Landlord during
the Renewal Term shall be the greater of (i) the Base Rent applicable to the
last year of the initial Lease term and (ii) the then prevailing market rate
for comparable space in the Project and comparable buildings in the vicinity of
the Project, taking into account the size of the Lease, the length of the
renewal term and the credit of Tenant. The Base Rent shall not be reduced by
reason of any costs or expenses not incurred by Landlord by reason of
Landlord's not having to find a new tenant for such premises (including,
without limitation, brokerage commissions, costs of improvements, rent
concessions or lost rental income during any vacancy period). In the event
Landlord and Tenant fail to reach an agreement on such rental rate and execute
the Amendment (defined below) at least 150 days prior to the expiration of the
Lease, then Tenant's exercise of the renewal option shall be deemed withdrawn
and the Lease shall terminate on its original expiration date.
(c) The determination of Base Rent does not reduce the
Tenant's obligation to pay or reimburse Landlord for operating expenses and
other reimbursable items as set forth in the Lease, and Tenant shall reimburse
and pay Landlord as set forth in the Lease with respect to such operating
expenses and other items with respect to the Premises during the Renewal Term.
(d) Except for the Base Rent as determined above,
Tenant's occupancy of the Premises during the Renewal Term shall be on the same
terms and conditions as are in effect immediately prior to the expiration of
the initial Lease Term; provided, however, Tenant shall have no further right
to any allowances, credits or abatements or any options to renew or extend the
Lease.
(e) If Tenant does not give the Renewal Notice within
the period set forth in subparagraph (a) above, Tenant's right to extend the
Lease Term shall automatically terminate. Time is of the essence as to the
giving of the Renewal Notice.
(f) Landlord shall have no obligation to refurbish or
otherwise improve the Premises for the Renewal Term. The Premises shall be
tendered on the Commencement Date of the Renewal Term in "as is" condition.
